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The 3rd U.S. Circuit Court of Appeals has iced a suit over a winter holiday display on municipal property, finding the plaintiffs lacked standing. Wall Township, N.J., residents Eleanor and Randy Miller sued as taxpayers, alleging that the display — composed of a cr�che, a menorah, a lighted tree, Christmas and Hanukkah greetings and other seasonal decorations — violated the First Amendment’s Establishment Clause. A federal judge dismissed the suit, finding that the symbols appeared in a cultural rather than religious context. But the 3rd Circuit vacated the dismissal on April 3 and turned the Millers away without reaching the merits. “While we assume that the Millers disagreed with the 1999 display for some reason, we cannot assume that the Millers suffered the type of injury that would confer standing,” Judge Samuel Alito Jr. wrote in ACLU-NJ v. Wall, No, 00-2075. Alito cited the standing standard of Doremus v. Board of Education of Hawthorne, 342 U.S. 429 (1952), that the litigation must be a good-faith “pocketbook action” challenging the municipality’s expenditures. By contrast, the Millers failed to prove more than a de minimis cost to the township. Alito, joined by Judges Richard Nygaard and Max Rosenn, noted that some display items, such as the menorah, were donated and that remaining costs associated with erecting, lighting or maintaining the structure were negligible. As for intangible harm, the court rejected standing for Eleanor Miller, who never saw the display, and concluded that Randy Miller had not demonstrated sufficient injury from his contact with it. Ronald Chen, associate dean at Rutgers Law School-Newark who argued the case for the American Civil Liberties Union of New Jersey, notes that the standing-based ruling leaves the door open for a new challenge. He says the issue is bound to resurface and the ACLU is ready to mount a new challenge if necessary. The township also got some outside legal help: The Becket Fund for Religious Liberty in Washington D.C. The organization’s litigation director, Eric Treene, says the District Court got it right. Towns throughout the country have similar displays and many have been upheld as fulfilling legitimate governmental purposes and not an endorsement of religion, he says. In ACLU v. Schundler, 168 F.3d 92 (1999), the 3rd Circuit held that Jersey City’s holiday display, which included cultural and secular symbols, was not a religious endorsement.

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