Long-time Michigan roadside nativity resurrected

Installation of the Nativity display in Warren MI on Dec 15 2012 Credit Thomas More Law Center CNA US Catholic News 12 17 12 The Nativity display in Warren, Mich. after it was installed by John Satawa on Dec. 15, 2012. / Thomas More Law Center.

A 67-year-old tradition of placing a nativity scene on a public median in Warren, Mich. has been re-established after a four-year legal battle involving the Freedom From Religion Foundation.

"John Satawa was persistent enough to follow through," CNA was told Dec. 17 by Richard Thompson, president of Thomas More Law Center, which represented Satawa, the crèche's caretaker.

Satawa is "an individual citizen who was not going to disappear silently into the night, but was going to fight the decision of the road commission to maintain this tradition that had been going on since 1945," Thompson said.

The crèche was erected again Dec. 15 by Satawa, his family and friends, and local Boy Scouts, after the Sixth Circuit Court of Appeals decided in his favor on Aug. 1.

While the nativity scene was being erected, Warren police controlled traffic as well-wishers gathered, carolers sang Christmas songs, a priest from nearby St. Anne's Catholic Church blessed the display and passing motorists sounded their horns in approval.

In 2008 the Macomb County Road Commission received a letter from the Freedom from Religion Foundation objecting to a private citizen placing a nativity scene on a 60-foot-wide median.

They claimed the crèche violated the establishment clause of the First Amendment, and the county immediately ordered the display removed.

Satawa had gotten permission for the crèche several times, and in 1995 the local police department finally gave him a blanket permission to erect it in the future, so that he would not feel it necessary to ask again.

On March 9, 2009, after receiving the Freedom from Religion Foundation's letter, a highway engineer for Macomb County, Robert Hoepfner, wrote to Satawa denying him a permit to resurrect the manger scene and only citing reasons related to the establishment clause for the denial.

Satawa then sued the Macomb County Road Commission for violating his rights under the establishment and free speech clauses of the First Amendment, and the equal protection clause of the Fourteenth Amendment.

The district court found in favor of the county, but its decision was reversed by an appeals court.

"During litigation, the county changed its explanation," Appellate Judge Danny J. Boggs wrote in his Aug. 1 decision, "claiming that safety was – and always had been – the reason for its decision."

Two members of the road commission were co-defendants in the suit, and Boggs wrote that "at best" their "testimony is confusing. At worst, one or the other is completely mistaken."

Boggs' decision treated the county's claim that the permit's denial was based on safety concerns as risible. The one scenario in which it could possibly contribute to an accident requires "one driver flagrantly disobeying traffic laws, while another is grossly inattentive."

"A hypothetical traffic-safety concern resting on aberrant behavior, which has never happened … in sixty years does not qualify as a significant government interest," the judge stated.

Boggs noted that in Hoepfner's March 9, 2009 letter, "not once did he use the word 'safety;' not once did he use the word 'traffic.'"

When the "district court held that … safety was at least part of the Board's motivation for denying the permit … the district court erred," Boggs stated.

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Thompson told CNA that the case demonstrates the importance of citizens standing up for their rights.

This is underscored by the fact that municipalities and schools have a "knee-jerk reaction" to acquiesce to demands made by groups such as the Freedom from Religion Foundation and the ACLU that "Christian expressions … be removed," he said.

"There are religious expressions that are allowable in the public sphere. And in this particular case the court recognized that the reasons the road commission gave were pretextual. They were attempting to justify what they had done, because they were intimidated by the Freedom from Religion Foundation."

"The court looked at the fact that this was what we call a 'traditional public forum;' and if you allow expressions in a traditional public forum, then you cannot discriminate on the basis of the content of that expression."

"It pays to do a thorough analysis of the law before you ever tell a citizen to take something down that's been up for over 60 years," Thompson stated.

The nativity scene will remain up in Warren until Dec. 29, and will be set up again next Christmas season.

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