AHA Filemarked Brief

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF ARKANSAS

HARRISON DIVISION

AMERICAN HUMANIST

ASSOCIATION and

DESSA BLACKTHORN, PLAINTIFFS

v.

BAXTER COUNTY, ARKANSAS, and

MICKEY PENDERGRASS, BAXTER COUNTY

JUDGE, IN HIS OFFICIAL AND INDIVIDUAL

CAPACITIES DEFENDANTS

PLAINTIFFS MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

Case 3:14-cv-03126-TLB Document 16 Filed 07/08/15 Page 1 of 27 PageID #: 349

[email protected] textNo. 3:14-cv-03126-TLB

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I. SUMMARY OF THE FACTS

For at least the last 40 years, Baxter County has maintained an overwhelmingly sectarian

Christmas display on the lawn of the Baxter County Courthouse. The display consists almost

exclusively of a Christian crche: a representation of the birth of Jesus of Nazareth as described in

the Gospels of Matthew and Luke. Matthew 2:1-12; Luke 2:1-20 (King James Version). The

display is a life-size representation of the birth of Jesus of Nazareth, with at least fifteen elements

(Jesus, Mary, Joseph, two angels, three kings, two camels, three sheep, a donkey, and at least two

shepherds) dedicated to the birth of Jesus as set forth in the scriptures. A floating angel above the

infant Jesus bears a banner stating Gloria in Excelsis Deo.

For most of its 40-year history, the display consisted of the crche alone. In recent years,

it has also included one small Santa Claus in the backdrop, overshadowed by the Biblical Magi

(Comp. Ex. 1) and a relatively small Christmas tree, which also sits behind the display rather than

incorporated into it. In 2014, following complaints from Plaintiff American Humanist Association

(AHA) and other secular organizations, the County added a clear plastic reindeer and sleigh,

incidental to the display. Members of the public perceive the Countys display as religious; the

small, recent add-ons have not detracted from its overwhelming Christian message. (Pendergrass

Dep. p. 55-61). Even the president of the Mountain Home Chamber of Commerce agrees that the

display is fundamentally religious in nature. (Majeste Dep. p. 11).

Not only is the Countys crche a Christian display, but it has also been used for religious

purposes. In particular, the crche has been the site for the Countys annual tree-lighting ceremony,

which is complete with Christian prayers led by a Christian minister and religious hymns. (Spencer

Dep. p. 20-21) (there's always been a minister, and he's always given an invocation, and he's

always given the invocation in the name of Jesus Christ); (Pendergrass Dep. p. 12-14).1

Judge Pendergrass oversees the Courthouse grounds and has final decision-making

authority over the display. The crche itself is owned by Rick Spencer, a Christian attorney

1 These Christian-themed Tree Lighting ceremonies convert what arguably could be a secular tree to a religious symbol.


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residing in Baxter County. (Pendergrass Dep. p. 7).2 Nevertheless, the County Judge maintains

the right to decide what is placed on the courthouse lawn. Indeed, he has repeatedly exercised this

authority in refusing to allow other displays. (Ex. 5); (Ex. 1); (Pendergrass Dep. Ex. 8).

In 2013 and 2014, several citizens made requests to display a Happy Winter Solstice

banner and a menorah on the Courthouse lawn by the crche. The Winter Solstice (Yule) is a pagan

celebration that occurs in late December. Nonbelievers also celebrate the Winter Solstice as an

astronomical event marking the season. The menorah is a symbol of the Jewish faith, and is often

displayed in recognition of Hanukkah. Those requests were denied by the County. With respect to

the request by the citizens to display the Solstice Banner, Judge Pendergrass told them, inter alia:

If you put one, youve got to put them all. (Ex. 5, p. 6).

II. BAXTER COUNTYS CRCHE VIOLATES THE ESTABLISHMENT CLAUSE.

A. Establishment Clause Overview

The placement of a sectarian Christmas display on the grounds of the Baxter County

Courthouse is a violation of the Establishment Clause of the First Amendment. See Cnty. of

Allegheny v. ACLU, 492 U.S. 573, 610 (1989) (crche at courthouse violated the Establishment

Clause). The Establishment Clause commands a separation of church and state. Cutter v.

Wilkinson, 544 U.S. 709, 719 (2005). It at the very least, prohibits government from appearing to

take a position on questions of religious belief and requires the government [to] remain secular,

rather than affiliate itself with religious beliefs. Allegheny, 492 U.S. at 610.

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). The

Establishment Clause prohibits the government from sending a message to nonadherents that

they are outsiders, not full members of the political community, and an accompanying message to

adherents that they are insiders, favored members[.] McCreary Cnty. v. ACLU, 545 U.S. 844, 860

(2005) (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (OConnor, J. Concurring)).

2 But see (Pendergrass Dep. p. 7-9).


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To comply with the Establishment Clause, government action must pass the Lemon test,

pursuant to which it must (1) have a secular purpose; (2) not have the effect of advancing or

endorsing religion; and (3) not foster an excessive entanglement with religion. Lemon v.

Kurtzman, 403 U.S. 602, 612-13 (1971). State action violates the Establishment Clause if it fails

to satisfy any of these prongs. Edwards v. Aguillard, 482 U.S. 578, 583 (1987).

Numerous courts, including the Supreme Court, have held similar crche displays

unconstitutional. See, e.g., Allegheny, 492 U.S. at 610 (crche display in courthouse violated the

Establishment Clause); Smith v. County of Albemarle, 895 F.2d 953 (4th Cir. 1990) (crche on the

front lawn of a county office building conveyed unmistakable message of governmental

endorsement of religion); American Jewish Congress v. Chicago, 827 F.2d 120 (7th Cir. 1987)

(placement of crche near city hall conveyed the impression that the municipality endorsed

Christianity); ACLU v. Birmingham, 791 F.2d 1561 (6th Cir. 1986) (effect of crche was an

unconstitutional endorsement of religion); Amancio v. Town of Somerset, 28 F. Supp. 2d 677 (D.

Mass. 1998) (holiday display erected by town on front lawn of town hall unconstitutional); Burelle

v. Nashua, 599 F. Supp. 792, 797 (D. N.H. 1984) (privately owned crche in front of city hall

unconstitutional); Citizens Concerned for Separation of Church & State v. City & County of

Denver, 481 F. Supp. 522 (D. Colo. 1979) (crche near city building unconstitutional).3

This case is governed by Allegheny, the Supreme Courts second and most recent case

involving a crche display.4 In Allegheny, the Court held that a privately-donated crche displayed

at a county courthouse was unconstitutional; it was a visual representation of the New Testament

account of the birth of Jesus and therefore endorsed religion. 492 U.S. at 580. Neither the

disclaimer nor the Santa Claus figures and other Christmas decorations elsewhere in the courthouse

could negate the endorsement effect of the crche. Id. at 598.

3 The courts have held that a standalone menorah display is unconstitutional, as is a display of both the

crche and the menorah with no secularizing elements. See ACLU v. Schundler, 104 F.3d 1435 (3d Cir.

1997) (display of crche and a menorah near city hall); American Jewish Congress v. City of Beverly Hills,

90 F.3d 379 (9th Cir. 1996) (menorah in a public park); Chabad-Lubavitch of Vermont v. Burlington, 936

F.2d 109 (2d Cir. 1991) (same); Kaplan v. City of Burlington, 891 F.2d 1024, 1030 (2d Cir. 1989) (same). 4 See ACLU v. City of Florissant, 186 F.3d 1095, 1098 (8th Cir. 1999) (citing Allegheny as controlling).


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As set forth in the following sections, Baxter Countys crche fails the Lemon test because

it has the clear effect of endorsing religionin particular Christianityand, serves no secular

purpose.

B. Baxter County lacks a secular purpose for displaying the crche.

Baxter Countys purpose for displaying a crche at its Courthouse is predominantly

religious and not secular, given the overwhelmingly religious nature of the display and its historical

lack of secular items. E.g., McCreary, 545 U.S. 844 (holding display of Ten Commandments in

courthouse had no secular purpose); Burelle, 599 F. Supp. at 797 (finding no secular purpose for

crche display outside city hall); Denver, 481 F. Supp. at 528 (same).

When the government permits religious symbols to be constructed on public property, its

ability to articulate a secular purpose becomes the crucial focus under the Establishment Clause.

ACLU v. Rabun Cnty. Chamber of Commerce, Inc., 698 F.2d 1098, 1110 (11th Cir. 1983) (internal

footnote omitted). Many courts addressing . . . challenges to the maintenance of religious

symbols have ruled that the symbols fail Lemon upon the finding of a religious purpose. Id. at

1110 n.23 (citations omitted).

The Supreme Court has placed the burden on the government to articulate a predominantly

secular purpose for using the symbols under Lemon. Am. Humanist Ass'n v. City of Lake Elsinore,

2014 U.S. Dist. LEXIS 25180, *21 (C.D. Cal. 2014) (war memorial depicting cross headstone

markers lacked secular purpose). See McCreary, 545 U.S. at 870-72 (government failed to

articulate a secular purpose for Ten Commandments); Stone v. Graham, 449 U.S. 39, 41-42 (1980)

(same); see also Metzl v. Leininger, 57 F.3d 618, 622 (7th Cir. 1995) (a secular purpose is in the

nature of a defense, and the burden of producing evidence in support of a defense is . . . on the

defendant); Church of Scientology Flag Serv. v. City of Clearwater, 2 F.3d 1514, 1530 (11th Cir.

1993) (the defendant [must] show by a preponderance of the evidence that action challenged has

a secular purpose).5

5 See also Freethought Socy v. Chester Cnty., 191 F. Supp. 2d 589 (E.D. Pa. 2002) (holding that plaque of Ten Commandments on courthouse primarily religious and only incidentally secular); ACLU of Mississippi


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This secular purpose must be the pre-eminent and primary force driving the

governments action, and has to be genuine, not a sham[.] McCreary, 545 U.S. at 864. The Court

must judge the purpose of government action through the eyes of an objective observer who

takes into consideration the history and context of the action. Courts can infer[] purpose from

the public comments of its sponsor, or other openly available data. Id. at 862-63 (citations

omitted). Religious intent may also be inferred where, as here, the government action itself

besp[eaks] the purpose . . . [because it is] patently religious. Id.

An objective observer would conclude that Baxter Countys predominant, and indeed only

purpose is to advance religion, infra.

1. The crche presumptively lacks a secular purpose.

Where, as here, government action entails placing the display of an instrument of

religion on its property, its purpose can presumptively be understood as meant to advance

religion[.] Id. at 867 (quoting Stone, 449 U.S. at 41 n.3) (noting that given the facts before the

court in Stone, the Court could presume a predominantly religious purpose in displaying of the

Ten Commandments because the Ten Commandments monument is an instrument of religion)).

See Stone, 449 U.S. at 41 ([t]he Ten Commandments are undeniably a sacred text in the Jewish

and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that

fact.).

A nativity scene undoubtedly qualifies as the depiction of a deity, with the infant Jesus

usually being worshiped as God-made-man by adoring angels, shepherds, and wise men. Skoros

v. City of New York, 437 F.3d 1, 28 (2d Cir. 2006). Due to its patently religious nature, the only

purpose which can be ascribed to the display here is to either advance or endorse the Christian

religion. Mississippi State, 652 F. Supp. at 383. When a state-sponsored activity has an overtly

religious character, courts have consistently rejected efforts to assert a secular purpose for that

activity. Mellen v. Bunting, 327 F.3d 355, 367, 373 (4th Cir. 2003). See McCreary, 545 U.S. at

v. Mississippi State General Services Admin., 652 F. Supp. 380 (S.D. Miss. 1987) (holding display of cross

in holiday season so religious in effect that no secular purpose can be ascribed to it); Libin v. Town of Greenwich, 625 F. Supp. 393, 399 (D. Conn. 1985).


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862-63; Stone, 449 U.S. at 41. Finding a memorial cross unconstitutional pursuant to Lemons

purpose prong, the Eleventh Circuit in Rabun relied on the fact that the cross is universally

regarded as a symbol of Christianity. 698 F.2d at 1111. In this case, as in McCreary and Stone,

the Court can infer a religious purpose in the Countys decision to display an overwhelmingly

Christian crche.

2. The history and sequence of events underscore the Countys unconstitutional religious purpose for displaying the crche.

An objective observer would be aware of the history and context of the crche and would

take into account the original religious purpose for placing a crche at the courthouse years ago.

McCreary, 545 U.S. at 862.6 The observer would understand the essentially isolated crche to be

an instrument of religion, giving rise to the presumption of a predominantly religious purpose as

in Stone and McCreary, and would understand the recent and de minimis addition of secular items

to be nothing more than an attempt to retain a predominantly religious display in the face of

litigation. McCreary, 545 U.S. at 867; Stone, 449 U.S. at 41 n.3.

As the Supreme Court has made clear, a decision to tack other elements onto a religious

display as a means to preserve it from litigation reveals a religious purpose: the preservation of the

original religious element itself. McCreary, 545 U.S. at 870-71 (holding that a decision to add

secular images to surround a Ten Commandments display in response to litigation revealed a

religious purpose). The reasonable observer here would be aware of the late addition of a few

secular items, two of which were only added in 2014 in direct response to the threat of litigation.

Id. at 874.7 She would understand the addition of these symbols as the County simply reaching

for any way to keep a religious [display] on the [lawn] of [the] courthouse[]. Id. at 873.

6 See also Kalman v. Cortes, 723 F. Supp. 2d 766, 787 (E.D. Pa. 2010) (Newspaper articles describing the Blasphemy Statute's historical context and the specific sequence of events leading to its passage further

illustrate the statute's predominant religious purpose.). 7 Whereas both parties in Florissant were able to look at a display that was abundantly secular from its

outset and conclude that the City had a secular purpose, an objective observer in Baxter County could not

reasonably conclude the same because this display is primarily a crche with only a few, incidental secular

items. Florissant, 186 F.3d at 1097 n. 2.


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An objective observer aware of the relevant history and sequence of events would also take

note of the fact that the County has made every effort to keep the display predominantly Christian.

It has refused to allow citizens to put up a Happy Winter Solstice banner near the crche.

(Pendergrass Dep. Ex. 8) (Comp. Ex. 3). The observer would also be aware of the fact that Judge

Pendergrass had received phone calls from people stating that they thought there ought to be a

menorah there and that the County has denied such requests to make the display more inclusive.

(Pendergrass Dep. p. 40).

Also relevant to the history and sequence of events is the fact that, after being threatened

with litigation, the County decided to lease the parcel of land to the Chamber of Commerce for

$1, for the express purposes of erecting a nativity scene display. (Comp. Ex. 8). This lease, as

discussed in more detail below in Section D, does nothing to cure the constitutional violation and

in fact, because of its explicit religious objectives, constitutes a separate violation of the

Establishment Clause in its own right, infra.

In addition to this history and sequence of events, as well as the inherently religious nature

of the crche display, which all point to a predominant religious purpose, the Court may consider

statements of the sponsoring officials. Id. at 862. Indeed, [p]ublic comments of [a display's]

sponsors is important evidence to consider in assessing government purpose. Lake Elsinore,

2014 U.S. Dist. LEXIS 25180, at *24. See McCreary, 545 U.S. at 866 n.14; Edwards, 482 U.S. at

594-95; Wallace, 472 U.S. at 57-58; Am. Atheists, Inc. v. City of Starke, 2007 U.S. Dist. LEXIS

19512, *14 (M.D. Fla. 2007). This includes the religious motivations of a displays private

sponsors. See Rabun, 698 F.2d at 1111 (finding unconstitutional purpose based in part on the

several inspirational statements contained in the Chambers press releases.); Gonzales v. North

Twp. of Lake Cnty., 4 F.3d 1412, 1418 (7th Cir. 1993); Books v. City of Elkhart, 235 F.3d 292, 303

(7th Cir. 2000) (The participation of these influential members of several religious congregations

makes it clear that the purpose for displaying the monument was [religious]); Cooper v. USPS,

577 F.3d 479, 493-95 (2d Cir. 2009) (no secular purpose for displaying [a Christian Churchs]

religious material).


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For instance, in Gonzales, the Seventh Circuit held that a war memorial crucifix erected by

the Knights of Columbus, lacked a religious purpose. 4 F.3d at 1419. The town claimed that the

crucifix was intended to act as a war memorial, not a religious icon, and that this purpose prevails.

Id. Holding that the cross lacked a secular purpose, the Seventh Circuit imputed the Knights

purpose onto the town, noting: The record illustrates that the Knights goal was to spread the

Christian message. Id. at 1421 (emphasis added). Similarly, in Harris v. City of Zion, 927 F.2d

1401, 1414 (7th Cir. 1991), the Seventh Circuit held that the City of Zions seal depicting a cross

failed the purpose and effect tests. Even though the seal was not designed by the government and

the city adopted a resolution purporting, to retain the seal for historical reasons, the court

concluded that the purpose for the adoption of Zion's unique seal was primarily sectarian. Id. at

1413-14.

Here, statements by Judge Pendergrass and Rick Spencer reveal a religious purpose. In

refusing to allow two citizens to display a Happy Winter Solstice banner near the crche, Judge

Pendergrass stated in regards to the crche: the religious side means so much to people. (Ex. 5,

Trans. p. 4). He refused to allow the display on the grounds that if you put one, youve gotta put

them all. (Id. p. 6). To the media, Pendergrass declared: I'm just not allowing anything else,

anywhere else on the square, besides that (crche). (Comp. Ex. 7).

Rick Spencer, the sponsor of the display, stated: I can't think of a better way to try to

drown this Christmas spirit than to be a Washington group full of atheists. (Comp. Ex. 7). When

explaining Judge Pendergrasss reasons for denying the Solstice display, Spencer testified: it

would take away any peace associated with Christmas, because you have people, various -- some

people are very adamant that this display should be left alone. And some people, in a -- you know,

he just felt that the display was -- would cause a lot of irritation. (Id. at 32).

In his deposition, Spencer stated: Obviously the purpose of it was to celebrate Christmas.

I mean, if I put up something that was not in celebration of Christmas, I'm sure whoever the county

judge was would have some problems with that. (Spencer Dep. p. 16-17). When asked about the


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purpose of Christmas, Spencer testified: yes, Christmas is -- the center of that is Jesus Christ's

birth. (Id. at p. 18).

The County Resolution to purportedly lease the plot of land to the Chamber of Commerce

in 2014 for $1 during November and December (Court Order 2014-93) explicitly reveals the

Countys religious purpose: that a display celebrating the Christmas holidays be erected on the

Courthouse lawn as an an effort to continue the Christmas holiday tradition[.] (Comp. Ex. 8).

Statements by the Chamber of Commerce also evidence a religious purpose. In his deposition, the

Chambers president, Eddie Majeste, was asked: Do you understand the display to be

fundamentally religious in nature? (Majeste Dep. p. 11). He replied: Yes. Yeah. (Id.).

This history clearly casts serious doubt on any argument that [the display] was intended

as a generic symbol, and not a sectarian one. Trunk v. City of San Diego, 629 F.3d 1099, 1124

(9th Cir. 2011), cert. denied, 132 S. Ct. 2535 (2012) (war memorial cross held unconstitutional).

3. The Countys belated stated purposes are a sham and are insufficient to satisfy the Lemon purpose prong.

Baxter County cannot satisfy its burden of proving a secular purpose for the display

because there is none. The Court must ensure that the governments stated purpose is not a sham,

and not merely secondary to a religious objective. McCreary, 545 U.S. at 862, 864, 866.

In its Answer, the County suggested that the purpose of the crche is to bring consumers

into the County seat and that those consumers engage in commerce, thereby benefiting the

community (Ans. 15); however, with the utmost respect for the County, this suggested secular

purpose is a sham. Id. 866. These new statements of purpose were presented only as a litigating

position[.] Id. at 871.

In Court Order 2014-93 regarding the lease to the Chamber of Commerce, there is no

mention of the alleged secular purpose of attracting customers to the county seat. (Comp. Ex. 8).

Resolution 2014-35 goes on to cite the inclusion of disclaimers and displaying a crche in

someones memory, but again, there is no mention of a purpose to attract business to the

community. (Comp. Ex. 9). In fact, there is no evidence whatsoever that the crche serves the


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secular purpose of commercializing the holiday season. As stated above, the evidence is clear that

the purpose of the display is to endorse and advance religion, and this is not a legitimate secular

purpose.

Even if the Court accepted the entirely unsupported contention that the purpose of the

crche is to attract tourists, that purpose would be insufficient to satisfy the Lemon purpose test.

Indeed, in finding a memorial cross failed the purpose test, the Eleventh Circuit in Rabun explicitly

held that even if the . . . purpose for constructing the cross was to promote tourism, this alleged

secular purpose would not have provided a sufficient basis for avoiding conflict with the

Establishment Clause. 698 F.2d at 1111 (citations omitted).

An identical purpose was advanced and then rejected in Denver, 481 F. Supp. at 528,

regarding Denvers crche display. Specifically, the city argued that its purpose in including the

crche in the Christmas Display is sufficiently secular, in that the entire display is designed to draw

tourists and residents alike into the downtown business district, and to improve the City's national

image. In rejecting this purpose, the court explained: This contention is troublesome, . . . because

it fails to explain the importance of the crche itself to such a commercial purpose. Id. The court

continued: If the City's intent is indeed to use an appeal to sectarian religious sentiments to attract

people into the city, that purpose might well be constitutionally impermissible. Id.

The argument that a religious display is art or a tourist attraction will not protect the

display from restrictions on government-sponsored religion. Hewitt v. Joyner, 940 F.2d 1561,

1572 (9th Cir. 1991). When a religious symbol is erected for a religious purpose, the fact that it

is also a work of art designed by a noted architect and approved by an art commission does not

change its purpose. It simply is an attempt to create an aesthetically pleasing religious symbol; it

does not obviate its religious purpose. Gonzales, 4 F.3d at 1421. See also Glassroth v. Moore,

335 F.3d 1282, 1295 (11th Cir. 2003) (Use of the Ten Commandments for a secular purpose,

however, does not change their inherently religious nature).

In Kimbley v. Lawrence Cnty., 119 F. Supp. 2d 856, 868 (S.D. Ind. 2000), the government

averred that the Ten Commandments Monument is on the Courthouse lawn to honor the


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importance of the limestone industry in the County[.] However, this failed to explain why the

documents depicted on the Monument were chosen. Id. The court concluded that [w]hile

honoring the limestone industry is a valid secular purpose, as in O'Bannon, the design and content

of the Monument indicate that such is not the true purpose for the Monument, but that the purpose

is, in fact, religious in nature. Id. (emphasis added).

Similarly, in Mendelson v. St. Cloud, 719 F. Supp. 1065, 1067-70 (M.D. Fla. 1989), a cross

was given as a gift to a city and was placed on the citys water tower. The city contended that the

cross has secular and historical value as a guidepost for fishermen and pilots and as a landmark.

Id. Yet the court declared: Even if the court found the Citys purpose to be truly secular, a

government may not employ religious means to reach a secular goal unless secular means are

wholly unavailing. Id. (citation omitted).

In short, attempting to further an ostensibly secular purpose through avowedly religious

means is considered to have a constitutionally impermissible purpose. Holloman v. Harland, 370

F.3d 1252, 1286 (11th Cir. 2004). And new statements of purpose do not erase the past.

McCreary, 545 U.S. at 873. Many courts have held that a later-stated purpose for the religious

symbol could not alleviate a constitutional violation. Gonzales, 4 F.3d at 1420 (citations omitted).

Therefore, because an objective observer would understand this display to be void of any secular

purpose, and because the secular purpose offered by the County is, with all due respect, a sham,

the placement of this religious display at the Courthouse is a violation of the Establishment Clause

under the first prong of Lemon.

C. The Countys Christian crche prominently displayed at the County Courthouse has the effect of advancing or endorsing religion.

Regardless of the purposes motivating it, supra, the crche violates the Establishment

Clause under the second prong of Lemon. See Allegheny, 492 U.S. at 598-600 (holding that the

governments display of a crche unconstitutionally endorsed Christianity); Smith, 895 F.2d 953

(crche conveyed unmistakable message of governmental endorsement of religion); Chicago, 827

F.2d 120 (crche violated effect prong independent of purpose). The Baxter County display is


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overwhelmingly Christian; it is a Christian nativity scene, depicting the birth of Jesus of Nazareth

as set out in the Gospels of Matthew and Luke.

The effect prong asks whether, irrespective of governments actual purpose, the practice

under review in fact conveys a message of endorsement or disapproval [of religion]. Wallace v.

Jaffree, 472 U.S. 38, 56 n.42 (1985) (quotation marks omitted). An implicit symbolic benefit is

enough. Friedman v. Bd. of Cnty. Comm'rs, 781 F.2d 777, 781 (10th Cir. 1985). See Larkin v.

Grendel's Den, 459 U.S. 116, 125-26 (1982) (The mere appearance of a joint exercise of

legislative authority by Church and State provides a significant symbolic benefit to religion in the

minds of some by reason of the power conferred.) (emphasis added).8

An important concern of the effects test is whether the symbolic union of church and state

effected by the challenged governmental action is sufficiently likely to be perceived by adherents

of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of

their individual religious choices. Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373, 390 (1985).

Here, as in the above cases, the Countys display of the crche at the Courthouse unconstitutionally

endorses Christianity and sends a clear message to non-Christians that they are unwelcome in the

community.

The Court must begin its analysis with the recognition that the Nativity scene, with its

figures of Mary, Joseph, the infant Jesus, the Magi, shepherds, angels, and animals, is an

unequivocal Christian symbol, unlike the Christmas tree and the reindeer and the tinsel and Santa

Claus. ACLU v. City of St. Charles, 794 F.2d 265, 271 (7th Cir. 1986). A vivid tableau of the

birth of Jesus Christ, it brings Christianity back into Christmas, unlike the star and the wreath and

the tree, which for most people are in the nature of lifeless metaphors. Id. at 272. See also

Washegesic v. Bloomingdale Pub. Sch., 33 F.3d 679, 684 (6th Cir. 1994) (Christ is central only

to Christianity, and his portrait has a proselytizing, affirming effect that some non-believers find

8 By way of illustration, in Granzeier, the court held that a government sign depicting a small (4-inch) clip art cross violated the Establishment Clause because, the sign could be, and was in fact, perceived by reasonably informed observers, to be a government endorsement of the Christian religion. 955 F. Supp. at 746-47, aff'd, 173 F.3d 568 (6th Cir. 1999).


13

deeply offensive. . . . [I]t [i]s a governmental statement favoring one religious group and

downplaying others.).

In Allegheny, the county permitted an organization to display a crche at its courthouse.

The display bore a plaque disclaiming the countys ownership and was surrounded by a floral

decoration. Santa Claus figures and other Christmas decorations were present elsewhere in the

courthouse. The Court concluded that the crche violated the effect test, declaring that the county

has chosen to celebrate Christmas in a way that has the effect of endorsing a patently Christian

message. 492 U.S. at 601. Likewise, in Smith, the Fourth Circuit ruled that a privately donated

crche displayed on the front lawn of a government building failed the second prong of Lemon.

895 F.2d at 955-58. Notwithstanding the fact that it had a disclaimer stating it was Sponsored by

Charlottesville Jaycees, and that it involved no expenditure of County funds, the Fourth Circuit

concluded that the display sent the unmistakable message of endorsement of religion. Id. at 958.

The Seventh Circuit similarly held that in Chicago that the government-approved placement of

the nativity scene in Chicago's City Hall unavoidably fostered the inappropriate identification of

the City of Chicago with Christianity, and therefore violated the Establishment Clause. 827 F.2d

at 128.

The driving factor in determining the effect of a holiday display is its setting, including

its physical location and also the objects that surround the display. Lynch, 465 U.S. at 692

(OConnor, J., concurring); Allegheny, 492 U.S. at 598-600.

The display of religious symbols in public areas of core government buildings runs a

special risk of mak[ing] religion relevant, in reality or public perception, to status in the political

community. Lynch, supra, at 692 (concurring opinion). See also Smith, 895 F.2d at 958 (The

creche was situated on the front lawn of the County Office Building -- a prominent part, not only

of the town, but of the county office structure itself. Prominent in the background is the sign

identifying the building as a government office structure.); Chicago, 827 F. 2d at 128 (Because

City Hall is so plainly under government ownership and control, every display and activity in the

building is implicitly marked with the stamp of government approval. The presence of a nativity


14

scene in the lobby, therefore, inevitably creates a clear and strong impression that the local

government tacitly endorses Christianity).

When the government chooses to place a primarily religious display at the seat of . . .

government, this has the effect of communicating a message of endorsement, making it difficult

for any viewer to reasonably think that it occupies this location without the support and approval

of the government. Allegheny, 492 U.S. at 599-600.9

The creches physical setting plainly distinguishes it from Lynch: its placement in front

of the county courthouse. Chicago, 827 F.2d at 126. The creche in Lynch, although sponsored by

the City of Pawtucket, was located in a privately-owned park, a setting devoid of the governments

presence. Id. But the display here is located outside a government building a setting where the

presence of government is pervasive and inescapable. Id. The Courts 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 creches religious message. Allegheny, 492 U.S. at 600 (citation omitted).

Moreover, nothing in the context of the display detract[s] from the [displays] religious

message. Id. at 598-600 (rejecting the Countys contention that adding traditional Christmas

greens negate[d] the endorsement effect of the crche.). Any attempt to compare this case to case

in which the display is predominantly secular and the nativity scene is incidental to the display

must fail. For instance, in Lynch, 465 U.S. at 671, a crche was de minimis in a display including,

among other things, a Santa Claus house, reindeer pulling Santa's sleigh, candy-striped poles, a

Christmas tree, carolers, cutout 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

9 Cf. Florissant, 186 F.3d at 1098 (holding that the holiday display did not violate the Establishment Clause,

in part because it was located at the civic center as opposed to the seat of government, and as such was less

likely to communicate a message of endorsement).


15

the crche. The inclusion of a single religious symbol did not taint the entire display. Id. at

686.10

The Baxter County display is overwhelmingly Christian in nature, bearing a much stronger

resemblance to the display in Allegheny than the displays in Lynch and Florissant. The display

consists of a life-size representation of the birth of Jesus of Nazareth, with at least fifteen elements

(Jesus, Mary, Joseph, an angel, three kings, two camels, three sheep, a donkey, and at least two

shepherds) dedicated to the depiction of the birth of Jesus as set forth in the scriptures, plus one

Santa Claus11 one Christmas tree, and as of 2014, a single clear plastic reindeer and sleigh that do

not match the rest of the display.12 The angel bears a banner stating Gloria in Excelsis Deo, a

paraphrase13 of Gospel of Luke 2:14 (Vulgate) that forms the basis for the traditional Christian

prayer, the Gloria. This praise to God in Christian terms is indisputably religiousindeed

sectarianjust as it is when said in the Gospel or in a church service. Allegheny, 492 U.S. at 598.

The County even holds an annual Christian-themed lighting ceremony in front of the crche

where sectarian Christian prayers are offered by Christian clergy. This religious sectarian religious

message by itself is enough to have the effect of endorsing or advancing religion; the fact that the

display and the ceremony take place outside of the Courthouse simply compounds this effect.

Allegheny, 492 U.S. at 599-600. See, e.g., Trunk, 629 F.3d at 1119-20 & n.19; Green, 568 F.3d at

801 (The reasonable observer would know that two of the three commissioners attended the

unveiling of the Monument, which had been organized by Mr. Bush and included remarks by local

pastors); Hewett v. City of King, 29 F. Supp. 3d 584, 635 (M.D.N.C. 2014).

10 See also Florissant, 186 F.3d at 1098 (crche was not the primary element of the display, but rather only

one element in the grander context of an overall display featuring multiple, large candy canes, decorated

trees, wrapped gifts, gift cutouts, lollipop cutouts, reindeer, a snowman, a large Santa Claus with a sack of

gifts, an eight-foot wreath and multiple large signs featuring secular messages, all of which accompanied

the venue for multiple secular community events, such as a holiday craft show, a snack with Santa Claus, and a house decorating contest.). 11 This was added about four or five years ago. (Spencer Dep. p. 16). 12 Rick Spencer testified that he was aware of at least one complaint when he purchased the reindeer and

sleigh. (Spencer Dep. p. 7-8). 13 The Vulgate translation is Gloria in altissimis Deo.


16

This religious history heightens, rather than neutralizes, its undeniably . . . religious

message. Trunk, 629 F.3d at 1120-21. Specifically, a reasonable observer would know that the

crche has functioned as a holy object and a place of religious observance. Id. See Allegheny,

492 U.S. at 599 (because some of the carols performed at the site of the creche were religious in

nature, those carols were more likely to augment the religious quality of the scene than to

secularize it.).

The few non-religious Christmas items included in this displaythe Santa Claus tucked

behind one of the wise men, the Christmas tree, and the sleigh and reindeer only added in 2014

are incidental to the nativity scene at best and do little to nothing to detract from the over all

religious message of the display. See Green v. Haskell Cty. Bd. of Commrs, 568 F.3d 784, 800,

and n.8 (10th Cir. 2009) (the reasonable observer would be aware of the monuments precise

location on the lawn and its spatial relationship to the other courthouse monuments); see also City

of St. Charles, 794 F.2d at 267 (holding cross in a multi-faceted Christmas display unconstitutional

and noting that the cross was an overpowering feature of the . . . decorations . . . and . . . there

[was] no taller object in the city's Christmas display); Robinson v. City of Edmond, 68 F.3d 1226,

1232, n.11 (10th Cir. 1995); Joki v. Bd. of Educ. of Schuylerville Cent. Sch. Dist., 745 F. Supp.

823, 829-30 (N.D. N.Y 1990) (the cross occupies a highly prominent place in the painting and

draws the attention of the eye.).

In looking to the physical setting of a cross memorial, the Ninth Circuit in Trunk

observed: The Cross is placed in a separate, fenced off box, which highlights it, rather than

incorporates it as a natural part of the Memorial. 629 F.3d at 1123. Here too, the creches central

position . . . gives it a symbolic value that intensifies the [] sectarian message. Id. at 1123-24.

Moreover, the few Christmas-themed elements that have been added behind the display

in recent years have strong Christian overtones. A Christmas tree, for instance, may be considered

a secular symbol. But here, there is an annual lighting ceremony at which sectarian Christian

prayers are offered. As such, a reasonable observer would understand the Countys Christmas tree

as a holy object. Trunk, 629 F.3d at 1120-21.


17

Even if the Court accepts the tree as a secular symbol, notwithstanding its religious usage,

it is relatively small and stands in the backdrop of the Christian nativity scene. In Allegheny, in

contrast, the Court upheld a second display challenged in that case, which was an elaborate display

featuring a 45-foot Christmas tree, a sign saluting liberty, and an 18-foot menorah. 492 U.S. at

614. In upholding the display, the Court stressed that the tree, moreover, is clearly the

predominant element in the city's display. The 45-foot tree occupies the central position beneath

the middle archway in front of the Grant Street entrance to the City-County Building; the 18-foot

menorah is positioned to one side. Id. at 617. Given this configuration, the Court reasoned, it

is much more sensible to interpret the meaning of the menorah in light of the tree, rather than vice

versa. In the shadow of the tree, the menorah is readily understood as simply a recognition that

Christmas is not the only traditional way of observing the winter-holiday season. Id.

It is also relevant to the reasonable observer that for most of its 40-year history, the display

consisted of the crche alone; it wasnt until the threat of litigation that several non-religious

Christmas symbols were tacked on. See Trunk, 629 F.3d at 1103 (holding a government war

memorial cross unconstitutional and finding it relevant that the Cross stood alone for most of its

history, while later becoming a more extensive war memorial.).

The reasonable observer would also be aware of the County, and Rick Spencers religious

motivations for displaying the crche, including their express disapproval of including symbols

for non-Christians such as a Menorah or a Solstice banner. See Green, 568 F.3d at 800 (the

reasonable observer would be aware of [the private donors] religious motivation). [T]he

Establishment Clause does not limit only the religious content of the government's own

communications. It also prohibits the government's support and promotion of religious

communications by religious organizations. Allegheny, 492 U.S. at 600.

In addition, the actions and statements of . . . the community at large . . . also contribute

to the perception that the memorial [is] viewed as endorsing religion. Lake Elsinore, 2014 U.S.

Dist. LEXIS 25180, at *35-36. See Green, 568 F.3d at 800 (the reasonable observer would be

aware of the community's response to the Monument); City of Starke, 2007 U.S. Dist. LEXIS


18

19512, *14; Trunk, 629 F.3d at 1119-20 & n.19. In Trunk, a local law center declared that Christ

won the war on Calvary. Id. Other groups launched petition campaigns to save the cross, as is the

case here. Id. The court explained that [t]he starkly religious message of the Cross's supporters

would not escape the notice of the reasonable observer. Id. at 1120.

In this case, local supporters of the display who wrote Judge Pendergrass clearly perceived

the display as religious in nature. The emails contained quotes such as, I still pray that God will

grant you special wisdom and power to stand against the humanist legal forces, We stand with

God and Baxter County, As far as I know were still one nation under God, There is a lot of

Christian faith in this county and surrounding. . . . It seems to me that traditional Americans with

faith in God are willing to have leaders who will take courageous stands. God bless you, and I

just want to weigh in and say that I believe we should stand up for our rights as Christians to

worship and remember our savior. (Pendergrass Dep. p. 54-57). In fact, only one email

proclaimed that the display was not religious, but was an homage to the individual after whom our

calendar is counted. Id.

Even the Chamber of Commerce admits that the display is predominantly religious and

Christian. (Majeste Dep. p. 11).

In conclusion, the crche undoubtedly has the effect of communicating a message to the

public that Baxter County is endorsing religion, in violation of the Establishment Clause.14

D. The lease to the Chamber of Commerce does not cure the constitutional violation and in fact, evidences a clear religious purpose, resulting in an

independent Establishment Clause violation.

Defendant will inevitably argue that the so-called $1 lease to the Chamber of Commerce

in 2014 absolves it of its liability. Such an argument cannot seriously be maintained.

14 Because the crche clearly fails the first and second prongs of the Lemon test, the Court need not consider

whether the display also fosters excessive entanglement with religion. However, Plaintiffs submit that it

would also fail this prong of the test. E.g., Mendelson, 719 F. Supp. at 1071 (the city is entangled with religion because it funded the illumination of the cross during the six month period). In Denver, the court ruled that a citys crche failed the third prong because, in addition to being divisive, the city provided the space, placement and maintenance for [the] display of an inherently religious symbol. 481 F. Supp. at 530. See also Doe v. Cnty. of Montgomery, 915 F. Supp. 32, 38 (C.D. Ill. 1996).


19

For one thing, the entire lease is a sham. There is no discernable public benefit in the

transaction. Nor does the County reap any material financial benefit. See Mendelson, 719 F. Supp.

at 1069 (The lease itself is suspect. According to the lease, either party could terminate the

agreement for any reason with sixty days notice. Moreover, the lessee could not remove the cross

and replace it with another symbol without the City's written permission.).

It does not even appear that the County followed Arkansas law for executing a proper lease.

(Pendergrass Dep. p. 45-48); Ark. Code Ann 14-16-110. Much like in Mendelson, in which the

city did not follow its own policy for shutting off power to a lessor when they were six months

behind on rent, here too the County has been operating under an improperly executed lease. 719

F. Supp. at 1068-69. Indeed, Rick Spencer never discussed his display with the Chamber, let alone

received permission from the Chamber to place the display on its leased property in 2014.

(Majeste Dep. p. 10) (Spencer Dep. p. 21-22).15

Regardless, the express purpose of the lease is to continue displaying a predominantly and

exclusively Christian display at the central seat of the county government. As such, the lease itself

violates the Establishment Clause. When a state-sponsored activity has an overtly religious

character, courts have consistently rejected efforts to assert a secular purpose for that activity.

Mellen, 327 F.3d at 373. As the Supreme Court stated in Stone, 449 U.S. at 41, if an avowed secular

purpose is found to be self serving, it may not be sufficient to avoid conflict with the First

Amendment.

Defendants actions are intended to ensure that a Christian displayand only a Christian

displaywill be prominently featured on the property. (Ex. 8) (the purpose of the lease is to allow

for a Christmas display.). Given the Countys explicitly religious purposes for the lease, the

transaction violates the Establishment Clause under the first and second prongs of the Lemon test.

See Wirtz v. City of S. Bend, In., 813 F. Supp. 2d 1051, 1068 (N.D. Ind. 2011) (below-market-rate

transfer of property to religious school had effect of placing adherents and nonadherents on

15 In fact, Spencer did not even know about the lease until he read about it in the paper; nor did he know

Eddie Majeste (the president of the Chamber of Commerce). (Spencer Dep. p. 27-30).


20

different footing.).

But even assuming that the lease is valid and not unconstitutional, the Chamber of

Commerce is a state actor under these circumstances; stated differently, the County can be liable

for the actions of the Chamber of Commerce in regards to the crche. See generally Burton v.

Wilmington Parking Authority, 365 U.S. 715 (1961) (holding that restaurant that rented land from

government was state actor); Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982). This Court

has specifically held that that a short-term lease of government property constitutes a symbiotic

relationship sufficient for state action. See Wickersham v. City of Columbia, 371 F. Supp. 2d 1061,

1081 (W.D. Mo. 2005) (a short term lease increases the risk of confusion about the Citys

relationship to the Corporation because it is so transitory).16 The nature of the lease itself is further

evidence of state action as it shows the close nexus between the government and the challenged

action. Id. at 1076. The lease was entered into for the purpose of maintaining the challenged

Christmas display. (Ex. 8 at 1).

For instance, in Rabun, the Chamber of Commerce approved a plan for the erection of a

cross on government land. 698 F.2d at 1101. The chamber sought approval from the Georgia

Department of Natural Resources (Department). The Chamber would take full responsibility for

the fund-raising of both the construction and maintenance costs. Id. The Department merely

approved. Id. In fact, after receiving a complaint, the Department ordered the Chamber to remove

the cross from state property. Id. at 1101-02. The court found the purpose prong violated based

largely on the Chambers decision to dedicate the cross at Easter Sunrise Services, and the several

inspirational statements contained in the Chamber's press releases. Id. at 1111 (emphasis added).

The Eleventh Circuit specifically held that the Chambers motives could be imputed for the

following reasons: The cross is located on state property. The state, acting through its Department

of Natural Resources, initially approved the Chamber's project and later failed to require the

16 See also Chicago Acorn v. Metropolitan Pier and Exposition Authority, 150 F.3d 695, 697-99 (7th Cir.

1998) (finding state action when MPEA leased land to Democratic Party for one dollar for Democratic

National Convention)


21

Chamber to remove the cross. Under the now familiar principles of state action, the state's

involvement with the cross is clearly sufficient [.] Id. at 1109, n.19.17

III. THE COURTHOUSE LAWN IS NOT A PUBLIC FORUM FOR PRIVATE SPEECH AND IF THE COUNTY MAINTAINS THIS POSITION, IT MUST BE HELD

LIABLE FOR ENGAGING IN UNCONSTITUTIONAL VIEWPOINT

DISCRIMINATION IN VIOLATION OF THE FREE SPEECH CLAUSE.

A. The Courthouse lawn is not a public forum for private speech.

Any claim by the County that it established a public forum for private speech (and

specifically, Rick Spencers speech) is belied by the actual facts in this case. (E.g., Comp. Ex. 3)

(refusing to allow citizen to put up Winter Solstice banner). For the past 40 years, the County

has permitted a single display on its property the crche and has explicitly prevented other non-

Christian holiday symbols from being added to the display, supra. The County did not open the

courthouse grounds to other private parties. In fact, Judge Pendergrass declared to the media: I'm

just not allowing anything else, anywhere else on the square, besides that (crche). (Comp. Ex.

7). [S]elective access does not transform government property into a public forum. Santa Fe,

530 U.S. at 302-303 (citation omitted).

Moreover, certain kinds of speech may occur that, by their nature, do not require a forum

doctrine analysis. See Pleasant Grove City v. Summum, 555 U.S. 460, 464 (2009) (holding that

[p]ermanent monuments displayed on public property typically represent government speech).

Nor would the finding of a public forum here be controlling. The critical gauge is whether

the overall context and nature of the restricted display conveys the impermissible message of

governmental endorsement of religion. Smith, 895 F.2d at 958. The Supreme Court has never

held [that] the mere creation of a public forum shields the government entity from scrutiny under

the Establishment Clause. Santa Fe, 530 U.S. at 303 n.13.18

17 See also Am. Atheists, Inc. v. Duncan, 616 F.3d 1145, 1160 n.12 (10th Cir. 2010) cert. denied, 132 S. Ct.

12 (2011) (it was irrelevant that at least one, and perhaps several, of these [cross] memorials are located on private land); cf. Lynch, 465 U.S. at 671 (it was irrelevant to Establishment Clause analysis that city-owned crche was situated in a privately owned park). 18 See also Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1101 (9th Cir. 2000) (even assuming

the graduation ceremony was a public or limited public forum, the Districts refusal to allow the students to deliver a sectarian speech or prayer was necessary to avoid violating the Establishment Clause);


22

Where the government's operation of a public forum has the effect of endorsing religion,

even if the governmental actor neither intends nor actively encourages that result, . . . the

Establishment Clause is violated. Capitol Square, 515 U.S. at 777 (OConnor, J., concurring).

This is so because the State's own actions (operating the forum in a particular manner and

permitting the religious expression to take place therein), and their relationship to the private

speech at issue, actually convey a message of endorsement. Id. (emphasis added). In short,

Defendant cannot evade the requirements of the Establishment Clause by running for the

protective cover of a designated public forum. Santa Fe, 168 F.3d at 818-20.

But based on the undisputed facts, the County simply has not basis upon which to claim it

has established any sort of forum for private speech. The duration of the display, two months, is

far more than a transitory expressive act[]. Pleasant Grove, 555 U.S. at 464. See also id, at 478

(contrasting limited space of public parks to hold monuments with ability of typical forums to

disseminate many messages to many people). The Supreme Court held in Pleasant Grove that: if

public parks were considered to be traditional public forums for the purpose of erecting privately

donated monuments, most parks would have little choice but to refuse all such donations. And

where the application of forum analysis would lead almost inexorably to closing of the forum, it

is obvious that forum analysis is out of place. Id. at 480.

B. Assuming arguendo, Defendant created a public forum, Defendant violated the First Amendment by engaging in viewpoint discrimination in its refusal to

authorize a Winter Solstice Display and a Jewish Display.

In this case, the County will not be doing itself a favor by arguing that it has created a

public forum. For it is undisputed that the County has repeatedly refused to authorize appropriate

non-Christian holiday displays on the property adjacent to the crche, supra.

In a public forum, by definition, all parties have a constitutional right of access and the

State must demonstrate compelling reasons for restricting access to a single class of speakers, a

Herdahl v. Pontotoc Cnty. Sch. Dist., 933 F. Supp. 582, 589 (N.D. Miss. 1996) (even if a school established a limited open forum sectarian prayer broadcast over the public school loudspeaker would still violate the First Amendment).


23

single viewpoint, or a single subject. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S.

37, 55 (1983). Viewpoint discrimination by the government is prohibited regardless of the type of

forum created (limited, designated, or traditional). Rosenberger v. Rector & Visitors of the Univ.

of Va., 515 U.S. 819, 829 (1995); Burnham v. Ianni, 119 F.3d 668, 676 (8th Cir. 1997) (once it

chose to open the [display] case, it was prevented from unreasonably distinguishing among the

types of speech it would allow within the forum.). Viewpoint discrimination is thus an egregious

form of content discrimination. The government must abstain from regulating speech when the

specific motivating ideology or the opinion or perspective of the speaker is the rationale for the

restriction. Rosenberger, 515 U.S. at 829.

Clearly, if a public forum were created here, the Countys actions in refusing to allow

citizens to display a Winter Solstice Banner and menorah would amount to such egregious

unconstitutional viewpoint discrimination. Judge Pendergrass strongly suggested that the non-

Christian Winter Solstice Banner would degrade the religious side of the display (Ex. 5, Trans.

p. 4). Rick Spencer echoed Pendergrasss sentiment, declaring in more explicit terms: I can't

think of a better way to try to drown this Christmas spirit than to be a Washington group full of

atheists. (Comp. Ex. 7). In his deposition, Spencer stated: I mean, if I put up something that was

not in celebration of Christmas, I'm sure whoever the county judge was would have some problems

with that. (Spencer Dep. p. 16-17). When speakers and subjects are similarly situated, the State

may not pick and choose. Perry, 460 U.S. at 55. And where, as here, the government targets not

subject matter, but particular views taken by speakers on a subject, the violation of the First

Amendment is all the more blatant. Rosenberger, 515 U.S. at 829.

IV. PLAINTIFFS ARE ENTITLED TO THE RELIEF THEY SEEK.

A party seeking a permanent injunction must demonstrate: (1) that it has suffered an

irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate;

(3) that, considering the balance of hardships . . . a remedy in equity is warranted; and (4) that

the public interest would not be disserved. Christopher Phelps & Assocs., LLC v. Galloway, 492

F.3d 532, 543 (4th Cir. 2007) (citation omitted). Plaintiffs easily satisfy the first element because


24

a violation of First Amendment rights unquestionably constitutes irreparable injury. Elrod v.

Burns, 427 U.S. 347, 373 (1976). The second factor is also met because monetary damages are

inadequate to compensate for the loss of First Amendment freedoms. Legend Night Club v. Miller,

637 F.3d 291, 302 (4th Cir. 2011). The balance of hardships weighs in Plaintiffs favor because

the government is in no way harmed by an injunction which prohibits it from unconstitutional

activity. Newsom v. Albemarle Cnty. Sch. Bd., 354 F. 3d 249, 261 (4th Cir. 2003). The final element

is met because upholding constitutional rights serves the public interest. Id.

Plaintiffs are also entitled to judgment on their claims for nominal damages and declaratory

relief. By making the deprivation of such rights actionable for nominal damages the law

recognizes the importance to organized society that those rights be scrupulously observed. Carey

v. Piphus, 435 U.S. 247, 266 (1978). Nominal damages are particularly important here. Suing a

State over religion puts nothing in a plaintiffs pocket and can take a great deal out, and even with

volunteer litigators to supply time and energy, the risk of social ostracism can be powerfully

deterrent. Van Orden v. Perry, 545 U.S. 677, 747 (2005) (Souter, J., dissenting).

CONCLUSION

To be sure, some Christians may wish to see the government proclaim its allegiance to

Christianity in a religious celebration of Christmas, but the Constitution does not permit the

gratification of that desire. Allegheny, 492 U.S. at 612. Prohibiting the display of a creche in the

courthouse deprives Christians of the satisfaction of seeing the government adopt their religious

message as their own, but this kind of government affiliation with particular religious messages is

precisely what the Establishment Clause precludes. Id. at 601 n.51.

In view of the foregoing, Baxter Countys annual Christian display fails constitutional

muster and must be enjoined.

RESPECTFULLY SUBMITTED


25

___________________________

J.G. Gerry Schulze Attorney for Plaintiffs

BAKER AND SCHULZE

Ark. Bar No. 83156

2311 Biscayne Drive

Suite 300

Little Rock, AR 72227

[email protected]:///h

Tel. (501) 537-1000

Fax. (501) 537-1001

Monica L. Miller

American Humanist Association

1777 T Street N.W., Washington, D.C, 20009

[email protected]

Tel. (202) 238-9088

Fax. (202) 238-9003

CA Bar: 288343 / DC Bar: 101625

DAVID A. NIOSE

Law Offices of David Niose

348 Lunenburg Street, Suite 202

Fitchburg, MA 01420

[email protected]

Tel. 978-343-0800

MA Bar: 556484 / DC Bar: 1024530

ATTORNEYS FOR PLAINTIFFS


26

CERTIFICATE OF SERVICE

I hereby certify that on the _____ day of July, 2015, I served the following by electronic

mail upon:

Jason E. Owens

Attorney for Defendants

RAINWATER, HOLT & SEXTON, P.A.

P.O. Box 17250

801 Technology Drive

Little Rock, AR 72222-7250

Telephone (501) 868-2500

Telefax (501) 868-2505

___________________________

J.G. Gerry Schulze Attorney for Plaintiffs

BAKER AND SCHULZE

Ark. Bar No. 83156

2311 Biscayne Drive

Suite 300

Little Rock, AR 72227


[email protected] text8th

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