here - American Humanist Association

November 24, 2014
Via Email
Chris Davis, County Judge; cojudge@cocherokee.org
135 S. Main, 3rd Floor
Rusk, Texas 75785
cc:
Kelly Traylor, Precinct 1 Commissioner; ktraylor@cocherokee.org
Steven Norton, Precinct 2 Commissioner; snorton@cocherokee.org
Katherine Pinotti, Precinct 3 Commissioner; kpinotti@cocherokee.org
Byron Underwood, Precinct 4 Commissioner; ccpct4@cocherokee.org
Re: Constitutional Violation
Dear Honorable Davis,
A Cherokee County resident (Daniel Ross), Humanist Celebrant, and member of the
American Humanist Association (AHA) has contacted our office to request assistance with regard
to what is correctly perceived as a constitutional violation. Specifically, Cherokee County has
prominently displayed a large, stand-alone, Christian nativity scene on the front lawn of the County
Courthouse in Rusk, Texas. Religious (specifically, Christian) elements overwhelmingly dominate
the display, thus violating the Establishment Clause of the First Amendment. A photograph of the
display is shown below.
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As is readily apparent, the large display is dedicated exclusively to a nativity scene that
represents the New Testament account of the birth of Jesus. The baby Jesus is at the center and an
angel is bowing to him; Mary and Joseph are by his side, with the wise men nearby. The life-sized
display sits on the courthouse lawn and includes the usual manger-scene animals, adding a level of
authenticity that would impress any Christian congregation.
On November 14, 2014, Mr. Ross sent an email to the County Judge and Commissioners
requesting permission to erect a Humanist “HumanLight” or “Happy Humanist” display alongside
the crèche. Mr. Ross explained that the exclusively Christian crèche “sends a message to every
other faiths and non-faith that they aren't welcomed or included in the community.” He added:
To help solve this, I would like to get a sign to be placed on the court house to
represent HumanLight for Secular Humanists, Atheists, Agnostics, Skeptics, and the
rest of the secular community. HumanLight is a secular holiday on December
23rd. It’s designed to celebrate and express the positive, secular, human values of
reason, compassion, humanity and hope. HumanLight illuminates a positive, secular
vision of a happy, just and peaceful future for our world, a future which people can
build by working together, drawing on the best of our human capacities. Thank you
for taking your time to read this and let me know what time frame would be best to
have a sign up next to the manger.
On November 19, 2014, Katherine Pinotti of Precinct 3 replied to his email, using her County
government email account, stating:
Mr. Ross,
Please know that I am replying to you ONLY as a resident and NOT as a
representative of Cherokee County as I cannot speak for the court unilaterally.
However, I did receive your email requesting to have a "Humanlights" sign erected
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next to our courthouse decorations and wanted to respond to you from a purely
personal point of view.
December 23rd is merely a date selected by your orgnaization to make a political
statement of your choice not to celebrate traditional Christian beliefs. Perhaps you
should consider choosing another time of the year to demonstrate your secular
support instead of attempting to infiltrate the Christmas holiday with a singular
purpose to destroy and denegrate the beliefs of others. Try to live and let live.
Katherine Pinotti
Mr. Ross forwarded the email conversation with Commissioner Pinotti to the County Judge
and the Commissioners and asked when he could set up a sign to represent the secular community.
He has yet to receive a response.
The purpose of this letter is to advise you that the elaborate County courthouse display
amounts to a monument to Christianity, and is therefore a clear violation of the Establishment
Clause. We hereby demand that the County promptly remove it and provide us with written
assurances that no similar display will be erected in the future. Our organization will pursue the
matter through litigation in federal court if it does not.
The American Humanist Association (AHA) is a national nonprofit organization with over
350,000 supporters and members across the country, including many in Texas. The mission of
AHA’s legal center is to protect one of the most fundamental principles of our democracy: the
constitutional mandate requiring separation of church and state. Our legal center includes a network
of cooperating attorneys from around the country, including Texas, and we have litigated
constitutional cases in state and federal courts from coast to coast.
The First Amendment’s Establishment Clause “commands a separation of church and state.”
Cutter v. Wilkinson, 544 U.S. 709, 719 (2005). It requires the “government [to] remain secular,
rather than affiliate itself with religious beliefs or institutions.” Cnty. of Allegheny v. ACLU, 492
U.S. 573, 610 (1989) (county’s crèche display violated the Establishment Clause). Not only must
the government not advance, promote, affiliate with, or favor any particular religion, it “‘may not
favor religious belief over disbelief.’” Id. at 593 (citation omitted). Indeed, the Establishment
Clause “create[s] a complete and permanent separation of the spheres of religion activity and civil
authority.” Everson v. Bd. of Ed, 330 U.S. 1, 31-32 (1947). Accord Engel v. Vitale, 370 U.S. 421,
429 (1962). Separation “means separation, not something less.” McCollum v. Bd. of Educ., 333 U.S.
203, 231 (1948).
To comply with the Establishment Clause, a government practice must pass the Lemon test, 1
pursuant to which it must: (1) have a secular purpose; (2) not have the effect of advancing or
endorsing religion; and (3) not foster excessive entanglement with religion. Allegheny, 492 U.S. at
592. Government action “violates the Establishment Clause if it fails to satisfy any of these prongs.”
Edwards v. Aguillard, 482 U.S. 578, 583 (1987).
The government specifically violates the Establishment Clause, where, as here, it features a
predominantly Christian holiday display on government property. Allegheny, 492 U.S. at 592. See
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The test is derived from Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).
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also Smith v. County of Albemarle, 895 F.2d 953 (4th Cir. 1990) (display of a nativity scene on the
front lawn of a county office building conveyed unmistakable message of governmental
endorsement of religion in violation of the Establishment Clause); American Jewish Congress v.
Chicago, 827 F.2d 120 (7th Cir. 1987) (erection of a crèche by a municipality violated
Establishment Clause as the effect of its placement in city hall conveyed the impression that the
municipality abandoned neutrality and tacitly endorsed Christianity); ACLU v. Birmingham, 791
F.2d 1561 (6th Cir. 1986) (holding that effect of crèche, which stood alone as the only clearly
identifiable symbol chosen by the city to mark its contribution to the celebration, was an
unconstitutional endorsement of a particular religion).
The Supreme Court first addressed the issue of government holiday displays in Lynch v.
Donnelly, 465 U.S. 668 (1984). Splitting five to four, the Court held that the City of Pawtucket did
not violate the Establishment Clause by including a crèche in an otherwise secular holiday display
in a private park. Id. at 671, 687. Unlike Cherokee County’s display, the Pawtucket display included
many nonreligious and non-Christian items, including “candy-striped poles . . . carolers, cut-out
figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored
lights, a large banner that reads ‘SEASONS GREETINGS,’ and the creche.” Id. at 671. The Court
found that the inclusion of a single religious symbol, the crèche, did not “taint” the entire display. Id.
at 686.
Five years later, the Supreme Court concluded that a crèche at a county courthouse violated
the Establishment Clause. Allegheny, 492 U.S. at 597. This was the second and most recent
Supreme Court decision involving the constitutionality of holiday displays. Two displays were
challenged. The first, which is most analogous to the Cherokee County display, consisted of a
crèche display inside a courthouse, whereas the second involved an elaborate display featuring a 45foot Christmas tree and an 18-foot menorah, placed outside the City-County Building. The Court
held that the crèche was unconstitutional but not the tree/menorah. The crèche was a visual
representation of the New Testament account of the birth of Jesus. Id. at 580. Like the Cherokee
County crèche, it contained a manger and included figures representing the baby Jesus, Mary and
Joseph, farm animals, shepherds and wise men. Id. The “county also placed a small evergreen tree,
decorated with a red bow” near the crèche. Id. Despite a disclaimer on the display stating: “This
Display Donated by the Holy Name Society,” the Court held it was unconstitutional. Id. The
presence of Santa Claus figures and other Christmas decorations elsewhere in the courthouse did
not negate the endorsement effect of the crèche either. Id. at 598.
The Court noted that “unlike in Lynch, nothing in the context of the display detracts from the
crèche’s religious message.” Id. In distinguishing the case from Lynch, the Court observed: “The
Lynch display comprised a series of figures and objects, each group of which had its own focal
point.” Id. In contrast, the primary feature of the Allegheny display was the crèche, rendering it
unconstitutional.
The Court found that the menorah in front of the City-County Building presented a “closer
constitutional question,” id. at 613, but ultimately concluded that it was permissible. The Court
reasoned that the menorah was surrounded by “a Christmas tree and a sign saluting liberty.” Id. at
614. The Court believed the tree to be a secular symbol, and the sign proclaiming liberty to
“diminish the possibility that the tree and the menorah will be interpreted as a dual endorsement of
Christianity and Judaism.” Id. at 619. As the Second Circuit explained, “[a] nativity scene
undoubtedly qualifies as the depiction of a deity, with the infant Jesus usually being worshiped as
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God-made-man by adoring angels, shepherds, and wise men. While a menorah is understood to
commemorate a miracle performed by God, it does not itself depict a deity.” Skoros v. City of New
York, 437 F.3d 1, 28 (2d Cir. 2006).2
Cherokee County’s display, like the display in Allegheny and unlike the display in Lynch,
focuses exclusively on the nativity scene, and is therefore unconstitutional.
Another critical aspect of the nativity scene’s “physical setting plainly distinguishes it from
Lynch:” its placement in front of the county courthouse. American Jewish Congress v. Chicago, 827
F.2d 120, 126 (7th Cir. 1987). The “creche in Lynch, although sponsored by the City of Pawtucket,
was located in a privately-owned park, a setting devoid of the government’s presence.” Id. But the
display in this case is located outside “a government building – a setting where the presence of
government is pervasive and inescapable.” Id. The Court’s holding “in Lynch that the inclusion of a
creche in a holiday display located in a private park did not violate the Establishment Clause cannot
control this case, where the display” is placed within an official government building. Id. Thus, by
“permitting the ‘display of the creche in this particular physical setting,’ . . . the county sends an
unmistakable message that it supports and promotes the Christian praise to God that is the creche’s
religious message.” Allegheny, 492 U.S. at 600 (citation omitted).
The fact that the County has refused to include a Humanist holiday symbol in the display, at
the request of Mr. Ross, and that Ms. Pinotti expressly rejected this request on the stated grounds
that it does not “celebrate traditional Christian beliefs,” adds to the unconstitutionality of the
County’s display. Indeed, Ms. Pinotti suggested that no non-Christian element would be welcome in
the County’s display, admonishing: “Perhaps you should consider choosing another time of the
year to demonstrate your secular support instead of attempting to infiltrate the Christmas holiday
with a singular purpose to destroy and denegrate the beliefs of others. Try to live and let live.” “[I]n
some circumstances, a government's deliberate exclusion of the religious symbol of one faith from a
display that includes the religious symbols of other faiths [] communicate[s] the official favoritism
or hostility among religious sects that is prohibited by the Establishment Clause.” Skoros v. City of
New York, 437 F.3d 1, 27 (2d Cir. 2006). Such is clearly the case here.
It is constitutionally irrelevant that Ms. Perotti attempted to make her statements in her
“private” capacity only. The “eyes that look to [the Lemon] purpose [prong] belong to an ‘objective
observer.’” McCreary County v. ACLU of Ky., 545 U.S. 844, 862-63 (2005) (decision to add secular
images to surround a Ten Commandments display in response to litigation revealed a religious
purpose). This analysis includes an examination of the statements of elected officials who supported
the challenged action. Id. The court must not “ignore perfectly probative evidence” arising from
“the history of the government’s actions” and cannot “turn a blind eye to the context in which [the
decision] arose.” Id. at 866. As such, courts can “infer [an improper] purpose from . . . public
comments” of legislators. Id. at 862-63. See also Edwards v. Aguillard, 482 U.S. 578, 587 (1987)
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Of course, a standalone menorah is equally unconstitutional, as is a display of both the crèche and the menorah with no
secularizing elements. See ACLU v. Schundler, 104 F.3d 1435 (3d Cir. 1997) (display of a creche and a menorah on the
front lawn of city hall violated the establishment clause); American Jewish Congress v. City of Beverly Hills, 90 F.3d
379 (9th Cir. 1996) (city violated the establishment clause of state and federal constitutions by permitting the erection of
a menorah in a public park); Chabad-Lubavitch of Vermont v. Burlington, 936 F.2d 109 (2d Cir. 1991) (affirming denial
of application for a permit to display a menorah in a park at city hall. Such a permit would have conferred state approval
on a religious sect); Kaplan v. City of Burlington, 891 F.2d 1024, 1030 (2d Cir. 1989) (menorah displayed by itself in a
public park violated the Establishment Clause).
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(relying on detailed public comments of a senator); Green v. Haskell County Bd. of Comm’rs, 568
F.3d 784, 800-01 (10th Cir. 2009) (monument unconstitutional based on “[n]umerous quotes from
these commissioners.”); Wynne v. Town of Great Falls, 376 F.3d 292, 297, 301 n.7 (4th Cir. 2004);
Am. Humanist Ass'n v. City of Lake Elsinore, 2014 U.S. Dist. LEXIS 25180, *23-24 (C.D. Cal.
2014); Am. Atheists, Inc. v. City of Starke, 2007 U.S. Dist. LEXIS 19512, *13-14 (M.D. Fla. 2007).
In Green, for instance, a county board approved a monument featuring the Ten
Commandments and Mayflower Compact. 568 F.3d at 790. Although the board members did not
originally state why they approved the monument, two of the three board members later defended
the monument making statements such as: “The good Lord died for me. I can stand for him. And
I'm going to.” “I'm a Christian and I believe in this.” “I won't say that we won't take it down, but it
will be after the fight.” Id. at 801. The court held the monument was unconstitutional based largely
on the “[n]umerous quotes from these commissioners.” Id.
Moreover, any claim by the government that it established a “public forum” for private
speech is belied by the actual facts in this case. However, if it is the County’s claim that this is an
“open forum,” then we demand that you allow Mr. Ross to erect a Humanist holiday display
adjacent to the crèche.
In view of the aforementioned authorities, it is plain that the County’s crèche is in violation
of the Establishment Clause. As such, the County and its officials may be sued under 42 U.S.C. §
1983 for damages, an injunction, and attorneys’ fees. This letter serves as an official notice of the
unconstitutional activity and demands that the County immediately remove the crèche from the
courthouse lawn and provide us with written assurances that no similar display will be put up in the
future. We are most hopeful that you will recognize the concerns raised by this letter and address
them properly. Please respond within seven (7) days. We thank you in advance for your attention to
this matter.
Very truly yours,
Monica Miller, Esq.
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