Federal appeals court: Town’s holiday display doesn’t violate Constitution

Wednesday, August 18, 1999

A Missouri town will get another chance to preserve its tradition of a yearly Nativity display on public property. Although a federal judge had ordered the town to end the practice, a federal appeals court panel has invalidated that ruling.

Last fall U.S. District Judge Catherine Perry ordered city officials in Florissant, a suburb of St. Louis, to stop including a crèche in a Christmas display at the town's civic center. Perry said the crèche's placement before the main entrance of the civic center “impermissibly sent a message to the reasonable observer that the Christian religion was relevant to the City of Florissant and thus to the individual's standing in the political community.” That religious message violated the establishment clause of the First Amendment and the Missouri Constitution, Perry said.

On Aug. 16, a three-judge panel of the 8th U.S. Circuit Court of Appeals overturned Perry's ruling regarding the First Amendment. It sent the case back to Perry to re-consider whether the city's holiday display would violate the Missouri Constitution, which in part states that “no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.”

In a seven-page opinion, the appeals court panel ruled in ACLU v. Florissant that the government-sponsored holiday display included an array of secular as well as religious images, was located at the civic center, not a seat of government, and therefore could not be seen as an official endorsement of Christianity.

Citing the U.S. Supreme Court's 1989 decision in Allegheny v. ACLU, the panel ruled that a “setting that negates the endorsement effect includes things such as the location and surrounding objects.” In Allegheny, the high court considered two holiday displays on government property in Pittsburgh. One of the displays was found unconstitutional because it included a Nativity scene and was located in a prominent place in the county courthouse. The second display included a menorah but was surrounded by secular symbols and was located outside a city-county building that was not the seat of government; it was found constitutional by the high court.

After the American Civil Liberties Union of Eastern Missouri complained of Florissant's placement on public property of a crèche depicting the Christian messiah's birth, city officials quickly made additions to the display. The appeals court panel noted that the additions, such as cardboard candy canes, lollipops, reindeer and a Santa Claus, all helped to dilute the Christian message.

“We view the Florissant holiday display as no greater an endorsement of religion than the menorah display in Allegheny, and therefore find no violation of the Establishment Clause,” Chief Judge Beam wrote for the panel. “Governmental action that touches upon religion is permissible under the Establishment Clause of the First Amendment if it has 'a secular purpose,' does not 'have the primary or principal effect of advancing religion,' and does not 'foster an excessive entanglement with religion.' “

The only issue the appeals court panel did not decide was whether the Florissant-sponsored display subverted the Missouri Constitution. Although the panel wrote that it was “inclined to disagree” with Perry's ruling that the display also violated the Missouri Constitution, it remanded the case for further consideration by the district court.

Deborah Jacobs, executive director of the ACLU of Eastern Missouri, said that her group would ask the entire 8th Circuit to reconsider and overturn the panel's decision.

“The panel's decision was so superficial and so poor that I cannot imagine that the rest of the 8th Circuit judges would not want the opportunity to redeem its body and to address this issue in a thorough way,” said Jacobs, who is set to become the executive director of the New Jersey ACLU in September. “We think the federal and state constitutions are clear and support the ideas that when you put a religious symbol on your front lawn it represents your religious beliefs and when the government, which represents all of us, puts a religious symbol on its front lawn it sends a message of exclusion.”

The 8th Circuit's jurisdiction also includes North Dakota, South Dakota, Nebraska, Minnesota, Iowa and Arkansas.