Friday, March 1, 2013

Sixth Circuit Says Holiday Display Doesn't Establish Religion or Violate Free Speech

The Sixth Circuit ruled earlier this week in Freedom from Religion Foundation, Inc. v. City of Warren that a city's holiday display didn't violate the Establishment Clause and that its refusal to include the petitioner's message in the display didn't violate free speech.

The City of Warren puts up a holiday display every year between Thanksgiving and New Years in the atrium of its civic center.  The display includes a range of secular and religious symbols, including a lighted tree, reindeer, snowmen, a "Winter Welcome" sign, and a nativity scene.  The Freedom from Religion Foundation wrote a series of letters to the Mayor asking him to remove the nativity scene, but the Mayor refused.  So the Foundation asked the Mayor to include its sign in the display; the sign read:

At this season of THE WINTER SOLSTICE may reason prevail.  There are no gods, no devils, no angels, No heaven or hell.  There is only our natural world, religion is but myth and superstition that hardens hearts and enslaves minds.

The Mayor declined.  He wrote back explaining, in his view, why the sign would "provoke controversy and hostility," why it violates this country's basic religious beliefs ("our country was founded upon basic religious beliefs"), and even why the Foundation's "non-religion is not a recognized religion" under the First Amendment.  The Foundation sued, arguing that the display violated the Establishment Clause and that the Mayor's rejection of its sign violated free speech.  The Sixth Circuit rejected the claims.

The Sixth Circuit ruled that the display didn't violate the Establishment Clause, becuase, under Lynch v. Donnelly (1984) and County of Allegheny v. ACLU (1989), it contained sufficiently diverse religious symbols and sufficient secular items so that it didn't unconstitutionally promote a religion or religion generally.  (The court recognized that the Mayor's letter took some liberties with constitutional law: "the Mayor, apparently untrained as a lawyer, may not have missed his calling."  Still, it read the letter to mean that the Mayor was principally concerned about the controversy and hostility that the sign might provoke, and not preferencing religion.) 

The court ruled that the Mayor's rejection of the sign didn't violate free speech, because, under Pleasant Grove v. Summum (2009), the display was government speech, and the government doesn't have to be viewpoint neutral in its own speech.  The court emphasized that the display was approved and controlled by the government, even if it included some privately-donated items.

SDS

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