Bill aimed at preserving public property Nativity scenes stalls

An Indiana bill meant to protect communities from “threats and intimidation” by people and organizations that don’t support the public celebration of Christmas has stalled over concerns it could open the door for some unwanted displays on courthouse lawns.

INDIANAPOLIS – Saving Christmas may not be as easy as one lawmaker hoped.

A measure intended to protect schools and local governments from lawsuits over Nativity scenes and other religious displays is stalled amid questions about how it would work.

The proposal by Sen. Jim Smith, R-Charlestown, permits schools and municipalities to display religious symbols associated with winter holidays as long as more than one religion is represented or a secular symbol is also displayed.

Smith said the bill is meant to protect communities from “threats and intimidation” by people and organizations that don’t support the public celebration of Christmas. He’s characterized it as an effort to ward off Grinch-like forces trying to take the religious meaning out of Christmas.

But it could open the door for some unwanted displays on courthouse lawns, as one Indiana community discovered when it passed a similar law, prompting requests for images of Hell to be placed near its Nativity scene.

“I want to make sure the intent of the bill – which is good – doesn’t backfire,” said Rep. Kevin Mahan, chairman of the House Government and Regulatory Reform Committee. He held up a vote on the bill Tuesday, saying there were still too many unanswered questions.

“I’d like to talk to some constitutional lawyers on this,” he said. "I don’t want to give (local governments and schools) false hope that they can put their religious displays out and then think they’re not going to face a lawsuit.”

Smith acknowledged the measure could make things murkier for schools and communities that want to publicly celebrate Christmas.

“In the short term, this will get very, very complicated,” he said. “But in the long run, I think it will work out.”

Smith filed a similar bill last year to protect schools that hold Christmas celebrations with a religious theme, as long other religions or secular holidays are recognized. That measure died, but he returned this year with language covering schools and local governments.

Smith said he expanded the proposal because of a lawsuit filed against Franklin County, which has put a Nativity scene on its courthouse lawn every Christmas for the past 50 years. The ACLU says the display violates the First Amendment because it endorses of Christianity, since no other religions are represented.

In response, Franklin County passed an ordinance in January similar to Smith’s bill. It allows for other displays of religious symbols associated with the winter holidays to be placed on the courthouse lawn. That, in turn, prompted several requests that left local officials uneasy.

One came from a resident who wants to display pagan symbols celebrating the winter solstice. Another was from an organization called the Satanic Temple seeking a display similar to one placed at the Florida state Capitol last Christmas. It depicts an angel suspended over a pit of flames of Hell with the message: “Happy Holidays from the Satanic Temple.”

The county denied the latter, saying its ordinance requires the displays come from local residents, but that decision may be challenged in court.

Franklin County Commission President Tom Wilson said there are fears that the new ordinance might open the door to displays on the courthouse lawn that aren't in keeping with traditional Christmas celebrations.

“We do worry about that,” Wilson said. “We don’t want any nudity displayed, for example. So it’s a concern.”

Other states have wrestled with similar issues. At the Michigan Capitol, the Satanic Temple organization was allowed to put up a small display last Christmas that depicted a snake from the Garden of Eden, coiled near a pentagram, offering a book representing “knowledge” as a gift.

Smith said similar efforts may initially occur in Indiana communities if they restore the Nativity scenes taken down in past years in response to the threats of lawsuits. He also predicts that communities will eventually find ways to return Christmas to the public square.

Gavin Rose, an ACLU attorney working on the Franklin County case, said Smith’s measure won’t inoculate communities and schools from lawsuits.

“The Indiana General Assembly can’t pass a law that trumps the U.S. Constitution,” Rose said. “No matter how much they’d like to, they can’t.”

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