Court sides with Warren in nativity battle

By: Brian Louwers | Warren Weekly | Published June 8, 2012

 Warren Mayor Jim Fouts vowed to continue displaying a nativity scene in the City Hall atrium following a recent federal court ruling.

Warren Mayor Jim Fouts vowed to continue displaying a nativity scene in the City Hall atrium following a recent federal court ruling.

File photo by Brian C. Louwers

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WARREN — A federal judge has taken the city’s side in a battle over Mayor Jim Fouts’ decisions to display a nativity scene at Christmastime and not to allow an adjacent sign trumpeting the winter solstice and an atheist message.

In a 31-page ruling entered into the record at U.S. District Court in Port Huron May 31, Judge Lawrence P. Zatkoff granted the city of Warren’s motion to dismiss the case filed against them by Warren resident Douglas Marshall and the Wisconsin-based Freedom From Religion Foundation.

The lawsuit, filed in late December, claimed Fouts’ denial of a permit for the winter solstice sign, brought to City Hall by Marshall last year, was “an unconstitutional, content-based restriction on (Marshall’s) expression in a traditional public forum.”

The lawsuit also alleged the mayor’s denial of Marshall’s request to place the sign in the City Hall atrium next to the nativity scene depicting the birth of Jesus Christ violated the establishment clause of the First Amendment to the U.S. Constitution because it endorsed religious expression — in this case, the nativity scene and a “prayer station,” also hosted at City Hall — while it seemingly forbade “expressions of a non-religious, or irreligious, nature.”

Fouts had called the sandwich-board solstice sign offensive because it didn’t advocate “freedom of religion,” but “the desecration and destruction of religion.”

But the judge ruled the city’s holiday display constituted “a limited public forum” open to certain speakers or subjects” and not a traditional public forum as the lawsuit alleged.

“Additionally, a speaker may be properly excluded from a limited public forum because he wishes to address a topic not encompassed within the purpose of the forum. Avoidance of controversy is another reasonable basis for excluding a speaker from a limited public forum,” the judge ruled in the written opinion and order.

The judge also said the city had a right to disallow the sign to avoid complications and interference arising from its presence. He added, “The purpose of the holiday display is to celebrate the holiday season, not to act as a catalyst for religious debate.”

The court case is the latest in a series of battles over local nativity displays that have been publicly waged with the Freedom From Religion Foundation since 2009.

Fouts called the judge’s ruling “a monumental victory for freedom of religion.”

“To say I am pleased with the U.S. District Court’s decision is an understatement,” Fouts said in prepared remarks. “The bottom line is the nativity scene will continue to be displayed at City Hall during the holiday season and the anti-religion sign will not be displayed.”

The solstice sign, brought to City Hall last December, carried the following message:

“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.”

Reached for comment on the judge’s ruling, Freedom From Religion Foundation co-President Dan Barker said the group would weigh its options to potentially appeal the case.

“They should celebrate while they can. It looks like a pretty blatant case of the city controlling speech,” Barker said. “This is a bad decision. It’s bad for America for a government to take sides on religious issues.”

Barker said battles over nativity displays come up a lot across the country. He said hundreds of issues had been raised since the beginning of this year alone, and the group is currently involved with lawsuits in 10 different courts over various related matters.

“This is not going away,” Barker added. “Some religious believers insist that our public government should be used as a billboard for their private religious views, and that’s wrong. They have free speech, but the government doesn’t have free speech.”

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