Untitled Texas Attorney General Opinion ( 1978 )

The Attorney General of Texas
December 1, 1978
JOHN L. HILL
Attorney General
Honorable Mike Westergren Opinion No. Ii- 1267
County Attorney
Nueces County Courthouse Re: Whether a religious statue
Corpus Christi, Texas 78461 can be erected on city property
in Corpus Christi.
Dear Mr. Westergren:
YOUhave asked our opinion On the fOUOwing question:
[Is it] constitutionally permissible for the City of
Corpus Christi to allow use of a public area in the bay
front for the erection of a statue of Christ at no
expense to the city either for installation or majn-
tenance in commemoration of the discovery of Corpus
Christi Bay by dePineda in year 1519 without violating
either the First Amendment to the United States
Constitution or article I, sections 6 and 7 of the Texas
Constitution regarding freedom of worship and
appropriations for sectarian purposes?
you inform us that a group of private citizens approached the city
council and tendered the gift of an 16-foot bronze statue of Christ to
commemorate the naming of Corpus Christi Bay. The original proposal was
to present the sculpture to the city at no cost if the city would provide a site,
a twelve-foot base and maintenance. Substantial controversy and public
discussion concerning the separation of church and state ensued, and the
proposal was amended. The Prospective donors indicated that they would
form a nonprofit corporation to provide funds for the statue’s instatlation,
base and maintenance and would lease or purchase the site from the city for
the statue’s location. Under this proposal the city would have no connection
with the statue other than selling or leasing Iand which would be used for the
statue. Apparently, the only appropriate sites for the statue are now owned
by the city.
Most questions of this sort require a determination of whether a secular
purpose is served by installation and maintenance of the statue. See AUen v.
Morton, 495 F.2d 65 (D.C. Cir. 1972) (government participation inxgeant of
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Honorable Mike Westergren - Page 2 (R-1267)
Peace in a public park in Washington at which a creche was a part is not necessarily
unconstitutional); State ex rel. Singelmann v. Morrison, 57 So. 2d 238 (Le. Ct. App.
1952) (statue of a Roman Catholic saint on public property upheld): Meyer v.
Oklahoma Cit 496 P.2d 769 (Okla.), cert. denied, 409 U.S. 980 (1972) (50-foot high
cross
+ at angrounds did not violate Oklahoma Constitution because of the secular
environment in which it was erected); Eugene Sand & Gravel, Inc. v. City of
Eugene, 558 P.2d 338 (Ore. 1976), cert. denied, 434 U.S. 876 (1977) (50-foot cross on
city prcperty served a secular purpose since it was dedicated and maintained as a
war memorial); Lowe v. City of Eugene, 463 P.2d 360 (Ore. 1969), cert. denied, 397
U.S. 1042 (1970) (prior to passage of city charter provision designating cross es a
war memorial, the cross was found to be a religious symbol which could not be
maintained by the city); Anderson v. Salt Lake City Corp., 475 F.2d 29 (10th Cir.).
cert. denied, 414 U.S. 879 (1973) (erection of a monolith containing the Ten
Commandments near the entrance of the citv/countv
_~ . courthouse found to be
constitutional).
In this instance, however, there is to be no expenditure of public funds or
public sponsorship. The extent of the city’s involvement will be to sell or lease a
parcel of land to a private corporation. After purchasing the land, the corporation
will erect and maintain the statue. Assuming that all relevant statutes concerning
the disposition of land are observed, there is no constitutional problem in selling or
leasing public property to an individual even if he later uses the land for religious
purposes. 1 Antieau, Modern Constitutional Law, g 4.13 (1969). See Fenske v.
Coddington, 57 So. 2d 452 (Fla. 1952) (the gift to the state of an industxl school did
not pose an establishment of a religion problem when the donor retained ownership
of a chaoel located in one of the school buildinas and maintained the chapel
privately); cf. Paul v. Dade County, 202 So. 2d 833 @la. Dist. Ct. App. 1967), cert.
denied, 39Ou.S. 1041(1968) (a temporary string of lights in the shape of a cross put
on the side of a countv courthouse at no oublic exbense to encourage Christmas
shopping did not amount to an establishment of religion). We ceut~n, however,
that no specific lease has been presented to us, end we do not pass on whether a
particular lease might not present entanglement problems. See generally Lemon v.
Kurtzman, 403 U.S. 602 (1971); Levitt v. Committee for Public Education end
Religious Liberty, 413 U.S. 472 (1973).
Accordingly, under the facts as you have presented them, i&, that the city
will sell or lease land to a private individual or corporation which will subsequently
erect a religious statue, there is no violation of the constitutional guarantees
against establishment of religion.
SUMMARY
A city may sell or lease land to an individual even though
the individual may subsequently intend to use the land for
religious purposes.
p. 5017
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I Honorable Mike Westergren - Page 3 (H-1267)
APPROVED:
DAVID M. KENDALL, First Assistant
Opinion Committee
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