However, this argument misapprehends the nature of Ms. Blackthorn's grievance. Ms. Blackthorn, a Unitarian Universalist, makes it quite clear in her deposition that what she finds unwelcome is not Christianity itself, but rather her perception that her government has established Christianity as its preferred religion by displaying the nativity scene without also displaying holiday celebrations that are predominantly secular or representative of other faiths. Since Ms. Blackthorn's deposition leaves no doubt that she has come into direct and unwelcome personal contact with the display in question, Defendants' argument that Plaintiffs cannot show injury for purposes of standing fails .
... the display of the creche on the courthouse property is not only "entwined with [Baxter County] governmental policies" but enthusiastically so entwined. Defendants' argument that there is no state action fails.
... whether there is any material factual dispute as to whether Defendants' primary or preeminent purpose in erecting the instant creche was a religious or secular one.
Fortunately, no mind-reading is required for this inquiry; rather, the inference as to whether a government action has a "predominantly religious purpose" can be made as a matter of "commonsense" from "openly available data." Under this analysis, "although a [state actor]'s stated reasons will generally get deference, the secular purpose required has to be genuine, not a sham , and not merely secondary to a religious objective."
The record leaves no room for doubt that, as the owner of the creche stated during his deposition, "[o]bviously the purpose of it was to celebrate Christmas."
The record also leaves no room for doubt that the purpose of this celebration was predominantly religious in nature. There is no dispute that in December 2013, Judge Pendergrass denied at least two separate requests to install a banner near the creche stating "Happy Solstice." Furthermore, there is no dispute that in November
2014, roughly one month after receiving from one of the plaintiffs in this case a threat of litigation over the creche, Baxter County leased a corner of the courthouse lawn to the Chamber of Commerce for the amount of $1.00 for the "stated purpose of erecting a nativity scene display." Finally, there is also no dispute that the Chamber of Commerce's president "understand[s] the display to be fundamentally religious in nature," and that he agreed on behalf of the Chamber of Commerce to enter into the lease at the request of Judge Pendergrass.
These undisputed facts speak for themselves, and-even when viewing them in the light most favorable to Defendants-there simply is no reasonable inference to be drawn from them other than that in 2014, if not earlier, the County's purpose in erecting the creche was a predominantly religious one.
IT IS FURTHER ORDERED that Defendants Baxter County, Arkansas, and Baxter County Judge Mickey Pendergrass must either (1) refrain from placing any religiously sectarian seasonal display on the courthouse grounds, or (2) create a public forum on the courthouse grounds for a seasonal display open to persons of all faiths as well as of no faith at all, without discrimination on the basis of viewpoint.
I am in Springfield, MO with my mother today for her surgery, and have not yet seen the ruling. I am aware of it and will not comment further until I have been able to study the ruling and consult with our attorneys.