National Religious Freedom Group Demands Wauwatosa Retract ‘Unconstitutional Anti-Christmas Purge’

A national religious freedom litigation non-profit has sent a demand letter to the City of Wauwatosa, calling its “ban on Christmas holiday symbols,” including the colors red and green, unconstitutional and calling for the “immediate retraction” of the “anti-Christmas… purge.”

Liberty Counsel sent the demand letter to the City of Wauwatosa, Wisconsin, and City Administrator Jim Archambo on November 13, 2023, “regarding its unconstitutional ban on Christmas holiday symbols, decorations, and expressions within public buildings and by its employees.”

Liberty Counsel has had major religious freedom court successes before; “the conservative majority in Dobbs v. Jackson Women’s Health, which ended nearly 50 years of federal abortion rights, cited an amicus brief authored by Liberty Counsel in its ruling,” according to Rolling Stone.

The City of Boston had to pay $2.1 million to settle another religious freedom case brought by Liberty Counsel, according to The Associated Press. The AP reported that Liberty Counsel argued that the city “approved 284 consecutive applications from private organizations to fly flags” outside City Hall before rejecting a man’s request to fly a Christian flag. The U.S. Supreme Court sided with Liberty Counsel, saying the city “violated the free speech rights of Shurtleff because of his ‘religious viewpoint.'” See a list of Liberty Counsel’s cases here.

In the demand letter, Liberty Counsel wrote City Administrator Jim Archambo, “Liberty Counsel writes to demand the immediate retraction of the unconstitutional ban on Christmas holiday symbols, decorations, and expression that the City of Wauwatosa sent via email to City employees. Liberty Counsel cautions any City department from unlawful retaliation against any employee who declines this unlawful directive.”

The email, sent to city workers by Deputy City Administrator Melissa Weiss, was first reported by Wisconsin Right Now. It has caused a furor in conservative media circles, from Fox News national to Milwaukee talk radio, but the rest of the Milwaukee news media have censored the information.

Liberty Counsel noted that the “Christmas holiday and another holiday with deep religious significance to our country – Thanksgiving – are both recognized by the City within the Wauwatosa Code of Ordinances. The word ‘Christmas’ appears multiple times in the Code, including within the context of ‘Christmas trees,’ as well as ‘Christmas Day.'”

The group demanded an answer from the city by November 24. Liberty Counsel admonished, “The City’s past practices with regard to the display of other colors and symbols and decorations – particularly those ‘associated with’ divisive political causes or secular holidays – would be relevant if litigation becomes necessary to protect the rights of City employees to display decorations for the Christmas holiday.”

Liberty Counsel says, “The administrators’ ban on Christmas decorations is unlawful, especially considering three recent U.S. Supreme Court decisions in Shurtleff v. City of Boston, Kennedy v. Bremerton School District, and Groff v. DeJoy…These three cases ruled that it is unlawful to censor religious expression, buried the “Lemon Test” formerly used to remove religious symbols and displays from the public square, and strengthened Title VII protections for employees regarding religious discrimination.”

Liberty Counsel’s letter states, “The Christmas holiday ban violates the U.S. Constitution by showing hostility toward Christianity. The First Amendment does not permit the City to eliminate Christmas holiday symbols or expression in a misguided attempt to be ‘inclusive’ by eliminating all traditional elements of expression regarding a federally and state recognized holiday.”

Liberty Counsel describes itself as “a national non-profit litigation, education, and public policy organization with an emphasis on First Amendment religious liberties.”

City officials “directed employees in an email to create an ‘inclusive’ environment for all by refraining ‘from using religious decorations’ that are ‘solely associated with Christmas,’ such as red and green colors, when decorating public spaces in city buildings. Liberty Counsel demands the immediate retraction of the ban,” the non-profit wrote.

Wauwatosa Mayor Dennis McBride, who did not send the email, appeared to defend Weiss’ action in a statement sent to aldermen that indicated Weiss was trying to reduce people’s discomfort over Christmas decorations. In it, he said that, in the past, “Some people who have come to City Hall in November and December have complained about religious displays” and added that “my understanding is that our administrators are trying to minimize the discomfort that some people feel when they come to a government building for governmental, non-religious functions.”

Ald. Andrew Meindl, who is running for mayor, questioned why the action wasn’t run by the city’s Equity and Inclusion Committee first and asked why purple, blue, and white are considered “inclusive” colors. You can read both of their statements here. Weiss and Archambo have not made public comment since news of the email broke. Although McBride tried to paint the issue as a few news outlets “stoking controversy,” actually Wisconsin Right Now received the email from multiple upset city workers.

Liberty Counsel noted, “In Liberty Counsel’s 9-0 victory in Shurtleff, the U.S. Supreme Court ruled the City of Boston violated the First Amendment by censoring a private flag in a public forum open to ‘all applicants’ merely because the application referred to it as a ‘Christian flag.’”

According to the Court’s reasoning in Shurtleff, a city “then cannot encourage employees to decorate spaces for holidays at employee discretion and then censor religious viewpoints on the holiday. Liberty Counsel further states that due to the Kennedy case, a city cannot treat ‘everything a government employee expresses in the workplace as government speech subject to government control’ and therefore, cannot transform their speech into government speech. In both Shurtleff and Kennedy, the Court rejected attempts to censor religious speech and eliminated the ‘Lemon Test.’ And under Groff, an employer who discriminates against employees on account of religion has a much higher burden to argue that the employee cannot be accommodated.”

Liberty Counsel Founder and Chairman Mat Staver said, “The Christmas decoration ban by the City of Wauwatosa is Orwellian and unconstitutional. The City’s ban is exclusive, not ‘inclusive.’ The ban excludes all those who celebrate the Christmas holiday consistent with their faith. How absurd is it to ban red and green during December? What were these City officials thinking? The City must retract their ban and comply with the law.”

Liberty Counsel has generated controversy for comments criticizing homosexuality and for opposition to gay marriage in the past, according to the Southern Poverty Law Center. However, SPLC is itself not without controversy. A recent Heritage Foundation article stated, “The Southern Poverty Law Center has turned itself into a left-wing smear factory.” The Milwaukee media tend to run SPLC’s claims – including its outrageous designation of a group of “Liberty” moms as extremists – without detailing SPLC’s own controversies.

According to National Religious Broadcasters, Liberty Counsel “a nonprofit law firm and Christian legal ministry, has been a steadfast defender of religious freedom and conservative values for more than three decades.”