- Associated Press - Wednesday, February 4, 2015

INDIANAPOLIS (AP) - An Indiana county’s recent passage of an ordinance declaring its courthouse grounds the “people’s lawn” open to all viewpoints won’t end a federal lawsuit challenging the constitutionality of a Nativity scene displayed there each December for half a century, the attorney for the plaintiffs said Wednesday.

But the attorney defending Franklin County said he now considers the lawsuit “moot” in light of the new ordinance, and the county may soon file a motion seeking the suit’s dismissal.

The American Civil Liberties Union of Indiana sued the county in December on behalf of the Madison, Wisconsin-based Freedom From Religion Foundation. That suit, filed in U.S. District Court in Indianapolis, argues that the longtime winter Nativity scene violates the First Amendment because it “represents an endorsement of religion and has the principal effect of advancing religion.”

Gavin Rose, the ACLU of Indiana’s senior staff attorney, said the plaintiffs intend to drop their suit’s request for an injunction barring the display of the privately owned Nativity scene in the future, but will continue to pursue damages and a federal ruling declaring the previous years’ Nativity displays unconstitutional.

Rose said if next December the courthouse lawn again features only the Nativity scene, as it has for 50-plus years, the groups may again file suit, seeking the Nativity’s removal from the county seat of Brookville, about 70 miles southeast of Indianapolis.

“Simply because they passed an ordinance won’t make next December any more constitutional if the courthouse lawn looks exactly like it did last December,” he said.

Rose said the ACLU contends the Nativity scene would be constitutional in the future if it is accompanied on the courthouse grounds by displays representing religions other than Christianity, as well as the views of atheists and others who might want to erect a display.

Peter Breen, an attorney with the Thomas More Society - a Chicago-based firm that’s representing the county - contends that the ordinance passed last month has rendered the lawsuit “moot” and he may soon ask the court to dismiss the suit.

“From our perspective we believe the lawsuit is now over,” he said Wednesday.

The county’s ordinance states that it allows “displays, demonstrations, exhibits, rallies, and other expressive activities on courthouse grounds, without regard to the viewpoint of those activities.” It also creates a permit application process for anyone wanting to express their opinion or promote a cause using that public space.

Those displays must be accompanied by signs stating they are not endorsed by or paid for by the county.

Breen said the county has never rejected any request for a display on the lawn and the ordinance makes official its previous informal policy.

“This is a neutral, broad-based ordinance that allows any group to display or demonstrate or hold an event on the courthouse lawn,” he said.

The ongoing lawsuit has prompted state Sen. James Smith, R-Charlestown, to sponsor a bill that would allow religious displays on municipal properties and also legally protect schools and teachers who want to celebrate Christmas and other winter holidays in the classroom.

That bill was approved Wednesday by an Indiana Senate panel and now heads to the full Senate for consideration.

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