Nativity fight continues in Franklin County

BROOKVILLE, Ind. — One of two federal lawsuits filed against Franklin County over religion on the courthouse square will be decided by the court.

The Wisconsin-based Freedom From Religion Foundation is seeking damages from Franklin County for having allowed a privately owned Nativity scene to occupy the square at Christmas, a tradition here for about 60 years.

After the lawsuit was filed in December, the Franklin County Board of Commissioners had the Nativity scene removed on Dec. 26. In January, the board established new rules for the use of the public square.

In February, attorneys for Franklin County filed a motion to dismiss the lawsuit, but the Freedom From Religion Foundation, represented by Indiana American Civil Liberties Union attorney Gavin Rose, opposed the dismissal.

The plaintiffs are seeking monetary damages from Franklin County. Their claims are not moot, as the defense has alleged, Rose wrote in his 20-page response to the motion to dismiss the suit. Rose cited case law in which damages have been granted in similar cases.

Franklin County already has denied space on the courthouse lawn to non-residents, Rose wrote. The defendant's motion to dismiss the suit should be denied, he said.

Jocelyn Floyd, an attorney from the Thomas More Society, which is representing Franklin County at no cost, wrote in her response that the facts of the case, a lone Nativity placed in a public forum by citizens, is a "far cry" from a violation of the Establishment of Religion clause in the U.S. Constitution.

Whether such a case can proceed on what Floyd termed as "merely nominal damages" has not been uniformly decided by the courts, Floyd wrote in her response filed on May 18.

"The plaintiffs have already won and there is no legitimate purpose served by, and no legal authority for the court's conducting a post mortem analysis of past actions that are never to be repeated," Floyd wrote.

Aroma's Breakfast Club, the group which owns the Nativity scene, already has reserved Lot 1 on the square for its 2015 Nativity display.

Steve Kristoff, one of the residents who complained about the Nativity, has rented Lot 2 for the Christmas holidays, where he reportedly intends to display banners celebrating the winter solstice.

Franklin County commissioners say they have been advised by counsel not to comment on the federal cases.

Franklin County faces a second lawsuit, which was filed on March 24, by the Freedom From Religion Foundation and the United Federation of Churches LLC, also known as The Satanic Temple.

That suit was filed after county commissioners refused to grant the two groups space on the courthouse lawn because their members aren't residents, as the Franklin County ordinance requires.

FFRF wants to have a display on the lawn from Nov. 29, 2015, through Jan. 6, 2016, which would include several cutout figures celebrating the Dec. 15 nativity of the Bill of Rights.

TST wants to display a three-dimensional sculpture mounted on a wooden platform to help others understand its beliefs, the lawsuit said.

According to court documents, attorneys from the Thomas More Society questioned whether all parties were properly served notice of the second lawsuit. The court was asked in a motion filed by the plaintiffs to have a U.S. marshal serve the summons and paperwork in person to the Franklin County commissioners.