A Nativity scene in front of the historic courthouse in Brownstown, Ind., does not violate the establishment clause of the First Amendment, a divided federal appeals court has ruled.
The majority of the 7th U.S. Circuit Court of Appeals panel said the U.S. Supreme Court’s recent decision in American Legion v. American Humanist Association (2019) compelled a focus on the importance of history and tradition regarding holiday displays, resulting in a finding that the display was constitutional.
Each year from Thanksgiving to New Year’s Day, a Christmas display goes up on the front lawn near the historic courthouse, which now houses various county officials and the public defender’s office. The display includes Santa Claus, reindeer, carolers, and a Nativity scene.
Rebecca Woodring, a resident of nearby Seymour, challenged the constitutionality of the display in December 2018. An atheist, Woodring believes that the government should not promote Christianity. A federal district court ruled that the Nativity scene on government property violated the establishment clause, because it conveys a message of government endorsement, or establishment, of religion.
On appeal, a divided three-judge panel of the 7th Circuit Court reversed in its Feb. 2, 2021, decision in Woodring v. Jackson County. Writing for the majority, Judge Amy J. St. Eve noted that the Supreme Court has developed several tests for establishment-clause cases, including the Lemon test from Lemon v. Kurtzman (1971); the endorsement test from Justice Sandra Day O’Connor’s concurring opinion in Lynch v. Donnelly (1984); the coercion test, which the Court has applied in school-prayer cases; and a historical/traditional test.
“Clearly no single test governs all Establishment Clause challenges,” St. Eve wrote. She noted that the Supreme Court applied a historical analysis in Lynch v. Donnelly to uphold a Nativity scene surrounded by secular objects, and, in contrast, the endorsement test in County of Allegheny v. ACLU Greater Pittsburgh Chapter (1989) to decide that a Nativity scene in a county courthouse was unconstitutional.
However, she determined that the high court’s decision in American Legion – upholding the display of a 33-foot-high Latin cross – emphasized the importance of history and tradition. She wrote that there is a history and tradition of Christmas displays featuring both secular and religious items.
“We hold today that American Legion displaces the purpose and endorsement tests in the context of Establishment Clause challenges to nativity scenes in passive Christmas displays on government property,” St. Eve wrote, concluding that “Jackson County’s nativity scene as displayed in 2019 does not violate the Establishment Clause.” St. Eve said Woodring saw no significant differences between the 2019 display and the one she sued over in 2018.
Judge David Hamilton dissented, finding that “the religious content dominates the county’s Christmas display here.” He also criticized the majority for reading too much into the Supreme Court’s decision in American Legion.
David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of Let The Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and of First Amendment: Freedom of Speech (2012). Hudson is also the author of a 12-part lecture series, Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).