DocketNumber： 89-5049, 89-5258
Citation Numbers： 895 F.2d 1098, 1990 WL 9518
Judges： Wellford, Nelson, Suhrheinrich
Filed Date： 4/17/1990
Status： Precedential
Modified Date： 11/4/2024
During the 1988 Christmas holiday season, the Commonwealth of Kentucky erected a rustic stable on the grounds of the state capítol in Frankfort. The stable was furnished with a manger, two large pottery jugs, a ladder, railings, and some straw, but not with the figurines or statues commonly found in a créche.
On at least three occasions, church groups were permitted to use the stable for pageants in which the biblical story of the birth of Jesus was reenacted by living people. Before entry of the order that is before us in this appeal, the State’s intention had been to permit groups to use the stable for that purpose alone.
Alleging that the Commonwealth’s conduct constituted an establishment of religion in violation of the First and Fourteenth Amendments, the American Civil Liberties Union of Kentucky and three Kentucky citizens brought the present action against the Governor. The complaint ended with a prayer for declaratory relief, an injunction against the conduct complained of, and such further relief as the plaintiffs might be entitled to.
After conducting a hearing and viewing the site personally, the district court entered a judgment order establishing the following conditions:
—That a notice be prominently displayed in the immediate area of the stable advising that the area is a public forum “available to all responsible citizens and civic*1100 and religious groups for holiday ceremonies, pageants or displays;”
—That the Commonwealth adopt a formal written policy consistent with the notice;
—That all expenditures of public funds in connection with the display be defrayed by private contributions; and
—That a disclaimer be prominently displayed in front of the stable, in letters big enough to be read from an automobile passing on the street before it, stating that the display “was not constructed with public funds and does not constitute an endorsement by the Commonwealth of any religion or religious doctrine.”
The order gave the Commonwealth five days to comply. The injunction sought against maintenance of the stable was denied on the proviso that the Commonwealth comply with the conditions set forth in the order. The district court retained jurisdiction to assure compliance.
The plaintiffs appealed. There was no cross-appeal by the defendant. The principal issue before us, as we see it, is whether maintenance of the stable under the conditions established by the district court constitutes an “endorsement” of Christianity by the Commonwealth. Concluding that it does not, we shall affirm the district court’s judgment.
I
Kentucky’s state capitol, which houses the offices of the Governor and Attorney General, the General Assembly, and the Supreme Court, is situated on grounds containing approximately 20 acres of land. The main entrance to the capitol grounds is a broad and imposing thoroughfare, one-half mile in length, called Capitol Avenue.
In the center island of Capitol Avenue stands a row of old-fashioned light poles. During the 1988 Christmas season, these light poles were decorated with evergreen strands and red bows. In addition, two parallel rows of trees along Capitol Avenue were decorated with white lights. Approximately 70 lamp posts situated on the capitol grounds were decorated with strands of greenery and red ribbons. The facade of the capitol building was decorated with similar greenery and ribbons, as were light poles along the capitol steps. The Governor’s mansion, immediately adjacent to the capitol grounds, was adorned with greenery, wreaths, and lighted trees. The rotunda of the capitol was decorated with eight lighted trees, greenery, and red ribbons. Outside the capitol building, in a direct line between it and Capitol Avenue, was placed a lighted Christmas tree 30 feet in height. The Christmas tree was entwined from top to botton with a golden, rope-like strand.
Approximately 100 yards toward Capitol Avenue from the Christmas tree was the stable (also called the “barn” or “nativity scene”) that gave rise to the present lawsuit. The structure was about 15 feet in height, and its floor area was about 30 feet by 20 feet. Approximately 20 yards from the stable was a corral. From the Capitol Avenue entrance, an observer would see the corral and stable at the end of the line of decorated light poles, with the brightly decorated Christmas tree above the stable and the dome of the capitol above the Christmas tree. Undecorated evergreen trees were placed in stands five to ten feet away from the stable. There was an area directly in front of the stable from which the Christmas tree would not be visible.
The stable was constructed by the Commonwealth at a total cost of approximately $2,400. Erected late in November, it was to be removed around Christmas Day. Among the rather extensive holiday decorations, the stable was apparently the only element not considered secular in nature.
The stable was first used on Monday, November 28, 1988, when children from a Roman Catholic school staged a live nativity scene there in connection with a Christmas parade along Capitol Avenue and a ceremonial lighting of the Christmas tree.
The stable was used for the presentation of live nativity scenes on two occasions subsequent to November 28. On each of these occasions the scene was put on by children from the same Catholic school. It has been stipulated that “the nativity scene” (apparently meaning the stable alone) was intended to symbolize the birth of Jesus Christ — an event, the stipulation reminds us, “of particular religious significance to Christians.”
II
The plaintiffs filed a verified complaint on December 2, 1988. The complaint asserted, on information and belief, that the challenged structure “will only be used for recreation of the nativity scene,” and that neither non-Christian religious groups nor secular groups would be permitted to use it at all. Unless continued maintenance and use of the structure were enjoined, the complaint alleged, the plaintiffs — three of whom were identified as adult citizens of the Commonwealth — would suffer irreparable harm in the form of deprivation of rights secured by the Establishment Clause of the First Amendment and the Due Process Clause of the Fourteenth Amendment. An amendment to the complaint filed on December 14, 1988, alleged that “[t]he sectarian use of the State Capitol grounds, as described [in the complaint], impairs each plaintiffs actual use and enjoyment of that property.”
It never became necessary for the defendant to file an answer to the complaint. The plaintiffs moved for a temporary restraining order and a preliminary injunction, and the district court scheduled a hearing on these motions for December 8, 1988. On December 6 the defendant moved for dismissal of the complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P.; the defendant asserted that the plaintiffs lacked standing to maintain the action, that the display complained of had a secular purpose, that its primary effect was not to advance any particular religion, and that there was no impermissible entanglement between the state and religion.
On the day of the hearing, the parties presented the district court with an extensive stipulation of facts. It was agreed that each side would be heard both on the issue of standing and on the merits, the hearing on the merits being consolidated with that on the preliminary injunction. See Rule 65(a)(2), Fed.R.Civ.P. Oral arguments were given by the parties and by two amici. Following the arguments, the court (accompanied by counsel) conducted a view of the capítol grounds and their immediate environs. An additional stipulation of facts was filed the following day.
On December 14, 1988, the court filed an extensive opinion — now reported at 701 F.Supp. 1296 — concluding (a) that the plaintiffs had standing to protest the presence of the stable on the capitol grounds, and (b) that the stable would not be unconstitutional if the conditions we have already described were complied with. The opinion was accompanied by a judgment order, id at 1316, permitting continuance of the structure during the holiday season subject to these conditions.
Ill
The Governor contends on appeal, as he did in the district court, that the plaintiffs lack standing. Like the district court, we would be reluctant to dispose of the ease on that ground. In Hawley v. City of Cleveland, 773 F.2d 736, 739-40 (6th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1266, 89 L.Ed.2d 575 (1986), where the plaintiffs alleged that the maintenance of a chapel at Cleveland Hopkins Airport impaired their use and enjoyment of the airport facilities, we held that the plaintiffs, who were Cleveland residents, had standing. See also Kaplan v. City of Burlington, 891 F.2d 1024 (2d Cir.1989) (residents of Burlington, Vermont, had standing to litigate constitutionality of city’s allowing a menorah to be displayed in City Hall Park).
As to the substance of the appeal, the oral argument in this case disclosed a significant difference of opinion between the parties as to whether the conditions imposed by the district court required that the area within the stable itself be treated as a public forum. The plaintiffs interpret the order as requiring that only the area outside the stable be made available for general use, while the defendant interprets the public forum requirement as extending to the entire area, including the space within the stable, subject only to such reasonable “time, place and manner” restrictions as the Commonwealth may impose.
We agree with the defendant’s interpretation. At one point in the opinion, it is true, the district court said that it would help alleviate any impression that the Commonwealth was endorsing religion if there were posted in the area a prominent notice “that the site immediately adjacent to the structure was available to any responsible religious or civic group_” 701 F.Supp. at 1302 (emphasis supplied). Later in the opinion, however, the court expressed itself as follows:
“Apparently only nativity pageants are now permitted within the structure and there are no existing regulations regarding use of the area immediately adjacent to the structure.
Constitutionally, this presents an unacceptable situation, but one easily remedied.” Id. at 1314 (emphasis supplied).
It is not entirely clear to us whether the district court thought that regulations regarding the adjacent area would make it constitutionally acceptable to permit only nativity pageants within the structure, but we believe that under any circumstances such a limitation on the use of the area within the structure would present a serious constitutional problem. That problem would be resolved by giving the court’s order what seems to us to be its most natural reading, i.e., that the entire area in question, including the area within the stable, is to be treated as a public forum. Where a public forum has been created, an “equal access” policy, extending to both religious groups and non-religious groups, is not incompatible with the Supreme Court’s Establishment Clause cases. Wid-mar v. Vincent, 454 U.S. 263, 271, 102 S.Ct. 269, 275, 70 L.Ed.2d 440 (1981).
In Kaplan v. City of Burlington, supra, the Court of Appeals for the Second Circuit did not read Widmar v. Vincent as teaching that a private religious group could properly be allowed to erect a menorah in a public park, even though the park was a traditional public forum. Judge Meskill, who dissented, thought Widmar v. Vincent was controlling. Judge Meskill’s dissent strikes us as persuasive, but the case at bar is factually distinguishable from Kaplan in any event; here the symbol at
Under the district court’s order in this case, as we read it, the Commonwealth may not arbitrarily refuse to accommodate a civic group that wishes to use the stable for a pageant featuring Santa and his reindeer, or a non-Christian religious group that wishes to celebrate a December holiday there, or a secular choir that wishes to present a program featuring songs like “Jingle Bells,” “White Christmas,” “Santa Claus is Coming to Town,” and “Rudolph the Red-Nosed Reindeer.” The fact remains, however, that the structure will, from time to time, be used for live nativity scenes. Even when not being used by anyone, moreover, the stable will, for many, symbolize — as it was intended to — the birth of Jesus, the historical fact commemorated by the holiday. That being so, we must ask whether, notwithstanding Widmar v. Vincent, the presence of such a Christian symbol among the other holiday decorations put up by the Commonwealth signifies a governmental endorsement of Christianity.
At least in the absence of the express disclaimer ordered by the district court, the most recent precedents suggest an affirmative answer to that question. In American Civil Liberties Union v. City of Birmingham, 791 F.2d 1561 (6th Cir.), cert. denied, 479 U.S. 939, 107 S.Ct. 421, 93 L.Ed.2d 371 (1986), for example, this court upheld an injunction prohibiting a Michigan city from displaying a city-owned nativity scene on the front lawn of the city hall at Christmastime. The area had other holiday decorations not unlike those in this case; there was a Christmas tree with colored lights immediately behind the nativity scene, and the city had decorated perhaps a dozen other evergreen trees on the city hall property. See 791 F.2d at 1570, n. 4 (Nelson, J., dissenting). The city, moreover, had decorated the trees in the central business district surrounding the city hall with over 1,000 strings of Christmas lights. Id. The panel majority (Lively, C.J., and Merritt, J.) did not consider these secular decorations sufficient to avoid the prohibition of the Establishment Clause, and the Supreme Court’s subsequent ruling in County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. -, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), makes it clear, we think, that the Supreme Court would have agreed with Judges Lively and Merritt in City of Birmingham.
The present case differs from both City of Birmingham and Allegheny County in that here we have a structure capable of use for non-religious purposes, and the structure is unaccompanied by any display of religious figurines or statues. The nativity scene in City of Birmingham was comprised solely of “figurines depicting the Christ Child, the Mother Mary, Joseph, three costumed shepherds, and several lambs,” 791 F.2d at 1562, while the Allegheny County créehe included “figures of the infant Jesus, Mary, Joseph, farm animals, shepherds, and wise men, all placed in or before a wooden representation of a manger_” 492 U.S. at -, 109 S.Ct. at 3094, 106 L.Ed.2d at 486.
On the other hand, at least after the conclusion of the Christmas parade, we have in this case no figure of Santa Claus, reindeer, carolers, clowns, elephants, teddy bears, or other secular figures of the sort that have sometimes helped confer constitutional legitimacy on governmental Christmas displays incorporating créches. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). In the absence of any figures at all, sacred or secular, the stable alone would probably strike Justice O’Connor’s “reasonable observer” (see Witters v. Washington Department of Services for the Blind, 474 U.S. 481, 493, 106 S.Ct. 748, 754-755, 88 L.Ed.2d 846 (1986) (O’Connor, J., concurring)) as having at least some religious significance. And that significance comes alive, of course, whenever living people use the stable for reenactments of the nativity. On balance, therefore, we are inclined to think that without a disclaimer, the precedents point toward the conclusion that the unadorned stable would represent an impermissible endorsement of religion.
The impact of the Commonwealth disclaimer is strengthened, we believe, by the fact that the observer is also told that the area is a public forum available to all. The message thus sent to Christians and non-Christians alike is that the Commonwealth offers equal opportunity encouragement for the celebration of whatever winter holiday any responsible citizen, or civic group, or religious group may wish to observe. The Ebenezer Scrooges of this world might prefer business as usual, to be sure, but the Constitution prohibits only the establishment of religion, not the facilitation of periodic public festivities of a nonexclusion-ary nature.
The plaintiffs dismiss the court-ordered signage as a “sham,” but the record contains no evidence of the defendant’s actual state of mind when he decided to comply with the court’s conditions. If actions speak louder than words, moreover, it is obviously significant that the Commonwealth has opened the stable to use by secular and non-Christian groups on an equal footing with Christian groups, and has made this fact known to the public. The cynic may detect a faintly Orwellian note in many of the things governments say on many subjects, but our sense is that as far as the signs at issue here are concerned, the average Kentuckian would be likely to take them pretty much at face value.
The Allegheny County case had not been decided by the Supreme Court at the time of the district court’s decision here, but the Court of Appeals for the Third Circuit had already delivered itself of an opinion in which the court concluded that Allegheny County had acted unlawfully in allowing a local Holy Name Society to place a creche inside the main entrance of the Allegheny County courthouse. (The Third Circuit opinion is reported at 842 F.2d 655.) A sign in front of the créche said “[t]his display donated by the Holy Name Society.” The opinion of the district court in the instant case says that “[a] disclaimer was also displayed,” 701 F.Supp. at 1307, but that is not correct; there was no disclaimer in the Allegheny County courthouse.
“SALUTE TO LIBERTY
During this holiday season, the City of Pittsburgh salutes liberty. Let these festive lights remind us that we are keepers of the flame of liberty and our legacy of freedom.” 842 F.2d at 658.
Justice Blackmun, at least, read this as confirmation that “the display of the menorah is not an endorsement of religious faith but simply a recognition of cultural diversity.” 492 U.S. at -, 109 S.Ct. at 3115, 106 L.Ed.2d at 511. If a “salute to liberty” sign can help negate any implication of an endorsement of religion, it seems to us that a sign explicitly denying any endorsement of religion ought to help even more.
We recognize, of course, that the effectiveness of the disclaimer sign must be evaluated in light of the context in which the sign is displayed. Thus in Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980), where the Commonwealth required the posting of a copy of the Ten Commandments on the wall of each public classroom in the state, the Supreme Court held that the absence of a secular legislative purpose could not be cured by requiring the following notation to be appended in small print at the bottom of each copy of the Ten Commandments:
“The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.” 449 U.S. at 41, 101 S.Ct. at 193.
We doubt that Stone v. Graham is controlling here. In the first place, the Supreme Court has squarely held that there are legitimate secular purposes for displays that celebrate the Christmas holiday and depict its origins. Lynch v. Donnelly, 465 U.S. 668, 680-81, 104 S.Ct. 1355, 1362-63, 79 L.Ed.2d 604 (1984). The same secular purposes that make it legitimate for Congress to declare Christmas Day a legal public holiday, see 5 U.S.C. § 6103, make it legitimate for state and local governments to decorate their governmental seats for the holiday season. The Supreme Court held as a matter of law that there could be no such secular purpose behind the Ten Commandments statute at issue in Stone v. Graham.
In the second place, the Ten Commandments statute was aimed at a captive audience of school children who would have had to live with the Commandments, if not by them, throughout the school year. In the case at bar, on the other hand, there has been no showing that any child would have to view the Christmas decorations at the state capítol under compulsion, and the decorations are displayed there for only a few weeks’ time in any event. Here the Commonwealth’s disclaimer of any religious endorsement is not presented in the “small print” mentioned in Stone v. Graham, moreover, but in letters readable from a moving automobile.
The real issue, it seems to us, is whether the presence of the stable on the grounds of the state capítol conveys such an “overwhelming message of endorsement,” to borrow Justice Blackmun’s phrase, that in reality no mere sign can effectively disclaim it. See Allegheny County, 492 U.S. at -, 109 S.Ct. at 3114, 106 L.Ed.2d at 511. The visual impact of a nativity scene can be very strong, of course, as the centuries have demonstrated. In the age of television, with literacy declining, perhaps an image such as this is simply too powerful to be allowed under any circumstances. But that was not the conclusion reached by the Supreme Court in Lynch, where even without an express disclaimer, non-religious Christmas decorations and figurines were deemed sufficient to lend secular
The stable with which we are concerned here must also be viewed in the context of the holiday season. And the effectiveness of the “prominently displayed” disclaimer sign “immediately in front of the stable structure” must be evaluated not only in light of the fact that the structure is on view only for the few weeks between Thanksgiving and Christmas, but also in light of the fact that it is not accompanied by any religious statuary whatever, the fact that the Commonwealth has also erected extensive holiday decorations of a nonreligious nature, and the fact that the structure is available for use by everyone, as everyone is expressly told. Taking all these considerations into account, we agree with the district court’s conclusion that the signage is effective to negate any implication of an endorsement of a religion.
IV
The plaintiffs argue that the district court abused its judicial role by holding that if the defendant complied with the remedial measures specified in the court’s order, the stable would not be banned. According to the plaintiffs, the court rendered “an ‘advisory opinion’ that was prohibited by Article Ill’s requirement of an ‘actual case or controversy.’ ”
We see no merit in this argument. If the plaintiffs have standing, as we hold they do, the case or controversy requirement is obviously met here. The plaintiffs’ complaint set forth the existence of a justicia-ble controversy and concluded with a prayer that the district court “grant such further relief to which plaintiffs may be entitled.” That is just what the court did.
The essence of equity jurisprudence is “the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case.” Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 591, 88 L.Ed. 754 (1944). What the district court did here, essentially, was to provide that the prescribed signs be posted, the prescribed regulations adopted, and the public funds condition met, on pain of more sweeping relief being ordered. It was precisely to assure compliance with the conditions set forth in the order, as the final paragraph of the order says in so many words, that the court “retain[ed] continuing jurisdiction of this matter.” Surely a district court may enter an order concerning the size, visibility, and message of an appropriate disclaimer sign. That is exactly what the Court of Appeals for the Second Circuit ordered the district court to do in McCreary v. Stone, 739 F.2d 716, 728 (2d Cir.1984), aff'd, by an equally divided, court, 471 U.S. 83, 105 S.Ct. 1859, 85 L.Ed.2d 63 (1985). See also Allen v. Morton, 495 F.2d 65, 90-91 (D.C.Cir.1973) (Leventhal, J., concurring):
“If the decision is to have the government terminate its relationship with the Pageant, the district court will enter an injunction requiring the government to post a new set of plaques. These plaques should be designed for maximum exposure and readibility to the sole purpose of stating that the government in no way sponsors the Pageant of Peace event. This message should not, as is presently the case, be obscured by a lengthy description of the origins and nature of the Pageant.”
Equally unavailing is the plaintiffs’ argument that the erection and maintenance of the stable impermissibly “entangles” the Commonwealth with religion, in violation of the final branch of the test prescribed in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). It is true that the Commonwealth has assumed administrative responsibility for coordinating requests from citizens, civic groups, and religious groups for use of the stable and the adjacent area. Any public forum has a limited physical capacity, however, and as Judge Leventhal pointed out in Allen v. Morton, “[principles of neutrality and nondiscrimination do not require all groups to have access to the same [forum] simultaneously.” 495 F.2d at 90. The First Amendment simply does not preclude establishment and enforcement of reasonable
We have tried to give careful consideration to all of the arguments advanced by the plaintiffs, including those not explicitly addressed in this opinion, and although we find this a difficult case, we are not, in the end, persuaded that the plaintiffs are entitled to more than they have received. The judgment of the district court is AFFIRMED.
. The parade consisted of more than 100 entries, we are told, including floats with Santa Claus, reindeer, candy and toys.
. In their entirety, the conditions read thus:
"A. That all past and future expenditures of public funds in connection with the display described in the Opinion be defrayed by private contributions;
"B. That a disclaimer be prominently displayed immediately in front of the stable structure, readable from an automobile passing on the street directly in front of the structure, which disclaimer shall read substantially as follows:
‘This display was not constructed with public funds and does not constitute an endorsement by the Commonwealth of any religion or religious doctrine.’
*1102 "C. That a notice be prominently posted in the immediate area of the stable structure advising the public that the area, as a public forum, is available to all responsible citizens and civic and religious groups for holiday ceremonies, pageants or displays;
"D. That the Commonwealth adopt a formal written policy consistent with the notice, which may contain any reasonable time, place and manner restrictions the Commonwealth wishes to impose.”
. In its highly commendable effort to get an opinion out as early in the holiday season as possible — an effort that probably explains other occasional infelicities in the opinion' — the district court may momentarily have confused the facts in Allegheny County with those in American Jewish Congress v. City of Chicago, 827 F.2d 120 (7th Cir.1987). See id. at 123, where the Seventh Circuit explained that the creche in that case, which was displayed in the lobby of the Chicago City-County Building, was accompanied by disclaimer signs reading "Donated by the Chicago Plasterers Institute — this exhibit is neither sponsored nor endorsed by the Government of the City of Chicago.” Quoting the lower court, the Seventh Circuit observed that "a disclaimer of the obvious is of no significant effect,” id. — but in City of Chicago the courts were not dealing with a structure that was unadorned by religious statuary and that had been made available for use by groups representing any religion and none.