American Civil Liberties Union v. County of Allegheny

OPINION OF THE COURT

GREENBERG, Circuit Judge.

This action was commenced on December 10, 1986 by plaintiffs American Civil Liberties Union, Greater Pittsburgh Chapter, and certain individuals against Allegheny County and the City of Pittsburgh, political subdivisions of the Commonwealth of Pennsylvania. In general, plaintiffs alleged that the county had unlawfully permitted the erection of a creche or nativity scene depicting the birth of Jesus Christ inside the main entrance of the Allegheny County Courthouse and the city was about unlawfully to permit the erection of a menorah, a nine-branched candelabrum used by Jews as part of the religious celebration of Chanukah, on the steps of the main entrance of the City-County Building jointly owned and operated by defendants. It was asserted that the expenditure of public funds and the display of the religious symbols violated the Establishment Clause of the First Amendment of the United States Constitution applicable to the states under the Fourteenth Amendment, thus giving rise to a cause of action under 42 U.S.C. § 1983. Plaintiffs sought declaratory and injunctive relief as well as nominal damages and attorneys’ fees.

Following an evidentiary hearing on December 15, 1986, the court in an oral opinion made findings and denied a preliminary injunction. Thereafter Chabad, the Jewish organization which owns the menorah, was permitted to intervene and present additional evidence. On May 8, 1987 the district judge issued a memorandum opinion incorporating his prior oral findings and adding findings regarding the menorah. On that day the court entered an order denying the application for an injunction and on May 29, 1987 it entered a final judgment in favor of the defendants judgment denying and this appeal followed.

The facts in this case are simple and essentially undisputed. Annually since 1981 the county has permitted the display of a creche enclosed by a fence on the grand staircase of the first floor of the county courthouse. The creche consists of traditional figures ranging in height from three to 15 inches, including a wooden stable with the infant Jesus, the Virgin Mary, Joseph, the Three Wise Men, shepherds, various animals and an angel holding a banner reading “Gloria in Excelsis Deo” (“Glory to God in the Highest”). The creche, though stored in the basement of the courthouse, is the property of the Holy Name Society of the Diocese of Pittsburgh, a Catholic men’s organization and thus a sign in front of it recites: “This display donated by the Holy Name Society.” Though it is erected, arranged and disassembled each year by the moderator of the Holy Name Society, the county supplies a dolly and minimal aid to transport it to and from the courthouse basement. While the county provides no special security or illumination for the display, its Bureau of Cultural Programs decorates the creche with red and white poinsettia plants and evergreen trees purchased at public expense. The county also displays wreaths purchased through county funds. Other decorations such as trees, Santa Clauses and additional wreaths are displayed by various departments and offices throughout the courthouse building.

The creche is displayed for about six weeks from late November to early January. During the weeks prior to Christmas the county sponsors Christmas carol programs on the first floor of the courthouse with the chorale groups using the creche for a foreground. The choirs, typically high school students, sing popular songs and religious and secular Christmas carols. The caroling is broadcast by loudspeakers to the public in the courthouse. The programs are dedicated to the universal themes of world peace and brotherhood and to the memory of persons missing in action in the Vietnam War. The grand staircase and the surrounding area are used throughout the year for art displays and other civic and cultural events and programs.

The courthouse houses the principal offices of the county, including those of its governing officers, the county commissioners, and the treasurer and controller, as well as the criminal and some civil courts of Allegheny County. In view of the creche’s location, it is probably seen by many visitors to the courthouse including taxpayers, lawyers trying cases or serving as arbitrators, litigants, persons desiring to search certain court records and people with business at the sheriff’s office.

The City-County Building, the site of the menorah, is one block from the courthouse. The various public offices in the building include those of the city treasurer, county prothonotary, marriage license bureau and the register of wills. In addition, certain courts sit in the building. Although the building bears the name of both political subdivisions, the menorah is placed in an area maintained solely by the city. For a number of years during the Christmas season the city has installed a 45 foot Christmas tree on a platform on the front steps of the main entrance of the building and next to the tree on the steps of the main entrance to the building since 1982 the city has annually erected an approximately 18 foot high menorah. The menorah, which was purchased by Chabad, is put in place at the time of the Jewish celebration of Chanukah. In front of the tree a sign bearing the mayor’s name has been erected. It recites:

SALUTE TO LIBERTY

During this holiday season, the City of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom.

The display, which includes the tree and its ornaments, the platform, the sign and the menorah, is installed by city employees. In addition, the City has placed signs advertising a charity fund drive and a seasonal celebration of a flower display in front of the building.

In the district judge’s oral opinion, he indicated that the case was controlled by the Supreme Court’s decision in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). He found that neither the display of the creche nor of the menorah conveyed a message of governmental enforcement of religion. He noted:

... none of the people who enter the Courthouse are required to do anything; they are not required to read, or to sing, or to pause or to reflect. Neither are people required to pause or look or read or make any gestures where the menorah is concerned; they are merely displays.

While he did not doubt the sincerity of witnesses who testified that the creche offended some visitors to the courthouse, he pointed out that “the Governments of the United States, Local and State and Federal do many things that are offensive to many people, and ... mere offense is not sufficient to impel the Court to issue an injunction.” He continued: “There must be more substantial injury than mere offense that is felt inwardly. But it is not felt because one must read, or sing, or talk, or pause, or do something affirmatively.” The judge concluded:

The mere displays, therefore, are found to be de minimis in the context of the First Amendment. I don’t think there’s any danger whatever that they will establish any religion. I don’t think the County Commissioners or the Mayor and the City intend to affect anyone’s religion, or even offend anyone. On the contrary, I think the intention was to celebrate the holiday season, and I doubt that the County or City officials paused to think that they were offending anyone. So, therefore, I just do not see very much chance of the plaintiffs succeeding on the merits. I don’t think that there has really been any appreciable harm. I don’t think that the mere reference to religion is actionable.

In his subsequent memorandum opinion the judge wrote:

The Chanukah menorah has no particular religious significance when placed in a public location beyond signifying a ‘Light to the World’ somewhat like the Christmas message ‘Peace on Earth, Goodwill to Men.’

Chabad advocates the display of Chanukah menorahs in public and private places during the holiday season all over the country to symbolize the lighting of the souls of the Jewish people, i.e., to call on them to go forth and accomplish good and overcome evil.

The expense to the city [in the erecting and storing the menorah] is minimal and of no consequence.

I fail to see how the display of the menorah violates the establishment clause. It may call to the attention of the public that Jews also have a miracle to remember. Certainly the local governments should not be enjoined from allowing both faiths to call attention to the miracles which enrich their histories, either the virgin birth or the burning of one day’s oil for many days while the Jews sought to recapture their temple, so long as the symbols are part of a holiday season display. I should think the joint displays [send] a message that in Pittsburgh the faiths harmonize and both seek to send some light to the world at the holiday seasons. I cannot conceive that court should forbid such a thing or declare it illegal.

In a footnote to his opinion he explained that:

Chanukah celebrates the recapture of the temple in Jerusalem from the Syrian Greeks in 165 B.C.E. The miracle, we understand, to be the continuous light emanating for several days from but one day’s supply of oil.

We are in agreement with the trial judge that the starting point of our analysis should be Lynch v. Donnelly. There residents of Pawtucket, Rhode Island, and the Rhode Island affiliate of the American Civil Liberties Union brought an action challenging the city’s inclusion of a creche in its annual Christmas display erected in cooperation with the downtown retail merchants’ association in a park owned by a non-profit organization located in the heart of the shopping district. In addition to the creche, the display included many of the figures and decorations traditionally associated with Christmas, such as a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant and a teddy bear, hundreds of colored lights and a large banner that read “Seasons Greetings.” The creche, which had been included in the display for 40 or more years, consisted of the traditional figures, all ranging in height from five inches to five feet. When acquired, it cost the city $1,365 and at the time of the suit was valued at $200. The erection and dismantling of the creche cost the city about $20 per year and, though there were nominal expenses for its lighting, no money had been spent for its maintenance for the ten years preceding the suit. The district court held that the city’s inclusion of the creche in the display violated the Establishment Clause and the Court of Appeals for the First Circuit affirmed. Donnelly v. Lynch, 525 F.Supp. 1150 (D.R.I.1981), aff'd, 691 F.2d 1029 (1st Cir.1982).

A sharply divided Supreme Court reversed. For the majority, Chief Justice Burger pointed out that in a First Amendment Establishment Clause case, the Court must reconcile the inescapable tension between the objective of preventing unnecessary intrusion of either the church or state upon the other, but that total separation of the two is not possible and is not required. Lynch v. Donnelly, 465 U.S. at 672-73, 104 S.Ct. at 1358-59. He then demonstrated that religion has long entered into governmental functions and thus the Supreme Court has uniformly rejected an absolutist approach in applying the Establishment Clause and instead has “scrutinized challenged legislation or official conduct to determine whether, in reality, it establishes a religion or religious faith or tends to do so.” 465 U.S. at 678, 104 S.Ct. at 1361-62.

Chief Justice Burger indicated that: “In each case, the inquiry calls for line-drawing; no fixed, per se rule can be framed.” 465 U.S. at 678, 104 S.Ct. at 1362. He observed that while the Court has often in Establishment Clause cases used the three-prong Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971), test of whether the conduct questioned has a secular purpose, whether its principal or primary effect is to advance or inhibit religion and whether it creates an excessive entanglement of government with religion, it has “repeatedly emphasized [its] unwillingness to be confined to any single test or criterion in this sensitive area.” 465 U.S. at 679, 104 S.Ct. at 1362. Thus he stated that in two cases subsequent to Lemon, Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), and Larson v. Valente, 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982), the Court had not applied the Lemon test. Chief Justice Burger then indicated that the focus of the Court’s inquiry should be on the creche in the context of the Christmas season. He wrote that there was a secular purpose for the display and the evidence did not establish the inclusion of the creche in the display was a purposeful or surreptitious effort to express some subtle advocacy of a particular religious message. 465 U.S. at 680, 104 S.Ct. at 1363.

The Chief Justice rejected the district court’s finding that the primary effect of including the creche was to confer a substantial and impermissible benefit on religion in general and on the Christian faith in particular as he considered that the benefits conferred were “indirect, remote, and incidental” when compared to other governmental action upheld by the Court. 465 U.S. at 681-82, 104 S.Ct. at 1363-64. He noted that while it could be argued that the display of the creche showed an alignment of the government with Christianity, the benefit to religion was “no more an advancement of religion than the Congressional and Executive recognition of the origins of the Holiday itself as ‘Christ’s Mass,’ or the exhibition of literally hundreds of religious paintings in governmen-tally supported museums.” 465 U.S. at 683, 104 S.Ct. at 1364. Finally, the Court found that the third prong of the Lemon test, whether the conduct creates an excessive entanglement of government with religion, had not been violated as there had been no appreciable administrative entanglement between religion and state resulting from the city’s ownership and use of the creche.

Though a decision of great significance, Lynch v. Donnelly has by no means put to rest issues involving use of religious decorations at the Christmas season nor has it foreshadowed any abandonment of the Lemon test which the Supreme Court continues to employ. See Edwards v. Aguillard, — U.S. —, —, 107 S.Ct. 2573, 2576-78, 96 L.Ed.2d 510 (1987); Wallace v. Jaffree, 472 U.S. 38, 55-61, 105 S.Ct. 2479, 2489-90, 86 L.Ed.2d 29 (1985). Indeed, probably because the opinion was tied so closely to the facts involved and because of the nature of the issues, there has been considerable post-Lynch litigation with the judges as well as the litigants at odds. Of these post-Lynch cases, we find two decisions by divided courts particularly helpful, American Jewish Congress v. City of Chicago, 827 F.2d 120 (7th Cir.1987), and American Civil Liberties Union v. City of Birmingham, 791 F.2d 1561 (6th Cir.), cert. denied, — U.S. —, 107 S.Ct. 421, 93 L.Ed.2d 371 (1986).

In American Jewish Congress v. City of Chicago, the Court of Appeals for the Seventh Circuit dealt with a privately constructed and owned creche displayed in the lobby of the Chicago City-County Building during the holiday season. While the creche had been donated to the city, after earlier litigation it was reconveyed to the donor. 827 F.2d at 123. The creche was displayed at a prominent part of the building but the display included signs disclaiming any endorsement by the city. Ibid. A nominal amount of public funds was expended to illuminate the scene and the city maintained other Christmas decorations within the building including wreaths, a Christmas tree, a mechanical Santa Claus with reindeer and a snowman. 827 F.2d at 122.

The Court of Appeals held that the Chicago creche was a self-contained unit set apart from secular objects and thus differed from that in Lynch v. Donnelly. 827 F.2d at 125. Even more significant, however, was the circumstance that unlike that in Lynch v. Donnelly the creche in Chicago was placed at the official headquarters of the government and not in a private park. 827 F.2d at 126. The court concluded that the creche was “an unequivocal Christian symbol,” 827 F.2d at 127, so that its placement in this “unique physical context” communicated a message of government endorsement which violated the second prong of the Lemon test. 827 F.2d at 128. It explained:

The presence of a government in Chicago’s City Hall is unavoidable. The building is devoted to government functions: for example, both city and county government offices are located there, and the City Council holds its meetings there. Because City Hall is so plainly under government ownership and control, every display and activity in the building is implicitly marked with the stamp of government approval. The presence of a nativity scene in the lobby, therefore, inevitably creates a clear and strong impression that the local government tacitly endorse Christianity.

The message of endorsement is equally powerful on the symbolic level. Like the nativity scene itself, City Hall is a symbol — a symbol of government power. The very phrase ‘City Hall’ is commonly used as a metaphor for government. A creche in City Hall thus brings together Church and State in a manner that unmistakably suggests their alliance. The display at issue in this case advanced religion by sending a message to the people of Chicago that the city approved of Christianity.

The city has attempted to mitigate the impact of this message by posting six disclaimer signs on the display, two on each side, and two on the front. However, the message of government endorsement generated by this display was too pervasive to be mitigated by the presence of disclaimers. As the district court correctly noted, ‘a disclaimer of the obvious is of no significant effect.’ American Jewish Congress v. Chicago, No. 85 C 9471 at 14 (N.D.Ill. Nov. 5, 1986).

‘ “Government promotes religion as effectively when it fosters a close identification of its powers and responsibilities with those of any — or all — religious denominations as when it attempts to inculcate specific religious doctrines. If this identification conveys a message of government endorsement ... a core purpose of the Establishment Clause is violated.” ’ Grand Rapids School Dist. v. Ball, 473 U.S. 373, 389, 105 S.Ct. 3216, 3226, 87 L.Ed.2d 267 (1985). The government-approved placement of the nativity scene in Chicago’s City Hall unavoidably fostered the inappropriate identification of the City of Chicago with Christianity, and therefore violated the Establishment Clause. [827 F.2d at 128 (footnotes omitted, emphasis added).]

In American Civil Liberties Union v. City of Birmingham the Court of Appeals for the Sixth Circuit addressed the constitutionality of a city-owned creche built, stored and maintained at public expense and placed on the front lawn of the city hall. The court held that the placement of the creche violated the Establishment Clause as it conveyed the message that the city endorsed Christianity. It noted that the display called attention solely to the religious origin of the Christmas holiday season as it was not a portion of a larger display including a “multitude of secular symbols.” 791 F.2d at 1566.

A different approach than that in the Chicago and Birmingham cases was taken by another court in McCreary v. Stone, 739 F.2d 716 (2d Cir.1984), aff'd without opinion by an equally divided Court, 471 U.S. 83, 105 S.Ct. 1859, 85 L.Ed.2d 63 (1985). There the municipality refused a group’s request to be permitted to place a privately-owned creche in a municipal park in the center of the business district. The Court of Appeals for the Second Circuit considered the case from the viewpoint of protecting the applicant’s First Amendment rights and thus was concerned with whether the exclusion was necessary to serve a compelling public interest. 739 F.2d at 723. The court held that it was not as the placement of the display would not violate the Lemon test. However, the matter was remanded so that an order could be entered requiring a more prominent sign disclaiming a public interest in the display.

In other cases the courts have addressed the constitutionality of the Christian cross and have recognized that the cross is a symbol of Christianity and that it is thus not only religious but also a symbol of a particular religious sect. Consequently, these courts have concluded that because a cross is more than simply a symbol of Christmas, ie., because it possesses this independent religious significance, its placement on public buildings is an endorsement of religion. See, e.g., American Civil Liberties Union v. City of St. Charles, 794 F.2d 265 (7th Cir.), cert. denied, — U.S. —, 107 S.Ct. 458, 93 L.Ed.2d 403 (1986); Libin v. Town of Greenwich, 625 F.Supp. 393 (D.Conn.1985). While there seems to be little reported litigation involving menorahs, in Lubavitch of Iowa, Inc. v. Walters, 808 F.2d 656 (8th Cir.1986), it appears that the Court of Appeals affirmed the district court’s denial of a preliminary injunction sought by the plaintiffs to compel a state official to allow a menorah to be placed on public grounds where a Christmas tree was displayed. '

From our consideration of the foregoing cases and others, we have concluded that the second prong of the Lemon test is that most readily violated as a public entity usually is able to articulate some secular purpose for a display (first prong) and the mere placement and storage of a display will involve little entanglement (third prong) of government and religion. See American Civil Liberties Union v. City of Birmingham, 791 F.2d at 1565-66. On the other hand the use of a religious symbol in a display on public property or by a public entity may well be deemed an endorsement of religion regardless of an entity’s stated reasons for its placement and thereby implicate the second Lemon prong as the impact of the display must be judged objectively. The variables that a court should consider in determining whether a display has the effect of advancing or endorsing religion include: (1) the location of the display; (2) whether the display is part of a larger configuration including nonreligious items; (3) the religious intensity of the display; (4) whether the display is shown in connection with a general secular holiday; (5) the degree of public participation in the ownership and maintenance of the display; and (6) the existence of disclaimers of public sponsorship of the display.

Application of the foregoing principles here leads inexorably to the conclusion that the district judge’s determination that the second prong of the Lemon test was not violated was incorrect and cannot stand with respect to both the creche and the menorah whether we consider his findings to be matters of law or fact. See United States v. Adams, 759 F.2d 1099, 1106 (3d Cir.1985), cert. denied, 474 U.S. 906, 971, 106 S.Ct. 275, 336, 88 L.Ed.2d 236 (1985); Lame v. United States Dep’t of Justice, 767 F.2d 66, 69-70 (3d Cir.1985). Each display was located at or in a public building devoted to core functions of government and each was placed at a prominent site at the public building where visitors would see it. Further, while the menorah was placed near a Christmas tree, neither the creche nor the menorah can reasonably be deemed to have been subsumed by a larger display of non-religious items. In addition, both the creche and the menorah are associated with religious holidays and would be viewed as pertaining to a particular religion. Further, the menorah, unlike the creche, is not associated with a holiday with secular aspects. There is public participation, albeit minimal, in both the storage and placement of the displays. Overall, when the record is evaluated in light of these considerations, the only reasonable conclusion is that by permitting the creche and the menorah to be placed at the buildings the city and county have tacitly endorsed Christianity and Judaism and have therefore acted to advance religion.¹ While we do not doubt that some persons find this laudable, it is impermissible under the second prong of the Lemon test and thus violates the Establishment Clause of the First Amendment.

We recognize, of course, that there is a sign near the creche indicating that the display is a donation of the Holy Name Society. That factor, however, cannot possibly outweigh the considerations which lead us to find that placement of the creche violated the second prong of the Lemon test.

In reaching our result, we have not overlooked the argument by Chabad in its brief that a menorah has “no inherent religious significance,” unlike certain other objects such as a Torah scroll which contains the five books of Moses. While this distinction is not totally without significance, Chabad admits that the menorah is associated with Chanukah, a religious holiday. Further, we cannot believe that the general public would be aware of the religious fine point made by Chabad and thus view the display of the menorah as a lesser endorsement of religion than that of a Torah scroll or other object regarded as sacred. In any event regardless of the lack of religious significance of a menorah its sectarian character is clear and thus even though it may not be regarded as a sacred object its placement was an endorsement of religion.

Further, we have not ignored the finding by the district judge that the city and county have permitted the faiths to call attention to the miracles enriching their histories. This is undoubtedly so but is exactly what the governments involved here had no lawful right to do. It is clear that in reality the judge was concluding that the governments had endorsed and advanced religion in a fashion barred by Lemon and not authorized by Lynch v. Donnelly. It is not the function of government to assist religions in explaining their ideologies.

In stating our result; we emphasize that we are not here dealing with purely secular objects. Nor are we concerned with the use of religious objects in a museum or as educational instruments in a classroom, in which circumstances the objects could be presented neutrally. Thus, it could not reasonably be believed that the school authorities were endorsing a religion if they included a display of a creche or a menorah as a demonstration of religious objects in a history course. Similarly, a display of religious paintings in a public museum merely reflects an appreciation of the artistic value of the objects. Here, however, the effect was different as it is evident that the religious displays of the city and county have the effect of endorsing the messages reflected by the displays. This is unconstitutional.

In view of our result we need not consider whether either the first or third prong of the Lemon test has been violated. The order of May 8, 1988 and the judgment of May 29, 1988 will be reversed and this matter will be remanded to the district court for further proceedings consistent with this opinion.

1 . Of course, we do not imply that if only a creche or only a menorah had been involved our result would have been different. Quite to the contrary we would have reached the same result if only one of the displays had been placed by defendants or either of them.