Lowe v. City of Eugene , 254 Or. 518 ( 1969 )

451 P.2d 117 (1969)

Raymond N. LOWE, Corrinne R. Hill, W.A. Brooksby, Abe Brooks, G. Douglas Straton, Alfred Bloom, James Witzig, Claire L. Newport, Dirk P. Ten Brinke and E. Jean Ware, Respondents,
v.
CITY OF EUGENE, of Lane County, Oregon, a Municipal Corporation; Edwin E. Cone in His Official Capacity As Mayor of Eugene; Lester E. Anderson, John O. Chatt, R.G. Crakes, Ray Hawk, Bruce A. Lassen, Catherine Lauris, R.E. McNutt, Glen L. Purdy, Each in His Official Capacity As a Member of the Common Council of Eugene; David D. Campbell Dba C & S Electric; Allen E. Hamilton, Allen E. Hamilton, Jr., Lillian T. Hamilton, Kenneth W. Hamilton; J.F. Oldham & Son, Inc., Defendants,
Eugene Sand & Gravel, Inc., Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted January 6, 1969. Decided February 26, 1969.

William G. Wheatley, Eugene, argued the cause for appellant. With him on the briefs were William E. Flinn, and Jaqua, Wheatley & Gardner, Eugene, and Warren Cameron, Special Counsel, Seattle, Wash.

James P. Harrang, Eugene, and Leo Pfeffer, New York City, argued the cause for respondents. With them on the brief was Barbara B. Aldave, Eugene.

Howard M. Feuerstein, Portland, filed a brief for American Civil Liberties Union of Oregon as amicus curiae.

Richard D. Curtis, and Hansen & Curtis, Eugene, filed a brief for Leslie D. Erb, Alma M. Erb, Hazel H. Tillman, B.D. Dotson, Elsie L. Dotson, Mary Kay Williamson, Wayne H. Oldaker, Laurel J. Williams, Anna M. Jeppesen, James A. Brabham and Michael L. Wright as citizens of the City of Eugene as amici curiae.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE, and LANGTRY, JJ.

LANGTRY, Justice pro tem.

The crest of Skinner's Butte overlooks the City of Eugene and is within the city limits. It was donated to the city and for many years it has been maintained as a public park. From the late 1930's until 1964 successive wooden crosses were erected in this park, one replacing another as they deteriorated. These crosses were usually lighted at the Christmas and Easter seasons. One of the early crosses was large and neon-lighted. Construction of the first cross was motivated, at least in part, by a secular organization of physically handicapped people who received pleasure from looking out at the lighted cross. On November 28, 1964, defendant Eugene Sand & Gravel Inc., with the aid of defendants Hamilton Electric and J.F. Oldham & Son, Inc., erected a prestressed concrete tapered Latin cross 51 feet tall on the property. The cross was equipped with inset neon tubing to provide lighting for the cross at the Christmas and Easter seasons. The plaintiffs in this declaratory judgment suit seek removal of this cross upon constitutional grounds.

It appears that no permission had been obtained from the city for erection of the earlier crosses. The city did not, however, interfere with any of the crosses — all were erected and maintained by the Eugene Chamber of Commerce and various individuals and other organizations at no expense to the city. No permission was obtained from the city to erect the challenged cement cross. But on December 2, 1964, after the cross had been put up, a building permit and an electrical permit were applied for by Eugene Sand & Gravel and Hamilton Electric. On its application Eugene Sand & Gravel gave as its reason for erecting the cross the word "admiration." The applications were referred to the city council for approval and they became the subject of a highly publicized public hearing which was attended by an overflow crowd. At the conclusion of the hearing the council, by a 7 to 1 vote, issued the permits. The plaintiffs, who are voters and taxpayers of the city and members of various religious and nonreligious organizations, brought this declaratory judgment suit alleging violation of Art. I, §§ 2, 3, and 5 of the Oregon Constitution, and the First and Fourteenth Amendments to the U.S. Constitution. The city and the builders of the cross were named as defendants.

The defendant Eugene Sand & Gravel, Inc., in one of several affirmative answers, all of which were stricken by the court on plaintiffs' motion, asserted that the city has authority under its charter and the laws of Oregon to allow the erection and maintenance of the cross as a monument upon city park property. This defendant's amended answer, and answers by other defendants, joined issues solely upon the constitutional questions involved.

After an extensive trial, reported in an 883-page transcript, and thorough briefing of the case, the trial court handed down its written opinion in which it held that the cross is primarily a religious symbol and "only secondarily a memorial of or a monument to a vitally significant value system in the life and history of our nation and this community;" that the charter of the city and the laws of Oregon do not specifically allow any private person to erect or maintain in the city park a permanent religious symbol; and that the city council or any private person has no authority to maintain the cross. These findings were in the formal findings of fact.

The court also found that the City of Eugene "did not authorize or consent to the erection of the cross." The court held as a legal conclusion that it could decide the case without reaching the constitutional questions. The basis of this conclusion was that the city had no specific authority under charter or statute to allow the cross in the park. The decree required removal of the cross.

The City of Eugene did not appeal from this decree, but Eugene Sand & Gravel, Inc., did appeal and relief has been stayed pending determination.

Eleven amici curiae, who are residents, voters, and taxpayers of the City of Eugene, joined the controversy when the city failed to appeal from the trial court decree. They have asserted that they represent the citizens of Eugene and they have filed a brief seeking reversal of the decree. The American Civil Liberties Union has filed a brief amicus curiae in support of plaintiffs' position.

We think the trial court erred in holding that the constitutional questions could be avoided. The rationale of the trial court was that the city, either in its charter or state laws, had no specific authority to allow erection of a religious symbol in a city park. It is correct that if a constitutional question can be avoided by deciding a case on a non-constitutional issue courts will do so. Elliott v. Oliver, 22 Or. 44, 29 P. 1 (1892). But this rule is limited to a situation where the record in the case presents some other and clear ground upon which the court may rest its judgment. 22 Or. at 48, 29 P. 1. In the case at bar, the issue of city authority which defendants sought to raise in an affirmative answer was stricken by the court on plaintiffs' motion. The issues were then drawn solely on constitutional grounds in amended pleadings, and the record did not present the issue of the city authority. The constitutional questions must be decided.

These questions have been briefed and argued in depth by the contending parties and amici curiae in this appeal. The briefs present more than 650 citations of authority, texts, and statutes.

Two of the many precedents cited by counsel come close to being in point to the factual situation and law upon which this case must be decided. These are State ex rel. Singelmann v. Morrison, 57 So. 2d 238 (La. App. 1952), cert. den., April 28, 1952; and Paul v. Dade County, 202 So. 2d 833 (Fla.Ct.App. 1967), cert. den., Florida Supreme Court, 207 So. 2d 690, cert den., U.S. Supreme Court, 390 U.S. 1041, 88 S. Ct. 1636, 20 L. Ed. 2d 304 (no opinion, Mr. Justice Douglas dissenting).

In Morrison a Catholic religious order presented to the City of New Orleans a statue of Mother Cabrini on which the following inscription appeared:

"``"St. Francis Xavier Mother Cabrini Erected August 25, 1949 By The Order Of The Alhambra During Its 23rd Biennial Convention."'"

This statue was placed upon public park property at no cost to the city and the city's authority to allow its placement there was challenged in a suit by a lay member of a Protestant religious sect. The statue of Mother Cabrini showed her in religious habit, wearing a cross. She had done part of her charitable and church work in New Orleans. The Louisiana appellate court held:

"It cannot be questioned that a municipality may permit the erection of statues and memorials in public places, whether they be purely ornamental or include the idea of a memorial * * *." 57 So. 2d at 247.^[1]

The appellate court in its opinion approved the trial court's finding that there was no federal constitutional question involved "* * * since the erection of the statue here complained of cannot be held to be the establishment of a religion * * *." Reference was made to the pertinent provisions of the Louisiana Constitution which are quite similar to those respecting freedom and establishment of religion in the Oregon Constitution. The court took judicial notice of the existence of the many kinds of statues and monuments on public property in Louisiana and across the country which are religious in character, and then held:

"``The only restriction against the City is that it cannot discriminate. That any statue or monument might incidentally have some religious significance cannot be held violative of the constitutional prohibitions, unless it was designed and used as a public shrine or place of worship, or for the propagation of a religious belief; or was intended to hold some other religious group in public contempt and ridicule; or designed to cause religious strife and antagonisms.'" 57 So. 2d at 246.

The appeal in the second case, Paul v. Dade County, supra, which we consider to be more closely in point, was decided after the trial court in the case at bar made its decision and thus the trial judge did not have the benefit of its reasoning.^[2]

The report of that case states that from 1955 to 1966 the Chamber of Commerce had erected a large cross consisting of lights on the side of the Dade County courthouse during the Christmas season. The county bore no part of the cost.

The practice of permitting the cross to be there was challenged by a non-Christian resident taxpayer.^[3] The county admitted that it allowed the "Latin" cross upon the building and that such a Latin cross could be used as a religious symbol. But it asserted that crosses also have secular connotations and that the Latin cross on the courthouse had a secular connotation as a "yule" season decoration.

The defendants in the case at bar have made contentions similar to those made by Dade County. In this regard we noted above that the trial court in the case at bar found the cross to be "primarily a religious symbol," and "secondarily a memorial of or monument to a vitally significant value system in the life and history of our nation and this community." With these findings we do not disagree.

In Paul v. Dade County, the court held:

"The applicable constitutional criterion, as we divine it, is that set forth by the United States Supreme Court in Abington Tp. School District v. Schempp, 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963):

"``* * * The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion. Everson v. Board of Education, [330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711, 168 A.L.R. 1392, supra;] McGowan v. Maryland, supra, 366 U.S. [420] at 442, 81 S.Ct. [1101] at 1113-1114, 6 L. Ed. 2d 393.' Id. at 374 U.S. 222, 83 S. Ct. 1571.

"It has also been observed that many symbols, though religious in origin, have ceased to have religious meanings or have also acquired secular meanings. See Abington Tp. School District v. Schempp, supra. For example, the dove, the star, the fish, and three interwined [sic] rings have all had, or presently may have, some religious symbolism attached thereto. On the other hand, some have also acquired certain secular meanings.

"The record does not indicate that this temporary string of lights forming a cross was used to support, aid, maintain or establish any religion or religious edifices. Its purpose was not to promote the participation by anyone in the affairs of any religious organizations or sect.

"Consequently, we hold that under the Schempp test, this does not amount to the establishment of a religion in violation of the First Amendment, and that it does not amount to a religious activity, controlled, supported or influenced by the government as was found to exist in Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261, 8 L. Ed. 2d 601 (1962). See also: State ex rel. Singelmann v. Morrison, 1952 La. App., 57 So. 2d 238." (Emphasis supplied.) 202 So. 2d at 835.

The Florida court referred to the lights as temporary in character; the cross in the case at bar is permanent in physical character. Obviously, however, a physically permanent structure such as this cross can be quickly removed. The Dade County cross was put up from 1955 to 1966, a total of twelve years. It was assuming the proportions of tradition, which suggests permanency. In this respect, the cross in the case at bar and the cross on the Dade County court house share the same characteristic.

The trial court in the case at bar failed, apparently by oversight, to receive in evidence all of defendants' offered Exhibits 2 through 53. These exhibits, which we hold should have been received, are in the record and we are considering them. They indicate that many crosses and other religious symbols traditionally have been used as monuments and memorials upon public property throughout Oregon and the United States, without appellate court challenge except as noted in this opinion. This, in itself, is indicative of a feeling among a people who strongly support a constitutional government, that there is no constitutional question involved in such a case, or it is so minimal as not to merit notice. The evidence indicates that to many people the cross, whether it is a Latin cross or some other type, carries connotations that are not essentially religious in character and to such people it has primarily secular meanings. There is nothing in the evidence which reasonably supports an inference that the purpose of the defendants in erecting the cross was to promote the participation by anyone in, or the advancement or inhibition of, any religious belief or organization, or that such was its primary effect. In Dickman et al. v. School Dist. No. 62C et al., 232 Or. 238, 247, 366 P.2d 533, 93 A.L.R. 2d 969 (1961), cert. den. 371 U.S. 823, 83 S. Ct. 41, 9 L. Ed. 2d 62 (1962). Mr. Justice O'Connell, speaking for this court, said:

"* * * A certain amount of interplay of influences exercised by state and church has been permitted. It is not difficult to cite examples. * * * [M]any * * * religious practices and connotations are found in the functioning of government, both state and federal."

We do not believe that the erection and maintenance of the cross in question amounts to a religious activity which violates the applicable provisions of the Oregon Constitution or the First and Fourteenth Amendments to the United States Constitution.

The official action of the City of Eugene in issuing the building and lighting permits for the cross a few days after it was erected, and after a widely publicized and well attended public hearing, constituted formal permission of the city for it to remain there at no cost to the city. Such a permit appears to be limited in that it is revocable in nature. 10 McQuillin, Municipal Corporations 183, § 28.53 (1966).

The conclusions of this opinion follow a study of the extensive evidence, assignments of error, answers, and arguments. Although not all of them have been mentioned in this opinion they have not been overlooked. The decree of the trial court is reversed and the case remanded for a decree to be entered consistent with this opinion.

DENECKE, Justice (specially concurring).

I concur in the majority decision that the constitutional issue must be decided and I further concur in the majority decision that neither the Constitution of Oregon nor the Constitution of the United States requires that the cross be removed. I believe I base my decision upon slightly different reasoning than that used by the majority.

I consider the problem as one arising under the "establishment clause" of the First Amendment, rather than under the "free exercise" clause. Therefore, I would pose the issue: Does the city foster the establishment of the Christian religion by permitting private persons to erect a cross in a city park and to light the cross during the Christmas and Easter season? In my opinion it does not.

In Niemotko v. Maryland, 340 U.S. 268, 71 S. Ct. 325, 95 L. Ed. 267 (1951), the city Park Commissioner refused to give a Jehovah's Witnesses group a permit to hold Bible talks in a city park. The group held such a meeting without a permit and Niemotko, a member of the group, was arrested and later found guilty of disorderly conduct. The Court reviewed its early decisions and stated:

"* * * In those cases this Court condemned statutes and ordinances which required that permits be obtained from local officials as a prerequisite to the use of public places, on the grounds that a license requirement constituted a prior restraint on freedom of speech, press and religion, and, in the absence of narrowly drawn, reasonable and definite standards for the officials to follow, must be invalid. * * *" 340 U.S. at 271, 71 S.Ct. at 327.

The Court found that the city had not given Niemotko a permit because the City Council disliked or disagreed with the Witnesses' views. The conviction was reversed. The Court expressly rejected the argument, "that state and city officials should have the power to exclude religious groups, as such, from the use of the public parks." 340 U.S. at 272, 71 S.Ct. at 328.

Fowler v. Rhode Island, 345 U.S. 67, 73 S. Ct. 526, 97 L. Ed. 828 (1953), similarly held Jehovah's Witnesses had a right to hold religious services in a city park where other religions were permitted to hold services. The holding rested upon the First and Fourteenth Amendments.

Both of these decisions concern the free exercise portion of the First Amendment; however, they accept without question the proposition that a city does not violate the establishment clause of the First Amendment by permitting religious groups to hold religious services in public parks. If a city can validly permit groups to hold religious services in parks, why can it not validly permit persons to erect a religious symbol, a cross, in a park?

The Establishment Clause prohibits the state, or any subdivision, from either aiding or appearing to aid the general cause of religion or any one religion. The appearance of fostering religion is to be prohibited as much as the actual fostering of religion: Both have a coercive effect.

Accepting the proposition that permitting religious services in a public park neither fosters nor appears to foster the establishment of religion, in my opinion issuing a revocable permit for the erection and the occasional lighting of a cross in a public park also does not foster or appear to foster the establishment of religion.

Whether the state action or permission appears to foster a religion is a question of degree. If the city had given a religious group a revocable permit to build a cathedral in the park, the appearance of city aid to religion would, in my opinion, be so strong as to require a decision that such permission was in aid of the establishment of religion and that, therefore, it was invalid. I do not believe permission to erect the Eugene cross falls into this category.

GOODWIN, Justice (dissenting).

As I understand the majority, the maintenance of the cross in a Eugene city park (a) is not a religious activity or (b), if it is a religious activity, the city's participation in it is so insubstantial as to fall within the rule that the law does not notice trifles.

Much as I would like to join the majority and thus avoid an expression of disunity concerning this locally acrimonious confrontation between "procross" and anti-cross" factions, the record compels me toward a different conclusion.

The display of the lighted cross during Christian festivals is at least concurrently a religious activity, even if one were to accept the somewhat labored argument of the proponents of the cross that the true motive for the display has been secular, i.e., the commercial exploitation of religious holidays. Indeed, the "procross" faction in this litigation has been embarrassed by its friends. Several witnesses innocently jeopardized the defense by references at the city council hearing to their religious reasons for wanting to keep the cross on display as a silent witness to their faith. Their statements reflected the popular sentiment at the time and place, and furnished ample proof, if any were needed, that the chief purpose of the display was religious. There is no doubt, from the record, that the mayor and council were responding to popular demand. It was to prevent this very kind of response to majority pressure, however, that the establishment clause of the First Amendment was written into our federal constitution. Abington Tp. School Dist. v. Schempp, 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963).

Turning to our state constitution, and given the majority's acknowledgment that the cross display is that of a religious symbol, there is further reason to rebuke the city council. Government has no more right to place a public park at the disposal of the majority for a popular religious display than it would have, in response to a referendum vote, to put the lighted cross on the city hall steeple. The whole point of separation of church and state in a pluralistic society is to keep the majority from using its coercive power to obtain governmental aid for or against sectarian religious observances. See Dickman et al. v. School Dist. No. 62C et al., 232 Or. 238, 246-247, 366 P.2d 533, 93 A.L.R. 2d 969 (1961), cert. denied, 371 U.S. 823, 83 S. Ct. 41, 9 L. Ed. 2d 62 (1962).

Finally, I do not believe the difficult constitutional question is one that can be evaded by trivialization. The cross does not occupy a large tract of land, but it is permanent and it is conspicuous. Whether so intended by the city council or not, the city's participation in the display has placed the city officially and visibly on record in support of those who sought government sponsorship for their religious display.

For the foregoing reasons, I would affirm the judgment entered below.

McALLISTER and O'CONNELL, JJ., join in this dissenting opinion.

NOTES

[1] As early as 1874, the then Supreme Court of New York held that:

"Statues of men, and in commemoration of great public events, are now considered as the legitimate belongings of public places * * *. Cities * * * give abundant proof that statues, ornamental temples, obelisks, pillars and columns, have long been considered legitimate objects of public approval and admiration, and they are neither to be hid in a corner, nor placed where they cannot be seen." Tompkins v. Hodgson, 2 Hun 146 (N.Y. 1874).

To the same effect see Parsons v. Van Wyck, 56 A.D. 329, 67 N.Y.S. 1054 (1900); Vale v. City of San Bernardino, 109 Cal. App. 102, 292 P. 689 (1930); Brahan v. City of Meridian, 111 Miss. 30. 71 So. 170 (1916).

"* * * [T]he use of park lands for buildings or purposes which are incidental to its use as a public park are generally sustained, where the city retains control of the premises * * *." Rhyne, Municipal Law 473, § 21-7.

[2] The opinion of the trial court was rendered in this case on January 5, 1967. Paul v. Dade County, supra, was decided by the Florida Appellate Court on October 3, 1967 and certiorari was denied by the United States Supreme Court, 390 U.S. 1041, 88 S. Ct. 1636, 20 L. Ed. 2d 304, on April 29, 1968. Appellant's brief indicates the pleadings of Paul v. Dade County and the trial court's decree therein were brought to the attention of the trial judge in the case at bar.

[3] The challenge was based upon the First Amendment to the United States Constitution, and upon Sections 5 and 6 of the Bill of Rights of the Florida Constitution. The latter sections are:

"Section 5. The free exercise and enjoyment of religious profession and worship shall forever be allowed in this State * * * but the liberty of conscience hereby secured shall not be so constrewed [sic] as to justify licentiousness or practices subversive of, or inconsistent with, the peace or moral safety of the State or society.

"Section 6. No preference shall be given by law to any church, sect or mode of worship and no money shall ever be taken from the public treasury directly or indirectly in aid of any church, sect or religious denomination or in aid of any sectarian institution."

The section of the Louisiana Constitution construed in State v. Morrison, supra, is:

"Section 4. Every person has the natural right to worship God according to the dictates of his own conscience. No law shall be passed respecting an establishment of religion, nor prohibiting the free exercise thereof; nor shall any preference ever be given to, nor any discrimination made against, any church, sect or creed of religion, or any form of religious faith or worship." L.S.A. Constitution, Art. I, § 4.

The sections of Article I of the Oregon Constitution plaintiffs claim to be violated are:

"Section 2. All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences.

"Section 3. No law shall in any case whatever control the free exercise, and enjoyment of religious (sic) opinions, or interfere with the rights of conscience.

"Section 5. No money shall be drawn from the Treasury for the benefit of any religious (sic), or theological institution, nor shall any money be appropriated for the payment of any religious (sic) services in either house of the Legislative Assembly."