THOMAS GARRETT

sgarrett@baxterbulletin.com

A lawsuit is on its way to federal court challenging the Baxter County Courthouse nativity scene.

J.G. "Gerry" Shulze, a Little Rock lawyer, confirmed Tuesday the suit has been submitted to the U.S. District Court for Western Arkansas on behalf of the American Humanist Association and Baxter County resident Dessa Blackthorn. Baxter County and County Judge Mickey Pendergrass are named as defendants in the complaint. The lawsuit was officially filed in the court's electronic filing system late Tuesday.

Pendergrass told The Bulletin he'd been in communication with a lawyer about the nativity scene and had been providing documents in response to Freedom of Information Act requests. He said he did not know about the suit nor has he been informed about it.

"If we get served, we'll deal with it," said Pendergrass.

The AHA is an organization that promotes humanism, separation of church and state, and the preservation of constitutional rights for humanists, atheists and other freethinkers. Blackthorn is a Mountain Home business owner acting as a representative for others in the county.

"I've been asked by a group of people, who wish to remain anonymous, to represent them in trying to fight for equality on this courthouse property," Blackthorn told The Bulletin.

Blackthorn said the issue began when Pendergrass denied a request to place a "Happy Winter Solstice" banner on the courthouse lawn.

"Now, people are getting involved in trying to take care of this matter and, hopefully, you know, maybe next year we'll be able to see the Happy Winter Solstice banner on this corner," Blackthorn said. "Maybe not this corner, but perhaps that corner. There are four corners, and everybody can share this."

She contends the issue is about equality. "Nobody wants to take anything away from anybody," Blackthorn said. "We want everybody to be able to represent themselves and show what they believe during this holiday season, because December has a lot of different holidays. ... Let's all show what we believe here."

Representatives of the AHA were unavailable for comment Tuesday. A woman answering the phone at the organization's Washington, D.C., location said they were off for the holidays.

Display unconstitutional

The court challenge is the latest entry in a series of events that began when Pendergrass denied a request in 2013 to place a "Happy Winter Solstice" banner on the courthouse lawn along with the créche. In January, the AHA's legal center sent out a letter asking that the nativity scene be removed unless other religions, or non-religions, also could place a display on the courthouse lawn.

According to a copy of the complaint obtained by The Bulletin, the AHA did not receive a response to the letter, and in October sent an email to Pendergrass and other local officials "to advise them that a predominantly Christian Nativity Scene is unconstitutional." In the email, the AHA said it intended to file a lawsuit "if the county erects a similar display this coming holiday season."

In November, Pendergrass leased the northwest corner of the courthouse lawn to the Mountain Home Chamber of Commerce, and it in turn allowed Frederick S. "Rick" Spencer, a Mountain Home lawyer, to place the nativity scene at the location, where it has been displayed for several years.

This month, the Baxter County Quorum Court authorized placing the créche on the courthouse lawn along with disclaimer signs.

According to the complaint, placing religious or secular displays in prominent places on the courthouse property is a divisive issue, and the placement of a predominantly Christian display suggests "that Christianity is a preferred religion and that the County favors religion over non-religion."

"Religious and specifically Christian elements overwhelmingly dominate the County's annual Nativity Scene display," according to the suit. "The very few symbols within the display that were not nativity-related (one Santa Claus statue, one reindeer and a sleigh and a Christmas tree) were incidental to the display and were nonetheless dedicated to the Christian holiday."

Controversy began last year

The complaint recounts last year's events, including a request on Dec. 5, 2013, when a person asked for permission to place a "Happy Winter Solstice" banner on the lawn and was denied. On Dec. 11, 2013, two Baxter County residents asked Pendergrass in person for permission to place the banner and he denied their request.

According to the complaint, Pendergrass contended there was an ordinance prohibiting banners and that if he allowed one banner "hundreds would want to put one up."

"On or about January 24, 2014, a large, unattended banner was displayed on or near the Courthouse property," according to the complaint, and on Feb. 10, Pendergrass signed a statement confirming he denied the request to display the secular solstice banner. During the year, other banners have been displayed on the northwest corner of the courthouse lawn.

The complaint contends Pendergrass, "being made aware of the divisiveness of public displays of religious symbols, has nevertheless chosen once again to permit the placement of the Nativity Scene that is overwhelmingly Christian in content."

However, in an effort to protect the county from liability, Pendergrass leased the northwest corner of the courthouse lawn to the chamber of commerce for $1 and issued a county court order that the purpose of the lease is to authorize a Christian display on county property as "an effort to continue the Christmas holiday tradition." The lease is from Nov. 21 through Jan. 15.

In the complaint, Schulze calls the lease "nothing more than a sham attempt" to insulate the county from responsibility for the scene and contends it appears there was no compliance with state law governing the lease of public property to nonprofit organizations. He contends the lease arrangement does not protect the county from liability for the nativity scene.

He contends a disclaimer sign does not correct the unconstitutional nature of the display

Display excludes others

"The Nativity Scene is not a small part of a secular holiday display, but is, rather, central to the display. The display is overwhelmingly Christian with a few random non-Nativity Christmas-themed elements included in a futile attempt to sanitize the sectarian display. Such a display promotes a single religious tradition above all others," says the complaint.

Schulze contends the causes for action include a violation of the Establishment Clause of the First Amendment by "singling out, showing preference for, and endorsing the Christian religion," as well as "the County's approval of the Christian religion to the exclusion of those traditions that are not Christian, including Jewish, Pagan, Native American, Muslim and Animist traditions, as well as the significant and growing portion of the population that is not religious."

The plaintiffs are asking for a declaratory judgment that the actions of the county and Pendergrass violate the Establishment Clause of the First Amendment, and that the maintenance and prominent display of the nativity scene on government property is unconstitutional. They are seeking an injunction to prevent the county from displaying or allowing the nativity scene to be displayed on government property and from "promoting, advancing or endorsing religion by public displays that give the appearance of government sponsorship of religion or a particular religion."

Suit has 'been in the works'

Schulze said the complaint was sent Monday and subsequently filed by the federal court late Tuesday. He said the lawsuit has been in the works, but there were problems getting all the documents sought under the original FOIA request and a subsequent request was submitted.

While he said it's too late to get relief now, Shulze told The Bulletin that litigation or further court action can be dealt with after the first of the year and there will be time to reach a resolution before the next holiday season.