Tuesday, December 15, 2009                                                                                       View Comments

Ruling allows for atheist display

Judge grants Freethinkers’ request for kiosk at Arkansas state Capitol

Winter solstice display to be erected at the Arkansas state Capitol. More information and photos of the display are available by clicking here.
An atheist group’s display marking the winter solstice will join the traditional Nativity scene on the Arkansas state Capitol grounds as a result of a ruling by a federal judge Monday.

U.S. District Judge Susan Webber Wright granted a preliminary injunction in favor of the Arkansas Society of Freethinkers, who sued Secretary of State Charlie Daniels after he refused to grant permission for the group to put up its display, dubbed the Box of Knowledge.

“We liked the outcome,” said Mark Love, an electrical engineer who is the registrar for the society. “We wanted to be included and to be able to express our message. It looks like it’s going to happen.”

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Arkansas judge allows secular solstice display to join nativity scene at state Capitol


Secretary of State Charlie Daniels violated free speech rights when he rejected a “winter solstice” display at the state Capitol by a group opposed to the nativity scene displayed annually at Arkansas’ seat of government, a federal judge ruled today.

U.S. District Judge Susan Webber Wright’s ruling cleared the way for the display proposed by the Arkansas Society of Freethinkers.

The Arkansas chapter of the American Civil Liberties Union filed a federal lawsuit after Daniels rejected the group’s written application to put up a display that would describe the meaning and history of the winter solstice.

The group had asked for an expedited hearing so it could erect the display before the winter solstice on Dec. 21. Freethinkers member Mark Love said his organization plans to put up the display Wednesday or Thursday.

“We like the outcome. We wanted to be included in the holiday season and we are,” Love said.

He said his group was not anti-Christian or anti-Christmas.

“No, this was about being included in the holiday … why not make the holiday time more inclusive, not less,” Love said.

Daniels told reporters after the hearing that his office would work with the group.
“We will comply with the order,” he said.

During the hearing, Daniels testified that he denied the group’s request because the display “did not go along with the Christmas theme or holiday theme.” He also said he didn’t like temporary displays in general.

“It didn’t look appropriate to me that it belonged on the Capitol grounds,” the secretary of state said.

The freethinkers first applied to put up a winter solstice display at the Capitol last year and were turned down. Daniels said at the time the proposed exhibit failed to maintain the order and decorum of the holiday season.

The organization submitted an application in October that met all of Daniels’ requirements, but still the application was rejected.

During Monday’s hearing, it was revealed that the secretary of state’s office has a written policy that allows anyone to apply to put up a display at the Capitol. The policy was established by Daniels’ predecessor, Sharon Priest. The nativity scene was exempt from the application process because it has been a temporary holiday display on the Capitol grounds since the 1940s.

No one had ever applied for permission to erect a temporary holiday display until the freethinkers, according to testimony.

“This was a massive violation of the First amendment,” said ACLU attorney John Burnett, adding the nativity scene “existed outside the scope of these particular guidelines.”

In her ruling, Wright noted that by allowing a nonprofit organization to erect a nativity scene annually, the secretary of state had “designated a public forum,” and that the freethinkers “have free speech rights and did follow the policy.”

“The court finds this policy is not content neutral as applied and it permits a Christmas display and denies another view point,” she said, adding the policy was “narrowly tailored.”

“This is a designated public forum for that type of speech,” she said.

Wright also said Daniels’ argument that the freethinkers display was not aesthetic enough for the holidays did not make sense because the nativity scene is made out of wood and is completely opposite from the festive decorations inside the state Capitol.

She said the freethinkers display would fit well near the nativity scene, and she expressed some concern that the secretary of state’s office may soon be inundated with requests for other temporary displays in the area.

“There might be enough room,” she said.

Rita Sklar, executive director of the ACLU chapter in Arkansas, told reporters after the hearing she was pleased with the ruling.

“I don’t know of any other state capitol that has set up a public forum the way this state had done,” she said. “Again, they didn’t have to do that, they didn’t have to invite anybody, but they did, and that set up a forum so that anybody with any idea … any time of year.”

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Judge says ‘winter solstice’ display OK for Capitol

Federal District Judge Susan Webber Wright ruled in Little Rock on Monday that the Arkansas Society of Freethinkers has a First Amendment Right to set up their “kiosk” alongside the Nativity Christmas display on the grounds of the State Capitol. Judge Wright ruled that Arkansas Secretary of State Charlie Daniels had established a “public forum” by allowing a private organization, the owners of the Nativity, to set it up.

The Nativity has been a part of Christmas decorations at the state capitol at least since the 1940s. Wright issued an injunction ordering the Arkansas Secretary of State to allow the Freethinkers to set up their four-sided display celebrating the winter solstice. According to Mark Love, a member of the Society of Freethinkers, only one side of the display commemorates the Winter Solstice, the other three sides tell about Freethinkers, promote certain books, and contain an “ancestry timeline”. The monument measures a little over 4 feet square and, including the roof, stands about 10 feet tall. According to Love, the purpose of the monument is to educate people about Freethinkers.

Arkansas Secretary of State Daniels denied the groups application for a display in 2008. Daniels denied the group again in 2009, stating that their display did not fit the tone of the holiday decorum at the State Capitol.

The ACLU assisted the Freethinkers in filing a lawsuit against Daniels, and handled the case for them in Federal Court.

Attorneys for the Arkansas Secretary of State argued that no public forum had been established. Since the Nativity had been part of the State Capitol Christmas display for over 60 years, they argued that the Nativity was simply one of many decorations traditionally displayed at the Capitol during the holidays.

Judge Wright took the opportunity to speak against the Nativity in general. Even though the complaint filed by the Freethinkers argued that rejecting their display violated their free speech rights, Judge Wright interjected her own arguments and made it a religion case. She stated that in its current form the Nativity is likely in violation of the First Amendment Establishment Clause which prohibits state sponsorship of religion. The fact that the Nativity was set up on a location on the south side of the Capitol, away from other holiday decorations, made it suspect, she said. She also pointed out that the Nativity contained no red, green, or white colors, colors normally associated with Christmas festivities. She said that the colors of the Nativity were colors normally associated with the common view of the birth of Christ.

In the 1980s artisans at the Ozark Folk Center in Mountain View, Arkansas, hand-carved life-size people and animals for a new Nativity. A 13 by 26 foot structure was built to house the outdoor display. The Nativity was the property of the State of Arkansas until around 1992, when it was donated to a private foundation known as the Foundation to Protect and Promote the Nativity. The non-profit group has been allowed to set up the Nativity on the Capitol grounds every Christmas since then. They bear all financial responsibility for the set-up, maintenance, and storage of the Nativity.

Secretary of State Daniels pointed out the fact that he is constitutionally and legally responsible for the Capitol Building and its grounds. He said that he and his staff routinely approve events, including displays, at the State Capitol. Daniels determined that an atheist display did not fit the decorum of the Holiday decorations at the Capitol. He said that they would be welcome to exercise their First Amendment rights by holding a rally or other event on the Capitol steps the same as other groups.

This lawsuit and today’s ruling has very little to do with the First Amendment rights of the atheist Freethinkers. It has everything to do with trying to get rid of the Nativity. They’ve tried and failed to have Nativities removed from public property. The one at the Capitol in Little Rock has stood in spite of objections by the ACLU. Now they’re trying to come in through the back door by making Nativity displays so controversial that public officials decide to remove all religious displays, including Nativities.

At the end of the hearing, the judge told everyone to have a “happy holiday, or solstice, or whatever.”

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