united states district court southern district of...

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

NEW ALBANY DIVISION

REBECCA WOODRING,

Plaintiff,

v.

JACKSON COUNTY, INDIANA,

Defendant.

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Case No. 4:18-cv-00243-TWP-DML

DEFENDANT’S OMNIBUS CROSS-MOTION FOR SUMMARY JUDGMENT

AND BRIEF IN SUPPORT, AND RESPONSE

IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Defendant, JACKSON COUNTY, INDIANA (the “County”), pursuant to Rule 56, Fed. R.

Civ. P., Local Rule 56-1, shows the Court there is no genuine dispute as to any material fact and

the County is entitled to judgment as a matter of law on the lone Establishment Clause claim of

Plaintiff, REBECCA WOODRING. The grounds supporting the County’s motion, and in

opposition to Plaintiff’s Motion for Summary Judgment (ECF No. 32, “Plaintiff’s MSJ”) and

Plaintiff’s Memorandum in Support of Motion for Summary Judgment (ECF No. 33, “Plaintiff’s

MSJ Memorandum”), are set forth herein.

Attached hereto as additional record evidence for the Court’s consideration are Exhibit A,

Declaration of Susan D. Bevers in Support of Defendant’s Motion for Summary Judgment

(“Bevers Declaration”), and Exhibit B, Transcript of Deposition of Rebecca L. Woodring

(“Woodring”).

Case 4:18-cv-00243-TWP-DML Document 38 Filed 10/04/19 of 57 PageID #: 379

i

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................. i

TABLE OF AUTHORITIES ......................................................................................................... iv

INTRODUCTION ...........................................................................................................................1

STATEMENT OF MATERIAL FACTS NOT IN DISPUTE IN SUPPORT OF

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ........................................................1

STATEMENT OF MATERIAL FACTS IN DISPUTE IN OPPOSITION TO PLAINTIFF’S

MOTION FOR SUMMARY JUDGMENT...................................................................................12

ARGUMENT .................................................................................................................................15


ii

1. Plaintiff’s Only Alleged Injury Is Mere Psychological Offense, Which

Is Insufficient as a Matter of Law. .............................................................16

2. Plaintiff’s Sworn Testimony Forecloses Article III Injury Because It

Shows She Is Not Required to Come into Direct and Unwelcome

Contact with the Christmas Display, and She Has Not Altered Her

Conduct at All. ...........................................................................................18

1. American Legion and Its Progeny Demonstrate That the Lemon Test

No Longer Applies to Long-Standing Government Practices or

Monuments. ...............................................................................................22

2. The County’s Display Unquestionably Passes American Legion’s

Articulated Test. .........................................................................................24

1. The Court Must Review the Nativity Scene Display as a Whole. .............28

2. Viewed in Its Entirety, the Christmas Display Is Constitutional as a

Matter of Settled Law. ...............................................................................29

a. Displays Containing Religious and Non-Religious Components

Together Are Constitutional as a Matter of Law. ..........................30

b. Displays Containing Solely Religious Imagery or Symbols

Have Been Held Unconstitutional in Certain Circumstances Not

Present Here. ..................................................................................32


iii

c. The Challenged Display Contains Both Religious and Non-

Religious Symbols, in the Appropriate Context, and Therefore

Survives Constitutional Scrutiny as a Matter of Law. ...................34

The Display Virtually Mirrors Those Already Found

Constitutional by the Supreme Court and the Seventh

Circuit. ...............................................................................34

The Context in Which the Courthouse Display Appears

Removes Establishment Clause Concerns Under

Binding Seventh Circuit Precedent. ...................................35

d. Plaintiff’s Repeated References to Purported Arrangements of

Past Displays She Did Not Challenge Is Irrelevant to the

Constitutionality of the Currently Arranged Display, Which

Plaintiff Did Challenge. .................................................................37

Plaintiff Challenged Only the Current Display. .................37

The Undisputed Facts Show That Plaintiff Cannot State

a Claim for Damages, and Such a Claim Would Not Be

Justiciable Anyway. ...........................................................39

1. A Reasonable, Objective Observer Familiar with All of the Facts

Would Understand the County’s Display Not to Be an Endorsement of

Religion. .....................................................................................................40

2. McCreary County Does Not Diminish the Perspective of a Reasonable

Observer. ....................................................................................................42

1. Binding Seventh Circuit Precedent Has Applied the Coercion Test in

Numerous Establishment Clause Challenges.............................................46

2. Objectively Non-Coercive Practices Do Not Violate the Establishment

Clause. ........................................................................................................48

CONCLUSION ..............................................................................................................................50

CERTIFICATE OF SERVICE ......................................................................................................50


iv

TABLE OF AUTHORITIES

CASES

ACLU v. City of Florissant, 186 F.3d 1095 (8th Cir. 1999) ..........................................................32

ACLU of Ga. v. Rabun Cnty. Chamber of Commerce, 698 F.2d 1098 (11th Cir. 1983) ...............19

ACLU of Ill. v. City of St. Charles, 794 F.2d 265 (7th Cir. 1986) .......................................17,18,19

ACLU of Ky. v. Wilkinson, 895 F.2d 1098 (6th Cir. 1990) ............................................................32

ACLU of N.J. ex rel. Lander v. Schundler, 168 F.3d 92 (3d Cir. 1999) ..............................32,45,46

Adelman-Tremblay v. Jewel Co., Inc., 859 F.2d 517 (7th Cir. 1988) ............................................13

Am. Atheists, Inc. v. Levy Cnty., No. 1:15cv113-MW/GRJ,

2017 WL 6003077 (N.D. Fla. Dec. 3, 2017) .....................................................................18

Am. Jewish Congress v. City of Chicago, 827 F.2d 120 (7th Cir. 1987) ..................................32,33

Am. Legion v. American Humanist Ass’n, 139 S. Ct. 2067 (2019) ..................17,22,23,24,25,26,27

Babrocky v. Jewel Food Co., 773 F.2d 857 (7th Cir. 1985) ..........................................................13

Biel v. St. James Sch., 926 F.3d 1238 (9th Cir. 2019) ...................................................................23

Books v. City of Elkhart, 235 F.3d 292 (7th Cir. 2000) ............................................................18,19

Books v. Elkhart Cnty., 401 F..3d 857 (7th Cir. 2000) ........................................................18,20,28

Capital Square Rev. & Advisory Bd. v. Pinnette, 515 U.S. 753 (1995) .........................................40

Chicago & E.I.R. Co. v. Ill. Cent. R. Co., 261 F. Supp. 289 (N.D. Ill. 1996) ...............................21

Cnty. of Allegheny v. ACLU Greater Pitt. Chapter,

492 U.S. 573 (1989) ..............................................................28,29,31,32,33,34,35,41,48,49

Diliberti v. United States, 817 F.2d 1259 (7th Cir. 1987) .............................................................13

Doe v. Cnty. of Montgomery, 41 F.3d 1156 (7th Cir. 1994) .....................................................17,18

Doe v. Small, 964 F.2d 611 (7th Cir. 1992) ...................................................................................28

Doe v. Vill. of Crestwood, 917 F.2d 1476, 1478 (7th Cir. 1990) .........................................29,35,36

Doe ex rel. Doe v. Elmbrook Sch. Dist., 687 F.3d 840 (7th Cir. 2012) ....................................28,46

Elewski v. City of Syracuse, 123 F.3d 51 (2d Cir. 1997) .....................................................32,41,42


v

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) ........................................................49

Fields v. Speaker of Penn. House of Reps., 936 F.3d 142 (3d Cir. 2019) .....................................23

Freedom From Religion Found., Inc. v. City of Warren, 707 F.3d 686 (6th Cir. 2013) ...............32

Freedom From Religion Found. v. Concord Cmty. Schs.,

207 F. Supp. 3d 862 (N.D. Ind. 2016) .....................................................................39,44,45

Freedom From Religion Found., Inc. v. Cnty. of Lehigh,

933 F.3d 275 (3d Cir. 2019)................................................................................23,24,25,26

Freedom from Religion Found. v. Hanover Sh. Dist., 626 F.3d 1 (1st Cir. 2010) ........................40

Freedom From Religion Found., Inc. v. Obama, 641 F.3d 803 (7th Cir. 2011) .................16,19,20

Freedom From Religion Found., Inc. v. Zielke, 845 F.2d 1463 (7th Cir. 1988) ......................16,19

Gonzales v. North Tp. of Lake Cnty., 4 F.3d 1412 (7th Cir. 1993) ......................................17,18,19

Harris v. City of Zion, Lake Cnty., Ill, 927 F.2d 1401 (7th Cir. 1991) ................................17,20,29

Johnson v. Cambridge Indus., Inc., 325 F.3d 892 (7th Cir. 2003) ..................................................1

Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996) ..................................................................................47

Lee v. Weisman, 505 U.S. 577 (1992)............................................................................................48

Lemon v. Kurtzman, 403 U.S. 602 (1971) ............................................................22,23,24,25,27,49

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ....................................................................15

Lund v. Rowan Cnty., 863 F.3d 268 (4th Cir. 2017) ......................................................................47

Lynch v. Donnelly, 465 U.S. 668 (1984) ..........................................................28,29,30,31,33,34,35

Mather v. Vill. of Mundelein, 864 F.2d 1291 (7th Cir. 1989) ...............................28,31,32,34,35,41

McCreary Cnty. v. ACLU of Ky., 545 U.S. 844 (2005) .............................................28,40,42,43,44

Miller v. Heritage Prods., Inc., No. 1:02-CV-1345-DFH,

2004 WL 1087370 (S.D. Ind. Apr. 21, 2004) ....................................................................13

O’Shea v. Littleton, 414 U.S. 488 (1974) ......................................................................................37

Perry v. Sheahan, 222 F.3d 309 (7th Cir. 2000) ............................................................................20

Russell v. Acme-Evans Co., 51 F.3d 64 (7th Cir. 1995) ...........................................................13,14


vi

Salazar v. Buono, 559 U.S. 700 (2010) .........................................................................................40

Serafinn v. Int’l Bhd. of Teamsters, Local Union No. 722, No. 03 C 9409,

2007 WL 1670360 (N.D. Ill. June 5, 2007) ..................................................................37,38

Schirmer v. Nagode, 621 F.3d 581 (7th Cir. 2010)........................................................................38

Steel Co. v. Citizens for a Better Environment, 523 U.S. 803 (1998) .......................................20,37

Sullivan v. Conway, 157 F.3d 1092 (7th Cir. 1998) ......................................................................13

Town of Greece v. Galloway, 572 U.S. 565 (2014) ..................................................................47,48

Turner v. Hickman, 342 F. Supp. 2d 887 (E.D. Cal. 2004) ...........................................................47

Valley Forge Christian College v. American United for Separation of Church & State,

Inc., 454 U.S. 464 (1982) ....................................................................................15,16,17,20

Van Orden v. Perry, 545 U.S. 677 (2005) .....................................................................................48

Warner v. Orange Cnty. Dep’t of Probation, 115 F.3d 1068 (2d Cir. 1996) ................................47

Wisconsin Right to Life, Inc. v. Schober, 366 F.3d 485 (7th Cir. 2004) ........................................39

OTHER AUTHORITIES

U.S. Const. art. III, §2 ....................................................................................................................15

Fed. R. Civ. P. 56 ...........................................................................................................................15


1

INTRODUCTION

This case does not require the Court to pick a winner between religion and non-religion; it

requires only that the Court uphold the Constitution. Plaintiff’s mere displeasure with a temporary

Christmas display on the lawn of the historic Jackson County Courthouse is insufficient, as a

matter of law, to support her Establishment Clause claim against the County. On the undisputed

evidentiary record, and under binding Supreme Court and Seventh Circuit precedent, Plaintiff’s

mere psychological offense at seeing the display cannot satisfy constitutional standing

requirements, and she cannot prevail on the merits because the County’s annual December display

of a Nativity scene combined with non-religious elements to recognize the Christmas holiday is

constitutional under any Establishment Clause test.

“[S]ummary judgment ‘is the “put up or shut up” moment in a lawsuit.’” Johnson v.

Cambridge Indus., Inc., 325 F.3d 892, 902 (7th Cir. 2003). As shown herein, even after conducting

discovery Plaintiff has no evidence to satisfy standing or advance her claim on the merits. The

County is entitled to judgment as a matter of law.

STATEMENT OF MATERIAL FACTS NOT IN DISPUTE

IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

THE HISTORIC JACKSON COUNTY COURTHOUSE.

The historic Jackson County Courthouse (the “Courthouse”) is located on Main Street in

Brownstown, Indiana. (Complaint, ECF No. 1, ¶ 8; Transcript of Deposition of Susan D. Bevers,

ECF No. 32-1 (“Bevers”), 6:9–7:9, Ex. 2.) The Courthouse contains the offices of the Jackson

County Assessor, Auditor, Public Defender, Recorder, Surveyor, Treasurer, Planning & Zoning


2

Department, and Purdue Extension.1 (Bevers 7:10–19.) The Courthouse front lawn on Main Street

sites permanent monuments comprising a Sherman Tank at the North end, and a granite veterans

memorial, flag pole, and bell at the South end. (Bevers 8:1–9:2, Ex. 2.) The Courthouse has two

main entrances, one facing the front lawn and Main Street, and one on the opposite side of the

Courthouse facing Sugar Street. (Bevers 9:5–11, Ex. 2.)

THE COUNTY’S ANNUAL CHRISTMAS HOLIDAY DISPLAY.

The Display on the Courthouse Front Lawn.

Since at least 2002, and possibly for more than ten years prior, a portion of the County’s

annual Christmas holiday display at the Courthouse has included a Nativity scene on the front lawn

during the month of December. (Compl. ¶¶ 1, 12; Bevers 13:8–16:11.). Since at least 2003, the

Nativity figures include the baby Jesus, Joseph and Mary, two angels, Magi bearing gifts, and

animals, all outlined with white lights. (Compl. ¶¶12-14; Bevers 10:10–16, 19:14–21:10.) Also

since at least 2003, the display has combined the Nativity figures with the non-religious figures of

Santa Claus, Santa’s sleigh, reindeer, and carolers, also outlined in white lights. (Compl. ¶¶16-17;

Bevers 21:17–22:6.) All of the Nativity and non-religious figures are illuminated from dusk until

dawn while on display. (Bevers 18:11–19.)

The components of the lawn display are not owned or maintained by the County. (Bevers

10:17–11:7.) The display figures were purchased by and are still owned by the Brownstown Area

Ministerial Association, and Brownstown Lions Club volunteers handle all aspects of storing,

maintaining, setting up, and taking down the display each year. (Bevers Tran. 10:17–11:6; 19:1–

1 Purdue Extension “includ[es] campus specialists and Extension Educators in all 92

counties [and] connects Indiana communities to world-class Purdue University research and a

nationwide network of experts on agriculture, community, environment, family, food, and youth.”

Purdue Extension, https://extension.purdue.edu/ (last visited Oct. 3, 2019).


3

19:13). The Lions Club puts the display up on the Courthouse lawn the weekend after

Thanksgiving, and takes it down right after the first of the year. (Bevers 17:17–17:25.) The

County’s only involvement is allowing use of the Courthouse lawn for the display figures and

providing an electrical supply for the nighttime illumination of the figures. (Bevers 18:20–25.)

The Display Around and Inside the Courthouse.

In addition to the Lions Club’s lighted figures on the Courthouse lawn, the County permits

the Chamber of Commerce to decorate the Courthouse exterior and grounds. (Bevers 51:5–52:9.)

The Chamber fills flowerpots with greenery at the two front corners of the Courthouse, and does

the same along Main Street as part of the overall decoration of downtown Brownstown. (Bevers

51:5–17, Ex. 4.) The Chamber of Commerce also places spiral strings of white lights down each

of the lamp post streetlights that encircle the entirety of the Courthouse grounds. (Bevers 51:18–

52:9, Ex. 8.) As with the lighted lawn figures placed by the Lions Club, the County provides

electricity for the Chamber’s lamp post light strings. (Bevers 18:20–25; 51:18–52:5.) The Town

of Brownstown mimics the Courthouse lamp posts with its own, continuing the spirally-lighted

lamp post theme up and down Main Street. (Bevers 55:7–56:11, Ex. 4.)

Inside the Courthouse, the County places a large Christmas tree in the lobby rotunda,

surrounded by fake presents at the bottom. (Bevers 52:10–52:13.) The County decorates the

Christmas tree with candy canes for consumption by children and other visitors. (Bevers 52:21–

53:8.) The County places poinsettias variously inside and around the Courthouse lobby entryways.

(Bevers 52:14–52:20.) The Chamber of Commerce hosts a “hometown Christmas” event inside

the Courthouse lobby, bringing in a live Santa Claus for children to visit and share their wish lists.

(Bevers 52:24–53:4.) Additionally, individual offices and employees may decorate their respective

spaces inside the Courthouse. (Bevers 53:9–53:11.)


4

The County’ Display in 2018 and After.

The County’s purpose in allowing the annual Christmas holiday display is to celebrate the

Christmas and holiday season, and the Lions’ Nativity scene is merely a part of the overall display

serving that purpose. (Bevers 6:20–7:1, 10:10–16, 33:2–34:2.) All of the elements of the annual

display described above—the Chamber’s white string lights spiraling down the lamp posts that

encircle the entire Courthouse grounds (and continue up and down Main Street), and flower pots

filled with greenery at the front corners of the Courthouse (and along Main Street); the County’s

large Christmas tree inside the Courthouse rotunda surrounded by fake presents and decorated with

candy canes for the taking by children and other visitors, and poinsettias in and around the lobby

entryways; and the Lions’ front lawn scene combining lighted figures of Santa Claus, Santa’s

sleigh, reindeer, carolers, and Nativity characters—were present in the December 2018 display.

(Bevers 17:11–18:10, 23:20–24:3, 51:5–53:11, 55:7–56:11, Exs. 4, 9.)

A difference between 2018’s and the prior years’ displays was the arrangement of the

Lion’s lawn display figures. (Bevers 25:7–27:24, Exs. 2, 6.) Previously, the Santa, sleigh, reindeer,

and caroler figures were spread farther out on the front lawn, nearer the permanent Sherman Tank

and veterans’ monuments, for better visibility of the individual figures. (Bevers 25:21–26:19,

28:21–29:16, 30:4–19, Exs. 2, 4, 6.) In response to a December 13, 2018 letter of complaint from

the Freedom from Religion Foundation, the County Commissioners rearranged the lawn figures

on December 21, 2018 so that all the non-religious and Nativity figures would be in a single field

of view, even though the compression of the figures–all of them white metal forms–made them

more difficult distinguish visually. (Bevers 19:14–22:8, 26:24–29:16, Exs. 4, 6.)

The following is Plaintiff’s photograph depicting the compressed, post-change

arrangement of the lawn figures in 2018:


5

(Compl. Ex. 1. ECF No. 1-1; Bevers 18:1–6, 26:24–29:16, Ex. 4.) It is readily observable in

Plaintiff’s photo that the figures of Santa Claus, Santa’s sleigh, reindeer, and carolers are

immediately adjacent and identical in type and size to the Nativity figures, and identically outlined

in white lights. (Compl. ¶ 13; Bevers 18:1–10, 19:14–22:8, Ex. 4.)

The Jackson County Board of Commissioners voted to make the 2018 arrangement of the

lawn figures the permanent arrangement going forward, “such that all of the items are directly in

front of the Courthouse building (not to the side), and such that all items can be seen in one field

of view when looking at the front of the Courthouse, without having to scan left or right.” (Letter,

ECF No. 32-3 PageID ##: 325–26 (“Commissioners’ Letter”); Minutes, ECF No. 32-3 PageID ##:

327–28.) The Commissioners instructed the Lions Club that the Commissioners intended for the

2018 rearrangement to be permanent: “Therefore, effective with the change in 2018 and


6

permanently thereafter, if there is to be a Christmas display on the Courthouse lawn, it shall

comport with the above requirements, it shall contain at least as many and as large non-religious

items are were displayed in 2018 and prior, and the items shall be placed at least as close to each

other as [after the change in 2018].” (Comm’rs’ Letter PageID ##: 327–28.)

PLAINTIFF’S CHALLENGE TO THE COUNTY’S 2018 DISPLAY.

Plaintiff’s Sole Alleged Injury Is Psychological Offense at the

Christmas Display, and She Has Suffered No Damages.

Plaintiff is a resident of Jackson County who alleges that she objects to the Nativity scene’s

display on the Courthouse lawn. (Compl. ¶¶ 21, 23.) In her sworn testimony, Plaintiff makes

abundantly clear that she finds every aspect of Christmas offensive and that such offense is the

basis for her alleged injury. (Woodring 59:20–64:23.) In fact, it is undisputed that there is very

little about Christmas that does not offend Plaintiff. She is offended by Santa Claus (Woodring

59:24–60:7), the “fairy tales” that “people tell their kids” about Christmas (Woodring 60:20–24),

people saying “Merry Christmas” (Woodring 61:1–61:12), Christmas carols (Woodring 61:13–

61:24), stores that play Christmas carols (Woodring 62:3–62:21), Nativity scenes in general

(Woodring 62:22–63:11), Nativity scenes on government property (Woodring 63:17–63:22), and

the federal government’s recognition of Christmas as a federal holiday (Woodring 64:8–64:16).

Aside from Plaintiff’s offense at all things Christmas, the undisputed record shows that

Plaintiff’s sole allegation of injury in this case is her psychological offense at the Christmas display

allowed by the County. (Woodring 108:21–110:12.) Indeed, Plaintiff admits in her sworn

testimony that she has suffered no damages, and no injury other than psychological offense.

(Woodring 108:21–110:12.)

Q You’re not seeking damages in this case?

A No.

. . . .


7

Q Okay. You’re objecting on—you’re objecting to the Christmas

display on moral and philosophical grounds—

A Yes.

Q —correct?

A Yes.

Q You’re objecting because you are offended?

A Yes.

Q You filed this lawsuit because you’re offended?

A Yes.

Q You have a psychological offense that you take from the

Christmas display?

A Yes.

Q But you didn’t file this lawsuit because you’ve incurred

damages from the Christmas display, did you?

A No.

Q Okay. You have no money damages that you’ve incurred?

A No.

Q No lost business, lost income, lost opportunities because of

the Christmas display?

A No.

Q Okay. So, you’re not seeking damages because you have no

damages; correct?

A Correct.

(Woodring 108:21–110:12 (emphasis added).)

Plaintiff’s sworn testimony, then, demonstrates that she has (1) suffered no economic harm,

(2) lost no business income, and (3) lost no opportunities. (Woodring 108:21–110:12.) Thus,

Plaintiff’s admittedly sole injury is that of psychological offense at the Christmas display at the

Courthouse.


8

Plaintiff Is Not Forced to Come into Contact with the Christmas

Display, Has No Need of Government Services in the

Courthouse, and Has Only Ever Been Inside the Courthouse

One Time—by Accident.

Plaintiff’s has no need to use any of the Jackson County offices housed in the Courthouse:

Q Do you have any regular need or obligation to be inside that

Courthouse?

A No.

Q Okay. You’re not enrolled in the Purdue Extension program?

A No.

Q You don’t have any plans to be enrolled in that program?

A No.

Q Okay. You don’t any business with the Jackson County

Treasurer?

A Possibly.

Q You haven’t so far?

A I’ve contacted them; I’ve never been to their office so far, no.

Q Okay. You don’t have any plans to visit the Treasurer’s office?

A No.

. . . .

Q You don’t have any business with the Jackson County Auditor?

A No.

Q And have no plans to visit that office?

A No.

Q Okay. You don’t have any business with the Jackson County

Tax Assessor?

A No.

Q No plans to visit that office?

A No.

Q And you don’t have any business with the Jackson County

Recorder?

A No.

Q No plans to visit that office?

A No.


9

Q You don’t plan to get arrested any time in the future?

A No.

Q So, you don’t have any business with the public defender?

A No.

Q And no plans to visit that office?

A No.

Q And what about any business with the County Surveyor or the

Planning and Zoning Commission?

. . . .

A I’ve not visited, no.

Q And you have no plans to visit them at this time?

A Not at this time, no.

. . . .

Q Okay. Certainly no concrete plans to visit any of these offices

during the month of December of this year?

A No.

(Woodring 90:22–94:12.)

Likewise, Plaintiff has no familial or other obligations that require her to visit the County

Courthouse in Brownstown. Plaintiff does not own and has never owned property in Jackson

County. (Woodring 25:18–25:23.) Plaintiff has no plans to purchase property in Jackson County.

(Woodring 26:13–26:21.) Neither Plaintiff nor her girlfriend has any family members living in

Brownstown where the Courthouse is located, and thus no familial requirements that compel their

contact with the Courthouse. (Woodring 29:20–29:25.) Plaintiff has no children that attend school

in Brownstown where the Courthouse is located. (Woodring 31:15–31:24.) In fact, the one time

Plaintiff ever visited the Courthouse was by accident:

Q Okay. Have you ever been inside the historical Jackson County

Courthouse?

A I think I went in there on a mistake the very first—

Q By accident?

A Yeah, uh-huh.


10

Q Okay. You weren’t required to be there, you went by mistake

and they directed you somewhere else?

A Uh-huh.

Q Yes?

A Yes.

. . . .

Q . . . . So—and that was the only time in your life that you have

been inside that courthouse?

A Uh-huh.

Q Yes?

A Yeah, yes.

(Woodring 86:23–87:8, 89:23–90:3.)

Plaintiff Has Not Altered Her Conduct at All to Avoid Contact

with the Christmas Display.

Plaintiff’s sworn testimony demonstrates that she has not altered her conduct at all or

incurred any expense or damages as a result of the County’s challenged display:

Q And just so the record’s clear, after you saw the Christmas

display for the first time in December of 2018, you did not alter

or change your conduct in any way to avoid seeing it again.

A No.

Q No, you didn’t alter or change your conduct?

A Correct.

Q Okay. You didn’t take any detours or change your routes of

travel?

A No.

Q You didn’t cancel any appointments or meetings that you had in

Brownstown?

A No.

Q You did not turn down any opportunities, business or otherwise,

in Brownstown because they would have required you to visit

the courthouse and see—

A No.

Q —the display?


11

A No.

Q We’ve already talked about the fact that you didn’t lose any

money; correct?

A Uh-hu.

Q Yes?

A Yes.

(Woodring 113:8–114:7 (emphasis added).)

No Size, Location, or Quantity of Non-Religious Additions to the

Christmas Display Would Ameliorate Plaintiff’s Offense at the

Display.

Plaintiff’s sworn testimony demonstrates that no size, location, or quantity of non-religious

elements added to the Christmas display would ameliorate her offense at the display:

Q Would you still be offended by the Christmas display if it had

more nonreligious items added to it?

A Yeah.

Q You would still?

A Yes.

Q So let's say—I'm trying to think of a nonreligious Christmas item

that would be nonreligious in your view. A Christmas tree?

A Uh-huh.

Q Yes. It's nonreligious?

A Yeah, I would say it's nonreligious.

. . . .

Q And presents, those are nonreligious?

A Uh-huh.

Q Yes?

A Yes.

Q If you added a whole bunch of nonreligious items all over that

courthouse lawn, you would still be offended by that display?

A Yes.

Q And if you made the nonreligious items larger, you know, you

would still—you would still be offended by the display?

A Yes.


12

Q If you placed the nonreligious items closer to the nativity scene

on the lawn, you would still be offended?

A Yes.

Q Yes?

A Yes.

Q And you would still have filed this lawsuit and still ask the Court

to throw everything out?

A Yes.

. . . .

Q But short of removing it from the lawn of the Jackson County

Courthouse, removing the nativity, the Santa, the sleigh, the

carolers, the reindeer, short of removing those from the lawn of

the Jackson County Courthouse is there anything that would

satisfy you in this case?

A No.

(Woodring 114:14–116:20.)

STATEMENT OF MATERIAL FACTS IN DISPUTE

IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

PLAINTIFF’S SHAM DECLARATION SHOULD BE STRICKEN.

Plaintiff attempts to conjure standing from the ashes of her fatally dispositive admissions

by submitting a sham declaration that intentionally and materially contradicts her sworn testimony.

(Declaration of Rebecca Woodring, ECF No. 32-2 (“Woodring Declaration”).) Despite having

testified unequivocally and at length that she has no legal or other obligations or business dealings

requiring her to visit or enter the Courthouse, and no plans to visit the Courthouse (see supra

Statement of Material Facts Not in Dispute in Support of Defendant’s Motion for Summary

Judgment (“County Undisputed Facts”) Part III.B), Plaintiff’s declaration purports to rewrite

reality by claiming repeated, compulsory, and unavoidable contact with the Courthouse and its

front lawn. (Woodring Decl. ¶¶ 4–14, 19.) The Court should not countenance Plaintiff’s sham

declaration, and should strike it from the record. All statements of purported fact in Plaintiff’s


13

“Statement of material facts not in dispute” (Pl.’s MSJ Mem. 2–12) relying on the sham declaration

should be disregarded and stricken as well.

Binding precedent forecloses consideration of a sham affidavit submitted by a plaintiff to

create an injury or to revise deposition testimony she deems deficient or harmful to her cause.

Indeed, “[i]t is well established that a party cannot create a genuine issue of fact by submitting

an affidavit with conclusory allegations which contradict plain admissions in prior

deposition or otherwise sworn testimony.” Diliberti v. United States, 817 F.2d 1259, 1263 (7th

Cir. 1987) (emphasis added); see also Adelman-Tremblay v. Jewel Co., Inc., 859 F.2d 517, 521

(7th Cir. 1988) (noting Seventh Circuit’s strict “rule against creating sham issues by submitting

affidavits that contradict prior depositions”); Babrocky v. Jewel Food Co., 773 F.2d 857, 861 (7th

Cir. 1985) (“conclusory allegations [can]not create a conflict with plain admissions in deposition

testimony”); id. at 861–62 (plaintiff not entitled to summary judgment based on affidavit, drafted

solely to bolster plaintiff’s claims, where it conflicts with prior deposition testimony).

The rationale for this binding rule is simple:

Affidavits are normally as here written by lawyers, and if such

documents were allowed to be used to ‘correct’ unguarded

statements that has been made in the more spontaneous setting of

oral questioning, the value of pretrial discovery as a tool for eliciting

truth and heading off trials on fabrications would be seriously

impaired.

Sullivan v. Conway, 157 F.3d 1092, 1096–97 (7th Cir. 1998); Russell v. Acme-Evans Co., 51 F.3d

64, 67 (7th Cir. 1995) (same).

Thus, where—as here—“contents of an affidavit conflict with the substance of earlier

deposition testimony, the court should consider the deposition for summary judgment

purposes, and the affidavit should be disregarded.” Miller v. Heritage Prods., Inc., No. 1:02-

CV-1345-DFH, 2004 Wl 1087370, *4 (S.D. Ind. Apr. 21, 2004) (emphasis added); see also


14

Russell, 51 F.3d at 67–68 (“Where deposition and affidavit are in conflict, the affidavit is to be

disregarded unless it is demonstrable that the statements in the deposition were mistaken, perhaps

because the question was phrased in a confusing manner or because a lapse in memory is in the

circumstances a plausible explanation.”).

Plaintiff’s declaration—as well as her attempts to bolster her standing in this matter—must

be disregarded. Indeed, Plaintiff gave straightforward answers to questions she testified she

understood. (Woodring 6:3–6:7 (“Q: And if you do respond to one of my questions is it fair for

me to understand that you understood the question and intended to answer it the way you did? A:

Yes.”).) Thus, Plaintiff can make no claim that she misunderstood a question or that any were

confusing. Nor can Plaintiff claim refuge in a lapse in memory. Her testimony—discussed at length

supra in the County Undisputed Facts Part III, was straightforward and demonstrates that she has

no need of using the government services at the Courthouse, has no business dealings in the

Courthouse, is not forced to go to the Courthouse, and has no plans to go to the Courthouse. She

cannot now claim, contrary to her sworn deposition testimony, that she cannot stay away.

Plaintiff’s declaration should be stricken and disregarded in its entirety.

To the extent the Court allows Plaintiff’s declaration to stand, it nonetheless cannot

accomplish its goal because the thrust of the declaration—that Plaintiff cannot avoid the

Courthouse and its front lawn in the course of her Brownstown activities (Woodring Decl. ¶¶ 4–

14, 19)—is implausible on its face. As shown in the Bevers Declaration attached hereto as Exhibit

A, “[t]here are numerous travel routes to and through Brownstown that avoid a view of the

Courthouse front lawn at all times of the year, including in December.” (Bevers Decl. ¶ 4.) Thus,

whether Plaintiff has general business requiring travel in or through Brownstown (Woodring Decl.

¶¶ 4–8, 10, 11, 13, 14, 19), has specific business at the “Jay-C grocery store” (Woodring Decl.


15

¶ 9), or has specific business at the Jackson County Prosecutor’s Office (Woodring Decl. ¶ 12),

there are numerous routes to and through Brownstown that avoid contact with the Courthouse front

lawn without adding significant time or distance. (Bevers Decl. ¶4, Exs. A-1 to A-4.) Given that a

straightforward, even cursory, review of a map of Brownstown demonstrates Plaintiff’s declaration

assertions are patently implausible, they cannot establish a genuine dispute as to any material fact

sufficient to avoid summary judgment in the County’s favor. Fed. R. Civ. P. 56(c) (“A party

asserting that a fact cannot be . . . genuinely disputed must support the assertion by . . . showing

that the materials cited do not establish the . . . presence of a genuine dispute, or that an adverse

party cannot produce admissible evidence to support the fact.”)

ARGUMENT

THE COUNTY IS ENTITLED TO JUDGMENT AS A MATTER OF LAW

BECAUSE PLAINTIFF CANNOT SATISFY THE IRREDUCIBLE

CONSTITUTIONAL MINIMUM OF ARTICLE III STANDING.

Constitutional Standing Requirements Are an Indispensable

Part of Plaintiff’s Burden.

The Constitution limits judicial power to actual cases and controversies. See U.S. Const.

art. III, §2. Article III standing requires, at an “irreducible minimum,” a showing that a plaintiff

“has suffered some actual or threatened injury as a result of the putatively illegal conduct of the

defendant,” that the injury “fairly can be traced to the challenged action,” and that the injury “is

likely to be redressed by a favorable decision.” Valley Forge Christian College v. American United

for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982). “The party invoking federal

jurisdiction bears the burden of establishing these elements.” Lujan v. Defenders of Wildlife, 504

U.S. 555, 561 (1992). And, “[s]ince they are not mere pleading requirements but rather an

indispensable part of the plaintiff’s case, each element must be supported in the same way as

any other matter on which the plaintiff bears the burden of proof.” Id. (emphasis added).


16

Thus, the indispensable and irreducible constitutional minimum of standing is “not merely

a troublesome hurdle to overcome if possible so as to reach the merits of a lawsuit which a party

desires to have adjudicated, it is a part of the basic charter promulgated by the Framers of the

Constitution at Philadelphia in 1787.” Valley Forge, 454 U.S. at 476. “Those who do not possess

Art. III standing may not litigate as suitors in the courts of the United States.” Id. at 475-76.

Plaintiff has no standing. She seeks “little more than . . . to employ a federal court as a forum to

air generalized grievances about the conduct of [the County].” Id. at 483.

The Undisputed Material Facts Demonstrate Plaintiff Has

Suffered No Legally Cognizable Injury.

1. Plaintiff’s Only Alleged Injury Is Mere Psychological

Offense, Which Is Insufficient as a Matter of Law.

As in Valley Forge, Plaintiff’s claims of injury are certainly “phrased in constitutional

terms” and “[i]t is evident that [she is] firmly committed to the constitutional principle of

separation of church and state, but standing is not measured by the intensity of the litigant’s

interest or the fervor of [her] advocacy.” Valley Forge, 454 U.S. at 486 (emphasis added). A

single assertion of a purported “unwelcome contact” falls far short of the mark. As the Seventh

Circuit has unequivocally held, “hurt feelings differ from legal injury [and] [t]he ‘value interests

of concerned bystanders’ do not support standing to sue.” Freedom From Religion Found.,

Inc. v. Obama, 641 F.3d 803, 807 (7th Cir. 2011) (emphasis added) (citation omitted). Put simply,

alleged psychological injury arising from offense at displays including religious imagery is not

enough for standing under Article III. It is black letter law that mere “viewers of an unwelcome

religious display lack standing.” Id. (emphasis added); Freedom From Religion Found., Inc. v.

Zielke, 845 F.2d 1463, 1467-68 (7th Cir. 1988) (same).

Indeed, “[t]he psychological harm that results from witnessing conduct with which one

disagrees . . . is not sufficient to confer standing on a litigant.” Zielke, 845 F.3d aat 1467. See also


17

ACLU of Ill. v. City of St. Charles, 794 F.2d 265, 268 (7th Cir. 1986) (“The fact that the plaintiffs

do not like a cross to be displayed on public property—even if they are deeply offended by such a

display—does not confer standing.”); Gonzales v. North Tp. of Lake Cnty., 4 F.3d 1412, 1416 (7th

Cir. 1993) (“Offense to moral and religious sensitivities does not constitute an injury in fact and is

insufficient to confer standing.”); Harris v. City of Zion, Lake Cnty., Ill, 927 F.2d 1401, 1405 (7th

Cir. 1991) (“That plaintiffs may be offended by the defendants’ conduct is not enough to confer

standing.”); Doe v. Cnty. of Montgomery, 41 F.3d 1156, 1159 (7th Cir. 1994) (“A plaintiff who

fails to identify any personal injury suffered as a consequence of the alleged constitutional error,

other than the psychological consequences presumably produced by observation of conduct with

which one disagrees, has no standing.”). “To be made indignant by knowing that government is

doing something of which one violently disapproves is not the kind of injury that can support a

federal suit,” City of St. Charles, 794 F2d at 268, because a “claim that the Government has

violated the Establishment Clause does not provide a special license to roam the country in search

of governmental wrongdoing and to reveal their discoveries in federal court. The federal courts

were simply not constituted as an ombudsman of the general welfare.” Valley Forge, 454 U.S.

at 487 (emphasis added). As Justice Gorsuch recently noted, “[t]he offended observer theory of

standing has no basis in law.” American Legion v. American Humanist Ass’n, 139 S. Ct. 2067,

2098 (2019) (Gorsuch, J., concurring).

Plaintiff’s sworn testimony makes her lack of standing a matter of undisputed fact and

binding law. As shown supra in the County Undisputed Facts, Part III.A, Plaintiff’s sole allegation

of injury in this matter is her psychological offense at the County’s challenged display. Plaintiff

has (1) suffered no economic harm, (2) lost no business income, and (3) lost no opportunities.

(Cnty. Undisp. Facts Part III.A.) As a matter of binding law, “[t]he fact that the plaintiff[] do[es]


18

not like a [religious symbol] to be displayed on public property—even if [she is] deeply offended

by such a display—does not confer standing.” City of St. Charles, 794 F.2d at 268. Plaintiff’s

mere psychological offense at the Christmas display does not confer standing.

2. Plaintiff’s Sworn Testimony Forecloses Article III Injury

Because It Shows She Is Not Required to Come into

Direct and Unwelcome Contact with the Christmas

Display, and She Has Not Altered Her Conduct at All.

To establish standing, then, “the plaintiff must incur a tangible, albeit small cost that

validates the existence of genuine distress and warrants the invocation of federal jurisdiction.”

Gonzales, 4 F.3d at 1416. The Seventh Circuit has noted that such a showing can be made if “a

plaintiff can allege injury in fact from a government display of a religious object by alleging that

he has undertaken a special burden or has altered his behavior to avoid the object that gives him

the offense.” Books v. Elkhart Cnty., 401 F..3d 857, 861 (7th Cir. 2000); see also Books v. City of

Elkhart, 235 F.3d 292, 299 (7th Cir. 2000) (same); Cnty. of Montgomery, 41 F.3d at 1159 (“A

plaintiff who is subjected to unwelcome religious exercises or is forced to assume special burdens

to avoid . . . has demonstrated an injury in fact.”).

Importantly, the Seventh Circuit requires that—to demonstrate a tangible injury—the

plaintiff must show the following: (1) that she “is obliged to view religious displays in order to

access public services, or reach [her] job[],” Freedom From Religion Found., Inc. v. Obama, 641

F.3d 803, 807 (7th Cir. 2011); (2) that she “must come into direct and unwelcome contact with the

religious display to participate fully as a citizen and to fulfill legal obligations,” Harris, 927 F.2d

at 1405; Books, 401 F.3d at 861 (same); Cnty. of Montgomery, 41 F.3d at 1159 (same); see also

American Atheists, Inc. v. Levy Cnty., No. 1:15cv113-MW/GRJ, 2017 WL 6003077, *3 (N.D. Fla.

Dec. 3, 2017) (holding plaintiff did not have standing because he “stated unequivocally that he

does not have any requirements in the foreseeable future that would require him to go the . . .


19

County complex”); (3) that she “is forced to view a religious object that [she] wishes to avoid but

is unable to avoid because of [her] right or duty to attend the government-owned placed where the

object is located,” Books, 235 F.3d at 301; (4) that she has altered her conduct in a way that costs

time and money to avoid the religious display, Obama, 641 F.3d at 807 (holding plaintiffs did not

have standing because they “have not altered their conduct one whit or incurred any costs in time

or money”); Zielke, 845 F.2d at 1468 (holding plaintiffs did not have standing because “they did

not alter their behavior in any manner”); City of St. Charles, 794 F.2d at 268 (holding plaintiffs

established standing because “they have been led to alter their behavior—to detour, at some

inconvenience to themselves, around the streets they ordinarily use”); or (5) that her full use and

enjoyment of a public space has been curtailed by the religious display, Gonzales, 4 F.3d at 1416–

1417 (holding plaintiffs had standing to challenge religious display in public park because they

alleged they discontinued their use of part of the park); see also ACLU of Ga. v. Rabun Cnty.

Chamber of Commerce, 698 F.2d 1098, 1107-08 (11th Cir. 1983) (holding citizens had standing

to challenge religious display in state park because they testified they had completely stopped

camping at the park because of the display). The undisputed facts in this matter demonstrate that

Plaintiff can satisfy none of these criteria.

The undisputed facts reveal that Plaintiff has no legal or other obligations, or need for

government services, that require her to travel to the Courthouse at all, let alone in December when

the purportedly offensive Christmas display is present. (Cnty. Undisp. Facts Part III.B.) And the

only time Plaintiff ever went to the Courthouse in the past was by mistake. (Cnty. Undisp. Facts

Part III.B.) Thus, there can be no argument that Plaintiff is ever forced to come into direct and

unwelcome contact with the Courthouse, ever. Because she has no need to physically access the

government services provided at the County Courthouse and has no other obligations that require


20

her presence there, Plaintiff cannot show that she “must come into direct and unwelcome contact

with the religious display to participate fully as a citizen and to fulfill legal obligations.” Harris,

927 F.2d at 1405; see also Books, 401 F.3d at 861.

Furthermore, the undisputed facts establish Plaintiff has not altered her conduct in any way

as a result of the purportedly offense display. (Cnty. Undip. Facts Part III.C.) Plaintiff cannot

establish standing based on altered conduct because she has not “altered [her] conduct one whit or

incurred any cost in time or money.” Obama, 641 F.3d at 807.

The Undisputed Material Facts Show That This Court Can

Offer Plaintiff No Redress Because She Has Admitted That No

Alteration of the Challenged Display Would Ameliorate Her

Alleged Offense, Even Though Binding Precedent Recognizes

the Constitutionality of Displays Containing Religious Imagery

or Symbols.

Part of the irreducible constitutional minimum of standing is that Plaintiff must prove that

her claims against the County are “likely to be redressed by a favorable decision.” Valley Forge,

454 U.S. at 472. The redressability requirement is essential to constitutional principles of Article

III because it assures a court that it “may decide a case with some confidence that its decision will

not pave the way for lawsuits which have some, but not all, of the facts of the case actually decided

by the court.” Id. Thus, a favorable decision from the court must redress the Plaintiff’s injury in a

concrete and real way. “[R]elief that does not remedy the injury suffered cannot bootstrap a

plaintiff into federal court; that is the very essence of the redressability requirement.” Steel

Co. v. Citizens for a Better Environment, 523 U.S. 803, 107 (1998) (emphasis added); Perry v.

Sheahan, 222 F.3d 309, 314 (7th Cir. 2000) (same).

Here, Plaintiff’s requested relief would not diminish her alleged “offense” at the County’s

challenged display because her offense would remain regardless of this Court granting her the

precise relief she requested. In her Complaint, Plaintiff prays that the Court “[d]eclare that the


21

defendant has violated the rights of the plaintiff,” and “issue a permanent injunction prohibiting

the defendant from displaying the crèche and Nativity scene on the lawn of the Jackson County

Courthouse.” (Compl. at 4 (emphasis added).) Thus, the only relief Plaintiff has requested is the

removal of the Nativity scene component of a display that Plaintiff has admitted would still provide

her great offense.

As the undisputed facts show, every aspect of Christmas and the County’s challenged

display is allegedly offensive to Plaintiff, and such offense is the sole basis for her alleged injury.

(Cnty. Undisp. Facts Part III.A.) Thus, an order enjoining the Nativity scene alone would not

ameliorate Plaintiff’s offense.

While this Court may be authorized to issue relief beyond that which is specifically

requested in the Complaint, see, e.g., Chicago & E.I.R. Co. v. Ill. Cent. R. Co., 261 F. Supp. 289,

306 (N.D. Ill. 1996), the Court is still bound by Supreme Court and Seventh Circuit precedent that

establish the constitutionality of government displays containing secular and religious imagery.

See infra Argument Part II. The Court could never grant Plaintiff relief that would completely

eliminate her alleged injury because she is offended by even the secular elements of the Christmas

display at the Courthouse.

Moreover, as also shown by the undisputed facts, no size, quantity, or location of non-

religious items added to the Courthouse display could ameliorate Plaintiff’s offense. (Cnty.

Undisp. Facts Part III.D.) Thus, even if the Courthouse display needed additional non-religious

elements to be constitutional (it does not), no such additions could satisfy Plaintiff. Thus, her

alleged injury is not redressable, and she lacks standing as a matter of law.


22

THE COUNTY IS ENTITLED TO JUDGMENT AS A MATTER OF LAW

BECAUSE THE CHALLENGED DISPLAY IS CONSTITUTIONAL

UNDER ANY ESTABLISHMENT CLAUSE TEST.

American Legion Relegated the Lemon Test to Its Constitutional

Grave, and Plaintiff’s Efforts to Resurrect It Have No Merit.

1. American Legion and Its Progeny Demonstrate That the

Lemon Test No Longer Applies to Long-Standing

Government Practices or Monuments.

The Supreme Court’s recent decision in American Legion v. American Humanist Ass’n,

139 S. Ct. 2067 (2019), demonstrates that Plaintiff’s continued reliance on the Lemon Test, derived

from Lemon v. Kurtzman, 403 U.S. 602 (1971), is utterly misplaced. In American Legion, the

Supreme Court confirmed that the Lemon Test does not apply to monuments and displays, such as

the challenged display here. American Legion, 139 S. Ct. at 2081. Indeed, the Court explicitly

stated that “the Lemon test presents particularly daunting problems in cases, including the one now

before us, that involve the use, for ceremonial, celebratory, or commemorative purposes, of words

or symbols with religious associations.” (Id.).

The Supreme Court identified four reasons why the Lemon test is inapplicable to passive

monuments, symbols, or practices: “First, these cases often concern monuments, symbols, or

practices that were first established long ago, and in such cases, identifying the original purpose

or purposes may be especially difficult.” Id. at 2082. “Second, as time goes by, the purposes

associated with a monument, symbol, or practice often multiply.” Id. “Third, just as the purpose

for maintaining a monument, symbol, or practice may evolve, the message conveyed may change

over time.” Id. at 2084. “Fourth, when time’s passage imbues a religiously expressive monument,

symbol, or practice with this kind of familiarity and historical significance, removing it may no

longer appear neutral, especially to the community in which it has taken on particular meaning.”


23

Id. Based on these considerations, the Supreme Court concluded that “the passage of time gives

rise to a strong presumption of constitutionality.” Id. at 2085 (emphasis added).

The Court ultimately held that, although “the cross is undoubtedly a Christian symbol . . .

that fact should not blind us to everything else the Bladensburg Cross has come to represent.” Id.

at 2090. As such, “destroying or defacing the Cross that has stood undisturbed for nearly a century

would not be neutral and would not further the ideals of respect and tolerance embodied in the

First Amendment. For all these reasons, the Cross does not offend the Constitution.” Id. Indeed,

“[a] government that roams the land, tearing down monuments with religious symbolism and

scrubbing away reference to the divine will strike many as aggressively hostile to religion.” Id. at

2085.

American Legion’s progeny, though relatively young, confirm that the Lemon Test is now

a relic of constitutional history in the area of monuments and government displays. See, e.g., Fields

v. Speaker of Penn. House of Reps., 936 F.3d 142, 149 (3d Cir. 2019) (noting that post-American

Legion, the appropriate analysis in Establishment Clause challenges to government action should

focus on the “history and tradition test”); Freedom From Religion Found., Inc. v. Cnty. of Lehigh,

933 F.3d 275, 281 (3d Cir. 2019) (“American Legion confirms that Lemon does not apply to

religious references or imagery in public monuments, symbols, mottos, displays, and

ceremonies” (emphasis added)); Biel v. St. James Sch., 926 F.3d 1238, 1250 n.8 (9th Cir. 2019)

(Nelson, J., dissenting from denial of reh’g en banc) (noting the Supreme Court’s rejection of the

Lemon Test in American Legion).

The Third Circuit’s decision in County of Lehigh is particularly instructive. There, the

Third Circuit unequivocally stated that American Legion “did make clear that the Lemon-

endorsement framework does not apply to our evaluation of the Lehigh County seal.” 933


24

F.3d at 281 (emphasis added). Indeed, like American Legion, the Third Circuit held that such

displays are entitled to “a strong presumption of constitutionality.” Id. Contrary to Plaintiff’s

assertions here (Pl.’s MSJ Mem. 23), the Third Circuit noted that American Legion is now the

lodestar for cases involving challenges to government monuments, displays, and practices. Id. at

282 (“In American Legion, the Supreme Court held that the presumption [of

constitutionality] applies to all established, religiously expressive monuments, symbols, and

practices.” (emphasis added)). Similar to what Plaintiff alleges here, the Freedom From Religion

Foundation argued the County of Lehigh’s seal, which includes a “Latin Cross surrounded by

nearly a dozen secular symbols of historical, patriotic, cultural, and economic significance to the

community” violates the Establishment Clause. Id. at 278. The Third Circuit unequivocally

rejected this claim by stating that the County’s inclusion of religious imagery in its seal does not

violate the Establishment Clause, particularly where—as here—that religious imagery is

surrounded by other non-religious components. Id. at 283 (holding that “even though the Latin

cross alone has undeniably religious significance,” “the seal as a whole falls well short of

establishing a religion”).

2. The County’s Display Unquestionably Passes American

Legion’s Articulated Test.

The Supreme Court’s analysis in American Legion is likewise appropriate to this Court’s

consideration of the County’s challenged display. Plaintiff’s main argument, in both her Complaint

and in her summary judgment briefing, is that the challenged display violates the Establishment

Clause because it violates the Lemon test. (Compl. ¶ 20 (alleging that the Christmas display

violates the Lemon test because it “lacks a secular purpose,” and “has the principle [sic] effect of

advancing religion”); (Response Opposing Motion to Dismiss, ECF No. 23, at 5—12 (same); (Pl.’s

MSJ Mem. 23 (arguing that Lemon continues to apply to this challenge)). For all the reasons stated


25

above, Plaintiff’s reliance upon the Lemon test is misplaced, as the Supreme Court has rejected its

application to passive monuments, symbols, or practices including religious components such as

the display here.

Specifically, as to the Supreme Court’s first consideration refuting Lemon’s application to

the present matter, the County’s annual allowance of a Christmas holiday display containing both

religious and secular symbols to celebrate and commemorate the Christmas holiday is long-

standing. Indeed, even Plaintiff’s own Complaint properly recognizes the historical fact of the

County’s long-standing practice. (Compl. ¶ 1 (alleging that the County has been erecting its annual

holiday display “for many years” (emphasis added)).) The undisputed record in this matter

likewise confirms the long period of time the County has been engaging in this practice. (Bevers

13:8–14:9 (noting that, with the exception of 2001, the display has been erected on the Courthouse

lawn every year since at least 2000, and possibly ten years prior to that)). Thus, as American Legion

recognizes, that length of time makes determination of the original purpose behind Jackson

County’s inclusive holiday display “especially difficult.” American Legion, 139 S. Ct. at 2082. See

also Cnty. of Lehigh, 933 F.3d at 282 (noting that “[d]iscerning the actual purpose of the

[challenged display] is made more difficult by the passage of time”).2

Second, Plaintiff’s Complaint recognizes that factors two and three of American Legion’s

analysis are specifically applicable here. Indeed, Plaintiff alleges that the composition and specific

location of all of the challenged displays’ religious and secular components have changed over

time. (See, e.g., Compl. ¶¶ 1, 13, 16.) The undisputed facts in this matter also reveal that the

2 Nonetheless, the undisputed record shows that the County’s current purpose in allowing

the annual Christmas holiday display is to celebrate the Christmas and holiday season, and the

Lions’ Nativity scene is merely a part of the overall display serving that purpose. (Bevers 6:20–

7:1, 10:10–16, 33:2–34:2.)


26

composition of the monument has changed over time, to include more non-religious imagery.

(Bevers 35:12–36:21 (noting that the County display was modified and that the components had

been moved over time); 51:5–53:8 (discussing the numerous other holiday decorations that have

been added to the Courthouse over the years).) Plaintiff’s allegations that additional components

have been added and the display’s configuration changed demonstrates the County’s purposes may

have multiplied or changed. American Legion, 139 S. Ct. at 2082–83. The Third Circuit’s decision

highlights the constitutional significance of the County’s modifications and additions. See Cnty.

of Lehigh, 933 F.3d at 282 (“Courts are not to focus solely on the religious component in

challenged government displays; they should consider the overall message conveyed and the

broader context in which the display appears.”). The undisputed facts in this matter demonstrate

that the Courthouse display comprises numerous elements around, inside, and on the lawn of the

Courthouse during the Christmas season, even extending up and down Main Street by the Chamber

and the Town of Brownstown—the Chamber’s white string lights spiraling down the lamp posts

that encircle the entire Courthouse grounds (and continue up and down Main Street), and flower

pots filled with greenery at the front corners of the Courthouse (and along Main Street); the

County’s large Christmas tree inside the Courthouse rotunda surrounded by fake presents and

decorated with candy canes for the taking by children and other visitors, and poinsettias in and

around the lobby entryways; and the Lions’ front lawn scene combining lighted figures of Santa

Claus, Santa’s sleigh, reindeer, carolers, and Nativity characters. (Cnty. Undisp. Facts Part II.C.)

As such, the overall context of the challenged display here involves a Courthouse decorated inside

and outside with a host of non-religious symbols of Christmas. The only religious symbol, the

Nativity, is but one aspect of the display on the lawn that itself includes numerous non-religious

elements. A micro focus on one small aspect of the overall context of the holiday display at the


27

Courthouse is improper, as the overall message and context at the Courthouse is one of inclusive

celebration of the holiday season for all residents of Jackson County. (Cnty. Undisp. Facts Part

II.C (“The County’s purpose in allowing the annual Christmas holiday display is to celebrate the

Christmas and holiday season, and the Lions’ Nativity scene is merely a part of the overall display

serving that purpose.”).)

Finally, because the County’s practice of erecting a passive display containing both

religious and secular components during the Christmas holiday season has been in existence for

many years, residents of the County are likely to perceive any censorship of only religious

components as not neutral towards religion, but instead “aggressively hostile to religion.”

American Legion, 139 S. Ct. at 2084 (noting that removing long-standing religious aspects of an

otherwise inclusive display would “no longer appear neutral” and would “thereby create the very

kind of religious based divisiveness that the Establishment Clause seeks to avoid.”).

As American Legion finally settles: the Lemon test is inapplicable to the challenged display

here, and despite Plaintiff’s protestations to the contrary, even displays containing “undoubtedly

Christian symbols” do not violate the First Amendment. The County is thus entitled to judgment

as a matter of law under American Legion.

The County’s Challenged Display Is Constitutional Under the

Supreme Court’s and Seventh Circuit’s Binding Nativity Scene

Precedent.

Should this Court not apply the American Legion test (or even if it does, for that matter),

the Court must still take into account the binding Supreme Court and Seventh Circuit precedent

specifically dealing with displays including Nativity scenes. Under that framework, there is no

question that the County’s display is constitutional and that it is entitled to judgment as a matter

of law.


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1. The Court Must Review the Nativity Scene Display as a

Whole.

When analyzing the County’s challenged display, this Court must consider the overall

context of the display—as a whole—rather than the isolated view Plaintiff presents in her

Complaint and summary judgment papers. Indeed, there is no question that a display must be

reviewed “in the context of th[e] government’s holiday celebration as a whole.” Cnty. of

Allegheny v. ACLU Greater Pitt. Chapter, 492 U.S. 573, 595 (1989) (emphasis added); id. (“That

inquiry, of necessity, turns upon the context in which the contested object appears.”); Lynch v.

Donnelly, 465 U.S. 668, 679 (1984) (“the focus of our inquiry must be on the crèche in the context

of the Christmas season.”); id. at 680 (the inquiry depends upon “the proper context of the Christian

Holiday season”). See also Mather v. Vill. of Mundelein, 864 F.2d 1291, 1293 (7th Cir. 1989)

(“The point of Lynch, however, is that the context—the context of the ensemble, and more

important the context of the secular holiday the government observes—is the controlling

consideration.” (emphasis added)).

While the above authorities deal exclusively with the proper inquiry in the Christmas

display setting, a host of binding precedent dealing with other displays containing religious

components confirms that in all things, context is key. See, e.g., McCreary Cnty. v. ACLU of Ky.,

545 U.S. 844, 868–69 (2005) (constitutionality of a display containing religious symbols focuses

on the context in which it is displayed); Doe ex rel. Doe v. Elmbrook Sch. Dist., 687 F.3d 840, 843

(7th Cir. 2012) (“When confronted with an Establishment Clause challenge, the Supreme Court

requires us to examine the context in which government interacts with a religious organization.”);

Books v. Elkhart Cnty., 401 F.3d 857, 863 (7th Cir. 2005) (holding that court must “examine the

content, design, placement, and context of the [challenged] display”); Doe v. Small, 964 F.2d 611,

622 (7th Cir. 1992) (considering the context of a challenged display containing religious aspect to


29

determine its constitutionality); Harris v. City of Zion, 927 F.2d 1401, 1412 n.11 (7th Cir. 1991)

(“County of Allegheny makes clear that the constitutionality of a religious display will often depend

upon its context.”); id. at 1412 (“the context surrounding the challenged image is crucial”); Doe v.

Vill. of Crestwood, 917 F.2d 1476, 1478 (7th Cir. 1990) (constitutionality of government’s

inclusion of religious component in display depends upon context).

In fact, the Supreme Court has unequivocally held that a court’s failure to look at the entire

context of a challenged display is plainly and clearly erroneous. See Lynch, 465 U.S. at 680 (“The

District Court plainly erred by focusing almost exclusively on the crèche.”); id. at 681 (the district

court’s focus solely on the religious nature of one aspect of an otherwise inclusive display is

“clearly erroneous”).

Thus, this Court is required to examine the entire context of the display around, inside, and

on the lawn of the Courthouse,, and is precluded as a matter of law from examining solely the

religious components of the display, as Plaintiff entreats. The proper inquiry in this matter is the

County’s combined display of items recognizing religious aspects of Christmas (e.g., the Nativity

scene) and items recognizing non-religious aspects of Christmas (e.g., Santa Claus, Santa’s sleigh,

reindeer, carolers, lights, Christmas tree, candy canes, poinsettias, greenery, etc.), together as a

whole.

2. Viewed in Its Entirety, the Christmas Display Is

Constitutional as a Matter of Settled Law.

The Supreme Court and Seventh Circuit have established and followed a constitutional

framework when it comes to religious-only displays versus religious-and-secular displays.

Displays containing both religious and non-religious components have been held constitutional as

a matter of law, while displays containing only religious aspects have been held to violate the

Establishment Clause in some contexts. As Plaintiff’s Complaint plainly alleges and the


30

undisputed facts in this matter show, the challenged display here contains both religious and non-

religious components, and therefore does not violate the Establishment Clause. The County is

therefore entitled to judgment as a matter of binding law.

a. Displays Containing Religious and Non-Religious

Components Together Are Constitutional as a

Matter of Law.

In Lynch, the Supreme Court encountered the precise question Plaintiff’s lawsuit raises

here. Indeed, the Supreme Court’s first sentence reads: “We granted certiorari to decide whether

the Establishment Clause of the First Amendment prohibits a municipality from including a crèche,

or Nativity scene, in its annual Christmas display.” Lynch, 465 U.S. at 670. The High Court’s

answer: No. Id. at 685.

In Lynch, the challenged holiday display included both religious and non-religious aspects.

465 U.S. at 671. There, as here, the challenged display included a Nativity scene, a Santa Claus,

reindeer, and Christmas carolers. Id. In addition, the display included a Christmas tree and a few

other lighted displays. Id. As Plaintiff would have this Court do here, the district court focused

exclusively on the religious nature of the crèche, and “inferred from the religious nature of the

crèche that the City had no secular purpose for the display.” Id. at 680. The Supreme Court held,

however, that such a narrow focus is improper and clearly erroneous. Id. at 680. Indeed, it said,

“[f]ocus exclusively on the religious component of any activity would inevitably lead to its

invalidation under the Establishment Clause,” but the Plaintiff’s desired “absolutist approach in

applying the Establishment Clause is simplistic and has been uniformly rejected by the Court.” Id.

at 677, 680. Thus, because the challenged display—when viewed in its entire context—contained

both religious and non-religious symbols, the Supreme Court held there was no Establishment

Clause violation.


31

In County of Allegheny, the Supreme Court faced yet another challenge to a government

display of religious and secular symbols in its display at Christmas time. Cnty. of Allegheny, 492

U.S. at 614. There, the government included a menorah (a Jewish holiday symbol), a Christmas

tree, and a sign saluting liberty. Id. Thus, identically to the question presented here, the Supreme

Court faced the question of whether a display containing one religious symbol (e.g., a Jewish

menorah) and other secular symbols (e.g., Christmas tree and liberty sign) in the same overall

holiday display violated the Establishment Clause. Id. at 616 (“[T]he relevant question for

Establishment Clause purposes is whether the combined display of the tree, the sign, and the

menorah has the effect of endorsing both Christian and Jewish faiths.”). Yet again, the Supreme

Court answered that question with a resounding ‘No.’ Id. at 616—17. Indeed, based on Lynch’s

teaching that inclusion of both religious and non-religious aspects in a display withstands

constitutional assault, the County of Allegheny Court held that the “combination of the tree and

menorah communicates . . . a secular celebration of Christmas coupled with an acknowledgement

of Chanukah as a contemporaneous alternative (religious) tradition.” Id. at 617–18.

Likewise, the Seventh Circuit, in Mather, considered a similar challenge to a government’s

display of religious and non-religious aspects of a display at Christmastime. 864 F.2d at 1292.

There, the Village of Mundelein placed a display on the lawn of its seat of government (Village

Hall), and that display included a religious symbol (e.g., Nativity scene) and other non-religious

symbols (e.g., Christmas tree, Santa Claus, carolers, snowman, wreaths, and lights). Id. The

plaintiff challenged that display, claiming that the inclusion of religious symbols in the display

violated the Establishment Clause. Id. The Seventh Circuit resoundingly disagreed, id., and held

that when “the crèche is placed in the context of other seasonal symbols,” it “shows[s] support for

the holiday season rather than the religious aspect alone.” Id. Indeed, “[d]etails that would be


32

important to interior decorators do not spell the difference between constitutionality and

unconstitutionality.” Id. Rather, the question is whether the religious component—viewed in the

context of the entire holiday display—is coupled with non-religious aspects. Id. The Village’s

display included both religious and non-religious components and was upheld. Id.3

b. Displays Containing Solely Religious Imagery or

Symbols Have Been Held Unconstitutional in

Certain Circumstances Not Present Here.

The Supreme Court and Seventh Circuit have also encountered several displays in which

the only component was religious. See Cnty. of Allegheny, 492 U.S. at 598–612; Am. Jewish

Congress v. City of Chicago, 827 F.2d 120 (7th Cir. 1987). Contrary to the above-discussed

displays, these stand-alone religious displays have not withstood constitutional attack. But, it was

the religious-only nature of these displays that brought their constitutional demise.

In County of Allegheny, the second display challenged by the plaintiffs involved a Nativity

scene/crèche that sat alone on the Grand Staircase of the County Courthouse with no other

accompanying aspects. Cnty. of Allegheny, 492 U.S. at 598. There were no non-religious symbols

3 In addition to the binding precedent in Lynch, Allegheny, Mather, and Jewish Congress,

every other circuit to confront a government’s display that included both a Nativity scene and other

secular aspects of the Christmas holiday has found that such displays have a legitimate secular

purpose. See, e.g., Freedom From Religion Found., Inc. v. City of Warren, 707 F.3d 686, 692 (6th

Cir. 2013) (holding that a “multi-symbol” display containing both religious and non-religions

components reflects a legitimate secular purpose); Elewski v. City of Syracuse, 123 F.3d 51, 55

(2d Cir. 1997) (holding that the government has a legitimate secular purpose for a display with

both a Nativity scene and non-religious components); ACLU v. City of Florissant, 186 F.3d 1095,

1097 (8th Cir. 1999) (noting that a desire to recognize the holiday season is recognized as a

legitimate secular purpose); ACLU of N.J. ex rel. Lander v. Schundler, 168 F.3d 92, 105 (3d Cir.

1999) (ALITO, J.) (holding that a display including both a Nativity scene and non-religious

symbols has a legitimate secular purpose); ACLU of Ky. v. Wilkinson, 895 F.2d 1098, 1105 (6th

Cir. 1990) (“the Supreme Court has squarely held that that there are legitimate secular purposes

for displays that celebrate the Christmas holiday and depict its origins”). Indeed, “the ‘line-

drawing’ with respect to holiday displays has already been done,” City of Warren, 707 F.3d at 692,

and the County’s display including both religious and secular symbols has been firmly found on

the constitutional side of the line.


33

coupled with that display —it stood alone. Id. The Supreme Court, viewing the display in its entire

context as Lynch requires, held that the stand-alone crèche violated the Establishment Clause. Id.

at 603. In so holding, the Court specifically noted that “nothing in the context of the display

detracts from the crèche’s religious message,” and that “the crèche stands alone: it is the single

element of the display on the Grand Staircase.” Id. at 598 (emphasis added). It was the stand-alone

nature of the crèche that created the constitutional violation. Id. at 602–03.

In Jewish Congress, the Seventh Circuit likewise faced a stand-alone Nativity display that

lacked any non-religious aspects. 827 F.2d at 121–22. The Nativity scene was placed in the center

lobby of City Hall, prominently displayed on a three-foot platform, and was topped with a banner

that read “On Earth Peace—Good Will Toward Men.” Id. at 122. In other parts of City Hall, the

City placed other decorations, but they were not displayed at the same location or next to the

crèche. Id. The Seventh Circuit compared the display to that in Lynch, and held that Chicago’s

lack of other, non-religious components to the Nativity scene display made it unconstitutional. Id.

at 125 (“The Court in Lynch found it highly significant that the crèche in that case was only one

element in a larger display that consisted in large part of secularized symbols and decorations.

This case is different.” (emphasis added)). Indeed, the court noted that the Nativity display was

“self-contained, rather than one aspect of a larger display.” Id. Thus, “unlike Lynch, the secularized

decorations in the vicinity of the nativity scene were not clearly part of the same display.” Id. at

125–26. Because it was by itself without any non-religious symbols, the Seventh Circuit held that

it violated the Establishment Clause. Id.


34

c. The Challenged Display Contains Both Religious

and Non-Religious Symbols, in the Appropriate

Context, and Therefore Survives Constitutional

Scrutiny as a Matter of Law.

The Display Virtually Mirrors

Those Already Found

Constitutional by the Supreme

Court and the Seventh Circuit.

The undisputed facts in this matter reveal that Plaintiff still fails to state a claim under the

Establishment Clause. As the record now makes indisputable, the Christmas holiday display

around, inside, and on the lawn of the Courthouse contains both religious and non-religious

components. (Cnty. Undisp. Facts Part II.)

The County’s display is virtually identical to the display the Supreme Court found

constitutional in County of Allegheny. There, the plaintiff challenged a display containing one

religious symbol (a menorah) and two secular symbols (Christmas tree and liberty sign). 492 U.S.

at 598. Here, the County’s display is even more inclusive of non-religious items. The Courthouse

lawn portion itself includes one religious symbol (a Nativity scene) and five secular symbols

(Santa, Santa’s sleigh, reindeer, carolers, and lights), while the Courthouse grounds and inside

portions include only secular symbols (lighted lamp posts, greenery, Christmas tree, candy canes,

poinsettias, live Santa). (Cnty. Undisp. Facts Part II.) If the Supreme Court found no Establishment

Clause violation in a display with the lesser ratio of religious-to-secular components in Allegheny,

then the County’s display, too, must pass constitutional muster as a matter of law.

Likewise, similar to the Nativity scenes upheld in Lynch and Mather, the County’s

challenged display here includes identical secular symbols with its Nativity scene. In Lynch, the

challenged display included inter alia a Nativity scene, Santa Claus, carolers, and lights. 465 U.S.

at 671. In Mather, the challenged display included inter alia a Nativity scene, Santa Claus, carolers,

and lights. 864 F.2d at 1292. Both displays were upheld by the Supreme Court and Seventh Circuit,


35

respectively. Lynch, 465 U.S. at 683; Mather, 865 F.2d at 1293. Here, again, the County’s

challenged holiday display includes even more non-religious components than those found

constitutional in Lynch and Mather. The Courthouse lawn portion of the display contains a Nativity

scene, Santa Claus, Santa’s sleigh, reindeer, carolers, and lights, with even more secular elements

on the grounds and inside. It therefore also passes constitutional muster as a matter of binding law.

The Context in Which the

Courthouse Display Appears

Removes Establishment Clause

Concerns Under Binding Seventh

Circuit Precedent.

As discussed supra, this Court is required to view the challenged display as a whole and

take its various components in the context of the whole display. Mather, 864 F.2d at 1292 (“the

context of the ensemble, and more important the context of the secular holiday the government

observes—is the controlling question”). Taking the County’s display in context, including the

entire ensemble of characters in the display at a time when the federal government recognizes

Christmas as a federal holiday, eviscerates any notion that the challenged display is a violation of

the Establishment Clause.

The Seventh Circuit’s discussion in Doe v. Village of Crestwood, 917 F.2d 1476 (7th Cir.

1990) is particularly instructive on the issue of context. There, the Seventh Circuit recognized

binding precedent from the Supreme Court to mandate the conclusion “that government may

display a religious symbol (a menorah in Allegheny County, a crèche in Lynch) without endorsing

religion when the context demonstrates that the government is not taking a stance.” 917 F.2d at

1478. In discussing the Nativity scene precedents, the Seventh Circuit recognized that, in these

cases,

[t]wo contexts mattered: first the season, for in each case the

government was displaying the symbols appropriate to the time of

the year; second, the immediately surrounding symbols, for in


36

each case the government was displaying an assortment of symbols

appropriate to all aspects of the holidays.

Id. (emphasis added).

Indeed, “Christmas and Hanukkah are secular as well as religious holidays; to use

appropriate symbols to all aspects of the display is not to endorse a particular religion. If

Christmas may be a secular holiday, the state may recognize whose birthday is being

celebrated.” Id. (emphasis added).

Here, there is no question that under the allegations of Plaintiff’s own Complaint and the

undisputed record developed during discovery, the context of both the season and the surrounding

symbols matter. Vill. of Crestwood, 917 F.2d at 1478. First, Plaintiff’s Complaint and the

undisputed record plainly establish that the challenged display is only placed on the Courthouse

lawn by the County during the Christmas-holiday season “in December,” (Compl. ¶¶1, 12; Bevers

at 17:17–17:25), which binding precedent recognizes as the “appropriate time of the year” for the

symbols included in the challenged display. Vill. of Crestwood, 917 F.2d at 1478. Second,

Plaintiff’s Complaint plainly alleges and the undisputed record reveals that the challenged display

includes the religious element of a Nativity Scene, as well as surrounding secular symbols of Santa

Claus, Santa’s sleigh, reindeer, carolers, and lights. (Compl. ¶¶12-13, 16 and Ex. 1); (Bevers

19:14–22:6). Those, as the Seventh Circuit said, represent a constitutional “assortment of symbols

appropriate to all aspects of the holidays.” Vill. of Crestwood, 917 F.2d 1478. Thus, when viewed

in the appropriate context of the season and the surrounding symbols, Plaintiff’s Complaint plainly

fails to state a claim for violation of the Establishment Clause as a matter of binding and settled

law. The County is entitled to judgment as a matter of law.


37

d. Plaintiff’s Repeated References to Purported

Arrangements of Past Displays She Did Not

Challenge Is Irrelevant to the Constitutionality of

the Currently Arranged Display, Which Plaintiff

Did Challenge.

Plaintiff Challenged Only the

Current Display.

Plaintiff devotes much ink to the discussion of alleged past displays that she alleges did not

contain non-religious aspects and that purportedly diminish the constitutionality of the only display

challenged in Plaintiff’s Complaint. (Pl.’s MSJ Mem. 1, 5, 8, 24–26.) But, what Plaintiff cannot

and does not dispute is that she did not challenge the County’s alleged prior versions of the display

and cannot do so now. Indeed, Plaintiff’s Complaint challenges only the County’s most recent

display including the Nativity scene, figures of Santa Claus, Santa’s sleigh, reindeer, and carolers.

(Compl. ¶ 1 (alleging that the display being challenged includes Santa Claus, Nativity scene, and

carolers); ¶ 13 (discussing the “current version” of the display); ¶ 16 (noting that the challenged

display includes figures of Santa Claus and carolers).) Thus, Plaintiff’s discussion of alleged prior

versions of the County’s display are irrelevant and immaterial to the determination of her claims.

More fatal for Plaintiff’s immaterial discussion of alleged versions of past displays,

however, is that—even if Plaintiff’s description of past displays was correct, and even if those

displays were unconstitutional, none of which is conceded—purportedly unconstitutional past

practices or displays cannot serve as a basis for the prospective injunctive relief Plaintiff seeks in

her Complaint. Indeed, “[p]ast exposure to illegal conduct does not in itself show a present case

or controversy for purposes of injunctive relief.” O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974);

Steel Co. v. Citizens for a Better Env., 523 U.S. 82, 109 (1998) (injunctive relief is inappropriate

to address past infractions without allegations of “a continuing violation or the likelihood of a

future violation”); see also Serafinn v. Int’l Bhd. of Teamsters, Local Union No. 722, No. 03 C


38

9409, 2007 WL 1670360, *3 (N.D. Ill. June 5, 2007) (“past conduct, without more, is not sufficient

to justify the exceptional remedy of an injunction”).

In fact, having failed to challenge allegedly unconstitutional past displays, Plaintiff has

now forfeited standing to even challenge such alleged displays. See, e.g., Schirmer v. Nagode, 621

F.3d 581, 585 (7th Cir. 2010) (“standing to request injunctive relief is lacking when only past

harm is alleged” (emphasis added)). Indeed, injunctive relief only “require[s] the [government]

to confine its future activity within the limits set by federal law.” Osteen v. Henley, 13 F.3d 221,

223 (7th Cir. 1993) (emphasis added). Plaintiff does not and cannot allege that the County intends

to ever return to the alleged previous displays that allegedly did not include secular components.

And, in fact, that undisputed record demonstrates that the County Board of Commissioners has

voted to keep the current version and arrangement of the display as the permanent arrangement.

(Comm’rs Letter (“The Jackson County Commissioners intended for this change to be permanent.

Therefore, effective with the change in 2018 and permanently thereafter, if there is to be a

Christmas display on the Courthouse lawn, it shall comport with the above requirements, it shall

contain at least as many and as large non-religious items are were displayed in 2018 and prior, and

the items shall be placed at least as close to each other as [after the change in 2018].” (emphasis

added)); Cnty. Undisp. Facts Part II.C.) The Commissioners’ Letter was sent after the permanent

change was voted on and approved by the Board of Commissioners. (Cnty. Undisp. Facts Part

II.C.)

Thus, as Plaintiff’s Complaint challenges only the current display, and there is no allegation

(nor could there be) that the County currently erects or in the future will erect any displays

containing only religious symbols. Plaintiff cannot now seek to invoke this Court’s jurisdiction

based solely on allegedly unconstitutional past practices that are indisputably no longer in


39

existence. Plaintiff’s disingenuous discussion of displays no longer in existence cannot serve to

bolster her unmerited claims against the County’s current and constitutional display of both

religious and non-religious symbols. The County is entitled to judgment as a matter of law.

The Undisputed Facts Show That

Plaintiff Cannot State a Claim for

Damages, and Such a Claim Would

Not Be Justiciable Anyway.

While a damages claim arguably might have saved Plaintiff’s failure to challenge the

allegedly unconstitutional past displays, Plaintiff is not suing for damages and did not include any

prayer for damages. To be sure, the undisputed record shows that Plaintiff has not suffered

damages. (Cnty. Undisp. Facts Part III.A.) Even a nominal damages claim would fail because

Plaintiff has no standing to seek such relief for a practice that has already come to an end prior to

the litigation. See, e.g., Freedom From Religion Found. v. Concord Cmty. Schs., 207 F. Supp. 3d

862, 873 (N.D. Ind. 2016) (case is moot “if the conduct a plaintiff seeks to stop comes to an end

on its own, in which case the result a plaintiff is seeking has already occurred”); Wisconsin Right

to Life, Inc. v. Schober, 366 F.3d 485, 491-92 (7th Cir. 2004) (no justiciable claims to adjudicate

if government abandons practice prior to litigation being commenced). As the County’s alleged

past displays are no longer in existence and were no longer in existence when Plaintiff filed this

suit, Plaintiff’s oft-repeated reference to them provides no refuge for her challenge to the County’s

current display. The County is entitled to judgment as a matter of law.


40


Endorsement Test.

1. A Reasonable, Objective Observer Familiar with All of

the Facts Would Understand the County’s Display Not to

Be an Endorsement of Religion.

Should this Court review Plaintiff’s challenge under the Endorsement Test, which it should

not, Plaintiff’s claims would still fail as a matter of law. The reasonable observer would understand

that the County’s inclusive display is not endorsing any one religion.

The standard by which this Court must examine any purported endorsement is the

“reasonable observer,” and “requires the hypothetical construct of an objective observer who

knows all of the pertinent facts and circumstances surrounding the symbol and its placement.”

Salazar v. Buono, 559 U.S. 700, 721 (2010) (emphasis added); see also Capital Square Rev. &

Advisory Bd. v. Pinnette, 515 U.S. 753, 780 (1995) (O’Conner, J., concurring) (“The reasonable

observer in the endorsement inquiry must be deemed aware of the history and context of the

community and forum in which the religious display appears.”); McCreary Cnty. v. ACLU of Ky.,

545 U.S. 844, 866 (2005) (holding that the reasonable observer is not “an absentminded objective

observer,” but “one presumed to be familiar with the history of the government’s actions and

competent to learn what history has to show” (emphasis added)). Indeed, the endorsement test

“does not turn on the subjective feelings of plaintiffs as to whether a religious endorsement has

occurred,” but instead “assumes the viewpoint of an objective observer . . . fully aware of the

relevant circumstances.” Freedom from Religion Found. v. Hanover Sh. Dist., 626 F.3d 1, 10-11

(1st Cir. 2010) (italics original).

Plaintiff recognizes that the endorsement inquiry is focused on the reasonable observer, but

contends that a reasonable observer at the Courthouse could come to no other conclusion than that

the County is endorsing Christianity because of the presence of a Nativity scene. (Pl.’s MSJ Mem.


41

32–35.) Her only justification: the Christmas display includes a Nativity scene, on the front lawn

of the Courthouse, and “the secular objects are not a part [of the display].” (Pl.’s MSJ Mem. 34.)

As a threshold matter, Plaintiff appears internally inconsistent and confused when she

simultaneously contends that the secular objects are both too far from the Nativity display and

thus “not part of it” (id.), and then that they are apparently too close to the Nativity and thus appear

to be engaged in worshipping baby Jesus (id.). Plaintiff cannot have it both ways, and she cannot

bestow upon this Court a magic tape measure to determine just how many feet or inches are

constitutionally acceptable. Indeed, “details that would be important to interior decorators do not

spell the difference between constitutionality and unconstitutionality.” Mather v. Vill. of

Mundelein, 864 F.2d 1291, 1292 (7th Cir. 1989); see also Cnty. of Allegheny, 492 U.S. at 676–77

(Kennedy, J., concurring in part, dissenting in part) (constitutionality is not to be determined by

resort to a constitutional “tape measure”). As alleged in Plaintiffs’ own Complaint (¶¶ 1, 16), as

demonstrated by the pictures attached by Plaintiff to her Complaint (ECF No. 1-1), and as

demonstrated in the undisputed record (Cnty. Undisp. Facts Part II.C), the secular elements of the

challenged display are clearly sufficiently proximate to, and part of, the challenged Nativity. The

Court should reject Plaintiff’s impossible ‘damned if you do, damned if you don’t’ standard.

Inconsistency aside, Plaintiff’s endorsement argument merely repeats long-rejected

mantras. In Elewski v. City of Syracuse, 123 F.3d 51 (2d. Cir. 1997), the government erected a

Nativity scene on government property, which faced a “major downtown thoroughfare,” and was

located next to a lighted evergreen tree. Id. at 52. In a separate location, on “the next block

approximately 200 feet” from the Nativity scene, the city displayed a Christmas tree with colored

lights and a star, a snowman, and a reindeer. Id. (emphasis added). Additionally, in a different

location “approximately 300 feet from the creche,” the city permitted a private organization to


42

display a menorah. Id. (emphasis added). Thus, the city had a number of decorations located at

various places in the city but not otherwise located on the same lawn or even at the same piece of

property. Id.

Much like Plaintiff does here, “Elewski argue[d] that the creche is an isolated display and

that the menorah and secular symbols in Hanover Square are not part of the relevant

context.” Id. at 54 (emphasis added). The Second Circuit squarely rejected this argument. “We

disagree. A reasonable observer is not one who wears blinders and is frozen in a position

focusing solely on the creche.” Id. at 54 (emphasis added). Indeed, the Second Circuit held that a

reasonable observer must be viewed as having taken in the entire context of the displays, namely

that the government was attempting to decorate its properties in recognition of the various aspects

of Christmas, even though such displays were located on different properties.

Here, Plaintiff encourages this Court to require the reasonable observer to wear blinders

and focus solely on the Nativity scene, even though—according to the undisputed record in this

matter—Santa Claus, Santa’s sleigh, reindeer, the carolers, and the lights are located on the same

Courthouse lawn, just a few feet away. (Compl. ¶¶ 1, 18; Cnty. Undisp. Facts Part II.C.) If a

reasonable observer must be deemed to view the secular components of a display located 200–300

feet from the religious components as an integrated display, then certainly the observer must be

deemed to view the County display—where all components of the display are in very close

proximity to one another on the same lawn—as a single display, not to mention the continuation

of the display around and inside the Courthouse, and even up and down Main Street.

2. McCreary County Does Not Diminish the Perspective of a

Reasonable Observer.

Plaintiff places much reliance on the notion that the County’s inclusion of secular aspects

of the Christmas holiday is merely a sham, and that McCreary Cnty. v. ACLU requires this Court


43

to invalidate the challenged display because a reasonable observer would view the current display,

including both religious and non-religious components, merely as a front for a religious purpose.

(Pl.’s MSJ Mem. 24–25.) Plaintiff’s reliance on McCreary County is utterly misplaced. There, the

history of the challenged display was marked by overt and explicit expressions of a religious

purpose. See, e.g., McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 869 (2005) (“at the ceremony

for posting the framed Commandments in Pulaski County, the county executive was accompanied

by his pastor, who testified to the certainty of the existence of God. The reasonable observer

could only think that the Counties meant to emphasize and celebrate the Commandment’s religious

message.”); id. at 870 (noting that the second iteration of the display, erected only after litigation

had commenced, was authorized by a resolution “express[ing] support for an Alabama judge who

posted the Commandments in his Courtroom, and cited the fact that the Kentucky Legislature once

adjourned a session in honor of Jesus Christ, the Prince of Ethics.”); id. (noting that the second

iteration of the display included only documents with religious references, which “highlighted

references to God as their sole common element” and had an “unstinting focus on religious

passages, showing that the Counties were posting the Commandments precisely because of their

sectarian content”); id. at 871 (noting that “the sectarian spirit of the common resolution found

enhanced expression in the final display”). Because of the pervasive religious expressions the

counties had included in every version of the challenged display, the High Court found that “[i]f

the observer had not thrown up his hands, he probably would suspect that the Counties were simply

reaching for any way to keep a religious document on the walls of the courthouses,” rather than

actually reaching for a secular purpose. Id. at 873.

Such is not the case here. Plaintiff has not alleged, nor can she, that the County engaged in

any overtly or explicitly religious ceremony when placing a Nativity scene on the County


44

Courthouse lawn. The only argument Plaintiff can muster to support her fallacious contentions

here was that eighteen years ago, a past President of the Jackson County Board of Commissioners

apologized to the community for not having a Nativity scene as had been its practice in the past.

(Pl.’s MSJ Mem. 25.) But, there is no indication like in McCreary County that the County or any

of its officials made any over religious expressions at the time the display was erected at least

eighteen years ago. Thus, McCreary County’s consideration of explicit and overt references to

religion, as the reason for the government’s choosing to erect the display on government property,

is inapplicable here.

Moreover, Plaintiff has not alleged, nor could she, that the County has undertaken to erect

varying versions of a display to simply pass constitutional muster after litigation had been

commenced against the original display. On the contrary, Plaintiff concedes that the display was

enlarged to include secular elements before she filed this suit. Nor does Plaintiff allege, because

she cannot, that the County’s challenged display contains pervasive religious expressions or

unstinting religious references to continue any purportedly original religious purpose. As such,

McCreary County is simply inapposite, and Plaintiff’s attempt to attribute some “sham” to the

County fails.

Instead, the County’s challenged display is much more akin to what the Seventh Circuit

upheld in Concord Community Schools. See Freedom From Religion Found., Inc. v. Concord

Cmty. Schs., 885 F.3d 1038 (7th Cir. 2018). There, like here, the plaintiff contended that the

government’s purpose of including references to other religious holidays was a sham to cover up

its religious purpose in including a live Nativity scene. 885 F.3d at 1049–1050. Originally, the

school only included a prominent Nativity scene as part of the final act of the holiday musical. Id.

at 1050. In response to actual litigation challenging the constitutionality of the inclusion of a


45

Nativity scene, as opposed to Plaintiff’s alleged letter from the same Freedom From Religion

Foundation here (Compl. ¶ 15), the school modified the performance to include performances

recognizing Jewish and African-American holidays as well. 885 F.3d at 1049. The Seventh Circuit

rejected the plaintiff’s sham argument, holding that the government’s stated purpose of

recognizing all of the cultural holidays that take place around Christmastime was perfectly

permissible and a valid secular purpose. Id. at 1050. Indeed, the Seventh Circuit held that—even

if done in response to litigation (or, as here, a mere letter)—the government was certainly

permitted to recognize the religious aspects of Christmas while also recognizing the other aspects

of the same season. Id. (“We thus find the 2015 iteration of the Spectacular constitutional no matter

what lens we use for evaluation.”).

Plaintiff’s precise argument was likewise rejected by the Third Circuit. See ACLU of N.J.

ex rel. Lander v. Schundler, 168 F.3d 92, 105 (3d Cir. 1999) (Alito, J.). There, the government had

previously erected a holiday display that a court had found to violate the Establishment Clause,

and subsequently modified the display to include secular symbols to accompany the Nativity

scene. Id. at 105. The plaintiff argued, like Plaintiff does here, that “the addition of the secular

symbols was a ploy designed to permit continued display of religious symbols.” Id. Justice Alito

noted that “[t]he suggestion seems to be that, even if Jersey City could have properly erected the

modified display in the first place,” it was not permitted to do so after anyone questioned the

placement of a stand-alone Nativity scene. Id. Such is not the law. Indeed, the Third Circuit

explicitly rejected this rationale. Id. (“We reject this argument. The mere fact that Jersey City’s

first display was held to violate the Establishment Clause is plainly insufficient to show that the

second display lacked a secular purpose.”). Indeed, “the mere fact that city officials miscalculated


46

and approved a display that is found by the federal courts to cross over the line is hardly proof of

the officials’ bad faith.” Id.

The same result should obtain here, where the County’s previous displays were never even

challenged, much less found unconstitutional. The County is certainly permitted to take reasonable

steps to align its actions and policies with constitutional requirements, and did so here well before

any lawsuit was filed. The undisputed record reveals that its purpose was clearly permissible.

(Bevers 36:5–36:21 (noting that the County changed the display “to show that we were—this is

included as an overall holiday display, bringing in to one visual field of view”).) Whether it does

so in response to litigation or threatened litigation does not mitigate the fact that the current display,

which is the only display Plaintiff has challenged, passes constitutional muster, recognizing both

the religious and secular aspects of the Christmas holiday.


Coercion Test.

1. Binding Seventh Circuit Precedent Has Applied the

Coercion Test in Numerous Establishment Clause

Challenges.

As the Seventh Circuit has recognized, there is an “additional Establishment Clause

approach, the coercion test [which] seeks to determine whether the state has applied coercive

pressure on an individual to support or participate in religion.” Doe ex rel. Doe v. Elmbrook Sch.

Dist., 687 F.3d 840, 850 (7th Cir. 2012) (en banc). As the en banc Seventh Circuit made clear,

“[w]here the coercion test belongs in relation to the Lemon test is less clear,” but that “[a]part from

how one views the coercion test in relation to the Lemon test, however, it is evident that if the state

coerces anyone to support or participate in religion or its exercise, an Establishment Clause

violation has occurred.” Id.


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Though the precise boundaries of the coercion test, including whether it applied outside of

the public school context, has been subject to debate, the Supreme Court eliminated the ambiguity

by applying the coercion test outside the public-school context. See Town of Greece v. Galloway,

572 U.S. 565 (2014) (applying the coercion test in a challenge to the government’s legislative

prayer practice). Other courts, too, including the Seventh Circuit, have applied the coercion test

outside of the school context. See, e.g., Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996) (applying

coercion test to claimed Establishment Clause violation in the prison context); Lund v. Rowan

Cnty., 863 F.3d 268 (4th Cir. 2017) (en banc) (applying coercion test in legislative prayer context);

Warner v. Orange Cnty. Dep’t of Probation, 115 F.3d 1068 (2d Cir. 1996) (applying coercion test

to prison inmate’s Establishment Clause claims); see also Turner v. Hickman, 342 F. Supp. 2d 887

(E.D. Cal. 2004) (using the coercion test to determine if the government violated an inmate’s First

Amendment rights).

Indeed, as the Fourth Circuit stated, “Although previously unclear whether the coercion

test applied beyond the schoolhouse . . . Town of Greece settled that ambiguity by observing

that a coercion-based analysis applies to adults encountering religious observances in

governmental settings.” Lund v. Rowan Cnty., 837 F.3d 407, 426 (4th Cir. 2016) (emphasis

added), rev’d on other grounds 863 F.3d 268 (4th Cir. 2017).

As this precedent makes clear, the coercion test has been and should be applied in

Establishment Clause cases, such as this one. And as this Court already held, Plaintiff has not

alleged the challenged display coerces her to do or refrain from doing anything. (Entry Denying

Defendant’s Motion to Dismiss, ECF No. 37, at 7–8.) Now with an undisputed record, the Court

should apply the coercion test again and find that the passive display containing both religious and

secular components at Christmastime does not violate the Establishment Clause’s requirement that


48

government “not coerce its citizens to support or participate in any religion or its exercise.” Town

of Greece, 572 U.S. at 586 (quoting Cnty. of Allegheny, 492 U.S. at 659).

2. Objectively Non-Coercive Practices Do Not Violate the

Establishment Clause.

Actual, objective coercion has always been and remains inimical to the Founders’ vision

and impermissible under the Establishment Clause. Van Orden v. Perry, 545 U.S. 677, 693–94

(2005) (Thomas, J. concurring). The Framers understood that an establishment necessarily

involved “actual legal coercion.” Id. at 693. “The coercion that was a hallmark of historical

establishments of religion was coercion of religious orthodoxy and of financial support by force

of law and threat of penalty.” Lee v. Weisman, 505 U.S. 577, 640 (1992) (Scalia, J., dissenting).

“Typically, attendance at the state church was required; only clergy of the official church could

lawfully perform sacraments; and dissenters, if tolerated, faced an array of civil disabilities.” Id.

“Thus, for example, in the Colony of Virginia, where the Church of England had been established,

ministers were required by law to conform to the doctrine and rites of the Church of England; and

all persons were required to attend church and observe the Sabbath, were tithed for the public

support of Anglican ministers, and were taxed for the costs of building and repairing churches.”

Id. at 641–42. “In other words, establishment at the founding involved, for example, mandatory

observance or mandatory payment of taxes supporting ministers.” Van Orden, 545 at 693 (Thomas,

J. concurring). “[G]overnment practices that have nothing to do with creating or maintaining . . .

coercive state establishments simply do not implicate the possible liberty interest of being free

from coercive state establishments.” Id. at 693–94.

Government acknowledgments of religion are pervasive, and constitutional. The mere

presence of a religious symbol (alongside non-religious ones) that is pervasive historically and

physically does not send a message of compulsion. Acknowledgments such as passive displays


49

containing both religious and secular symbols are far less likely to pose a real threat of coerced

belief than the state churches that were a concern for the Founders. References to God and religion

in our Nation are “the inevitable consequence of the religious history that gave birth to our

founding principles of liberty.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 39 (2004).

The “Establishment Clause permits government some latitude in recognizing and

accommodating the central role religion plays in our society.” County of Allegheny v. ACLU of

Greater Pitt., 492 U.S. 573, 657 (1989) (Kennedy, J., concurring in part, dissenting in part).

“Noncoercive government action within the realm of flexible accommodation or passive

acknowledgment of existing symbols does not violate the Establishment Clause unless it benefits

religion in a way more direct and more substantial than practices that are accepted in our national

heritage.” Id. at 662–63. The presence of a display containing both religious and non-religious

aspects does not “coerce anyone to support or participate in any religion or its exercise” and does

not “give direct benefits to a religion in such a degree that it in fact establishes a state religion or

tends to do so.” Id. at 659. “[I]t would be difficult indeed to establish a religion without some

measure of more or less subtle coercion, be it in the form of taxation to supply substantial benefits

that would sustain a state-established faith, direct compulsion to observance, or governmental

exhortation to religiosity that amounts in fact to proselytizing.” Id. at 659–60. “Absent coercion,

the risk of infringement of religious liberty by passive or symbolic accommodation is minimal.”

Id. at 662.

Focusing on coercion in the form of legal compulsion would comport with the Supreme

Court’s historical Establishment Clause jurisprudence and with the Framers’ intent. This more

objective standard would relieve the confusion and chaos that Lemon has spawned and would

provide local governments with the kind of definitive guidance that is necessary to retain


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historically significant religious observances without fear of being sued by offended observers.

This Court should apply the coercion test and enter judgment for the County as a matter of law.

CONCLUSION

Because there are no material facts in dispute and because the County is entitled to

judgment as a matter of law, this Court should deny Plaintiff’s Motion for Summary Judgment and

enter summary judgment for the County.

Respectfully submitted,

/s/ Roger K. Gannam

Horatio G. Mihet

Roger K. Gannam

Daniel J. Schmid

LIBERTY COUNSEL

P.O. Box 540774

Orlando, FL 32854

Phone: (407) 875-1776

Facsimile: (407) 875-0770

Email: [email protected]

[email protected]

[email protected]

[email protected]

Attorneys for Defendant,

Jackson County, Indiana

CERTIFICATE OF SERVICE

I hereby certify that on this 3rd day of October, 2019, I caused a true and correct copy of

the foregoing to be electronically filed with this Court. Service will be effectuated via this Court’s

ECF/electronic notification system on all counsel of record.

/s/ Roger K. Gannam

Attorney for Defendant


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