August 1, 2012
Sixth Circuit Rules on Median Creche
The Sixth Circuit ruled today in Satawa v. Macomb County Road Commission that the Commission's rejection of a permit for a private display of a creche in the median of a public highway violated free speech and equal protection, but not the Establishment Clause.
The ruling sends the case back to the trial court to proceed on the free speech and equal protection issues. But unless something changes as the case unfolds beyond summary judgment, the ruling also probably means that the creche can stay.
The case arose out of a family's year-after-year display, around Christmas, of a creche in the median of a public road in Macomb County, Michigan. Eventually, the Freedom from Religion Foundation complained, and the Commission asked the family to remove the display. When the family applied for a permit for the display the following year, the Commission declined. The Highway Engineer sent a letter to the family explaining that the denial was based on the County's concern, after consulting an attorney, that the display would violate the Establishment Clause.
The family sued, and the County changed its story. After the case was filed, the Engineer said that the Commission denied the permit for safety reasons. He even said that he consulted with Commission members on the safety questions outside of formal meetings. (The court said that these statements weren't credible, though: the Engineer's precise stated safety reasons changed; and the Engineer's meetings were disputed.) The district court granted summary judgment for the Commission on all of the plaintiffs' claims--free speech, equal protection, and Establishment Clause.
The Sixth Circuit ruled that the permit denial violated free speech and equal protection, but not the Establishment Clause. As to speech, the panel first determined the forum--a public forum. The panel explained:
The Mound Road median is difficult to define because it has objective characteristics typical of both public and non-public fora. Like a public park . . . the median is landscaped and has benches for people to use. It also contains "memorial trees and brass memorial plaques affixed to rocks." These plaques are discernable only from the median--they are too small to be read by a passing motorist. Across Chicago Road, in a similar median, is the gazebo, erected by the City of Warren Historical Society, which contains more space for people to assemble.
On the other hand, the median is in the middle of a busy eight-lane road, with a fifty-mile-per-hour speed limit. There does not appear to be any special parking area for the median, nor are there dedicated public restrooms. However, there is pedestrian access from a sidewalk that crosses the median and connects the two sides of Mount Road.
On balance, we hold that the Mound Road median is a traditional public forum. Residents of Warren apparently use the median for a variety of expressive purposes, such as the display of farm equipment (meant to show the historical nature of the village) and memorial plaques. The median, moreover, invites visitors. It contains park benches and is accessible by sidewalk. . . . A public sidewalk allows access to the median, and public benches populate it.
Op. at 15-16. The court said that the Commission's religious motivation in rejecting the permit triggered strict scrutiny; and the Commission's interest in avoiding an Establishment Clause violation was not compelling. Why? Because granting the permit and allowing the display would not have created an Establishment Clause problem in the first place. ("Where, as here, '[t]he State did not sponsor [the religious] expression, the expression was made on government property that had been opened to the public for speech, and permission was requested through the same application process and on the same terms required of other private groups,' the government would not violate the Establishment Clause by granting the permit." Op. at 22-23 (quoting Capitol Square Review Board v. Pinette)).
As to equal protection, the court ruled that the Commission treated the private, fully protected religious display differently than other displays on the median; that the disparate treatment triggered strict scrutiny (because of the protected religious speech); and that the Commission couldn't meet this standard (for the same reasons it couldn't meet it under free speech analysis).
Finally, as the the Establishment Clause, the court ruled that the Commission denied the permit in order to comply with the Constitution--the very same Establishment Clause that the family claimed it violated. This, the court said, was a secular purpose having nothing to do with animosity toward religion.
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