Remove the “Baby Jesus” Nativity Scene from the AZ State Capitol Grounds

On 12/21, an article appeared in the Prescott eNews stating that the Thomas More Society and American Nativity Scene groups would display a manger scene on the AZ State Capitol lawn from December 21-23, 2020. The article claims that placing such a religious scene on public property is permissible under the First Amendment.

It is not. This display is unconstitutional. The Establishment Clause prohibits government support of religious messages.

Secular AZ’s response to the Governor is below.  Please take action and tell Governor Ducey to remove this religious display, as it violates the Establishment Clause, endorses a certain religion, conveys government support of a certain religion, and conveys a message to non-Christians that they are outsiders, not full members of the political community.

We are asking Arizonans who care about the Constitution and the separation of church and state to contact  Governor Ducey immediately by email or phone and ask him to remove the display.

To send email:  https://azgovernor.gov/engage/form/contact-governor-ducey

To Call by Phone: (602) 542-4331

 

December 22, 2020

Governor Ducey

1700 W Washington Ave

Phoenix, AZ 85007

Dear Governor Ducey,

I am writing on behalf of the Secular Communities for AZ regarding a constitutional violation occurring at the state capitol. Secular Communities is part of Secular Coalition a nonprofit organization that represents Arizonans across the state. Our purpose is to protect the constitutional principle of separation between state and church. 

On December 21, an article appeared in the Prescott News that the Thomas More Society and the American Nativity Scene groups were placing a manger scene on the state capitol lawn from December 21-23, 2020. They claimed that placing such a religious scene on public property was permissible under the First Amendment.  It is not.  

The Establishment Clause prohibits government support of religious messages. Displays of the Ten Commandments on public property and in schools have been struck down as unconstitutional.  Religious holiday displays may be on public property if the religious aspect is not the sole focus but it is more a holiday display in general. It is clear from the display itself and the comments of the Thomas More society that the display they have erected is entirely religious and is not a “holiday display in general.”  

On October 13, 2017, the U.S. District Court in Texas ruled in FFRF v. Gov. Greg Abbot in Case number A-16-CA-00233-SS that viewpoint discrimination is unconstitutional i.e. the state cannot show preference for one view of religion over others which is what you have done here by allowing the manger scene that is promoting one religious sect.

While the Supreme Court ruled in American Legion v. American Humanist Association regarding the Bladensburg Latin Cross that it had lost its religious meaning, such is not the case here as the Thomas More attorney says plainly that the goal was to have religious expression in a public space.  

The federal appeals court in the 1st Circuit ruled that even though the event was a privately sponsored religious event, the city did not have to fly a religious flag.  Harold Shurtleff et al v. City of Boston et al, (First Circuit, March 2019) 

The Establishment Clause of the First Amendment to the U.S. Constitution prohibits government endorsement of religion. The Supreme Court has said time and again, that the “First Amendment mandates government neutrality between religion and religion, and between religion and nonreligion.” McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844, 860 (2005); see also Wallace v. Jaffree, 472 U.S. 38, 53 (1985); Epperson v. Arkansas, 393 U.S. 97, 104 (1968); Everson v. Board of Ed. of Ewing, 330 U.S. 1, 15–16 (1947). 

It is inappropriate for the State to display this religious content because it conveys government support for religion. The Supreme Court has ruled, “[t]he Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief.” County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 593–594 (1989). Like the Ten Commandments posting in county buildings in McCreary and the crèche display on county land in Allegheny, this display is unconstitutional under the precedent of Lemon v. Kurtzman, 403 U.S. 602 (1971). A reasonable observer would view the display as an endorsement of religion by the State. 

These displays convey a message to non-Christians that they are “outsiders, not full members of the political community and an accompanying message to adherents that they are insiders, favored members of the political community.” Santa Fe Indep. Sch. Dist. v. Doe , 530 U.S. 290, 309–10 (2000) (internal quotations omitted). These citizens should not be made to feel excluded, like outsiders in their own community. While many members of the community may support this religious sentiment, a significant proportion will feel alienated, including the 26% of American adults who identify as non-religious.

The Capitol belongs to all citizens regardless of their personal religious beliefs. The manger scene does not relate to legitimate government business, appears to endorse a certain religion, and sends a divisive message to many residents of Arizona. These cases are very fact specific and require case-by-case analysis resulting in much litigation and community friction.  On the other hand, restricting any religious symbols or displays on government property allows government entities to remain completely religiously neutral and conform to the court’s interpretation of the Establishment Clause and the reason for the provisions i.e. to avoid community dissention.  

The State is not obligated to allow private citizens to erect displays on state property. The state is well within its rights to prohibit private displays. A policy that disallows private displays is a valid time, place, or manner restriction consistent with the First Amendment. See, e.g., Lubavitch Chabad House, Inc. v. City of Chicago, 917 F.2d 341, 347 (7th Cir. 1990) (“We are not cognizant of . . . any private constitutional right to erect a structure on public property. If there were, our traditional public forums, such as our public parks, would be cluttered with all manner of structures. Public parks are certainly quintessential public forums where free speech is protected, but the Constitution neither provides, nor has it ever been construed to mandate, that any person or group be allowed to erect structures at will.”); Knights of Columbus v. Town of Lexington, 272 F.3d 25 (1st Cir. 2001), cert denied, 1 22 S.Ct. 1911 (2002) (finding a ban on unattended displays in a park to be neutral and narrowly tailored); Santa Monica Nativity Scenes Comm. v. City of Santa Monica, No. CV 12-8657 (C.D. Cal. Order of Dismissal Nov. 29, 2012). 

In the middle of a pandemic that is exploding in Arizona causing widespread suffering, the state should be focused on the health and welfare of Arizona citizens. In order to maintain religious neutrality, follow the law, and respect the rights of all Arizona residents, the private religious display on the Capitol lawn must be removed immediately to respect the rights of all residents, and ensure that no one religious group is favored or excluded by the state.   Additionally, the state should refrain from promoting religious displays of this nature in the future. Please inform us in writing of the steps taken to remedy this constitutional issue. Thank you for your time and attention to this matter. 

Sincerely,

 

Dianne Post

Legal Director

Secular Communities for AZ

We are asking Arizonans who care about the Constitution and the separation of church and state to contact  Governor Ducey immediately by email or phone and ask him to remove the display.  

To send email:  https://azgovernor.gov/engage/form/contact-governor-ducey

To Phone: (602) 542-4331.