The city of Warren, Mich., does not have the right to exclude non-religious messages from its annual December holiday display, Americans United for Separation of Church and State has told a federal appeals court.

Americans United filed a friend-of-the-court brief in the case Freedom From Religion Foundation, Inc., v. City of Warren. The dispute centers around a yearly holiday display placed in the atrium of the Warren Civic Center.

The display includes religious and non-religious elements, including Christmas trees, ornaments, a “Winter Welcome” sign, a “Merry Christmas” sign, elves, reindeer, snowmen, wreaths with lights, bushels of poinsettias, candy canes, wrapped gift boxes and other items. It also includes a “prayer station” and a Nativity scene. A plaque indicates that the display is “sponsored and provided by the Warren Rotary Club.”

The Freedom From Religion Foundation (FFRF) filed a suit in December 2011, after it was denied the right to erect a sign reading, “At this season of THE WINTER SOLSTICE may reason prevail. There are no gods, no devils, no angels, no heaven or hell. There is only our natural world. Religion is but myth and superstition that hardens hearts and enslaves minds.”

Mayor James Fouts told the FFRF that only religious groups are permitted to erect displays. Fouts told the group, “Your non-religion is not a recognized religion.”

Fouts added that the display “could lead to confrontations and a disruption of city hall” and that it contained statements that are “not provable.” He said the FFRF has no right “to attack religion or any religion with mean-spirited signs.”

Americans United Executive Director Barry W. Lynn said the city is clearly guilty of unequal treatment.

“A policy that allows religious groups access to public space while denying it to non-religious ones is discriminatory, pure and simple,” Lynn said. “Warren officials can’t play favorites like this.”

A federal court ruled for the city, and the case is now on appeal to the 6th U.S. Circuit Court of Appeals.

In its brief, Americans United called on the court to strike down Warren’s discriminatory policy.

“In regulating the use of City Hall atrium for winter holiday displays, the City of Warren openly discriminates on the basis of religious belief and religious viewpoint,” reads the brief.

It adds, “Displays that celebrate religious holidays are permitted, but displays that celebrate non-religious holidays are prohibited; displays that promote religious beliefs are allowed, yet displays that criticize religious beliefs are excluded. And all decisions about whether to accept or reject proposed displays are made by the Mayor – in his sole, unfettered discretion – without any clear or concrete guidelines to cabin his authority over the content or viewpoint of proposed private speech.”

The brief was drafted by attorneys Shelli L. Calland, C. William Phillips and Kerry L. Monroe of the legal firm Covington & Burling along with Americans United Legal Director Ayesha N. Khan and Senior Litigation Counsel Gregory M. Lipper.