File Name: 13a0049p.06 UNITED STATES COURT OF APPEALS

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0049p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

FREEDOM FROM RELIGION FOUNDATION, INC. and DOUGLAS J. MARSHALL,

Plaintiffs-Appellants,

X -

v.

-,>

-

CITY OF WARREN, MICHIGAN; CITY OF WARREN DOWNTOWN DEVELOPMENT

-

AUTHORITY; and JAMES R. FOUTS, Mayor of -

Warren, Michigan,

-

Defendants-Appellees.

N

No. 12-1858

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:11-cv-15617--Lawrence P. Zatkoff, District Judge.

Argued: January 25, 2013

Decided and Filed: February 25, 2013

Before: SILER, SUTTON and McKEAGUE, Circuit Judges.

_________________

COUNSEL

ARGUED: Danielle J. Hessell, BUTZEL LONG, Bloomfield Hills, Michigan, for Appellants. Raechel M. Badalamenti, KIRK, HUTH, LANGE & BADALAMENTI, PLC, Clinton Township, Michigan, for Appellees. ON BRIEF: Danielle J. Hessell, Jennifer A. Dukarski, BUTZEL LONG, Bloomfield Hills, Michigan, for Appellants. Raechel M. Badalamenti, KIRK, HUTH, LANGE & BADALAMENTI, PLC, Clinton Township, Michigan, for Appellees. Daniel S. Korobkin, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, Ayesha N. Khan, Gregory M. Lipper, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, Washington, D.C., Shelli L. Calland, COVINGTON & BURLING LLP, Washington, D.C., Stephen W. Fitschen, THE NATIONAL LEGAL FOUNDATION, Virginia Beach, Virginia, John P. Tuskey, BINGHAM AND LOUGHLIN, P.C., Mishawaka, Indiana, for Amici Curiae.

1

No. 12-1858 Freedom from Religion Found., et al. v. City of Warren, et al. Page 2

_________________

OPINION _________________

SUTTON, Circuit Judge. For many years, the City of Warren, Michigan, has put up a holiday display in the atrium of its civic center between Thanksgiving and New Year's. The display includes a range of secular and religious symbols--a lighted tree, reindeer, snowmen, a "Winter Welcome" sign and a nativity scene among them.

In 2010, the Freedom from Religion Foundation wrote a series of letters to the Mayor of Warren asking him to remove the nativity scene. The City refused. In 2011, the Foundation took a different tack. Instead of asking the City to remove the nativity scene, it asked the City to add a sign with these words:

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.

Placed by the Freedom From Religion Foundation On Behalf of its State Members

State/Church KEEP THEM SEPARATE Freedom From Religion Foundation



R. 1-6. The City refused. In response, the Foundation and one of its members filed this lawsuit based mainly on the freedom-from-establishment and free-speech guarantees of the First and Fourteenth Amendments.

No. 12-1858 Freedom from Religion Found., et al. v. City of Warren, et al. Page 3

The district court rejected these claims, and so do we. The nativity scene, when accompanied by this collection of secular and seasonal symbols, does not amount to an establishment of religion or for that matter an impermissible endorsement of it. See Cnty. of Allegheny v. ACLU, 492 U.S. 573, 613?21 (1989); Lynch v. Donnelly, 465 U.S. 668, 683 (1984). Because the display amounts to government speech and because the First Amendment does not prohibit a government from making content or viewpoint distinctions when it comes to its own speech, the City did not violate the Foundation's free-speech rights by refusing to add the Foundation's sign. For these reasons and those elaborated below, we affirm.

I.

Shortly after Thanksgiving each year, the City of Warren puts up a holiday display in the atrium of the Warren Civic Center, the City's primary municipal building. The display includes a lighted tree, ribbons, ornaments, reindeer, wreaths, snowmen, a mailbox for Santa, elves, wrapped gift boxes, nutcrackers, poinsettias, candy canes, a "Winter Welcome" sign and a nativity scene.

In January 2010, the Freedom from Religion Foundation and one of its members, Douglas Marshall, sent a letter to Mayor James Fouts, asking Warren to remove the creche from future holiday displays. Two months later, the Foundation sent another letter to Mayor Fouts reiterating its concerns. Mayor Fouts did not respond to the letters.

Undeterred, the Foundation sent a third letter asking the City not to include a nativity scene in the upcoming 2010 holiday display. Mayor Fouts answered on December 8, explaining that the nativity scene would remain and that it did not violate the Constitution.

The following year, the Foundation tried something new. It asked Mayor Fouts to include the Foundation's own sign in the display. The Foundation described the sign as "an attractive sandwich board," which would contain the message quoted above. R. 1-6. The Foundation threatened to sue if the Winter Solstice sign was not added to the holiday display. Mayor Fouts responded as follows:

No. 12-1858 Freedom from Religion Found., et al. v. City of Warren, et al. Page 4

I have received a letter (December 9, 2011) from Mr. Douglas J. Marshall, a member of your organization, for permission to display a sign in the City Hall atrium near the Nativity Scene.

I have reviewed the proposed 2-sided "sandwich board" sign. The language on the proposed sign is clearly anti-religion and meant to counter the religious tone of the Nativity Scene, which could lead to confrontations and a disruption of city hall.

This proposed sign is antagonistic toward all religions and would serve no purpose during this holiday season except to provoke controversy and hostility among visitors and employees at city hall.

Your phrase that "Religion is but myth and superstition that hardens hearts and enslaves minds," is highly offensive and is not a provable statement. Likewise, your statement that there are "no gods" and "no angels" is also not provable.

If you requested permission to put up a sandwich board saying that there is no Santa Claus, you would be met with the same response. Santa Claus lives in the minds and hearts of many millions of children. The belief of God and religion lives in the hearts and minds of hundreds of millions of people and is as much a part of the fabric of America, as the belief in democracy and freedom.

Indeed, our country was founded upon basic religious beliefs. The President takes the oath of office on the Holy Bible. The U.S. Congress has a house chapl[a]in. Both major political party leaders invoke God in their speeches and pronouncements. Our coins have "In God We Trust." We have a whole host of other religious traditions in government situations at all levels.

Everyone has a right to believe or not believe in a particular belief system, but no organization has the right to disparage the beliefs of many Warren and U.S. citizens because of their beliefs.

Thus, I cannot and will not sanction the desecration of religion in the Warren City Hall atrium.

As I would not allow displays disparaging any one religion, so I will not allow anyone or any organization to attack religion in general. Your proposed sign cannot be excused as a freedom of religion statement because, to my way of thinking, this right does not mean the right to attack religion or any religion with mean-spirited signs. The proposed sign would only result in more signs and chaos.

When I allowed a display in city hall celebrating Ramadan, the Moslem holy season, I received many calls objecting but I would never have

No. 12-1858 Freedom from Religion Found., et al. v. City of Warren, et al. Page 5

allowed a sign next to the Ramadan display mocking or ridiculing the Moslem religion. In my opinion, Freedom of Religion does not mean "Freedom Against or From Religion." And Freedom of Speech is not the right to yell "Fire!" in a crowded theatre. Indeed, there are common sense restraints on all constitutional rights. Your non-religion is not a recognized religion. Please don't hide behind the cloak of non-religion as an excuse to abuse other recognized religions. You can't make a negative into a positive. Clearly, your proposed display in effect would create considerable ill will among many people of all recognized faiths. During this holiday season, why don't we try to accomplish the old adage of "Good will toward all"?

R. 1-9.

The Foundation and Marshall sued. Named in the complaint were the City of Warren, Mayor Fouts and the Downtown Development Authority. The complaint alleged that the inclusion of a nativity scene in the holiday display together with the exclusion of the Foundation's sign violated the Establishment, Free Speech and Equal Protection Clauses of the Federal Constitution. On summary judgment, the district court rejected the claims as a matter of law.

II.

The First Amendment says that "Congress shall make no law respecting an establishment of religion." U.S. Const. amend. I. As made applicable to the States through the Fourteenth Amendment, the Clause prohibits government from favoring one religion over another or from favoring religion over irreligion (or irreligion over religion). The courts have identified two (relatively) safe harbors: (1) a government may provide benefits to faith-based entities if the benefits are available to secular and religious entities alike; and (2) a government may invoke the divine through words and symbols if they have religious and historical meanings or faith-based and solemnizing effects, and in the process offer at most incidental benefits to any one faith or to faith in general. As a matter of doctrine, purpose-based, effects-based and endorsement-based

 ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download