First Battle of the 2009 Christmas Season over Nativity Displays

For 63 years, a privately maintained nativity scene has been displayed during the Christmas season on a public median in Warren, Michigan.  That 63 year-old tradition was abruptly ended by the Macomb County Road Commission, which controls private displays on public medians in the county, after it received a threatening letter from the Freedom From Religion Foundation, an atheist organization that has as its aim the removal of all religious symbols from the public square.  Rather than stand up to the atheists, the Road Commission ordered the removal of the private nativity scene, in violation of the Constitution.

Last Friday, the Thomas More Law Center, a national public interest law firm based in Ann Arbor, Michigan, filed a federal lawsuit on behalf of Warren city resident John Satawa against the Road Commission for its discriminatory decision to ban the private display.  The purpose of the lawsuit is to obtain a declaratory judgment that the Road Commission’s actions were unconstitutional and to obtain a court order permitting the nativity display.  The case has been assigned to U.S. District Court Judge Gerald Rosen, Chief Judge of the Eastern District of Michigan. [link to lawsuit]

Richard Thompson, President and Chief Counsel of the Law Center, commented, “Every Christmas holiday, militant atheists, acting like the Taliban, use the phrase  ‘separation of church and state, ’ — nowhere found in our constitution — as a means of intimidating municipalities and schools into removing expressions celebrating Christmas, a National Holiday.  Their goal is to cleanse our public square of all Christian symbols.  However, the grand purpose of our Founding Fathers and the First Amendment was to protect religion, not eliminate it.  Municipalities and schools should be aware that the systematic exclusion of Christmas symbols during the holiday season is itself inconsistent with the Constitution.”

In 1945, St. Anne’s Parish was established in the Village of Warren.  During its first year of existence, a set of Christmas statues depicting the nativity scene was donated to the Catholic church.  The statues were too large to display on the inside of the church, so some members of the congregation thought it would be a good idea to display the statues and a manger in the center of the village during the Christmas holiday season.  The President of the Village at the time granted permission to display the nativity scene on the median between Mound and Chicago Roads in Warren.  As a result, a Christmas tradition was born.

Since 1945, a Christmas nativity display has been erected at this location in Warren by John Satawa and members of his family.  Satawa took over the responsibility of erecting the nativity display after his father, Mr. Joseph Satawa, passed away in 1965.  Over the years, members of the community, private businesses and organizations, including a Boy Scout Troop from St. Anne’s Parish, have assisted in keeping the Christmas tradition alive — a tradition that militant atheists abhor.

The Freedom From Religion’s threatening letter claimed the presence of the nativity display on the public median violated the “constitutional principle of separation of church and state.” [link to letter]

In December 2008, after receiving the threatening letter, the Road Commission demanded Satawa “immediately remove” his nativity display because he had not obtained the appropriate permit to display it on the public median.  The Road Commission has a permit application process whereby private citizens and organizations can request permission to display structures on public rights-of-way, such as medians.  In fact, the median in question has several structures that were erected by a private organization, including old farming equipment and wagons, to maintain the “village” nature of the city.  Consequently, Satawa acquired a permit application from the Road Commission and promptly submitted it so as to obtain a permit to display his nativity scene during the upcoming 2009 Christmas holiday season.  Unfortunately, the Road Commission denied the permit, erroneously claiming it must do so because the private nativity scene “clearly displays a religious message” in violation of the “separation of church and state.”

Robert Muise, the Law Center attorney handling the matter, commented, “The United States Supreme Court has long held that all public streets, which includes public medians, are held in the public trust and are properly considered traditional public forums for private speech.  Moreover, the Supreme Court has also stated that ‘private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression.’ Consequently, by restricting speech because it is religious expression, the Road Commission is imposing a content-based restriction on private speech in a traditional public forum in clear violation of the Constitution.”

The lawsuit alleges that the Road Commission’s content-based restriction on Satawa’s private religious expression violates the Free Speech Clause of the First Amendment and the equal protection guarantee of the Fourteenth Amendment.  The lawsuit also alleges that the Road Commissions’ policy decision violates the Establishment Clause by disfavoring religion.

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