Ah the holiday season—a time for family, friends and overeating. While most individuals grapple with balancing a love for holiday treats and some modicum of self-control, the Nation is faced with a perennial balancing act: Protecting both the right to religious expression and the separation of church and state.   PBS Newshour recently reflected on the “December Dilemma” and how schools can encourage holiday celebration without favoring one set of religious beliefs over others.

The December Dilemma, however, is a predicament that reaches beyond public schools.  Virtually any public space decorated for the holiday season must be garbed without crossing the sometimes precarious line between holiday cheer and religious favoritism.  Several news stories from across the country this holiday season have all of us at RLUIPA Defense contemplating some of our favorite questions: When does the right to religious expression overstep the rights of others? May a town hall display a Kinara, Menorah, or Manger? Must it display all three? What about winter celebrations outside of the commonly recognized Kwanzaa, Chanukah and Christmas?  Will Dwight deck the Hartford-office halls in a Santa costume this year?

Satan needs a home too: Floridians wishing to publically worship Satan this holiday season are now in luck. After a 2013 denial, the state has allowed the Satanic Temple to erect a display of an “Angle in Hellfire” in the state Capitol Rotunda.  The display portrays an angel falling from the sky into a fiery pit.  The Satanic Temple’s application was denied last year because it was deemed “grossly offensive.”

This year, however, the Temple filed its display application along with a letter from Americans United for the Separation of Church and State (“AUSCS”).  According to AUSCS, Florida had opened the capital to private religious displays, and in 2013 allowed the erection of a nativity scene, an atheist-themed message, a “Festivus Pole” and a rendering of the Pastafarian Flying Spaghetti Monster.  AUSCS advised the State Department of Management Services that a denial of the Satanic Temple’s display would violate the Temple’s freedom of speech, freedom of religion, and right to equal protection under the law.

According to the “Official Website of The Satanic Temple”:

“The mission of The Satanic Temple is to encourage benevolence and empathy among all people, reject tyrannical authority, advocate practical common sense and justice, and be directed by the human conscience to undertake noble pursuits guided by the individual will. Civic-minded, The Satanic Temple has been involved in a number of good works including taking a stand against the controversial and extremist Westboro Baptist Church, working on behalf of children in public school who have been subject to corporal punishment and more.”

This year, Michigan officials received a similar request from the Satanic Temple of Detroit.  After the Michigan State Capitol Commission approved a request for a Christian Nativity Display, it also approved the Satanic Temple’s request to erect a holiday display.  The display “depicts a snake wrapped around the Satanic cross presenting a book as a holiday gift.”  The cross is inscribed, “The greatest gift is knowledge.”  A member of the Detroit chapter, Jex Blackmore, explained that “the Satanist display ‘provides some poignant commentary about the diversity of beliefs represented by Michigan citizens.’”

Thomas More versus Satan in Michigan—and Across the Nation?  The Thomas More Society (“TMS”)is a “not-for-profit, national public interest law firm dedicated to restoring respect in law for life, family, and religious liberty.”   TMS has taken a stand against the Detroit Satanic Temple’s Capital display by planning a nativity scene to rival the Satanic display.  Special counsel for TMS and chairman of the Michigan Nativity Scene Committee, recently commented that “[t]he nativity scene at the Michigan State Capitol will demonstrate the true meaning of Christmas in a joyful and hopeful manner….  The Satanic display – by stark contrast – will merely serve to highlight the positive message of Christmas.”

Also this year, TMS has backed a temporary nativity scene in the Illinois Capitol building.  According to one news source, TMS has provided legal support for “placing nativity scenes in public places in 21 states, including capitols in Illinois, Florida, Georgia, Missouri, Rhode Island and Texas, and in front of the governor’s mansion in Oklahoma.”

Does everyone really love Brookville’s Nativity scene? The Satanic Temple and AUSCS aren’t the only institutions seeking to reduce the prominence of Christian-only holiday displays in the public arena.  The American Civil Liberties Union (“ACLU”) of Indiana, on behalf of  the Freedom From Religion Foundation and two county residents, filed a lawsuit contending “that the display on the grounds of the Franklin County Courthouse in Brookville, Indiana—a nativity scene that includes no non-Christian religious or secular holiday symbols—violates the Establishment Clause of the First Amendment.”

Local resident, Wayne Monroe, said that he came up with the idea for the nativity scene 50 years ago and “everybody loves it.”  An online campaign, established to “Save the Brookville Indiana Courthouse Nativity Scene,” boasts over 10,000 members (although only about 800 people have so far signed a petition in support of the cause).

The complaint in Freedom From Religion Foundation, et al. v. Franklin County, Indiana, 1:14-cv-02047-TWP-DML was filed on Dec. 16, 2014 in the U.S. District Court for the Southern District of Indiana, Indianapolis Division, and is available here.  According to a recent report, the ACLU and Franklin County reached a temporary agreement after a preliminary injunction hearing on Friday.  The scene will be taken down on December 26, but the litigation will continue after the holiday.  ACLU senior staff attorney Gavin Rose commented that “[t]he display has been up for more than 50 years and obviously there’s still a constitutional issue.  This just takes the immediacy out of the issue.”

Santa has Rights Too.  Sometimes Santa needs to unwind after all the work that goes into delivering toys around the globe.  Enter SantaCon, “an annual flash mob of thousands of drunken revelers in red costumes and white beards on a pub crawl across New York City.”  Opponents object to the group because “over the years it has grown out of control and left participating neighborhoods in shambles,” with reports of public urination and vomiting of those participating in the pub crawl.  For the second year in a row, the Metropolitan Transportation Authority has banned beer, wine, and liquor from its usually alcohol tolerant trains.  Last year, police enforced the prohibition at Grand Central Terminal and even boarded trains to issue summonses punishable by $50 fines and 30 days’ jail time.  All of this has prompted SantaCon to hire a lawyer, Norman Siegel, former chief counsel for the New York Civil Rights Liberties Union, to protect its right to drink.  Attorney Siegel said of SantaCon: “They have a right to express their views, pro-Christmas or anti-Christmas, wear their costumes; the content of their message cannot be censored.”  The Daily Show reports on the controversy.

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Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.

Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.