Fox v. City of Los Angeles , 22 Cal. 3d 792 ( 1978 )

Opinion

NEWMAN, J.

With regard to church-state relations the California declaration of rights proclaims first, “Free exercise and enjoyment of religion without discrimination or preference are guaranteed”; second, there shall be “no law respecting ah establishment of religion”; third, “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.” (Cal. Const., art. I, §§ 4, 24.) Yet for 30 years Los Angeles officials have authorized the illumination on the city hall of a huge cross—at first to honor the Christmas holidays and then also, during the 1970s, to honor Easter Sundays, both Latin and Eastern Orthodox.

In a taxpayer’s suit the trial court issued a preliminary injunction against the city. Defendants appeal. We affirm. We agree with the trial court that the city should be enjoined from “[displaying a lighted, single-barred cross on the Los Angeles City Hall by any means whatsoever, including, but not limited to, displaying through selective illumination of lamps or the arrangement of window blinds.”

I

After admitting into evidence certain pleadings and declarations, the trial court found as follows: “The Court is satisfied from the evidence, including matters of common knowledge of which it may and does take judicial notice, that the single-barred cross is a symbol particularly pertinent to the Christian religion, and that while citizens of other religions or no religion may celebrate Christmas as a secular holiday, they do not customarily, if at all, use the symbol of the cross in such celebrations. It carries quite different connotations from the symbols of the Christmas tree and Santa Claus. In addition, the lighted cross on the City Hall is visible for many miles in many directions, and can be and is viewed by persons driving the freeways who do not see it in the context of other Christmas decorations and who may not participate in such celebrations at all. . . .

“While some of the resolutions adopted by the City Council contain self-serving recitals, such as that included in the resolution of March 21, 1973, that the display of the cross is predicated upon it[s] being a symbol of the spirit of peace and good fellowship toward all mankind on an inter-faith basis, other evidence, including matters of common knowledge of which the Court can and does take judicial notice, makes it clear that the real purpose is a religious one. The letters and reports upon which the City Council’s resolutions have been adopted, and particularly the practice of illuminating the cross to commemorate the eastern orthodox Easter in response to demands from members of that faith, and the nature of the symbol displayed, convince the Court that the purpose of the resolution is a religious one, notwithstanding some protestations to the contrary.”

II

Regarding church-state proscriptions in the United States Constitution the Court of Appeals for the 10th Circuit has observed, in a case allowing a lighted monolith on which religious symbols were inscribed: “[T]he Supreme Court has treated the Establishment and Free Exercise Clauses under various factual situations with perplexing diversity of views.” (Anderson v. Salt Lake City Corporation (10th Cir. 1973) 475 F.2d 29, 31.) That observation pertains to the panoply of views set forth more recently in Wolman v. Walters (1977) 433 U.S. 229 [53 L.Ed.2d 714, 97 S.Ct. 2593];¹ see too Eugene Sand & Gravel, Inc. v. City of Eugene (1976) 276 Ore. 1007 [558 P.2d 338, 345], and the dissenting opinion of Denecke, C. J., id., page 349.

Applying variously articulated formulas, several courts have approved illuminations or other displays that arguably were comparable to the Los Angeles cross. (See Eugene Sand & Gravel, Inc., supra [cross in hilltop park]; Meyer v. Oklahoma City (Okla. 1972) 496 P.2d 789 [cross at fairgrounds]; Paul v. Dade County (Fla.App. 1967) 202 So.2d 833 [cross on courthouse]; Allen v. Morton (D.C.Cir. 1973) 495 F.2d 65 [Pageant of Peace, including creche]; Lawrence v. Buchmueller (1963) 40 Misc.2d 300 [243 N.Y.S.2d 87] [creche on school grounds]; Chamberlin v. Dade County Bd. of Public Instruction (Fla. 1962) 143 So.2d 21, 35 [“works of art created by the school children”].

Those opinions span 15 years. They reflect remarkably variant views. The facts of each dispute seem discrete. At least four courts relied wholly or partly on state constitutions that differ from California’s. Our case is marked by the location, size, and visibility of the Los Angeles cross, and also by the additional facts we discuss below.

III

The California Constitution, like the United States Constitution, does not merely proscribe an establishment of religion. Rather, all laws “respecting an establishment of religion” are forbidden. (Italics added.) The California Constitution also guarantees that religion shall be freely exercised and enjoyed “without discrimination or preference.” Preference thus is forbidden even when there is no discrimination. The current interpretations of the United States Constitution may not be that comprehensive.

Was there preference here? Certain members of the Eastern Orthodox community apparently thought so. The trial court observed: “[T]he wisdom of the founding fathers in proscribing governmental entanglement is illustrated by the difficulty the City Council found itself in when it was called to its attention that certain Christian groups celebrated Easter on a different date from other denominations. What would it do in response to demands for illumination of various symbols on other days of religious observance?”

On December 23, 1975 (the date this lawsuit was filed), the director of the city’s public buildings bureau declared that “at past Easters, the City Hall building has been lighted in a manner evidencing the cross symbol used by the Easter Seal charitable campaign.” Yet in 1973 no Easter Seal campaign was mentioned in the city council’s authorizing motion. It spoke only of “an illuminated cross to commemorate Eastern Orthodox Easter.”

On April 17, 1970, that same public buildings director, commenting on a 1957 council policy statement that proscribed discussion of religion at meetings in city-owned buildings, noted that the Orthodox request for an Easter cross “does appear to conflict with the spirit of said policy,” though not with “the letter.”

Relevant and ironically poignant are these words from a communication of April 9, 1972, to the city council: “We wish to express our family’s sincerest appreciation for the acknowledgement shown the Orthodox faith by having the symbol of Christianity, the cross, displayed on the four sides of the city hall building on the eve of our Easter.

“As we drove from Glendale to midnight services at Saint Sophia Greek Orthodox Cathedral via the Pasadena freeway, we viewed the Cross with deep emotion. We join many Orthodox faithful who also have similar sentiments. We are truly grateful.”

The city hall is not an immense bulletin board whereon symbols of all faiths could be thumbtacked or otherwise displayed. Would it be justifiable, say, to allow only a Star of Bethlehem, a Star of David, and a Star and Crescent? The monolith the court dealt with in Anderson v. Salt Lake City Corporation, supra, displayed “the Ten Commandments and certain other symbols representing the All Seeing Eye of God, the Star of David, the Order of Eagles, letters of the Hebraic alphabet, and Christ or peace.” (475 F.2d at p. 30.) Not included there, so far as a reader now can tell, were Coptic, Universalist, or Scientology crosses, the Buddhist wheel, Shinto torii, Confucian yang-yin, Jain swastika, Zoroastrian vase of fire, or Unitarian flaming chalice.

In the California Constitution there is no requirement that each religion always be represented. To illuminate only the Latin cross, however, does seem preferential when comparable recognition of other religious symbols is impracticable. Evans v. Selma Union High School Dist. (1924) 193 Cal. 54, 60 [222 P. 801, 31 A.L.R. 1121], declared re the Bible of King James, “If the Douai version and these other books [the Talmud, Koran, and teachings of Confucius] are not already in the library, we have no right to assume that they will not be added thereto in the future.” Librarians quite easily can offset a potential for preference, but a city hall tower is much less tractable than are shelves of a school library.

The city attorney stressed the significance of “a 30-year backdrop of near total passivity and disinterest within a metropolis as religiously and philosophically diverse as Los Angeles. . . .” He urged that we treat as inescapable the conclusion that “if the challenged custom really conferred a measurable benefit upon religion, members of various sects and faiths would have either expressed a desire for equal recognition and aid or, in the alternative, lodge their objection to the practice of prejudicial sovereign endorsement.”

We do not find in this record persuasive evidence of “disinterest” in Los Angeles. Indeed there may be complex and troubling reasons why residents who are non-Christian have chosen not to seek “equal recognition and aid or, in the alternative, lodge their objection.”

IV

The city attorney argued that official action as to the cross constituted no more than “participation in the secular aspects of the Christmas and Easter holidays.” Yet he quoted public works committee reports, adopted by the city council in 1971 and 1973, reading in part as follows: “It is noted that this approval is predicated upon the display being a further symbol of the spirit of peace and good fellowship toward all mankind on an interfaith basis, particularly toward the eastern nations in Europe.”

Action that effects the display of only a Latin cross does not constitute “interfaith” recognition. A gesture to “eastern nations in Europe” hardly demonstrates an interfaith concern for “all mankind.” Compare Eisenberg, Disproportionate Impact and Illicit Motive: Theories of Constitutional Adjudication (1977) 52 N.Y.U.L.Rev. 36, 163 (“Some legislators have learned' their lessons well, becoming quite sophisticáted in drafting legislation that doés not smack of sectarian purposes.”); and see Note, Sunday Closing Laws in the United States: An Unconstitutional Anachronism (1977) 11 Suffolk L.Rev. 1089, 1111 (“Despite the opinions of the Supreme Court, a number of state courts have declared unconstitutional Sunday closing laws that exempt certain businesses or merchandise where such classifications are clearly unrelated to the objective of promoting a day of rest.”).

Allen v. Hickel (D.C.Cir. 1970) 424 F.2d 944 is cited for the rule that “The Government may depict objects with spiritual content, but it may not promote or give its stamp of approval to such spiritual content.” (Id., at p. 948.) We cannot conclude here that the city, particularly as to Easter holidays, did not “promote . . . such spiritual content.” Easter crosses differ from Easter bunnies, just as Christmas crosses differ from Christmas trees and Santa Claus.

On December 18, 1975, the council adopted a report that stated, “Your Committee has considered this and feels upon advice of the City Attorney’s representative that the use of the cross is symbolic of the Christmas season and as such is not a religious service.” Mere display of the cross is clearly not a religious service. By no means, though, should we infer that it is not action respecting an establishment of religion. Governments must commit themselves to “a position of neutrality” whenever “the relationship between man and religion” is affected. (See Abington School Dist. v. Schempp (1963) 374 U.S. 203, 226 [10 L.Ed.2d 844, 859, 83 S.Ct. 1560].) To be neutral surely means to honor the beliefs of the silent as well as the vocal minorities.

The order granting the preliminary injunction is affirmed. The case is remanded for appropriate further proceedings.

Tobriner, J., Mosk, J., and Manuel, J., concurred.

1 Compare the Washington Post’s comment of June 29, 1977, that appears in the magazine Liberty (Sept.-Oct. 1977) page 30: “ ‘[T]he Court . . . was unable to muster a majority for any one view of how the First Amendment’s bar against the establishment of religion should be interpreted.’ ” Also see Hastey, High Court Waffles on Church-State Questions (id., Nov.-Dec. 1977) page 7.