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It's Almost Christmas, so a Ban Against a Public Nativity Display Is Back in the Courts, Naturally


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Is it the most wonderful time of the year or the most litigious time of the year? Either way, it's almost Christmas, so it's a fitting moment for the anti-Nativity grinches to fight their case in court once again.

Arguments in a case involving a long-standing public nativity display on the courthouse lawn in Jackson County, Indiana were heard Thursday in the US Court of Appeals for the Seventh Circuit.

First Liberty Institute, a nonprofit religious liberty law firm, filed a friend-of-the-court brief to the Chicago, Illinois-based court after a federal district judge ruled in May that the nativity display on public property was unconstitutional. 

In its latest brief, First Liberty argued that the Seventh Circuit should allow the display based on last year's US Supreme Court decision in The American Legion v. American Humanist Association.  

"Just last year, the Supreme Court explained that public religious displays that are part of the nation's history and tradition are presumptively constitutional," said Lea Patterson, counsel at First Liberty Institute.  "Whether war memorials, holiday decorations, flags, or government seals, passive public displays with religious content are commonplace, appropriately recognizing the role faith plays in the lives of many citizens.  We are hopeful that the Seventh Circuit will follow the Supreme Court's precedent in American Legion and restore Jackson County's traditional nativity display."  

In 2003, the Brownstown Ministerial Association purchased a lighted Nativity scene, and Jackson County approved its placement on the Courthouse lawn during the Christmas season. In addition to the Nativity, the display also included lighted figures of Santa Claus, a sleigh, and a reindeer.  

The legal battle over the Nativity scene in Brownstown began in 2018 when the Wisconsin-based Freedom From Religion Foundation told Jackson County commissioners it had received a complaint from a concerned local resident.  Later, atheist Rebecca Woodring of Seymour filed suit seeking the Nativity scene's removal. 

In an opinion issued earlier this year, Judge Tanya Walton Pratt of the US District Court for the Southern District of Indiana ruled that the display violated the Establishment Clause under the so-called "Lemon Test." However, since the Supreme Court's 2019 decision in The American Legion v. American Humanist Association, three other US Courts of Appeal have applied American Legion to reject the "Lemon Test" in this kind of case.  

First Liberty Institute represented The American Legion in The American Legion v. American Humanist Association.

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