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December 28, 2006
Statement on the Dept. of General Administration’s decision to deny the request for a nativity scene in the State Capitol Rotunda

For many years, the state has decorated and displayed an evergreen tree in the Capitol rotunda, in celebration of the holiday season. On December 18, 2006, Governor Christine Gregoire held a menorah lighting ceremony in the rotunda, adding a menorah to the holiday display. In making her decision to add a menorah, the Governor did not consult with the Attorney General’s Office, but referred to the US Supreme Court case of Allegheny County v. Greater Pittsburgh ACLU, which stated that Christmas and Chanukah are part of a winter holiday season, which has attained an independent secular status in our society. The Allegheny Court held that in the context of the particular display considered in that case, the menorah served as recognition of cultural diversity and was part of a secular celebration of the season.

On the day following the menorah lighting ceremony, the Department of General Administration received an oral request from Mr. Ronald Wesselius to display a nativity scene in the state Capitol rotunda. The Department of General Administration contacted its Assistant Attorney General late on December 19, 2006, for legal advice regarding the display.

Whether a particular holiday display will be found to violate the Constitution is a complex fact specific question, and remains very difficult to predict. The Establishment Clause prohibits government from endorsing religion, but allows secular displays to celebrate the holiday season. The basic question in all of the cases is whether a particular display is a permissible secular celebration of the holidays, or an impermissible governmental endorsement of religion.

In making a determination about the permissibility of a display, the court considers many factors, including the purpose of the display, its precise content and location, its surroundings, and history relating to the display. However, the significance that the court will give to any one or more of these factors, and how they will be balanced in any given case is very difficult to forecast and appears to depend greatly on the precise facts and circumstances at issue.

In Lynch v. Donnelly,(1985), the U.S. Supreme Court upheld the display of a nativity scene on public property, in conjunction with many other symbols, as a secular display of holiday celebration. In another case, Allegheny County v. Greater Pittsburgh ACLU, (1989), the Court ruled that the display of a nativity scene on the main staircase of a county courthouse in conjunction with a religious banner violated the constitution as a religious display. The Court’s analysis in both cases provides further indication that careful attention must be paid to the details of each particular display.

In the present case, Mr. Wesselius provided little or no specific detail of what he was seeking to have placed in the rotunda, and he did so only three working days before Christmas. The request to display a nativity scene raised complex constitutional issues that warranted and deserved careful and thoughtful legal analysis. Moreover, the constitutional issues that surround such displays are not the only important factors for policymakers to consider in addressing such requests. Ultimately, the decision whether to allow a particular display, and if so, how, when and where, is a policy decision for General Administration.

The lateness and generality of Mr. Wesselius’ request to display a nativity scene made it impossible to conduct the sort of careful legal analysis and policy evaluation necessary to responsibly determine whether to grant the request. As a consequence, General Administration made the decision to deny Mr. Wesselius’ request for this holiday season.

On Dec. 26, 2006, Mr. Wesselius sued Governor Gregoire and General Administration officials in federal district court. The suit asserts that General Administration’s decision to deny Mr. Wesselius’ request violated his constitutional rights, and seeks money damages. Mr. Wesselius also filed an emergency motion asking the court to order General Administration to allow him to display a nativity scene in the Capitol rotunda at this time.

On Dec. 27, 2006, the federal district court denied Mr. Wesselius’ request for an emergency order. The court noted the “shifting legal landscape surrounding the placement of religious symbols on public property”, and wrote that, given “the fact specific approach to similar issues in other cases”, Mr. Wesselius had not shown that he was entitled to have his request granted.

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Media Contacts: Janelle Guthrie, Communications Director, (360) 586-0725

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