Thursday, November 12, 2015

Federal judge rules against Baxter County on Nativity scene lawsuit

Posted By on Thu, Nov 12, 2015 at 12:30 PM

LAWSUIT WINNER: Dessa Blackthorn prevailed in challenge of exclusivity for Nativity scene on county property. - KEVIN PIEPER/THE BAXTER BULLETIN
  • Kevin Pieper/The Baxter Bulletin
  • LAWSUIT WINNER: Dessa Blackthorn prevailed in challenge of exclusivity for Nativity scene on county property.
The Baxter Bulletin reports that federal Judge Timothy Brooks has ruled in favor of plaintiffs in lawsuit challenging Baxter County Judge Mickey Pendergrass' decision to allow only a Christian Nativity scene to be displayed during the holiday on the Baxter County Courthouse lawn.

The judge held the display unconstitutional because it was clearly motivated by religion.

The judge said the county must either open the courthouse lawn to different viewpoints or have no religious displays at all. He also said the winners were entitled to attorney fees.

The Nativity scene figures have long been provided by Mountain Home lawyer Rick Spencer. Dessa Blackthorn and the American Humanist Association sued after Pendergrass refused to allow the hanging of a banner noting the observance of the winter solstice.

The county had tried to find some ways around this ruling, such as by leasing a patch of the courthouse lawn. It also posted a disclaimer and included some non-religious symbols.

But precedents in this sort of case have been clear. Federal Judge Susan Webber Wright ruled similarly when humanists challenged the Nativity-only policy at the state Capitol. A solstice display is now part of the annual decorations there.

Here's the judge's opinion.
The case was decided without trial on undisputed facts and legal arguments.

The county argued that Blackthorn lack standing because she must not be offended by the display, having called herself a "Christian sympathizer." She is a Unitarian-Universalist. Brooks commented:

However, this argument misapprehends the nature of Ms. Blackthorn's grievance. Ms. Blackthorn, a Unitarian Universalist, makes it quite clear in her deposition that what she finds unwelcome is not Christianity itself, but rather her perception that her government has established Christianity as its preferred religion by displaying the nativity scene without also displaying holiday celebrations that are predominantly secular or representative of other faiths. Since Ms. Blackthorn's deposition leaves no doubt that she has come into direct and unwelcome personal contact with the display in question, Defendants' argument that Plaintiffs cannot show injury for purposes of standing fails . 

The county also attempted to claim there was no issue because no exhibit was currently on display. Said Brooks: "Given the annually recurring and short, seasonal nature of the challenged conduct here, stretching back for forty years, this case is a textbook example of the capable-of-repetition-yet-evading-review exception to the mootness doctrine." Otherwise, the county could just put the Nativity scene up as soon as Brooks dismissed the case. 

The judge said it was undisputed that the county had played a pivotal role in clearing the way for placement of the Nativity scene every year, whatever participation may have come from Rick Spencer and the Chamber of Commerce. He wrote:

...  the display of the creche on the courthouse property is not only "entwined with [Baxter County] governmental policies" but enthusiastically so entwined. Defendants' argument that there is no state action fails. 

The key issue was whether the display violated the constitution's establishment clause. Here, the judge said he followed precedent asking:

... whether there is any material factual dispute as to whether Defendants' primary or preeminent purpose in erecting the instant creche was a religious or secular one.

Fortunately, no mind-reading is required for this inquiry; rather, the inference as to whether a government action has a "predominantly religious purpose" can be made as a matter of "commonsense" from "openly available data." Under this analysis, "although a [state actor]'s stated reasons will generally get deference, the secular purpose required has to be genuine, not a sham , and not merely secondary to a religious objective." 
The record leaves no room for doubt that, as the owner of the creche stated during his deposition, "[o]bviously the purpose of it was to celebrate Christmas."

The record also leaves no room for doubt that the purpose of this celebration was predominantly religious in nature. There is no dispute that in December 2013, Judge Pendergrass denied at least two separate requests to install a banner near the creche stating "Happy Solstice."  Furthermore, there is no dispute that in November
2014, roughly one month after receiving from one of the plaintiffs in this case a threat of litigation over the creche, Baxter County leased a corner of the courthouse lawn to the Chamber of Commerce for the amount of $1.00 for the "stated purpose of erecting a nativity scene display." Finally, there is also no dispute that the Chamber of Commerce's president "understand[s] the display to be fundamentally religious in nature," and that he agreed on behalf of the Chamber of Commerce to enter into the lease at the request of Judge Pendergrass.

These undisputed facts speak for themselves, and-even when viewing them in the light most favorable to Defendants-there simply is no reasonable inference to be drawn from them other than that in 2014, if not earlier, the County's purpose in erecting the creche was a predominantly religious one.

The judge decided not to hold Pendergrass personally liable. He awarded nominal damages of $1. But he provided injunctive relief. He commented in doing so: "The public obviously has an enormous interest in seeing its government comply with the First Amendment. "

The specific injunction:

IT IS FURTHER ORDERED that Defendants Baxter County, Arkansas, and Baxter County Judge Mickey Pendergrass must either (1) refrain from placing any religiously  sectarian seasonal display on the courthouse grounds, or (2) create a public forum on the  courthouse grounds for a seasonal display open to persons of all faiths as well as of no  faith at all, without discrimination on the basis of viewpoint.

I've sought comment from Pendergrass on plans to appeal or comply or seek other means to avoid compliance.

The winning attorneys have 14 days to file a petition for fees. Gerry Schulze, the Little Rock attorney who joined the humanists' lawyer on the case, was working on a fee petition when I called. It's worth noting that a significant sum was paid to the private attorney defending the county in the lawsuit on behalf of its insurer.

UPDATE: I received this e-mail from Pendergrass:

 I am in Springfield, MO with my mother today for her surgery, and have not yet seen the ruling. I am aware of it and will not comment further until I have been able to study the ruling and consult with our attorneys.

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