Rachel Mather v. Village of Mundelein , 864 F.2d 1291 ( 1989 )

FLAUM, Circuit Judge,

dissenting:

The Establishment Clause of the first amendment is not susceptible to “fixed, per se” rules. Lynch v. Donnelly, 465 U.S. 668, 678, 104 S.Ct. 1355, 1362, 79 L.Ed.2d 604 (1984). Drawing lines of demarcation to guide the effectuation of this great precept has never been an easy judicial task. Thus, courts are required to judge “every government practice ... in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion.” Id. at 694, 104 S.Ct. at 1370 (O’Connor, J. concurring). Because I believe, that in the circumstances of this case, the Mun-delein créche display signals “to a reasonable observer,” see Witters v. Washington Dept. of Services for the Blind, 474 U.S. 481, 493, 106 S.Ct. 748, 755, 88 L.Ed.2d 846 (1986) (O’Connor, J. concurring), a message of government endorsement of religion, I respectfully dissent.

As the per curiam opinion recognizes, this case is not conclusively resolved by Lynch. In Lynch, the municipally sponsored creche was placed in a privately owned park. The park was across the street and some 300 feet from the city hall and, from the opinions published in that case, it is difficult to establish if the creche was even visible from the city hall. By contrast, the creche in this case sits on the front lawn of the Mundelein City Hall. The difference between locating the créche in a park across the street and some distance from the city hall, and locating this distinct religious symbol on the front lawn of the city hall is, I find, under existing Supreme Court precedent, a dispositive one.

The ultimate Establishment Clause inquiry in this case remains the same as it was in American Jewish Congress v. City of Chicago, 827 F.2d 120, 128 (7th Cir.1987): “whether, considered in its unique physical context, the nativity scene at issue in this case communicates a message of government endorsement.” In American Jewish Congress this court answered that a créche placed inside the Chicago City Hall “inevitably creates a clear and strong impression that the local government tacitly endorses Christianity.” Id. at 128. The placement of the creche in the bosom of the seat of government could not but communicate a close association between government, with all its power and prestige, and the créche, with its sacred religious significance.

The per curiam opinion recognizes the importance of placement to the message delivered by the créche, but concludes that this créche is exempted because it “was outdoors, and passers-by will see a grouping of symbols, most of which are secular.” While this distinction has an initially inviting simplicity, upon further reflection it is one I find unpersuasive given the immediate and critical backdrop of Mundelein’s main municipal edifice. The capacity of government to convey a message of endorsement in these difficult Establishment Clause cases is not limited to the interior confines of a seat of power. Certainly any public area contiguous to such a situs can constitute a zone of identification between the state and the symbol in question. See American Civil Liberties Union v. Alleghany County, 842 F.2d 655, 662 (3d Cir.), cert. granted, — U.S. -, 109 S.Ct. 53, 102 L.Ed.2d 32 (1988). A display containing significant religious aspects within such an immediately surrounding area can create the same constitutionally impermissible identity in the minds of those viewing the scene as would be produced in an adjoining interior. Of course, the likelihood of such identification diminishes as distance and space intervene. But where the distance is negligible, and no significant separating elements exist, the identification is unmistakable and results in exactly the same unconstitutional fusion this court found extant in American Jewish Congress.

In this case, as the per curiam opinion acknowledges, the créche display resides in the shadow of the Mundelein City Hall. There are no streets or plazas or other intervening avenues of distinction, as there were in Lynch, to diffuse the interrelationship between the créche and the City Hall. In the context of this particular physical setting, I do not believe that “the religious and indeed sectarian significance of the créche ... [has been] neutralized. . . ” Lynch, 465 U.S. at 692, 104 S.Ct. at 1369 (O’Connor J. concurring). Therefore, I dissent.