Thomas More Society Wins Dismissal of Lawsuit Brought by ACLU and Freedom from Religion Foundation over Nativity Scene

Private Nativity Display on Courthouse Lawn Upheld as Constitutional

Franklin County Nativity Scene(September 24, 2015 – Indianapolis, IN) – Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana has dismissed the lawsuit filed by the ACLU and Freedom From Religion Foundation (FFRF) against Franklin County, IN, over a Nativity Scene displayed by private residents on the Courthouse lawn at Christmas-time. Judge Pratt ruled that FFRF failed to show any continuing constitutional violation by the County and dismissed the lawsuit with prejudice.

“This dismissal of FFRF’s lawsuit against the Nativity Scene is a tremendous victory not only for Franklin County but for religious liberty in general,” said Peter Breen, Thomas More Society Special Counsel. “The decision reaffirms the right of private citizens to exercise their religious faith in the public square. This dismissal is also a solid precedent for counties and cities seeking to fend off nuisance lawsuits by the Freedom From Religion Foundation.”

In December 2014, the ACLU of Indiana and FFRF filed a lawsuit against Franklin County over a Nativity Scene on the Courthouse lawn, claiming that permitting such a display violates the Establishment Clause of the First Amendment. However, Thomas More Society defended the privately-sponsored Nativity Scene displayed on Franklin County’s Courthouse lawn as protected under the Free Speech Clause of the First Amendment. The defense of Franklin County was led by Thomas More Society attorneys Peter Breen, Jocelyn Floyd, and Corrina Konczal.

The Nativity Scene has been only one of many privately-sponsored displays in the County’s limited public forum, with others including displays from a child abuse awareness group and a local garden club. Therefore, the County had taken no action to “establish” or endorse any one religion or even religion in general. In January 2015, the County’s Board of Commissioners formalized their policy allowing private displays by publishing an ordinance with content-neutral guidelines and a simple application process.

Judge Walton Pratt’s decision states that, with the County’s enactment of the Ordinance, “the Court cannot draw a reasonable inference that Franklin County could be liable for any misconduct alleged in FFRF’s Amended Complaint.” Therefore, the Court has dismissed FFRF’s lawsuit for lack of jurisdiction because FFRF was not able to show that Franklin County is violating the Constitution.

Because there is no actual injury and the case is moot, the Court has also refused to award FFRF’s requests for injunctive relief, costs and attorney’s fees, and awards for other “proper” relief.

Thomas More Society provides legal counsel for the American Nativity Scene Committee and local private groups around the country, defending and equipping Americans to display Nativity Scenes in their State Capitols and in other traditional and designated public forums.

Along with the American Nativity Scene Committee, Thomas More Society will be co-sponsoring nativity displays – which are donated by an anonymous benefactor – in State Capitols around the country. Anyone private citizen interested in co-sponsoring a Nativity Scene in your State Capitol, please contact us at: 312-782-1680.

“The nativity displays represent a constitutionally protected expression by private citizens in traditional or designated public forums, where the sole role of the government must be that of a viewpoint-neutral gatekeeper assuring open access for all citizens to have their ‘say,’” said Tom Brejcha, Thomas More Society President and Chief Counsel. “Such private expressions of religious belief in the public squares of our nation are not merely tolerable but fully deserving of robust legal protection.”

Read Judge Tanya Walton Pratt’s decision dismissing FFRF’s lawsuit here.