Claremont
“The nativity scene and the menorah are patently religious symbols and have been recognized as such by the U.S. Supreme Court and multiple lower federal courts,” wrote Colin McNamara, an attorney with the FFFR in Madison, Wisc..which weighed in on the controversy after it appeared in news reports.
Meanwhile, Sam Killay, the city resident who first asked the City Council to remove the religious displays, said Monday he remains troubled by the social media conduct of councilor Jonathan Stone and plans to complain to the council at its Wednesday meeting, seeking Stone’s removal from the policy committee.
Last week, the full council voted to have the policy committee draft a policy that will clarify the city’s role in the holiday displays and how they should be presented in the future.
“I intend to protest because Stone sits on the policy committee,” Killay said. “He needs to recuse himself.”
Killay, after asking the city to remove the displays last month, endured a barrage of criticism on social media through his wife’s Facebook page. Some of that criticism came from Stone who made inappropriate and threatening posts and encouraged others to do likewise, Killay said. The behavior, in Killay’s view, shows that Stone has already made up his mind on whether the displays should remain at the park as they are.
In an interview with the Valley News in December, Stone defended his actions, saying he was simply exercising his free speech rights and blamed Killay for starting the controversy.
Killay, an atheist, said Monday he understands some may disagree with him, but he expected the disagreement to be civil.
“I didn’t make this personal with him (Stone); he made it personal with me,” Killay said.
Killay believes Stone should be removed from the council but can find no reference in the council’s code of conduct that addresses Stone’s behavior. At the very least, he hopes the council reprimands Stone.
Though the topic is on the agenda for Wednesday’s meeting, it could be removed from discussion because it is now in the hands of the policy committee.
Tom Connair, a Claremont attorney, said Monday, in his opinion the city is not in violation of the First Amendment.
Connair pointed out that the First Amendment not only prohibits government for endorsing one religion over another but also cannot do anything to stop the free expression of religion.
“There is no problem with the religious displays on public property, but the government can’t show preference for one religion over another,” Connair said.
“Based upon the facts as I saw them and on the display as I see it, it would not be imprudent for the city to allow it to continue as is,” said Connair, who does not serve as legal counsel for the city and said he offered an unsolicited opinion to the mayor. “That doesn’t mean that a court could not find differently.”
Relying on what he called a “reasonable person test,” Connair said with the nativity and menorah off to one side and not in the center surrounded by bright lights and the presence of toy soldiers, lights and Christmas trees, he thinks one would conclude the overall look is not an endorsement of religion.
His reference was to a Supreme Court ruling in 1984 that declared a display on city-owned property in Pawtucket, R.I., did not violate the First Amendment because it was part of a larger, secular display.
McNamara, the attorney with the Freedom From Religion Foundation, said in his letter the city cannot claim it is not endorsing a religion simply because more than one religion is represented by the symbols.
“It does not matter that the nativity and menorah are both displayed in the park because the Establishment Clause prohibits government sponsorship of religious messages,” McNamara wrote.
McNamara also referred to the 1984 ruling, Lynch vs. Donnelly, and said Claremont does not meet that test.
“The addition of a pair of toy soldiers appears to be an attempt to bring these displays in line with the Supreme Court’s ruling in Lynch vs. Donnelly,” McNamara wrote. “The Broad Street Park nativity scene, with its token secular decorations and wide distances between displays, bears no resemblance whatsoever to the display upheld in Lynch.”
While McNamara does not say FFFR will take legal action against the city, it is asking for a response detailing steps the city has taken to correct the violation.
Mayor Lovett, who sits on the policy committee with Stone, councilor Abigail Kier, resident Bonnie Miles and Sullivan County Sheriff John Simonds, said she expects they will spend several months developing a policy on religious symbols on city land to present to the council with a final policy in place by September.
“We really have three options,” the mayor said. “We could do nothing, which I don’t recommend; We can create a policy that puts secular and religious displays together or we can take the safe route and decide not to have displays on public property.”
Lovett, who said she has forwarded the letter from McNamara to the city’s legal counsel and is also seeking an opinion on the constitutionality of the Broad Street Park display, said the committee is only beginning its work but is leaning toward having a display that includes more secular symbols.
“We just started working on the background,” said Lovett, who added that this topic has come regularly over the years and now is a good time to finally address it.
Patrick O’Grady can be reached at pogclmt@gmail.com.
Correction
Colin McNamara, the attorney with the Wisconsin-based Freedom From Religion Foundation, is seeking a response from the city of Claremont over a religious holiday display in Broad Street Park, but a letter he sent city officials did not say his group would take legal action otherwise over what it considers a violation of the First Amendment. An earlier version of this story misstated what the letter reflected in regards to potential litigation.
