Gilfillan v. City of Philadelphia

OPINION OF THE COURT

ROSENN, Circuit Judge.

On October 3, 1979, more than a million people came together at Philadelphia, Pennsylvania to hear Pope John Paul II offer Mass and deliver a sermon at the City’s Logan Circle. The liturgical service, the largest event during the Pope’s two-day visit to Philadelphia, generated an unprecedented outpouring of warmth and good will felt throughout the City for months following. No one disputes that the historic visit of the Pope had a lasting and beneficial effect on the people of Philadelphia. It also favorably enhanced the image of the City. This case, however, requires us to decide a narrow question of the constitutionality of the expenditure by the City of Philadelphia of more than $200,000 to construct a special platform and to provide other extraordinary assistance for the papal ceremonies at Logan Circle. Without reflecting in any way on the brilliant success of the Pope’s visit to Philadelphia, what we must examine in this case is whether certain governmental actions by the City were permissible under the Establishment Clause of the first amendment of the Constitution.

I.

In September of 1979, Pope John Paul II, the temporal leader of the Roman Catholic Church, announced that he would undertake a “pastoral mission” to the United States and that his trip would include a stop in Philadelphia. City officials then began a series of meetings with the leaders of the Archdiocese of Philadelphia in preparation for the Pope’s visit. Out of these meetings grew plans for a Mass at Logan Circle. In áccordance with those plans, and with the approval of the Archdiocese, the City designed and built, over Swann Fountain in Logan Circle, a large platform to be used as the dais from which the Pope would celebrate Mass and distribute Holy Eucharist, a sacrament of the Roman Catholic Church, and bring his message to Philadelphia.

This challenge came shortly after the City announced its construction plans. Plaintiffs Susan Jane B. Gilfillan and Reverend Mary Anne Forehand, taxpayers of the City of Philadelphia, brought suit to enjoin the City from expending funds to build the platform for the Pope, alleging a violation of the first amendment’s Establishment Clause.¹ With the approval of the district court, the parties stipulated to an order under which construction was allowed to proceed, but the Archdiocese agreed to reimburse the City for the cost of the platform and related construction should there be a final judgment that the City could not constitutionally pay for the items.

The finished platform was an impressive creation that significantly helped beautify the Mass offered by the Pope. Paid for entirely by the City, the platform was cylindrical in shape, 28V2 feet high and 144 feet in diameter. Fifty-seven steps, 60 feet wide, extended 110 feet from the platform to the street. On the platform was a 16-step, four-sided pyramid, 45 feet on a side and 14 feet high. On this pyramid was another small, 5-step pyramid upon which was placed a throne used by the Pope. The platform was painted white; the top of the large pyramid and portions of the steps were carpeted in red. In one corner of the large pyramid stood a white, 36-foot high cross. See photograph reproduced at 480 F.Supp. 1161, 1170 (E.D.Pa.1979). The City encircled the platform with nearly $50,000 worth of shrubbery and yellow chrysanthemums. The City also rented 20,000 chairs for seating of selected guests; it supplied a sound system, part rented and part purchased at a cost of more than $50,000; and it constructed a nearby, separate platform for a 360-voice choir.

On the afternoon of October 3,1979, Pope John Paul II led a procession from the Cathedral of Saints Peter and Paul to the Logan Circle platform. There he began a service that lasted more than two hours, during which he delivered a homily and personally distributed Communion to 150 worshipers. With him on the platform were a large number of clergy, but no city officials. The 20,000 seats nearest the platform, the chairs rented by the City, were available only to ticket holders, and tickets could be obtained only through the Archdiocese. The platform, illuminated for six days prior to the service, was left in place over Swann Fountain for more than one week after the service, but it was used for no other purpose.

After the Pope’s visit had ended, the City and those contesting the City’s expenditures presented their arguments before Judge Raymond Broderick of the United States District Court for the Eastern District of Pennsylvania. The plaintiffs opposed only a few items. Not challenged was the City’s construction of a platform at the airport, a platform used by city as well as religious officials in welcoming the Pope to Philadelphia. Not challenged was the City’s deployment of police along the parade route and at all events attended by the Pope. Not challenged was the Pope’s use of public areas such as Logan Circle for his religious activities. Rather, plaintiffs contested only the City’s payment for the construction of the platform in Logan Circle, a platform used exclusively for a religious service, and a few other extraordinary expenditures, all a kind never offered to other organizations, religious or non-religious. Specifically, these additional expenditures were for renting of the chairs and a sound system, the planting of shrubbery and flowers, and the building of the smaller platform for the choir. The plaintiffs argued that such assistance cannot be offered without violating the Establishment Clause of the first amendment of the Constitution.

On November 9, 1979, Judge Broderick, in a scholarly and well reasoned opinion, held that the expenditures were unconstitutional and ordered the reimbursement. 480 F.Supp. 1161 (E.D.Pa.1979). The amount to be reimbursed totalled $204,569 and included the cost of materials and labor, less the value of reusable items. See id. at 1170-71.² The City appealed.³ We affirm.

II.

The first amendment of the Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof .... ” The amendment was made binding on the states by the fourteenth amendmfent. Everson v. Board of Education, 330 U.S. 1, 8, 67 S.Ct. 504, 507, 91 L.Ed. 711 (1947). The two religion clauses have stirred deep feelings and their meaning has been much litigated. Although members of the Supreme Court have disagreed on the proper application of the Establishment Clause, see Committee for Public Education v. Regan, 444 U.S. 646, 648, 662, 671, 100 S.Ct. 840, 844, 855, 63 L.Ed.2d 94 (1980); Everson, supra, 330 U.S. at 3, 18, 28, 67 S.Ct. at 505, 512, 517, a fairly simple statement of the test has evolved: “[A] legislative enactment does not contravene the Establishment Clause if it has a secular legislative purpose, if its principal or primary effect neither advances nor inhibits religion, and if it does not foster an excessive government entanglement with religion.” Committee for Public Education v. Regan, 444 U.S. 646, 653,100 S.Ct. 840, 846, 63 L.Ed.2d 94 (1980), citing Roemer v. Maryland Public Works Board, 426 U.S. 736, 748, 96 S.Ct. 2337, 2345, 49 L.Ed.2d 179 (1976); Committee for Public Education v. Nyquist, 413 U.S. 756, 772-73, 93 S.Ct. 2955, 2965, 37 L.Ed.2d 948 (1973); Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). This circuit is familiar with the application of this three-part test. See Public Funds for Public Schools v. Byrne, 590 F.2d 514 (3d Cir.), aff’d., 442 U.S. 907, 99 S.Ct. 2818, 61 L.Ed.2d 273 (1979).

In its analysis of the constitutionality of the City’s funding of the construction of the platform and the other extraordinary support for the Logan Circle ceremony, the district court employed the three-part test. 480 F.Supp. at 1166. The City does not contend that some other test should be applied in an examination of the City’s actions, but does argue that the district court erroneously applied the test.

Applying the test, the district court found that the challenged expenditures failed to satisfy any of the three requirements of the Establishment Clause. The court concluded that the City’s action (1) had primarily a religious purpose and only incidentally a secular purpose; (2) had a primary effect that advanced religion; and (3) created two types of impermissible entanglement: (i) the joint participation in the planning of and preparation for a religious function, and (ii) the promotion of divisiveness among and between religious groups. 480 F.Supp. at 1168-69. We shall now review that application of the law.

A. Secular Purpose

The district court found that the construction of the platform had only an incidental secular purpose, and that the primary purpose of the City’s action was religious. 480 F.Supp. at 1167. That a government action has a religious purpose does not mean that it cannot also have a secular purpose sufficient to satisfy this element of the test. For instance, Sunday closing laws have been found to have had a secular purpose in the goal of a uniform day of rest. McGowan v. Maryland, 366 U.S. 420, 445, 81 S.Ct. 1101, 1115, 6 L.Ed.2d 393 (1961). But not all state actions have passed the test. In Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), the Court found no non-religious justification for a statute prohibiting the teaching of evolution.

The City of Philadelphia asserts two secular purposes: the first, the protection of the Pope and the crowd, and the second, the possibility of a “public relations bonanza,” a purpose first raised on appeal and not apparently considered by the district court. The asserted purpose of protecting the Pope is, at best, suspect. At all other events attended by the Pope, he was protected by, at most, police and barricades. At Logan Circle, the platform was surrounded by barricades and police officers and these, much more than the platform, protected the Pope. Approaching and leaving the ceremony, the Pope passed through the crowd, and at one point during the service he went into the crowd. The City argues that by providing the platform to make the Pope widely visible it prevented a rush of persons attempting to see the Pope. This claim of protection is only partially true because the Pope’s position on the platform made him a clear target in any direction. In any event, the district court found that the platform was not designed, constructed or used for a civil purpose but for the celebration of Holy Mass by the Pope, assisted by the bishops of the Catholic Church. 480 F.Supp. at 1167. This finding is not plainly erroneous.

Nor can we accept the City’s claim of protecting the Pope as a purpose sufficient to justify several of the other contested preparations: the 36-foot high cross; approximately $50,000 in flowers and shrubbery; the $55,950 sound system; and the stand for the choir. Unless some other rational secular purpose is advanced for these expenditures, they, like the statute in Epperson, supra, must be found unconstitutional. At least some minimal secular purpose must be advanced.

On appeal, the City asserts a public relations purpose, claiming that by funding these extraordinary items, it helped put Philadelphia in a good light. By so arguing, the City places itself in a difficult position. Viewers of the ceremony that do not know of the city-sponsorship are likely to believe only that the Archdiocese, not the City, made a special effort. The Archdiocese, not the City, will receive the public relations “bonanza.” But if the city-sponsorship is known, that aid connotes the state approval of a particular religion, one of the specific evils the Establishment Clause was designed to prevent. An auspicious aspect of our pluralistic society is its rich religious diversity. The essential purpose of the Establishment Clause reflects this pluralism. Finally, if some peripheral public relations benefit can constitute a sufficient secular purpose, then the purpose test is destroyed, for it is hard to imagine a city expenditure that will not look good in someone’s eyes.⁴

We recognize that it is difficult for a court to ascertain the true purpose behind a governmental action, particularly when the challenged activity is not legislation. See Allen v. Morton, 495 F.2d 65, 68 (D.C.Cir.1973). However, we believe that if we are to retain any meaningful purpose test, we must conclude that the district court did not err in finding that the challenged actions of the City were undertaken with a religious purpose. Because the City failed to satisfy the first part of the constitutional test, the district court properly held that the City expenditures violated the Establishment Clause of the first amendment.

B. Religious Effect

In Abington School District v. Schempp, 374 U.S. 203, 222, 83 S.Ct. 1560, 1571, 10 L.Ed.2d 844 (1963), the Supreme Court stated that government aid should have “a primary effect that neither advances nor inhibits religion.” Similarly, in Committee for Public Education v. Nyquist, 413 U.S. 756, 783-85 n.39, 93 S.Ct. 2955, 2970, 2971 n.39, 37 L.Ed.2d 948 (1973), the Court iterated that aid is impermissible if it has “the direct and immediate effect of advancing religion.”⁵ The state must maintain an attitude of absolute neutrality, neither “advancing” nor “inhibiting” religion. Id. at 788, 93 S.Ct. at 2973. The district court found that the City’s action had a primary religious effect under both of the above tests. 480 F.Supp. at 1167-68.

The City presents several imaginative arguments against this finding. First, it asserts that the “unique” nature of the Pope’s visit somehow makes the effect not primarily religious, because “there is little risk that the expenditures will have the effect of placing the City’s imprimatur of approval on the Catholic religion.” We see no merit to that disclaimer. City officials went out of their way to align themselves and collaborate with the Archdiocese. For weeks, representatives of the City and the Archdiocese repeatedly met to discuss the numerous problems involved in designing and constructing the platform, including the cross, and planning for the Mass.⁶ These meetings were separate and independent of the planning for police and fire functions, emergencies and crowd control. In addition, the district court found that the City had in effect “ceded control of the Logan Circle area to the Archdiocese,” 480 F.Supp. at 1167, as evidenced by the Archdiocese’s sole responsibility for the distribution of tickets for admission to the area in the vicinity of the platform. Further, regardless of imprimatur, the City’s assistance had effectively enabled the Pope to reach large numbers of persons and to perform a religious service. A religious effect of such magnitude may itself be unique.

The City maintains that the “transitory nature” of the aid — the Pope used the platform once and it was removed within two weeks — means that no religious institution was aided. But the aid need not be continuing to have an impermissible religious effect. The service was viewed directly by more than a million persons. It cannot be argued that its effect was not great. The platform itself was, on the City’s orders, left standing for more than a week to enable Philadelphians to visit it. The City thus created a temporary shrine. Such activity is not compatible with the Constitution.

Nor can it be argued that any religious effect was too remote. In Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971), the Court sustained most of the federal Higher Education Facilities Act of 1963 providing aid to all colleges for construction of buildings. The Act permitted the Government to recover the aid if the federally financed facility were used for sectarian instruction or as a place of worship. However, under the Act, recovery was possible only if the breach occurred within 20 years after completion of construction. The Court found the possibility that a federally financed building might be used for some religious activity more than 20 years later was a sufficient religious effect to render that aspect of the Act, the 20-year limitation, invalid. Id. at 683-84, 91 S.Ct. at 2098. The religious effect there was more attenuated than what we have here.

The City also reasons that any religious effect was the result of the Mass and not the City’s providing the platform and related support. If this were true, then the clause struck down in Tilton, supra, would have been valid because, by the same argument, the religious instruction and not the building is the root of the religious effect. This claimed distinction between sources of effects would, if accepted, emasculate the Establishment Clause.

The religious effect was both plain and primary. The Pope, admittedly on a pastoral mission to this country, was, with the aid of a magnificent setting provided by the City, able to celebrate a Mass and deliver a sermon. In so doing, he brought a religious message, with the help of the City,, from the Roman Catholic Church to millions of persons. This is an effect that can only be considered as advancing religion. We therefore affirm the district court’s holding that the City’s action created an impermissible establishment of religion.

C. Entanglement

The district court found the relationship between the City and the Archdiocese constituted entanglement in violation of the third part of the Establishment Clause test. 480 F.Supp. at 1168-69. The problem the district court found was not the necessity of constant government monitoring of sectarian activities fatal in other cases, but rather was the (1) joint planning with the Archdiocese of the Logan Circle ceremony and (2) the potential for community divisiveness along religious lines that joint planning created. The City disputes each conclusion on the basis that any state-church relationship was not a continuing one.

In Allen v. Morton, 495 F.2d 65 (D.C.Cir.1973), the District of Columbia Court of Appeals found excessive entanglement between the federal Government and the committee running the Christmas pageant. The City attempts to distinguish this case on two grounds: first, the Government in Allen had an active role in management of the pageant, with officials holding two of the five positions on the executive committee; and second, the Government “co-sponsored” the pageant, providing labor assistance.

On review, the facts in Allen, supra, seem quite similar to those involving the relationship between the City here and the Archdiocese. Despite the City’s claim, the only contact between the two was not “to discuss provision of normal government services.” Philadelphia Commissioner LaSala, in his deposition, indicated that for each aspect of the preparations, the Philadelphia official in charge had a counterpart in the Archdiocese. Admittedly, the City alone designed the platform, but the design was approved by the Archdiocese before it was built. Finally, the Archdiocese alone handled the access to the 20,000 reserved seats. Admission was by ticket only, tickets available only through the Archdiocese. At the service, Archdiocese “marshals” turned away non-ticket holders from the several square block area where the 20,000 seats were located. Thus, in preparation, joint efforts were the norm, and at the event the religious organization apparently took over some government functions. We therefore affirm the district court’s finding of entanglement based on the facts of the preparation.

An alternative basis for the district court’s conclusion that the City’s activity caused entanglement was a finding that the assistance tended to promote divisiveness among and between religious groups. This basis was recognized in Lemon v. Kurtzman, 403 U.S. 602, 622-24, 91 S.Ct. 2105, 2115, 2116, 29 L.Ed.2d 745 (1971). Again, the City argues that the ephemeral nature of the Pope’s visit makes this finding incorrect, reasoning that any divisiveness will be evanescent. True, in Lemon, statutes providing long-term aid to parochial schools were challenged, but there is no reason to believe that short-term aid of the type rendered here is not as divisive. Judge Broderick’s finding of divisiveness was based on the number of plaintiffs. At least three separate groups brought suit to enjoin the City’s assistance. We believe the district court could find entanglement from the divisiveness evidenced by the number of legal actions.

Thus, the City’s assistance and the extensive cooperation during the preparations for the Pope’s visit, also fail the entanglement test, because of the potential for divisiveness.

III.

Throughout this appeal, the City has argued that to find that the City’s aid displays an impermissible purpose, effect, or entanglement, would constitute a denial to members of the Archdiocese of their right to free exercise of religion as protected by the first amendment. For instance, after arguing that any religious effects stem from the Mass, not the City’s aid, the City contends that the plaintiffs are really trying to limit the Pope’s religious activities, and therefore are attempting to deny his free exercise of religion. Such an argument has only superficial appeal. The free exercise cases, by their nature, arise when the state has denied the right. For example, in Sherbert v. Verner, 374 U.S. 398, 10 L.Ed.2d 965 (1963), the Court found South Carolina abridged a woman’s right to the free exercise of her religion when the state would not give her unemployment compensation because she refused to work on Saturday, her Sabbath.

The issue in this case is city spending on the platform, shrubberies and related assistanee, such as rental of chairs and a sound system, not whether the Pope could use city land at Logan Circle for religious purposes or have police protection. The question then is whether the Archdiocese would have a colorable claim against the City for reimbursement if the City had declined the challenged assistance. Such a claim would obviously be without merit. To have the City reimbursed for such expenditures then cannot be a denial of the right of free exercise of religion.

O’Hair v. Andrus, 613 F.2d 931 (D.C. Cir. 1979), which the City cites repeatedly as supporting their free exercise argument, does not in any way suggest a different conclusion. That case also involved Pope John Paul II’s visit to the United States. The Pope held a service on the National Mall at Washington, D. C. The challenge there was primarily directed to this use of the property, a use the court sustained. The City provided police, fences and barriers, and utilities, but these had been regularly provided to every major demonstration raising first amendment values, such as the inhabitants of “Resurrection City,” the anti-war protestors at the Moratorium, and recently the farmers who brought their tractors and protests to Washington. The court noted specifically that the Washington Archdiocese would expend in excess of $400,000 for construction of the platform and the alter, other physical and electrical facilities, sound equipment, chairs and clean-up, the very items the City of Philadelphia paid for. In this case, the plaintiffs agree the Pope had a right to use the city property. Their objection is to the extraordinary city expenses, an issue not raised in O’Hair.

Nor does Chess v. Widmar, 635 F.2d 1310 (8th Cir. 1980), help the City. The Eighth Circuit, in deciding that a public university cannot prohibit a recognized student group from using any university facilities to hold religious services was certainly not holding that the university had a duty to erect a special facility for that group. Chess v. Widmar would be relevant had the City sought to deny the Pope the' use of Logan Circle. Chess and the other free exercise cases require only neutrality. They in no way substantiate the City’s argument that it had a duty to support the Archdiocese by providing extraordinary assistance to the Pope’s religious activities.

We conclude therefore that the district court correctly rejected the City’s free exercise argument.

IV.

The development of the religion clauses of the first amendment began before the First Congress in the struggles in the various states over religious freedom. See generally Everson v. Board of Education, 330 U.S. 1, 8-14, 67 S.Ct. 504, 507-510, 91 L.Ed. 711 (Black, J.), 31-49, 67 S.Ct. 519-527 (Rutledge, J., dissenting) (1947). In Virginia in 1785, James Madison wrote and circulated his famous “Memorial and Remonstrance” to the General Assembly of the Commonwealth of Virginia. See id. at 63, 67 S.Ct. at 534. Although Madison’s views may not have been shared by a majority of the drafters of the Constitution, Public Funds for Public Schools v. Byrne, 590 F.2d 514, 522 (3d Cir.) (Weis, J., concurring), aff’d, 442 U.S. 907, 99 S.Ct. 2818, 61 L.Ed.2d 273 (1979), his statements remain instructive when Establishment and Free Exercise Clause issues are raised. Urging the Virginia assembly to defeat a bill that would provide financial support from tax revenues to the clergy of a certain sect, Madison observed that “the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment.” Madison, Memorial and Remonstrance ¶ 3, quoted at Everson, supra, 330 U.S. at 65-66, 67 S.Ct. at 535-536. By requiring that the Archdiocese, pursuant to the order to which it stipulated in September 1979, reimburse the City for the impermissible expenditures, we in no way penalize the Archdiocese. Rather, we are adhering to the venerable principle of neutrality. For if the City can spend in excess of $200,000 directly in support of the Pope’s Mass, it can devote half its budget to some other group next year. As Madison did not accept the “arrogant pretension” that “the Civil Magistrate is a competent Judge of Religious truth,” id. at ¶5, 330 U.S. at 67, 67 S.Ct. at 536, we cannot accept the City’s decision to support a particular sect. Finally, because we believe, as Madison argued, that such support “will destroy the moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced amongst its several sects,” id. at ¶11, 330 U.S. at 69, 67 S.Ct. at 537, we must affirm the district court and order the Archdiocese to reimburse the City of Philadelphia for those expenditures made by the City in violation of the Establishment Clause of the first amendment of the Constitution.

For the foregoing reasons, we hold that the challenged City expenditures violate the Establishment Clause of the first amendment of the Constitution. The Archdiocese of Philadelphia is required, in accordance with the stipulation and order of the district court, to reimburse the City $204,569 that the City unconstitutionally spent in support of Pope John Paul II’s Mass at Logan Circle.

The judgment of the district court will be affirmed.

1 . As taxpayers, plaintiffs have standing to challenge the expenditures allegedly made in violation of the Establishment Clause. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Plaintiffs were joined in their actions, respectively, by the American Civil Liberties Union and the National Ministries, American Baptist Churches. The district court also permitted the intervention of several individuals under Fed.R.Civ.P. 24(b).

2 . The trial court found that the City improperly expended the total sum of $310,741 for the Pope’s service. The court, however, readily accepted the City’s contention that all of the $28,894 spent on lumber, $2,618 spent on bunting, $48,860 spent on shrubbery and flowers, and $5,800 spent on carpeting was recoverd by the City because those items were reusable, apparently without diminution of value. Another $20,000 was subtracted from the total of expenditures as the value of reusable sound equipment purchased by the City. 480 F.Supp. at 1170-71.

3 . The Rev. Mary Anne Forehand and the Board of National Ministries, American Baptist Churches in the U.S.A., also appealed, No. 79-1785 (Notice of Appeal filed November 27, 1979), but that appeal was dismissed pursuant to the stipulation of the parties on March 19, 1980.

4 . The City also argues that the Pope was accorded only what was due him as a head of state, and that the purpose behind the expenditures was to honor a head of state. This argument is, on its face, transparent. The Pope never asserted any diplomatic role during his visit to Philadelphia. Rather, all his activities indicate clearly his religious purpose. Also, the type of aid provided by the City was plainly of a type intended to advance religion, not diplomacy.

5 . Professor Tribe believes the effects test was thus transformed into "a requirement that nonsecular effect be remote, indirect and incidental” L. Tribe, American Constitutional Law § 14-9, at 840 (1978) (emphasis in original).

6 . In note 9, the dissent urges that the City’s expenditure on the cross is irrelevant. We disagree. First, only in appellant’s brief on appeal was the claim made that the cost was recovered. As an appellate court, we decline to find such a fact when no evidence on the point was offered to the trial court. Second, even assuming that the cost of that particular component was recovered, the City’s design of the platform to include the cross and the advance of the funds for its construction are relevant both to the purpose and effect of the City’s overall action.