In one of the numerous annual battles over nativity displays on public property, a federal judge has rejected a motion for a preliminary injunction allowing a long-standing nativity scene to be put up in a median barrier in Warren, Michigan. The case is Satawa v Macomb County Board of Road Commissioners.

Joe Satawa’s father first began putting up a nativity display during the Christmas season in the public median at Mound Road and Chicago Road in 1945. The display has appeared there all but two years — when major construction prevented it — in the intervening 63 years. The display was originally given to a local Catholic church, but it was too large to go up inside the church and local officials allowed them to put it on public property instead.

Last year, the Freedom From Religion Foundation sent a letter to the county on behalf of a local resident complaining about the display and arguing that it violated the Establishment Clause of the First Amendment. The county road commission said that they didn’t even know about the display and they dispatched an employee to go look for it. They then concluded that it could pose a problem for public safety by distracting drivers and told Satawa to remove it from the median.

Satawa did remove the display, then earlier this year asked for a permit to put it up during Christmas, 2009. That request was denied and Satawa filed suit against the county, arguing that because there are other items in the median — a small gazebo, a couple of benches and some old farm equipment put up to honor the area’s heritage as a village — the county has established a public forum and they cannot prevent him from putting up the display in such a forum.

Judge Gerald Rosen denied a request for a preliminary injunction allowing the display to go up pending the outcome of the suit (see full ruling here). That does not mean the plaintiff won’t ultimately win the case, it just means that the judge did not find the initial case compelling enough to issue a preliminary injunction.

Judge Rosen did note that the suit is “an extremely close case at a number of critical intersections of fact and law,” which indicates that the denial of the preliminary injunction will not necessarily mean he will rule against the plaintiff ultimately.