Christmas display survives another year

Baby Jesus, Joseph and Mary, shepherds, and wise men can keep their place on the courthouse lawn in Brownstown, Ind., after all. In a 2-1 decision on Tuesday, a federal appeals court sided with Jackson County and set aside a trial judge’s April 2020 order barring the county from including religious symbols in its annual Christmas display.

In an opinion for the court, Circuit Judge Amy J. St. Eve, a Trump appointee, wrote the decoration “fits within a long national tradition of using the Nativity scene in broader holiday displays to celebrate the origins of Christmas—a public holiday.”

Rebecca Woodring, an atheist who regularly drove past the display, sued the county to take it down in 2018 because the Nativity, set alongside secular holiday symbols, was “part of the Christmas and the whole, you know, Christianity thing.”

The court rejected a test from the Supreme Court’s 1971 decision in Lemon v. Kurtzman that weighs government actions based on whether the purpose is to promote or endorse religion. In 2019’s American Legion v. American Humanist Association, the Supreme Court declined to use the Lemon test, choosing instead to focus on the historical context of the World War I memorial.

The appeals court ruled the American Legion decision “displaces the purpose and endorsement tests” when considering the constitutionality of Nativity scenes on government property.

Liberty Counsel’s Mat Staver, who represents Jackson County, noted the decision was the first to decisively reject the Lemon test in the context of Nativity displays. By openly disavowing two of its own prior case precedents, the court indicated it was breaking with past approaches, Staver said: “We have been trying to chip away at the Lemon test for a long time to come back to something that is more objective, more consistent with the Constitution.”

Courts have generally been less receptive to challenges to governmental use of historic religious symbols since the American Legion decision. In August 2019 a federal appeals court ruled in favor of a Pennsylvania county seal that included a Latin cross. And in February 2020 another federal appeals court let stand a Florida city’s wooden cross.