Vasquez v. Los Angeles ("LA") County

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNESTO R. VASQUEZ, 
Plaintiff-Appellant,
v.
LOS ANGELES (“LA”) COUNTY; DON
KNABE, in his official capacity as a
Supervisor, LA County; GLORIA
MOLINA, in her official capacity as No. 04-56973
a Supervisor, LA County; YVONNE
B. BURKE, in her official capacity  D.C. No.
CV-04-04010-SJO
as a Supervisor, LA County; ZEV
OPINION
YAROSLAVSKY, in his official
capacity as a Supervisor, LA
County; and MICHAEL D.
ANTONOVICH, in his official
capacity as a Supervisor, LA
County,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted
October 17, 2006—Pasadena, California
Filed May 15, 2007
Before: Harry Pregerson, Ronald M. Gould, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
5681
VASQUEZ v. LOS ANGELES COUNTY 5685
COUNSEL
Robert J. Muise (argued), Edward L. White III, Thomas More
Law Center, Ann Arbor, Michigan, for the appellant.
Raymond G. Fortner, Jr., County Counsel; Gary N. Miller,
Assistant County Counsel; Jennifer A. D. Lehman (argued),
Deputy County Counsel, Office of the County Counsel, Los
Angeles, California, for the appellees.
John C. Eastman and Manuel S. Klausner, Orange, California,
for amici curiae the Claremont Institute Center for Constitu-
tional Jurisprudence and the Individual Rights Foundation,
Los Angeles, California.
OPINION
CLIFTON, Circuit Judge:
Plaintiff-Appellant Ernesto R. Vasquez appeals the district
court’s dismissal of his 42 U.S.C. § 1983 action for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6).
Vasquez alleges that Defendants, the County of Los Angeles
(“LA County”) and the members of the LA County Board of
Supervisors, violated the Establishment Clause of the First
Amendment by removing the image of a cross from the coun-
ty’s official seal. Specifically, Vasquez alleges that Defen-
dants’ removal of the cross from the seal conveyed a state-
sponsored message of hostility toward Christians. Because we
conclude that Defendants did not violate the Establishment
Clause, we affirm the district court’s order dismissing
Vasquez’s complaint with prejudice.
I. BACKGROUND
According to Vasquez’s briefs and the record, the version
5686 VASQUEZ v. LOS ANGELES COUNTY
of the LA County Seal that included the image of the cross
was first adopted on January 2, 1957, and contained “symbols
of historical and cultural significance.”1 In addition to the
cross, which represented the “influence of the church and the
missions of California,” the seal also depicted the Roman
Goddess Pomona,2 engineering instruments, the Spanish gal-
leon San Salvador, a tuna, a cow, the Hollywood Bowl, two
stars (representing the county’s motion picture and television
industries), and oil derricks. A black and white image of the
1957 seal is attached as Appendix A to this opinion.
In 2004, Defendants revised the seal. First, Defendants
removed the cross from the seal and substituted the image of
Mission San Gabriel, the first mission established in the county.3
Second, Defendants replaced the image of Pomona with that
of a Native American woman holding a basket. Third, Defen-
dants deleted the image of the oil derricks altogether. A black
and white image of the 2004 seal is attached as Appendix B
to this opinion.
According to Defendants, their decision to remove the
cross from the seal was motivated by a desire to “avoid a
potential Establishment Clause violation . . . and [to] affirm
[the county’s] neutrality.” Plaintiff Vasquez contends, how-
ever, that Defendants’ decision to remove the cross was moti-
vated by their disapproval of, and hostility towards, the
Christian religion. He further alleges that Defendants’ deci-
sion to remove the cross was improperly influenced by the
1
A prior version of the seal, in effect from 1887 to 1957, featured a sin-
gle image: a cluster of grapes nestled in leaves. See http://lacounty.info/
grapeseal.pdf (last visited Mar. 6, 2007).
2
According to Defendants’ official website, Pomona is the “goddess of
gardens and fruit trees,” and her presence on the seal represented the role
of agriculture in the county.
3
Vasquez disputes Defendants’ characterization of the substitute symbol
as a Christian mission. We address this argument in footnote 7 of this
opinion.
VASQUEZ v. LOS ANGELES COUNTY 5687
American Civil Liberties Union, which had threatened to sue
Defendants over the presence of the cross on the seal as an
impermissible preference for Christianity.
Vasquez is a resident and employee of LA County, and he
identifies himself as a “devout Christian.” On June 4, 2004,
Vasquez filed this action against LA County and the members
of the LA County Board of Supervisors, seeking relief under
the Establishment Clause of the First Amendment, as applied
to the states through the Fourteenth Amendment. Defendants
promptly filed a Rule 12(b)(6) motion to dismiss Vasquez’s
complaint for failure to state a claim for which relief can be
granted. Before the district court ruled on Defendants’
motion, Vasquez filed a First Amended Complaint. In the
amended complaint, Vasquez alleged that Defendants’ act in
“singling out the cross for removal from the LA County Seal”
conveyed a state-sponsored message of hostility towards
Christians and sent a clear message to Christians that they
were outsiders, not full members of the political community.
Vasquez claimed that he was injured by Defendants’ conduct
because he had “daily contact” with the revised seal and was
forced to “alter his behavior to avoid this direct injury.” For
relief, Vasquez requested that the district court: (1) enjoin
Defendants’ removal of the cross from the seal; (2) issue a
declaratory judgment holding Defendants’ removal of the
cross from the seal to be unconstitutional; and (3) uphold the
constitutionality of the 1957 version of the seal containing the
cross. Defendants responded with a second Rule 12(b)(6)
motion.
The district court granted Defendants’ motion and dis-
missed Vasquez’s complaint without leave to amend on Octo-
ber 19, 2004. According to the district court, Vasquez’s
complaint failed to state a claim for which relief can be
granted because: (1) Vasquez did not have standing to bring
the Establishment Clause challenge; (2) Defendants’ substitu-
tion of the cross with the mission rendered Vasquez’s Estab-
5688 VASQUEZ v. LOS ANGELES COUNTY
lishment Clause challenge moot; and (3) the substance of
Vasquez’s Establishment Clause challenge lacked merit.
Vasquez timely appealed the district court’s order of dis-
missal.
II. DISCUSSION
We review de novo the district court’s dismissal of a com-
plaint for failure to state a claim under Rule 12(b)(6). Zim-
merman v. City of Oakland, 255 F.3d 734, 737 (9th Cir.
2001). In reviewing such a motion, we accept all material
allegations of fact as true and construe the complaint in a light
most favorable to the non-moving party. We have consistently
emphasized, however, that “conclusory allegations of law and
unwarranted inferences” will not defeat an otherwise proper
motion to dismiss. See Schmier v. U.S. Court of Appeals for
the Ninth Circuit, 279 F.3d 817, 820 (9th Cir. 2002) (internal
citation and quotation marks omitted). Dismissal for failure to
state a claim is appropriate only “if it appears beyond doubt
that the [non-moving party] can prove no set of facts in sup-
port of his claim which would entitle him to relief.” Zimmer-
man, 255 F.3d at 737 (internal citation and quotation marks
omitted).
A. Standing
We begin our review with the district court’s holding that
Vasquez lacked standing to bring this Establishment Clause
challenge. Standing is a question of law and we review de
novo. Bernhardt v. County of Los Angeles, 279 F.3d 862, 867
(9th Cir. 2002). A party has standing if: (1) he suffers an “in-
jury in fact”; (2) the injury is “fairly traceable” to the chal-
lenged conduct; and (3) the injury is likely to be redressed by
a favorable judicial decision. Buono v. Norton, 371 F.3d 543,
546 (9th Cir. 2004); see also Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992).
VASQUEZ v. LOS ANGELES COUNTY 5689
Vasquez asserts two bases for standing. First, he claims he
was forced to have daily contact with the revised seal, pre-
sumably because he was a resident and employee of LA
County. The injury resulting from such contact, Vasquez
argues, is sufficiently “concrete and particularized” to confer
Article III standing.4 See Lujan, 504 U.S. at 560; Bernhardt,
279 F.3d at 868-69. Alternatively, Vasquez asserts standing as
a county taxpayer. We hold that Vasquez has standing
because he has alleged a legally cognizable injury arising out
of his frequent regular contact with the revised county seal.
Consequently, we do not reach the merits of Vasquez’s tax-
payer standing argument.
[1] Whether frequent regular contact with an allegedly
offensive religious symbol — or, in this case, an allegedly
offensive anti-religious symbol — can give rise to a legally
cognizable injury is an open question in this circuit. In prior
cases, we have held plaintiffs’ affirmative avoidance of areas
where such symbols are located to be sufficient to confer
standing. For example, in Buono v. Norton, 371 F.3d 543 (9th
Cir. 2004), a plaintiff who “regularly visited” the Mojave
National Preserve sought to obtain an injunction for the
removal of a cross located upon a tract of federally owned
land in the Preserve. Id. at 544, 546. He claimed that he had
standing because he was “deeply offended” by the public dis-
play of the cross on government property and, as a result,
tended to avoid the area where the cross was located. See id.
at 546-47. We held that defendant’s allegedly unconstitutional
conduct had impaired plaintiff’s ability to “freely” and “unre-
servedly use public land,” and that this impairment consti-
tuted an injury in fact sufficient to confer Article III standing.
See id. at 547-48; see also Separation of Church & State
4
Although Vasquez also claimed to have affirmatively “alter[ed] his
behavior” to avoid contact with the revised seal, the district court disre-
garded this conclusory allegation for lack of specificity. Because we con-
clude that Vasquez would have had standing even in the absence of any
altered behavior, we do not address the finding of the district court.
5690 VASQUEZ v. LOS ANGELES COUNTY
Comm. v. City of Eugene, 93 F.3d 617, 619 n.2 (9th Cir.
1996) (plaintiffs established injury in fact when “they alleged
that the cross [on public land] prevented them from freely
using” the public park at issue); Ellis v. City of La Mesa, 990
F.2d 1518, 1523 (9th Cir. 1993), cert. denied sub nom., San
Diego County v. Murphy, 512 U.S. 122 (1994) (plaintiffs
established injury in fact when they alleged they were not
“able to freely use the public areas” due to the presence of a
cross on public land); Kreisner v. City of San Diego, 1 F.3d
775, 778 n.1 (9th Cir. 1993), cert. denied, 510 U.S. 1044
(1994) (accord); Hewitt v. Joyner, 940 F.2d 1561, 1564-65
(9th Cir. 1991) (accord). In none of our cases, however, have
we held affirmative avoidance to be a necessary component
of Article III’s standing requirement, and we decline to do so
today.
It is useful to understand the purpose of the standing doc-
trine and, in particular, the element of the doctrine that
requires a plaintiff to personally suffer some actual or threat-
ened harm as a result of defendant’s putatively illegal con-
duct. See Heckler v. Mathews, 465 U.S. 728, 738 (1984). At
its core, the standing doctrine is aimed at “improv[ing] judi-
cial decision-making by ensuring that there is a specific con-
troversy before the court and that there is an advocate with a
sufficient personal concern to effectively litigate the matter.”
ERWIN CHEMERINSKY, FEDERAL JURISDICTION 58 (4th ed. 2003).
As the Supreme Court emphasized in Baker v. Carr, 369 U.S.
186 (1962), the “gist of the question of standing” is whether
the plaintiff has “alleged such a personal stake in the outcome
of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult constitu-
tional questions.” Id. at 204; see also Scott v. Rosenberg, 702
F.2d 1263, 1267 (9th Cir. 1983).
[2] The concept of a “concrete” injury is particularly elu-
sive in the Establishment Clause context. See Suhre v. Hay-
wood County, 131 F.3d 1083, 1085 (4th Cir. 1997) (citing
VASQUEZ v. LOS ANGELES COUNTY 5691
Murray v. City of Austin, 947 F.2d 147, 151 (5th Cir. 1991)).
This is because the Establishment Clause is primarily aimed
at protecting non-economic interests of a spiritual, as opposed
to a physical or pecuniary, nature. Suhre, 131 F.3d at 1086
(noting that “the spiritual, value-laden beliefs of the plaintiffs
are often most directly affected by an alleged establishment of
religion”) (citing ACLU v. Rabun County, 698 F.2d 1098,
1102 (11th Cir. 1983)) (internal quotation marks omitted). As
the Fourth Circuit noted in Suhre, the injury that gives stand-
ing to plaintiffs in the Establishment Clause context is the
injury “caused by unwelcome direct contact with a religious
display that appears to be endorsed by the state.” Id.
The Supreme Court recognized the spiritual interests
embodied in the Establishment Clause in School District of
Abington v. Schempp, 374 U.S. 203 (1963). In that case, pub-
lic school students and their parents challenged the school dis-
trict’s practice of opening each day with Bible reading and
voluntary prayer. The Supreme Court held that those plaintiffs
had standing to sue, even though the students did not quit
school in response to the defendant’s religious activities.
According to the Court, plaintiffs had standing because they
were “directly affected by the laws and practices against
which their complaints [were] directed,” id. at 224 n.9, and
therefore, had “a spiritual stake in First Amendment values
sufficient to give standing to raise issues concerning the
Establishment Clause.” Ass’n. of Data Processing Serv.
Orgs., Inc. v. Camp, 397 U.S. 150, 154 (1970) (interpreting
Schempp, 374 U.S. 203 (1963)) (emphasis added); see also
Suhre, 131 F.3d at 1086 (accord).
[3] In certain cases, a plaintiff’s contact with an allegedly
offensive religious or anti-religious symbol will remain too
tenuous, indirect, or abstract to give rise to Article III stand-
ing. This is necessarily so, lest this court be converted into “a
vehicle for the vindication of the value interests of concerned
bystanders,” United States v. SCRAP, 412 U.S. 669, 687
(1973), or worse yet, a “judicial version[ ] of college debating
5692 VASQUEZ v. LOS ANGELES COUNTY
forums.” Valley Forge Christian College v. Ams. United for
Separation of Church & State, Inc., 454 U.S. 464, 473 (1982).
We do not believe, however, that this is such a case. Vasquez
has alleged more than “a mere abstract objection” to Defen-
dants’ removal of the cross from the county seal. See Suhre,
131 F.3d at 1086. To the contrary, he has held himself out as
a member of the community where the seal is located, as
someone forced into frequent regular contact with the seal,
and perhaps most importantly, as someone “directly affected”
by his “unwelcome direct contact” with the seal. If we assume
for the moment that the revised seal did, in fact, convey an
anti-Christian message, then it is understandable that Vasquez
would feel aggrieved by that message. He should, accord-
ingly, be able to seek a legal remedy. See Schempp, 374 U.S.
at 224 n.9 (holding that plaintiffs had standing because they
were “directly affected by the laws and practices against
which their complaints [were] directed”); Suhre, 131 F.3d at
1087 (“Plaintiffs who ‘are part of the community where chal-
lenged religious symbolism is located and are directly
affronted by the presence of this symbolism’ certainly ‘have
more than an abstract interest in seeing that the government
observes the Constitution.’ ”) (quoting Saladin v. City of Mil-
ledgeville, 812 F.2d 687, 693 (11th Cir. 1987)) (internal alter-
ations omitted). In short, Vasquez has alleged a sufficiently
concrete injury arising out of his direct contact with the pur-
portedly offensive anti-religious symbol at issue in this case.
Defendants suggest that a standing rule that does not
always require plaintiffs to show affirmative avoidance of the
allegedly offensive religious (or anti-religious) symbol would
be in tension with the Supreme Court’s decision in Valley
Forge. In that case, a nonprofit organization headquartered in
Washington, D.C. and four of the organization’s employees
challenged a conveyance of land from the government to a
religious institution in Pennsylvania, upon learning of the
conveyance through a press release. The Court held that those
plaintiffs lacked standing to sue:
VASQUEZ v. LOS ANGELES COUNTY 5693
[Plaintiffs] complain of a transfer of property located
in Chester County, Pa. The named plaintiffs reside in
Maryland and Virginia; their organizational head-
quarters are located in Washington, D.C. They
learned of the transfer through a news release. Their
claim that the Government has violated the Estab-
lishment Clause does not provide a special license to
roam the country in search of governmental wrong-
doing and to reveal their discoveries in federal court.
Valley Forge, 454 U.S. at 486-87.
We view Valley Forge to be distinguishable from this case.
Unlike plaintiffs in Valley Forge, who were physically
removed from defendant’s conduct, Vasquez is a member of
the community where the allegedly offending symbol was
located, and his contact with the symbol was frequent and
regular, not sporadic and remote. In fact, if we accept all of
Vasquez’s material factual allegations to be true, which we do
at this stage, we must also accept the factual premise that the
offending symbol “will be displayed on county buildings,
vehicles, flags, stationary, forms, commendations, uniforms,
and elsewhere through LA County,” thereby forcing Vasquez
into unwelcome “daily contact and exposure” of the most per-
vasive kind. These facts and allegations make Vasquez’s sta-
tus fundamentally different from that of plaintiffs in Valley
Forge. See Suhre, 131 F.3d at 1087 (noting that “where there
is a personal connection between the plaintiff and the chal-
lenged display in his or her home community, standing is
more likely to lie”).
In addition, we note that a standing rule requiring plaintiffs
to show affirmative avoidance would impose too onerous a
burden upon those seeking to challenge governmental action
under the Establishment Clause. Such a requirement would
effectively force individuals to quit their jobs or forgo school
attendance, solely for the purpose of obtaining standing to
sue. See id. at 1089. As the Fourth Circuit pointed out in
5694 VASQUEZ v. LOS ANGELES COUNTY
Suhre, an avoidance requirement for standing would
“[b]ring[ ] . . . Establishment Clause plaintiffs to the verge of
civil disobedience [and] would go beyond what any court has
heretofore decreed.” Id. at 1088-89. We agree with the Fourth
Circuit and, likewise, decline to impose such a heavy burden
upon those seeking to vindicate their spiritual rights against
allegedly unconstitutional governmental conduct under the
Establishment Clause.
We note that the majority of other circuits that have consid-
ered the issue have held spiritual harm resulting from one’s
direct contact with an offensive religious (or anti-religious)
symbol to be a sufficient basis to confer Article III standing.
See Suhre, 131 F.3d at 1088 (noting that a majority of circuits
have held “that neither Supreme Court precedent nor Article
III imposes . . . a change-in-behavior requirement”). For
example, in Suhre, a county resident sued Haywood County,
North Carolina, seeking removal of a Ten Commandments
display from the county courtroom. Plaintiff alleged he was
“offended” and “filled with revulsion” every time he came
into contact with the display, which was often because he was
a “contentious character” who had prosecuted no less than
five civil suits against his neighbors and had twice been con-
victed for misdemeanor telephone harassment. Id. at 1085.
Plaintiff, however, was unable to allege that the display
caused him to alter his behavior in any way. Id. The Fourth
Circuit nevertheless held him to have standing, and in so
doing, rejected the notion that legally cognizable injury could
arise only when a plaintiff alters his behavior or curtails his
activities in response to an offensive religious symbol. See id.
at 1085, 1088.
Other circuits are in accord. In Saladin v. City of Milledge-
ville, 812 F.2d 687 (11th Cir. 1987), the Eleventh Circuit con-
cluded that city residents’ forced “direct contact with the
offensive [city seal]” constituted an injury in fact sufficient to
confer Article III standing. Id. at 692-93. In Foremaster v.
City of St. George, 882 F.2d 1485 (10th Cir. 1989), cert.
VASQUEZ v. LOS ANGELES COUNTY 5695
denied, 495 U.S. 910 (1990), the Tenth Circuit considered the
claim of an individual who lived outside the city but had “fre-
quent and close connection” within, and held that his “allega-
tions of direct, personal contact [with the offending city logo]
suffice[d] as non-economic injury” and gave rise to standing.
Id. at 1490-91. In Murray v. City of Austin, 947 F.2d 147 (5th
Cir. 1991), cert. denied, 505 U.S. 1219 (1992), the Fifth Cir-
cuit held that a resident had standing to challenge the city seal
because he “live[d] and work[ed] in [the City], receiv[ed]
many items of correspondence from the City, . . . [and] per-
sonally confront[ed] the insignia in many locations around the
City.” Id. at 150. Finally, in Kaplan v. City of Burlington, 891
F.2d 1024 (2d Cir. 1989), cert. denied, 496 U.S. 926 (1990),
the Second Circuit presumed that city residents had standing
to sue after they claimed to “have been exposed to the meno-
rah in the course of their daily activities.” Id. at 1027.5
[4] We join the majority of the circuits and hold that, in the
Establishment Clause context, spiritual harm resulting from
unwelcome direct contact with an allegedly offensive reli-
gious (or anti-religious) symbol is a legally cognizable injury
and suffices to confer Article III standing. Accordingly, we
conclude that Vasquez’s Establishment Clause claim should
not have been dismissed for lack of standing.
B. Mootness
To qualify for adjudication in a federal court, a live contro-
versy must exist at all stages of the litigation, not simply at
5
But see Freedom From Religion Found. v. Zielke, 845 F.2d 1463 (7th
Cir. 1988). In that case, the Seventh Circuit held that a city resident did
not have standing to challenge the presence of a Ten Commandments dis-
play in a city park because she failed to allege behavioral modification
resulting from the presence of that display. Id. at 1467. To the extent that
the Seventh Circuit views affirmative avoidance or behavioral modifica-
tion as an indispensable component of Article III’s injury in fact require-
ment, we reject that court’s approach.
5696 VASQUEZ v. LOS ANGELES COUNTY
the time plaintiff filed the complaint.6 Preiser v. Newkirk, 422
U.S. 395, 401 (1975); In re Di Giorgio, 134 F.3d 971, 974
(9th Cir. 1998). We review de novo the district court’s moot-
ness determination. Di Giorgio, 134 F.3d at 974.
The district court dismissed Vasquez’s complaint as moot
after it determined that in revising the seal, Defendants simply
replaced one Christian symbol (the cross) with another (the
mission). According to the district court, it is unclear how
Defendants’ decision to “adopt a new seal displaying an
image of a Christian church could possibly be viewed as hos-
tile to Christianity.” Vasquez vigorously disputes the district
court’s characterization of the substitute symbol as “Christian.”7
6
In United States Parole Comm’n v. Geraghty, 445 U.S. 388 (1980), the
Supreme Court defined the mootness doctrine as a “doctrine of standing
in a time frame: The requisite personal interest that must exist at the com-
mencement of the litigation (standing) must continue throughout its exis-
tence (mootness).” Id. at 397 (quoting Henry Monaghan, Constitutional
Adjudication: The Who and When, 82 YALE L.J. 1363, 1384 (1973)) (inter-
nal quotation marks omitted).
A case may be rendered moot by a number of different events:
For example, a case is moot if a criminal defendant dies during
the appeals process or if a civil plaintiff dies where the cause of
action does not survive death. Also, if the parties settle the mat-
ter, a live controversy obviously no longer exists. If a challenged
law is repealed or expires, the case is moot. Essentially, any
change in the facts that ends the controversy renders the case
moot.
ERWIN CHEMERINSKY, FEDERAL JURISDICTION 125-26 (4th ed. 2003) (internal
citations omitted).
7
Specifically, Vasquez challenges the district court’s characterization of
the substitute symbol as a “Christian” church or mission, noting the
absence of a cross and arguing that there is nothing else to identify the
depicted structure as “Christian.” The county, on its website, describes the
substitute symbol as Mission San Gabriel, which, as a matter of history,
was a Christian mission. We recognize, however, that few observers of the
revised seal are likely to search the county website for the mission’s offi-
cial description. In any event, we do not believe it is necessary for us to
address the question of how the substitute symbol would likely be per-
VASQUEZ v. LOS ANGELES COUNTY 5697
[5] The district court confused the doctrine of mootness
with a determination of Vasquez’s claim on the merits. The
central issue in any Establishment Clause case is whether a
governmental act impermissibly endorsed or disapproved of
religion. See Lemon v. Kurtzman, 403 U.S. 602, 612-13
(1971). Here, the district court concluded — before applying
Lemon and “as a simple matter of fact” — that Defendants’
act in replacing the cross could not “possibly be viewed as
hostile to Christianity.” This is a determination not of moot-
ness, but rather of the substance of Vasquez’s Establishment
Clause claim.
[6] Had Defendants restored the old seal or inserted a cross
of comparable size and style into the revised seal, the current
action might have been rendered moot. Adding the image of
the mission did not terminate the controversy, however,
because Vasquez contends that the revised seal, including the
mission, conveys a message of hostility to the Christian reli-
gion. That claim is not moot, and the district court’s holding
to the contrary was in error.
C. The Establishment Clause
Having determined that Vasquez has standing to bring this
claim and that the claim is not moot, we move to address the
substance of Vasquez’s Establishment Clause challenge.
Whether there has been an Establishment Clause violation is
a question of law, and we review de novo. Buono v. Norton,
371 F.3d 543, 548 (9th Cir. 2004).
[7] Notwithstanding its “checkered career,” Lemon v.
Kurtzman, 403 U.S. 602 (1971), continues to set forth the
ceived in order to resolve this appeal. In our consideration of Vasquez’s
Establishment Clause challenge, set forth below, we accept Vasquez’s
contention and do not assume that a “reasonable observer” of the revised
seal containing the mission would make the connection to Christianity
inferred by the district court.
5698 VASQUEZ v. LOS ANGELES COUNTY
applicable constitutional standard for assessing the validity of
governmental actions challenged under the Establishment
Clause. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290,
319 (2000) (Rehnquist, C.J., dissenting) (noting the Lemon
test’s “checkered career in the decisional law of [the Supreme
Court]”); Am. Family Ass’n., Inc. v. City & County of San
Francisco, 277 F.3d 1114, 1121 (9th Cir. 2002), cert. denied,
537 U.S. 886 (2002) (applying Lemon). In fact, the Supreme
Court recently reaffirmed the viability of the Lemon test in
McCreary County v. ACLU, 545 U.S. 844, 859 (2005) (apply-
ing the first prong of Lemon to invalidate defendants’ public
display of the Ten Commandments). Under Lemon, a govern-
ment act is consistent with the Establishment Clause if it: (1)
has a secular purpose; (2) has a principal or primary effect
that neither advances nor disapproves of religion; and (3) does
not foster excessive governmental entanglement with religion.
See Lemon, 403 U.S. at 612-13; Brown v. Woodland Joint
Unified Sch. Dist., 27 F.3d 1373, 1378 (9th Cir. 1994).
Although Lemon is most frequently invoked in cases involv-
ing alleged governmental preferences to religion, the test also
“accommodates the analysis of a claim brought under a hostil-
ity to religion theory.” Am. Family Ass’n., 277 F.3d at 1121;
see also Vernon v. City of Los Angeles, 27 F.3d 1385, 1396
(9th Cir. 1994), cert. denied, 513 U.S. 1000 (1994) (“The
government neutrality required under the Establishment
Clause is . . . violated as much by government disapproval of
religion as it is by government approval of religion.”).
Vasquez’s appeal comes before us on a Rule 12(b)(6)
motion to dismiss. We are not, however, precluded from con-
sidering the merits of Vasquez’s claim simply because that
claim reaches us on a threshold motion. To the contrary, pre-
cedent from this court and others indicates that it is appropri-
ate to test the viability of Vasquez’s claim under Lemon, even
at this early stage. See, e.g., Am. Family Ass’n., 277 F.3d at
1121-22; Utah Gospel Mission v. Salt Lake City Corp., 425
F.3d 1249, 1258-60 (10th Cir. 2005); McGinley v. Houston,
361 F.3d 1328, 1332-33 (11th Cir. 2004). We do so and con-
VASQUEZ v. LOS ANGELES COUNTY 5699
clude that Vasquez’s Establishment Clause claim is without
merit. We therefore affirm the district court’s order dismiss-
ing the claim with prejudice.
1. Secular Purpose
Under the first prong of Lemon, we consider whether the
challenged government act is grounded in a secular purpose.
See Lemon, 403 U.S. at 612. While we must “distinguish a
sham secular purpose from a sincere one,” we should also be
“reluctant to attribute unconstitutional motives to the [govern-
ment].” Am. Family Ass’n., 277 F.3d at 1121; McCreary
County, 545 U.S. at 864; Santa Fe Indep. Sch. Dist. v. Doe,
530 U.S. 290, 308 (2000); Mueller v. Allen, 463 U.S. 388,
394-95 (1983).
Vasquez claims that Defendants’ purpose in removing the
cross from the seal was “anti-Christian” and “motivated by
hostility toward Christianity.” Defendants counter that their
purpose in removing the cross was “to avoid a potential
Establishment Clause violation . . . and [to] affirm [the coun-
ty’s] neutrality.” The district court accepted Defendants’
explanation and concluded that “[i]n the instant case, it is
more plausible the County was seeking to avoid the expense
associated with defending a threatened lawsuit over an alleged
Establishment Clause violation in making its decision to
remove the cross from the seal.”
[8] We agree with the district court. Governmental actions
taken to avoid potential Establishment Clause violations have
a valid secular purpose under Lemon. See, e.g., Vernon, 27
F.3d at 1397; Utah Gospel Mission v. Salt Lake City Corp.,
425 F.3d at 1259-60; Roberts v. Madigan, 921 F.2d 1047,
1054 (10th Cir. 1990); Bishop v. Aronov, 926 F.2d 1066,
1077-78 (11th Cir. 1991), cert. denied sub nom., Bishop v.
Delchamps, 505 U.S. 1218 (1992). In this respect, our deci-
sion in Vernon v. City of Los Angeles controls. In that case,
an officer of the Los Angeles Police Department sued the city
5700 VASQUEZ v. LOS ANGELES COUNTY
after the city launched an investigation into his religious
views. Plaintiff claimed the city acted for an improper pur-
pose. We rejected plaintiff’s argument after concluding that
the city’s primary purpose in conducting the investigation was
to determine whether plaintiff’s on-duty job performance had
violated the Establishment Clause. See Vernon, 27 F.3d at
1397. We said in Vernon that “[i]t is well-established that
governmental actions primarily aimed at avoiding violations
of the Establishment Clause have a legitimate secular pur-
pose.” Id. (internal citation omitted). The same is true in
Vasquez’s case.8
[9] Because Defendants’ removal of the cross from the LA
County Seal was motivated by a legitimate secular purpose —
namely, the purpose of avoiding a potential Establishment
Clause violation — we hold that the district court did not err
in concluding that Defendants satisfied the first prong of the
Lemon test.
2. Secular Effect
[10] The second prong of Lemon bars governmental action
that has the “principal or primary effect” of advancing or dis-
approving of religion. See Lemon, 403 U.S. at 612; Am. Fam-
ily Ass’n., 277 F.3d at 1122. Governmental action has the
primary effect of advancing or disapproving of religion if it
is “sufficiently likely to be perceived by adherents of the con-
trolling denominations as an endorsement, and by the nonad-
herents as a disapproval, of their individual religious choices.”
Brown v. Woodland Joint Unified Sch. Dist., 27 F.3d 1373,
8
Indeed, as McGinley v. Houston, 282 F. Supp. 2d 1304 (M.D. Ala.
2003), aff’d, 361 F.3d 1328 (11th Cir. 2004), points out, Establishment
Clause jurisprudence would be unworkable if it were any other way: “For
this court . . . to hold that the removal of . . . objects to cure an Establish-
ment Clause violation would itself violate the Establishment Clause would
. . . result in an inability to cure an Establishment Clause violation and
thus totally eviscerate the [E]stablishment [C]lause.” Id. at 1307 (internal
citation and quotation marks omitted).
VASQUEZ v. LOS ANGELES COUNTY 5701
1378 (9th Cir. 1994). We analyze the effect prong of Lemon
from the point of view of a reasonable observer who is “in-
formed . . . [and] familiar with the history of the government
practice at issue.” See id.
We have noted that “because it is far more typical for an
Establishment Clause case to challenge instances in which the
government has done something that favors religion or a par-
ticular religious group, we have little guidance concerning
what constitutes a primary effect of inhibiting religion.” Am.
Family Ass’n., 277 F.3d at 1122. The most instructive cases
in our circuit are Vernon and American Family Association,
which addressed alleged violations of the Establishment
Clause in a hostility to religion context.
In Vernon, plaintiff, a police officer who identified himself
as a member of the Grace Community Church, allegedly con-
sulted with religious elders on matters of police policy,
thwarted the progress of gay and female police officers, pres-
sured other officers to attend religious meetings, and refused
to arrest anti-abortion demonstrators. See 27 F.3d at 1388-89.
When the city launched an investigation into his religious
beliefs, plaintiff sued, claiming that the city’s pursuit of the
investigation had the primary effect of inhibiting or disap-
proving of his religion. See id. at 1390. We held that
“[n]otwithstanding the fact that one may infer possible city
disapproval of [plaintiff’s] religious beliefs from the direction
of the investigation, this cannot objectively be construed as
the primary focus or effect of the investigation.” Id. at 1398-
99. To the contrary, “[t]he primary purpose of the government
action was the investigation of any possible impermissible or
illegal on-duty conduct of [plaintiff].” Id. at 1399. As such,
the investigation could not “reasonably be construed to send
as its primary message the disapproval of [plaintiff’s] reli-
gious beliefs.” Id. (emphasis in original).
Similarly, in American Family Association, defendants
adopted a resolution condemning a series of anti-gay adver-
5702 VASQUEZ v. LOS ANGELES COUNTY
tisements that plaintiff religious groups had put forth in a
local newspaper. See 277 F.3d at 1118-20. We held that the
resolution, when “read in context as a whole, [was] primarily
geared toward promoting equality for gays and discouraging
violence against them.” Id. at 1122. On that basis, we con-
cluded that “a reasonable, objective observer would view the
primary effect of [the resolution] as encouraging equal rights
for gays and discouraging hate crimes, and any statements
from which disapproval can be inferred only incidental and
ancillary.” Id. at 1122-23 (citing Vernon, 27 F.3d at 1398-99).
[11] In the context of this case, a reasonable observer who
is “informed . . . [and] familiar with the history of the govern-
ment practice at issue” would not view Defendants’ removal
of the cross from the LA County Seal as an act of hostility
towards religion. See Brown, 27 F.3d at 1378. To the con-
trary, Defendants’ removal of the cross is more reasonably
viewed as an effort to restore their neutrality and to ensure
their continued compliance with the Establishment Clause.
This is demonstrated by the fact that Defendants removed the
cross only after the presence of crosses on other municipal
seals had been held to be unconstitutional. See, e.g., Robinson
v. City of Edmond, 68 F.3d 1226, 1232 (10th Cir. 1995); Har-
ris v. City of Zion, 927 F.2d 1401, 1413 (7th Cir. 1991);
Friedman v. Bd. of County Comm’rs, 781 F.2d 777, 778 (10th
Cir. 1985); see also Murray v. City of Austin, 947 F.2d 147,
163 (5th Cir. 1991) (Goldberg, J., dissenting), cert. denied,
505 U.S. 1219 (1992) (noting that there has been “constant
. . . judicial disapproval of government use of Christian
crosses . . . on municipal seals” and pointing out that “[t]he
Supreme Court itself has repeatedly disapproved in dicta the
governmental display of crosses”). But see Murray, 947 F.2d
at 158 (holding that the presence of a cross on the city insig-
nia did not violate the Establishment Clause).
We need not adjudge the constitutionality of the cross on
the original county seal for purposes of this case, nor do we
discount the possibility that Defendants here may have been
VASQUEZ v. LOS ANGELES COUNTY 5703
able to distinguish their usage of the cross on the seal to
achieve a contrary result. Nevertheless, we believe that a “rea-
sonable observer” familiar with the history and controversy
surrounding the use of crosses on municipal seals would not
perceive the primary effect of Defendants’ action as one of
hostility towards religion. Rather, it would be viewed as an
effort by Defendants to comply with the Establishment Clause
and to avoid unwanted future litigation.
Because a reasonable observer would not have viewed
Defendants’ removal of the cross from the seal as an act of
hostility towards the Christian religion, or towards religion in
general, we hold that the district court did not err in conclud-
ing that Defendants satisfied the second prong of the Lemon
test.
3. Excessive Entanglement
[12] The third prong of Lemon bars governmental action
that fosters “excessive governmental entanglement with reli-
gion.” See Lemon, 403 U.S. at 613. Vasquez argues that
Defendants’ removal of the cross from the seal caused exces-
sive entanglement because it “tacitly created a hierarchy of
religious symbols,” resulted in “tremendous public outcry,”
and brought about great social and political divisiveness. It is
true that in prior cases, we have suggested that one of the fac-
tors we examine in determining whether excessive entangle-
ment has occurred is whether the challenged governmental
action caused citizens to divide along political lines. See Ver-
non, 27 F.3d at 1401; Cammack v. Waihee, 932 F.2d 765, 781
(9th Cir. 1991), cert. denied, 505 U.S. 1219 (1992). We have
consistently held, however, that political divisiveness is not an
“independent ground for holding a government practice
unconstitutional.” See, e.g., Brown, 27 F.3d at 1383 (emphasis
added); Am. Family Ass’n., 277 F.3d at 1123; Cammack, 932
F.2d at 781. In that regard, our decision in American Family
Association is dispositive. In that case, we rejected plaintiffs’
argument that excessive entanglement resulted solely from
5704 VASQUEZ v. LOS ANGELES COUNTY
governmental action that “encouraged political divisiveness
along religious lines.” Id. at 1123. In so doing, we noted that
if “[political divisiveness] were enough to create an Establish-
ment Clause violation on entanglement grounds, government
bodies would be at risk any time they took an action that
affected potentially religious issues.” Id. Because Vasquez did
not allege anything other than social and political divisive-
ness, his entanglement argument must necessarily fail.
[13] Based on our de novo review of the allegations set
forth in Vasquez’s complaint, we conclude that the district
court did not err in dismissing Vasquez’s Establishment
Clause challenge pursuant to Rule 12(b)(6). Accordingly, we
affirm the district court’s order of dismissal.
D. Dismissal Without Leave to Amend
Lastly, we consider whether the district court appropriately
dismissed Vasquez’s complaint without leave to amend. Dis-
missal without leave to amend is improper unless it is clear,
upon de novo review, that the complaint could not be saved
by any amendment. Schmier v. U.S. Court of Appeals for the
Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002).
[14] In light of our prior discussion, we are satisfied that
Vasquez’s complaint falls short of stating a claim under the
Establishment Clause in ways that could not be overcome by
any amendment. Granting Vasquez leave to amend would
have been futile, and we hold that the district court did not err
in preventing such futility. See id. at 824 (recognizing
“[f]utility of amendment” as a proper basis for dismissal with-
out leave to amend).9
9
Because Vasquez failed to state a claim under the Establishment
Clause, we also deny his request for leave to amend his complaint to add
a claim for nominal damages. See generally Carey v. Piphus, 435 U.S.
247, 266-67 (1978) (holding that nominal damages are appropriate for
deprivations of constitutional rights that do not result in actual injury).
VASQUEZ v. LOS ANGELES COUNTY 5705
III. CONCLUSION
In sum, although we conclude that Vasquez’s Establish-
ment Clause claim should not have been dismissed for lack of
standing or for mootness, we hold that the district court did
not err in dismissing Vasquez’s claim on the merits. Accord-
ingly, we affirm the order of the district court dismissing
Vasquez’s Establishment Clause claim with prejudice.
AFFIRMED.