Liberty Counsel filed its reply brief to the Seventh Circuit Court of Appeals refuting the opinion by an Indiana federal judge who ruled against the Nativity scene display at the Jackson County Courthouse. Liberty Counsel represents Jackson County and oral argument is scheduled for November 12.
In addition to the Nativity scene, the annual holiday display also includes a large lighted Santa Claus, sleigh with reindeer, and a group of Christmas carolers. The courthouse grounds are also decorated with many kinds of lights and other non-religious symbols of the holiday season.
Judge Tanya Pratt previously ruled in favor of a plaintiff who does not live or work in the county and does not transact any business in the Jackson County Courthouse. This building no longer hosts court proceedings as they are now conducted in the new courthouse.
First, the judge wrongly found that the plaintiff had standing to sue, despite the fact she does not live in the county, transact business at the old County Courthouse, and did not alter her behavior whatsoever. Yet amazingly, the judge quotes her statement in which she states she did not know when she last drove by the area. And, even if she went out of her way to drive by the building (which she does not use for anything), the opinion presents NO evidence she drives by when the display is erected after Thanksgiving until the first of the year.
Second, regarding the Establishment Clause claim, the court barely mentions the U.S. Supreme Court’s opinion in American Legion, which upheld the Peace Cross in Maryland. Instead of using Supreme Court precedent, the opinion discusses several conflicting opinions, that used three different tests, of the Court of Appeals. The opinion states the display passes some of the conflicting tests and fails others.
The flawed reasoning on both the issue of standing and the Establish Clause sets up the case for an appeal that could go all the way to the Supreme Court.
The U.S. Supreme Court and numerous federal appeals courts have recognized that government entities may recognize Christmas as a holiday and may maintain Christmas displays that include both religious and secular symbols.
In Lynch v. Donnelly, 465 U.S. 668 (1984), the United States Supreme Court held that such a Nativity scene was permissible to display on public property, stating:
To forbid the use of this one passive symbol—the crèche—at the very time people are taking note of the season with Christmas hymns and carols in public schools and other public places, and while the Congress and Legislatures open sessions with prayers by paid chaplains would be a stilted over-reaction contrary to our history and to our holdings. If the presence of the crèche in this display violates the Establishment Clause, a host of other forms of taking official note of Christmas, and of our religious heritage, are equally offensive to the Constitution” (emphasis added).
Liberty Counsel’s Founder and Chairman Mat Staver said, “We look forward to the Court of Appeals recognizing that Jackson County’s holiday display does not violate the First Amendment. The Supreme Court and many federal courts have ruled such displays are constitutional, especially when the display includes other secular symbols of the holiday, and this display in Jackson County is no exception. This Court has never recognized this type of manufactured ‘offended’ observer standing and this challenge fails for both lack of standing and lack of merit.”