David Hejmanowski: When the ACLU sued Delaware County


“While they were there, the time came for the baby to be born, and she gave birth to her firstborn, a son. She wrapped him in cloths and placed him in a manger, because there was no room for them in the inn.”

— Luke 1:6-7

“In short, the pervasive influence of Jesus of Nazareth on secular history is undeniable.”

— Judge James L. Graham

ACLU of Central Ohio

vs. Delaware County (1989)

This December, as it has for several years, Delaware County placed a Nativity scene on the courthouse lawn. Unlike its current configuration, the Nativity used to sit alone, without any other decorations around it. Around the front of the courthouse, near the war memorials and the flagpole, was a decorated evergreen, along with a sign designating it the “peace tree.”

In 1988 the Central Ohio Chapter of the American Civil Liberties Union contacted the county and asked that the Nativity be taken down. The county refused and, on behalf of two Delaware County residents, the ACLU brought suit in the federal court for the Southern District of Ohio. The organization asked the court for a temporary restraining order — a request to force the county to take the Nativity down while the lawsuit was decided. Relying on a 1984 decision of the U.S. Supreme Court involving a Nativity scene in Pawtucket, Rhode Island, the federal court denied the request and the crèche remained.

In the Rhode Island case, a city-owned Nativity scene was included in a Christmas display in a private park. The display also included Santa Claus and his reindeer, a Christmas tree, figurines of carolers, an elephant and a teddy bear. By a vote of 5-4, the court ruled that the Nativity display was not a constitutional violation.

Judge W. Duncan Whitney was county prosecutor at the time and represented the county in the lawsuit. Among the most interesting facets of the case was the fact that in the midst of the First Amendment constitutional debate, a completely distinct separation of powers question arose.

A county commissioner was being deposed by attorneys from the ACLU, who asked him why he had voted in favor of placing the Nativity scene on the courthouse lawn. Judge Whitney objected to the question. It didn’t matter why the commissioner had voted in favor of the Nativity, but whether the presence of the Nativity had the effect of endorsing religion. Judge Whitney’s objection went deeper than that though. The “why” question called for the judiciary to pass judgment on the logic and motivation of the legislative branch.

U.S. District Judge James L. Graham, who was presiding over the case, was contacted and ruled that the county commissioner should not be required to answer the question.

The case went on long enough that on Nov. 27, 1989, the Nativity scene went back up on the courthouse lawn — exactly as it had been the year before. In the intervening year, the U.S. Supreme Court had decided another Nativity case, this one from Pennsylvania. In that case, the court decided that a Nativity scene, placed alone in a courthouse, violated the constitutional prohibition against the establishment of religion.

Judge Graham, who said he reached his decision with “considerable regret,” made it clear that he disagreed with the more recent Supreme Court decision, but that he was obliged to follow it. He said he thought that a Nativity scene always had a secular purpose because “the birth of Jesus has had an unparalleled impact upon secular history for the past 2,000 years.” Still, under the guidelines the Supreme Court had set up, he ordered the county to take down or alter the Nativity display. And so, around from the front of the courthouse came the peace tree.

And this was enough. The presence of the secular tree, when added to the Nativity scene, transformed the display from a government endorsement of one particular religion into a multi-purpose seasonal celebration. Judge Graham approved the modified display and every year since, the same Nativity and same peace tree have appeared on the south lawn of the county courthouse.

So, to you and your family: Merry Christmas and Happy Peace Tree.


David Hejmanowski

Case Study

David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Common Pleas Court.

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