Doe v. Small
Opinion of the Court
The Ottawa Jaycees (“Jaycees”) appeal from the district court’s final judgment prohibiting them and the defendant City of Ottawa, Illinois, from mounting in a public park their annual yuletide display of sixteen large paintings depicting various events in the life of Jesus Christ. 726 F.Supp. 713. Finding an absence of any issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2552-2553, 91 L.Ed.2d 265 (1986), the district court entered summary judgment in favor of plaintiff Jane Doe. The Jaycees, who were the intervenor-defendant in the original action, then sought relief from this Court, claiming that the display of paintings did not represent governmental endorsement of religion in violation of the Establishment Clause of the First Amendment.
We disagree with the Jaycees. The City encouraged, authorized and endorsed the Jaycees’ display of these paintings in a public park, thus offending the core of the Establishment Clause’s essential prohibition of state endorsement of religion. Because the City wished to promote the religious message of the paintings by permitting their annual display in Washington Park, we affirm the judgment below.
I. BACKGROUND
Before relating the specific facts concerning the Jaycees’ display, we must establish the proper scope and perspective of our review of a grant of summary judgment. This Court’s review is, of course, de novo, meaning that we look at the record in the case anew from the same standpoint as the trial judge. On review of an entry of summary judgment, we must determine that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In conducting this inquiry to determine whether material facts are at issue, “we must review the record and all inferences therefrom in the light most favorable to the party opposing the
A. Facts
The story of the display of the sixteen large paintings depicting major events in the life of Jesus Christ began in 1956. The Ottawa Retail Merchants’ Association, offended by the commercialism overtaking the Christmas holiday, endeavored to “put Christ back into Christmas.” The Association’s method of choice was to commission sixteen large paintings of Jesus’ life for display in Washington Park (“Park”), a city park located on the edge of Ottawa’s business district near the center of town. A typical small-town park, the Park occupies an open city block, covered with grass and a few trees. The Park has provided the location for numerous one-time events, including a campaign appearance by George Bush during the 1988 Presidential campaign, and other activities, ranging from a concert for world peace to an all-church concert and a concert for veterans of the Vietnam War. The City has records of activities taking place in the Park from June 1982-September 1988. (Affidavit of Charles Singer, Ottawa City Clerk, Defendant’s Exhibit No. 3.) Aside from these one-time events, the only events which appear to have occurred annually in the Park for any extended period of time are a flea market and the display of paintings at issue in this case.
In most years since' 1956, during the Christmas season in Ottawa, a passer-by traveling on LaSalle Street along the western edge of the Park would see the following: 16 paintings, each measuring 8 feet 8 inches in height, displayed in two lines that form a “V” spanning most of the Park’s west side. No matter whether it was day or night, the paintings were clearly visible at all times, being illuminated at night by street lights.
The paintings together tell the story of the life, crucifixion and resurrection of Jesus Christ, as told in the four gospels of the New Testament, the Books of Matthew, Mark, Luke and John.
The remaining thirteen paintings chronicle subsequent events of significance in Jesus’ life. In chronological order, painting number four illustrates the flight of Mary, Joseph and the baby Jesus into Egypt (Matthew 2:13-15). In the fifth painting, Jesus is baptized by John the Baptist. Painting number six shows Jesus calling two of his disciples, the “fishers of men.” (Matthew 4:18-22; Mark 1:16-20; Luke 5:1-11; and John 1:35-42.)
The seventh painting recalls the “stilling of the storm,” in which Jesus and his disciples were in a boat on the lake near Gen-nesaret in Galilee and a great storm arose. Afraid, the disciples questioned their safety, but Jesus calmed the winds and stilled the storm. (Matthew 8:18, 23-27; Mark 4:37-41; and Luke 8:22-25.)
In the eighth picture, Jesus performs the miracle of the loaves and fishes. The
The ninth picture in the display shows Jesus teaching. The picture contains elements of both the Sermon on the Mount (found in Matthew 5:1-7:29) and the story of Jesus teaching young children. The Sermon on the Mount sets forth what are known as the “Beatitudes,” such as: “Blessed are the meek; for they shall inherit the earth.” (Matthew 5:5.) The other part of the painting portrays Jesus teaching several small children. In the tenth picture, the stone covering the empty tomb of Lazarus is rolled away, after Jesus recalled Lazarus, a close friend of Jesus, from the dead. (John 11:38-44.)
Jesus enters Jerusalem on what has now become known as Palm Sunday in the eleventh picture. (Matthew 21:1-9; Mark 11:1— 10; and Luke 19:28-38.) Palm Sunday falls one week before Easter Sunday and is an important date in the “Passion Narrative,” the story of Jesus’ death. The next event in the crucifixion story, illustrated in the twelfth painting, is the Last Supper. (Matthew 26:17-29; Mark 14:12-25; Luke 22:7-20; and 1 Corinthians 11:23-27.) At the Last Supper, Jesus celebrated Passover, the Jewish holiday commemorating the flight of the Jews from Egypt under the leadership of Moses.
The display’s thirteenth canvas depicts Jesus praying in the Garden of Gethsemane. (Matthew 26:36-46; Mark 14:32-42; and Luke 22:40-46.) Just before his crucifixion, Jesus went to the Garden to contemplate his impending crucifixion and to pray to God. Next, in the fourteenth painting, the Romans try Jesus, accusing him falsely of heresy and treason. (Matthew 27:11-26; Mark 15:1-15; Luke 23:2-25; and John 18:28-19:16.)
The fifteenth scene depicts Jesus' crucifixion. (Matthew 27:27-54; Mark 15:16-41; Luke 23:11-49; and John 19:16-37.) This scene shows Jesus’ death, before he rose from the dead on Easter morning. Finally, the sixteenth painting illustrates a scene that takes place after Jesus’ resurrection, the “Emmaus Story.” (Luke 24:13-35.) In this scene, the resurrected Jesus is recognized by two of his followers, despondent over his death. Jesus explains to them that he, the Messiah, had to suffer, die and be raised again.
To sum up, out of the sixteen paintings in the display, only three have anything to do with Christmas, while the final seven tell the story of Jesus’ death and resurrection, commemorated by Christians during Lent and on Easter. The middle six paintings depict other important events and miracles in the life of Jesus, none of which relates specifically to either Christmas, Lent or Easter.
These paintings were first erected and displayed in 1956, and taken down and stored by the City of Ottawa during every Christmas season through 1969. During the 1970s, newspaper accounts indicate that the City refrained from showing the paintings due to public criticism of the display.
In 1980, an Ottawa newspaper reported that a City official had discovered the paintings in a municipal storage area. The newspaper article quoted the Mayor of Ottawa at the time as saying he hoped to find a private group willing to display the paintings and promising further that “the City will pay the electrical bills for illuminating the paintings and help in any way we can, except financially, if a group wants to display them again.”
When the paintings were redisplayed in the Park, they remained on display for varying periods of time. According to the defendants’ approximations, from 1980 to 1988, the periods of display were as follows:
Erected Dismantled
Year (Approximate Date) (Approximate Date)
1988 November 27, 1988 No later than January 1, 1989
1987 November 29, 1987 January 24 to 30, 1988
1986 November 15, 1986 Commenced January 1987 (removed five Paintings in January 1987 but remaining Paintings frozen); completed removal of remaining Paintings February 21, 1987
1985 December 1, 1985 February 2, 1986
1984 December 2, 1984 February 10, 1985
1983 December 3, 1983 March 4, 1984
1982 December 4, 1982 January 19 or 21, 1983
1981 December 5, 1981 January 10, 1982
1980 December 8, 1980 January 14, 1981
(R. 108, Exhibit 8 at 5.)
The City’s involvement with the display did not cease in 1980. In 1986, Richard Rohrer, then a resident and taxpayer of Ottawa and the initial plaintiff in this suit, protested the display of the paintings, stating that he found the display extremely offensive. He claimed also that the presence of the display had deprived him of the use and enjoyment of the Park.
After due consideration and reflection upon the complaint raised concerning the pictures in Washington Park, that this Council endorse the activities- of the Ottawa Jaycees in maintaining, erecting, dismantling and storing said pictures and incorporating them in the overall Christmas display that annually graces the downtown area of the City.
Id. (emphasis supplied). At the same meeting the Council also granted the Jaycees permission to erect permanent structural
After passing the Resolution, the City granted its approval of permanent foundations for the paintings, and the City Engineer and City Commissioner of Public Improvement discussed the precise placement and details of the holes containing the metal sleeves, each measuring 30 inches in length, with representatives of the Jaycees at a meeting in the Park. The Jaycees altered the display by replacing the former municipal holes for the paintings in order to widen the angle of the “V” so that “passing cars can see the paintings sooner as they are coming down the road.” The foundations to date have served no other purpose than to provide structural support for “The Greatest Story Ever Told,” although it is the Jaycees’ contention that other displays, even one advocating Satanic worship, may freely be mounted on the same foundations. (Deposition of George D. Small, Mayor of Ottawa, Defendant’s Exhibit No. 9 at 86.) When the paintings are not on display, the holes and sleeves remain covered.
The 1986 decision by the Council to continue permitting the display did not end the controversy. Rohrer filed suit on August 1, 1988. Initially upon receipt of the suit, Mayor Small reiterated the City’s position in support of the display: “ ‘As far as we (the City) know, we are going to proceed and put the pictures back in the park.’ ” (Suit filed over park paintings, Ottawa Daily Times, Aug. 16, 1988, Plaintiff’s Exhibit No. 53.) In the same article, the Mayor commented further on Rohrer’s suit:
‘This is what I guess happens in a free country. If he doesn’t like the paintings, then he can drive around them. * * * Maybe he’s looking for a public reaction, but I don’t want him crying when the public puts the heat on him.’
Id. Finally, Mayor Small called for a public response so that the City could decide whether to spend tax dollars to defend the suit. He suggested that the City might initiate a fund drive to raise money “to keep the paintings in the park.” Id. However, several months later, on the advice of the City Attorney, John Hayner, the City changed its position. When the Jaycees’ request to display the paintings was presented to the Council at its October 18 meeting, the following occurred:
Mayor Small presented request for erection of paintings in Washington Park. Moved by Mayor Small that this Council deny permission for the erection of the 16 paintings of the life of Christ in Washington Park during the Christmas season of 1989.
Ayes: [5]
Nays: None. Motion carried.
Jim Bruehler, President of the Ottawa Area Chamber of Commerce, presented costs and specifications for a “Festival of Lights” in Washington Park as an alternative.
(Minutes of Regular meeting of City Council, Oct. 18, 1988, Plaintiff’s Exhibit No. 54.) After the Council’s vote preventing the Jaycees from displaying the paintings, private businesses offered to have the paintings displayed on their property. The Jaycees tentatively concluded an agreement with the First National Bank of Ottawa, located across from City Hall. The Ottawa Daily Times quoted Mayor Small’s reaction to the proposed new home for the paintings: “It’s an honor to have the pictures across the street from City Hall. * * * Maybe some day they’ll be back in Washington Park where they belong.” (Paintings Get Home, Ottawa Daily Times, Oct. 21, 1988, Plaintiff’s Exhibit No. 55.)
When it appeared that the City decided not to fight Rohrer’s suit, the Council convened a special meeting on Oct. 28, 1988, “for the purpose of discussing the erection of the Life of Christ paintings in Washington Park lawsuit.” (Minutes of Special Meeting, Oct. 28, 1988, Plaintiff’s Exhibit No. 56.) According to the Council minutes, the following series of events transpired:
George Hupp, Jr. appeared and introduced Mr. Robert Skolrood National Legal Foundations [sic] representative concerning the defense of the lawsuit.
*751 Robert Skolrood discussed the excellent fact pattern involving religious displays on public streets and parks applying to the defense of the lawsuit. He stated his organization will commit $100,000.00 to this case and will file an intervening petition on behalf of the Jaycees if the City continues the defense of the lawsuit. -Mayor Small presented motion to recess into executive session. * * *
Council recessed at 8:15 A.M.
Council reconvened at 8:29 A.M.
City Attorney John Hayner reiterated his recommendation to the Council from pri- or meetings stating finances, no reasonable chance of winning and alternate sights [sic ] were the major factors in his recommendation.
* # ik * * *
Moved by Mayor Small that the motion of October 18, 1988 prohibiting the Ottawa Jaycees from erecting the 16 paintings of the life of Christ in Washington Park for the 1988-1989 Christmas Season be and hereby is rescinded.
* J¡C # $ $ *
Ayes: [5]
Nays: None: Motion carried.
Id.
That same season, after deciding to permit the Jaycees to display the paintings, the City affixed decorations in the vicinity of the paintings and throughout the town. The City installed a 15-foot tall lighted snowman in the Park and “trimmed the town” by stringing lights, bows, snowflakes and giant candles on the trees in the Park and around town. The City dubbed this latter seasonal display “The Festival of Lights.” The giant snowman sometimes has company, for the City also added a Santa Claus House, which apparently alternates between the Park and the firehouse.
The City posted no disclaimer of its own next to the paintings. However, the Jaycees installed a small sign next to the display. Measuring only 2072 inches by 21 Vi inches, the sign read, in lettering l-Vie inches high: “THIS DISPLAY HAS BEEN ERECTED AND MAINTAINED SOLELY BY THE OTTAWA JAYCEES, A PRIVATE ORGANIZATION, WITHOUT THE USE OF PUBLIC FUNDS.” The sign can be seen but not read from LaSalle Street, the street abutting the Park on the side where the paintings are displayed.
In our above review of the facts, we have drawn all reasonable inferences in a light most favorable to the non-moving party to determine whether there is any genuine issue of material fact requiring further fact-finding. The existence of disputed facts does not prevent this Court from entering summary judgment in favor of the plaintiff. This Court recognizes that contested factual issues such as the duration of the display divide the parties. However, as we have stated before: “The existence of a factual dispute does not necessarily preclude summary judgment unless ‘the disputed fact is outcome determinative under the governing la\y.’ ” Korf v. Ball State Univ., 726 F.2d 1222 (7th Cir. 1984), citing Egger v. Phillips, 710 F.2d 292, 296 (7th Cir. 1983), certiorari denied, 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262. The point is simply that summary judgment provides courts with a means of resolving litigation without trial when there are no genuine factual issues “that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (“Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ”); Samuels v. Wilder, 871 F.2d 1346, 1349 (7th Cir. 1989) (“Merely alleging a factual dispute cannot defeat the summary judgment motion.”); Beard v. Whitley County REMC, 840 F.2d 405 (7th Cir. 1988) (“The court should neither ‘look the other way’ to ignore genuine issues of material fact, nor ‘strain to find material fact issues where there are none.’ ”), quoting Secretary of Labor, United States Dep’t of Labor v. Lauritzen, 835 F.2d 1529, 1534 (7th Cir. 1987) (“[A] minor factual dispute does not preclude summary judgment.”), certiorari denied, Lauritzen v. McLaughlin, 488 U.S. 898, 109 S.Ct. 243, 102 L.Ed.2d 232 (1988).
The obligation imposed by Rule 56 of the Federal Rules of Civil Procedure to draw factual inferences in a light most favorable to the non-moving party applies only to this Court’s review of genuine material facts. In this case, no genuine issues of material fact prevent the entry of summary judgment. Because the undisputed facts provide an adequate basis on which this Court may predicate its legal conclusion, further fact-finding is unnecessary. Bender v. Williamsport School Dist., 741 F.2d at 542 n. 3. This is evidenced further by the Jaycees’ own prayer for relief. The Jaycees filed their own cross-motion for summary judgment asking this Court to reverse the lower court and enter summary judgment in favor of the defendants.
II. DISCUSSION
A. The Purposes of the Establishment Clause
Of late, Establishment Clause inquiries by courts have revolved around detailed
Before turning to the specific application of Lemon and Allegheny to the facts of the Jaycees’ display, this Court recognizes that constitutional debates over the application of the Establishment Clause not only
Because there is an unusual abundance of historical evidence, and because there is ample evidence to support both sides, both sides appeal to history. Those who would invalidate government action abandon their usual argument that original intent is not binding, and instead urge that this time original intent is on their side. That tactical choice tells you something about the perceived legitimacy and persuasive power of original intent arguments. Despite their many problems, they have an almost irresistible appeal.
Douglas Laycock, Text, Intent, and the Religion Clauses, 4 Notre Dame J.L. Ethics & Pub. Pol’y 683, 685 (1990).
It is important to recognize what is at stake. The best illustration can be found in the recent Establishment Clause opinions of the Supreme Court and this Court in which a split has emerged. On one side are those Justices and Judges, more often in the majority than not, who adhere to the view that:
[I]t is not within the power of government to invade * * * [the inviolable citadel of the individual heart and mind], whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality.
School Dist. of Abington Township v. Schempp, 374 U.S. 203, 226, 83 S.Ct. 1560, 1574, 10 L.Ed.2d 844.
Adherents of this position look to the original intent of the religion clauses of the Constitution to conclude that the Framers of the Establishment Clause intended to provide protection against any governmental intrusion on religious liberty and that all forms of government aid to religion are unconstitutional. They find support in the text of the Clause itself, the legislative debates surrounding the adoption of the text of the First Amendment, the debates in the revolutionary states over questions of church-state relations, and the history of religious persecution that provided a background to the debates over the adoption of the Establishment Clause. In addition, supporters of the view that the Framers drafted the Establishment Clause to protect freedom of religious belief and to commit the state to a position of neutrality vis-á-vis questions of conscience, look to statements by Thomas Jefferson and James Madison, champions of the disestablishment of religion at the time that the new nation defined itself. From Jefferson, we have the oft-quoted letter to the Dan-bury Baptist Association, in which he wrote that “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature ‘should make no law respecting an establishment of religion, or prohibiting the free
James Madison, who played a large role in the drafting and passage of the Bill of Rights, also provides support for the view that the Framers intended the Establishment Clause to have broad application. In his “Memorial and Remonstrance Against Religious Assessments,” Madison wrote:
The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. * * * We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is widely exempt from its cognizance. ■
James Madison, “Memorial and Remonstrance Against Religious Assessments, 1785” at para. 1, reprinted in Wallace v. Jaffree, 472 U.S. 38, 53-54 n. 38, 105 S.Ct. 2479, 2487-2488 n. 38, 86 L.Ed.2d 29 (1985).
Justice Brennan, an avowed skeptic of the utility of inquiring into original intent of the Framers, nevertheless relied upon his understanding of their purpose in writing to uphold a prohibition on the recitation of the Lord’s Prayer in a public school:
[Njothing in the text of the Establishment Clause supports the view that the prevention of the setting up of an official church was meant to be the full extent of the prohibitions against official involvements in religion. * * * [T]he history which our prior decisions have summoned to aid interpretation of the Establishment Clause permits little doubt that its prohibition was designed comprehensively to prevent those official involvements of religion which would tend to foster or discourage religious worship or belief.
Abington School District v. Schempp, 374 U.S. at 233-234, 83 S.Ct. at 1577-1578 (Brennan, J., concurring).
On the other side of the historical debate, supporters of the view that certain forms of governmental aid to religion are appropriate offer an alternative version of the Founders’ original intent. In Wallace v. Jaffree, Justice Rehnquist launched the judicial attack on a broad reading of the Establishment Clause. He set out to correct what he called a “mistaken understanding of constitutional history,” Wallace, 472 U.S. at 91, 105 S.Ct. at 2508, and concluded that:
The Framers intended the Establishment Clause to prohibit the designation of any church as a “national” one. The Clause was also designed to stop the Federal Government from asserting a preference for one religious denomination or sect over others. Given the ‘incorporation’ of the Establishment Clause as against the States via the Fourteenth Amendment in Everson, States are prohibited as well from establishing a religion or discriminating between sects. As its history abundantly shows, however, nothing in the Establishment Clause requires government to be strictly neutral between religion and irreligión, nor does that Clause prohibit Congress or the States from pursuing legitimate secular ends through nondiscriminatory sectarian means.
Id. at 113, 105 S.Ct. at 2519 (Rehnquist, J., dissenting).
Under this approach, nothing in the Establishment Clause’s history prevents a generalized endorsement of religion, leading Justice Rehnquist to vote to uphold school prayer in the Alabama schools. Id. at 114, 105 S.Ct. at 2519. The narrower understanding of the Establishment Clause he put forward was embraced more recently by Justice Kennedy in his concurring and dissenting opinion in Allegheny. Under this approach, Justice Kennedy would jettison the traditional Establishment Clause analysis as applied by Justice Black-mun in his majority opinion in Allegheny, in favor of a “coercion” or “prosyletization” approach. See also Board of Educ. v. Mergens, — U.S. -, 110 S.Ct. 2356, 2376, 110 L.Ed.2d 191 (Kennedy, J., concurring). Noting that the display of a creche in a public space, Lynch, 465 U.S. at 668, 104 S.Ct. at 1355; tax exemptions to
The ability of the organized community to recognize and accommodate religion in society with a pervasive public sector requires diligent observance of the border between accommodation and establishment. Our cases disclose two limiting principles: government may not coerce anyone to support or participate in any religion or its exercise; and it may not, in the guise of avoiding hostility or callous indifference, give direct benefits to religion. * * *
Allegheny, 492 U.S. at 659, 109 S.Ct. at 3136 (Kennedy, J., concurring in the judgment in part and dissenting in part). Under this approach, the state’s so-called passive and symbolic recognition of religion would not violate the Establishment Clause, so that religious displays that fall short of actually “establishing” a religious faith would pass muster under this “coercion” test.
This view has found support in dissenting opinions of this Court. In American Jewish Congress, 827 F.2d at 120, the majority held unconstitutional a display of a nativity scene in Chicago City Hall, applying the secular purpose and endorsement prongs of Lemon and citing in support of this decision a broad view of the Establishment Clause’s prohibitions. Dissenting from this decision, Judge Easterbrook criticized the content- and context-specific approach required in applying the Lemon test, instead advocating the adoption of the “coercion” approach. Conducting his own review of the constitutional history of the Establishment Clause, the dissent concluded that “force or funds are essential ingredients of an ‘establishment.’ ” American Jewish Congress, 827 F.2d at 137 (Easter-brook, J., dissenting). However, this approval of the coercion approach was tempered by the appropriate caveat: “I offer this conclusion in the spirit of constructive criticism, because it is plainly not the law today.” Id. More recently, in Crestwood and Zion, Judge Easterbrook repeated his criticism of Lemon, charging that it “has lost its tang.” Zion, 927 F.2d at 1424 (Easterbrook, J., dissenting). Although Judge Easterbrook reiterated his own view that the Establishment Clause forbids “taxation and coercion in support of religion,” while permitting the display of religious symbols, id. at 1423, he believes that under Allegheny, an appellate court may abandon Lemon in favor of Justice O’Connor’s endorsement analysis. Id. at 1425. Under the endorsement test, Judge Easterbrook would have held the two municipal seals at issue in Zion unconstitutional.
Although the debate over the original intent behind the Establishment Clause continues to rage, we decline to jump into the fray by conducting yet another exhaustive review of the Framers’ intent by scouring primary sources such as legislative debates, the writings of individual Framers, the state debates over church-state issues, or the history of religious persecution as it existed at the time that the Bill of Rights was passed. There is no need to do so here, for a proper understanding of the original intent prevents this Court from sustaining the explicit, preferential accommodation of religion by government that occurred in this case.
The Establishment Clause means that government may not prefer one religion over another, nor may it aid all religions evenhandedly. Both types of aid effected, in the Founders’ view, an establishment of religion. See Laycock, “Nonpreferential” Aid to Religion: A False Claim About Original Intent, 27 Wm. & Mary L. Rev. 875, 878 (1986). Coercion certainly falls within the cognizance of this definition, but coercion is not all that the Establishment Clause was intended to or has been interpreted to proscribe. On the contrary, “establishment” means much more than coercion — it means acts of the state that place the imprimatur of governmental
Our conclusion in this case must be tempered by a recognition that while history is helpful in determining which problems the Framers were attempting to solve, “an awareness of history and an appreciation of the aims of the Founding Fathers do not always resolve concrete problems.” Abington School District v. Schempp, 374 U.S. at 234, 83 S.Ct. at 1578 (Brennan, J., concurring); see also Laycock, Text, Intent, and the Religion Clauses, 4 Notre Dame J.L.Ethics & Pub.Pol’y 683, 696-697 (1990). In his concurrence in Abington School District v. Schenipp, Justice Brennan cautioned against a “too literal quest for the advice of the Founding Fathers upon the issues of [the case at hand],” 374 U.S. at 237, 83 S.Ct. at 1579. In sum, original intent reminds us that courts in particular cases might apply the constitutional test differently, but they “cannot diminish in any way the force of the command” that “government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions).” Allegheny, 492 U.S. at 605, 109 S.Ct. at 3107, quoting Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 1683, 72 L.Ed.2d 33 (1982).
B. The Constitutional Tests
Our recognition here that the Framers intended the Establishment Clause to forbid governmental endorsement of religion provides the backdrop for a contextual and content-based examination of the paintings in the Park in accordance with modern-day Establishment Clause jurisprudence.
The resolution of this case depends upon an application of one of two tests, both of which have been approved by shifting majorities of Supreme Court Justices in their attempt to articulate a principled approach to Establishment Clause jurisprudence. The first test, containing three prongs, was articulated by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, and has become known as the Lemon test: “[A] statute or practice which touches upon religion, if it is to be permissible under the Establishment Clause, [1] must have a secular purpose; [2] must neither advance nor inhibit religion in its principal or primary effect; and [3] must not foster an excessive entanglement with religion.” Lemon, 403 U.S. at 612-613, 91 S.Ct. at 2111. In Establishment Clause cases involving the constitutionality of a religious display, the courts have applied the prongs of this test to the various factual circumstances — its physical setting, its proximity to the seat of governmental power, its position on public property, the presence or absence of secular objects that might mitigate the religious effect of the display, its history and ubiquity, and the degree of government approval or sponsorship of the display.
While the lower courts have used the Lemon test to draw lines in Establishment
Every government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion. In making that determination, courts must keep in mind both the fundamental place held by the Establishment Clause in our constitutional scheme and the myriad, subtle ways in which Establishment Clause values can be eroded.
Lynch, 465 U.S. at 694, 104 S.Ct. at 1370. Justice O’Connor emphasized the second prong of the Lemon test (primary effect to endorse religion), believing it to be disposi-tive to Establishment Clause analysis. The endorsement test as refined focuses on the content and context of a display to determine whether a governmental body has run afoul of the Establishment Clause.
In County of Allegheny v. ACLU, 492 U.S. 573, 109 S.Ct. 3086, Justice Blackmun, writing the opinion of the Court, reviewed the Supreme Court’s decision in Lynch and applied the endorsement test to uncover the underlying constitutional principle: “[T]he government’s use of religious symbolism is unconstitutional if it has the effect of endorsing religious beliefs, and the effect of the government’s use of religious symbolism depends upon its context.” Allegheny, 492 U.S. at 593-598, 109 S.Ct. at 3101-3103. Justice Blackmun employed Justice O’Connor’s approach, noting that it “provides a sound analytical framework for evaluating governmental use of religious symbols.” Allegheny, 492 U.S. at 595, 109 S.Ct. at 3102. In evaluating the constitutionality of the creche displayed in the foyer of the county courthouse and the menorah placed in front of City Hall, the Court in Allegheny viewed its task as “deter-min[ing] whether the display of the créche and the menorah, in their respective ‘particular physical settings,’ has the effect of endorsing or disapproving religious beliefs.” Allegheny, 492 U.S. at 597, 109 S.Ct. at 3103.
In Allegheny, the Supreme Court’s decision demonstrates the challenge posed to a reviewing court by a content-based, contextual approach to the Establishment Clause. While the Supreme Court, on the one hand, found unconstitutional a créche displayed on the grand staircase inside the Allegheny County Courthouse, on the other, the Court in the very same case upheld the display of a Chanukah menorah in front of the City-County Building. In reaching its decision as to the créche, the Court concluded that the content and context of the créche display endorsed a patently Christian message: “Glory to God for the birth of Jesus Christ.” Allegheny, 492 U.S. at 601, 109 S.Ct. at 3105.
The display of the menorah presented “a closer constitutional question” than the créche. Id. 492 U.S. at 613, 109 S.Ct. at 3111-3112. The majority (albeit a different one than voted to find the county’s display of a créche unconstitutional) held that the menorah, because of its placement alongside a large Christmas tree and a sign bearing the Mayor’s name and the slogan, “Salute to Liberty," did not “have an effect of endorsing religious faith.” Id. at 620-621, 109 S.Ct. at 3115. Because of the shifting majority in Allegheny, in which only two Justices, Blackmun and O’Connor, voted to find the créche unconstitutional and the menorah constitutional, whereas three Justices, Brennan, Marshall and Stevens, voted to find both the créche and the menorah to be unconstitutional, and three Justices, Rehnquist, Scalia and Kennedy,
Fortunately in this case the constitutional question is not close. The Jaycees’ display of the paintings fails the first two prongs of the Lemon test
[Government may not promote or affiliate itself with any religious doctrine or organization, may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious institution, and may not involve itself too deeply in such an institution’s affairs.
Allegheny, 492 U.S. at 590-591, 109 S.Ct. at 3099. This constitutional edict remains in force even in cases in which a private actor claims responsibility for the religious expression at issue. The dissent charges this Court with invoking an improper analytical framework in its application of the Lemon and endorsement tests rather than viewing the display as constitutionally protected private expression. As the dissent would have it, assertedly private speech is exempt from Establishment Clause analysis. This begs the question, however. It is precisely through the application of the Lemon and endorsement tests that a reviewing court makes a determination whether expression is private or whether it bears the imprint of government endorsement. A government may not evade the constitutional obligations imposed by the Establishment Clause by seeking refuge in the protective mantle afforded to private actors by the freedom of speech and expression clause of the First Amendment.
1. Secular Purpose under Lemon
Through the pronouncements and actions taken in support of the display of the paintings, the Jaycees have obviated any claim that the display satisfies the secular purpose prong of the Lemon test. Unlike a Christmas tree, recognized by the Supreme Court in Allegheny, 492 U.S. at 616, 109 S.Ct. at 3113, and by this Court to be a secular symbol of the holiday season, Lubavitch Chabad House, Inc. v. City of Chicago, 917 F.2d 341, 343 (7th Cir. 1990), the paintings are undeniably religious in nature. They portray sixteen scenes in the life of Jesus which together encapsulate the essential religious message of Jesus’ life to Christians. As already noted, only three of the paintings have anything to do with the Christmas holiday and the story of Jesus’ birth. And even those paintings relate the religious background of the holiday, particularly when viewed as part of an overall religious display in which thirteen paintings have no connection whatsoever to the secular celebration of the Christmas holiday season. The Jaycees fail in their argument to overcome the core of the paintings’ spiritual nature by attempting to manufacture a secular purpose out of whole cloth.
The Jaycees contend that the display satisfies the Establishment Clause test as articulated in Lemon. However, they fail in their main brief even to address the secular purpose prong of Lemon as it relates to these facts. The Jaycees state that the Supreme Court in Lynch found a secular purpose in the display of the créche — namely, the celebration of Christmas and its origins. From this statement, they infer that the paintings in the municipal Park share the same purpose and therefore satisfy the first prong of Lemon. However, in his incisive opinion below, the' district judge recognized the Jaycees’ unconstitutional purpose in effecting a governmental endorsement of religion.
First, the district judge rightly pointed to the City Council’s Resolution, passed in 1986 at the same time that the City granted the Jaycees permission to construct new concrete-filled holes with metal sleeves to support the paintings. As noted above, the City not only rejected Richard Rohrer’s complaint and granted permission to the Jaycees to display the paintings for
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ottawa, that after due consideration and reflection upon the complaint raised concerning the pictures in Washington Park, that the Council endorse the activities of the Ottawa Jaycees in maintaining, erecting, dismantling and storing said pictures and incorporating them in the overall Christmas display that annually graces the downtown area of the City and further thanks all the other groups, public and private, who also maintain, erect, dismantle and store other portions of the Christmas decorations which are integral to the annual Yuletide season and the spirit thereof.
(City Council Resolution, Dec. 2, 1986, Plaintiffs App. 33) (emphasis supplied). On its face, the constitutional defect of the Resolution is readily apparent. The City did not try to hide its approval of the religious display and even used the word “endorse” to express its support. In view of the judicial test for Establishment Clause violations, the City’s use of this word to describe its support for the display is enlightening. When considered along with the rest of the Christmas displays, the City reserved its special plaudit for the Jaycees’ pictures. In explicitly endorsing the Jaycees’ display, the City made no acceptable attempt to articulate a secular purpose for doing so.
The Jaycees advance three other secular purposes for the display in their attempt to pass the secular purpose prong of the Lemon test. First, they claim that the City’s policy of permitting the display represented a permissible accommodation of religion. In their brief, the Jaycees point to the City’s “policy of equal access” and to its participation in the celebration of the Christmas season as a permissible accommodation that allows the Jaycees to display the pictures in the Park.
The history of City sponsorship and support of the display provides no evidence to the district court of the actual content and application of the City’s claimed “equal access” policy. The record plainly shows that the pictures in the Park have been the only display to be mounted in the Park annually for any long period of time. While the City may permit an occasional festival, concert, or presidential campaign appearance to be held in the Park,
The dissent reprints the list of onetime events that, according to the City clerk, took place in the Park and reprimands the majority for failing to draw reasonable inferences in a light most favorable to the non-moving party. Dissent at 793-794. However, the plaintiff does not dispute that the one-time events took place. Neither the occurrence of events in the Park, nor the fact that a park is generally considered to be the quintessential public forum, Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423, (1939), establishes that the City employed an open access policy with regard to the Park. The existence of an equal access policy is clearly an ultimate question, a constitutional fact that requires this Court to review the record de novo. As such, this Court is under no obligation to draw inferences favorable to the non-moving party. The mere assertion of a policy by the Jaycees does not mean that it exists in light of the record in this case, which supports the conclusion that the City had no policy at all. The City’s laissez-faire approach becomes clear in Mayor Small’s responses to plaintiff counsel’s questions at a deposition:
[By Ms. Golden:]
Q. What is the City’s policy concerning the display of property in its park system?
A. [By Mayor Small:] First come, first serve.
Q. And I take it * * * that the policy first come, first serve is not written in any documents which the City uses in enforcing its policy?
A. There’s nothing in granite.
Q. How about in ink?
A. There you go. Not that I know of, okay.
Q. And that’s the policy that you followed since 1971 in making the decisions as to the use of Washington Park and every other park in the City of Ottawa; is that correct?
A. Not necessarily, no.
(Deposition of Mayor George D. Small at 22, Plaintiff’s Exhibit No. 57.) Mayor Small then suggested that the City would permit any display “[a]s long as it didn’t have a safety factor to it.” Id. at 23. However, with respect to the paintings, Mayor Small admitted that no safety determination was ever made. Id. at 24. When pressed by plaintiff’s counsel to identify the safety factors or the extent to which the City would permit a pérmanent display or structural addition to the Park, Mayor Small’s responses indicated that subjective determinations, rather than an articulated policy, characterized the City’s approach to the use of its parks.
Furthermore, while many varieties of expression must be tolerated in a public forum to guarantee freedom of expression, the Establishment Clause prevents the government from endorsing a religious
The Jaycees offer an additional secular purpose for the display: that it is part of the celebration of the Christmas holiday season. By offering this as a justification, the Jaycees cannot escape an analysis of the display’s content and context to determine whether it rises to an unconstitutional endorsement of its religious message by the City. Indeed, where a city’s display of an undeniably religious symbol has been upheld, see Allegheny, 492 U.S. at 573, 109 S.Ct. at 3086; Lynch, 465 U.S. at 668, 104 S.Ct. at 1355; Mather, 864 F.2d at 1291; McCreary, 739 F.2d at 716; Clawson, 915 F.2d at 244, the analysis turns on the extent to which the religious message is either “neutralized” by the presence of other secular symbols or messages, or is part of an overall, integrated holiday display. The Jaycees cannot seriously contend that sixteen large paintings depicting seminal events in the life of Jesus represent nothing more than an attempt by the City to celebrate the holiday season by inviting the Jaycees to mount the paintings annually in the Park. The claim that the paintings further the secular aspects of the Christmas season demonstrates an insensitivity to the religious importance of Jesus’ life to Christians and demeans whatever meaning the paintings hold by equating them with the secular symbols of the season, such as the Christmas Tree, the bow, lights, or a 15-foot snowman. As Justice Brennan observed in his concurrence in Abington School District v. Schempp, 374 U.S. at 259, 83 S.Ct. at 1591, “[i]t is not only the nonbeliever who fears the injection of sectarian doctrines and controversies into the civil polity, but in as high degree it is the devout believer who fears the secularization of a creed which becomes too deeply involved with and dependent upon the government.”
Even if we accept the Jaycees’ contention that the paintings’ purpose was to celebrate the holiday season, this does not mean that they may fulfill this purpose in an unconstitutional manner by obtaining the endorsement of the City. Allegheny teaches that the state may not accommodate religion by endorsing a religious display and then justify this endorsement as an appropriate accommodation to remove burdens on free expression or the free exercise of religion. Discussing this principle with reference to the creche displayed on the Grand Staircase of the Allegheny County Courthouse, Justice Blackmun wrote:
The display of a créche in a courthouse does not remove any burden on the free exercise of Christianity. Christians remain free to display créches in their homes and churches. To be sure, prohibiting the display of a creche in the courthouse deprives Christians of the satisfaction of seeing the government adopt their religious message as their own, but this kind of government affiliation with particular religious messages is precisely what the Establishment Clause precludes.
Allegheny, 492 U.S. at 601 n. 51, 109 S.Ct. at 3105 n. 51. In this case, the paintings are but one of many ways that Ottawa celebrates the Christmas holiday season. However, the paintings, unlike the accompanying lights, bows, candles, Santa Claus house or 15-foot snowman, pronounce a Christian message by graphically recounting the story of the life of Jesus Christ. Therefore, the City’s involvement with the paintings gives rise to an unconstitutional establishment of religion and represents an impermissible way for the City to fulfill the secular purpose of celebrating the Christmas holiday season.
2. Advancement or Inhibition of Religion under Lemon
The second prong of the Lemon test examines whether the primary effect of the practice advances or inhibits religion. In recent years, this has become the linchpin of Establishment Clause analysis. As set forth in Lemon, a statute or practice that touches upon religion is impermissible under the Establishment Clause if it advances or inhibits religion in its principal or primary effect. Lemon, 403 U.S. at 612-613, 91 S.Ct. at 2111. In contrast to the secular purpose prong of Lemon, where courts will have before them some explicit manifestation of secular purpose which can then be subjected to judicial scrutiny, the “effects” prong of Lemon requires courts to conduct a fact-specific inquiry into the content and context of the display itself. As noted above, Justice O’Connor, in an attempt to resolve the inherent ambiguities of this prong, has analyzed Establishment Clause cases by emphasizing effects of the practice under the rubric of the endorsement test (or the “no endorsement” test as some courts and commentators would have it). See Allegheny, 492 U.S. at 623, 109 S.Ct. at 3117; Lynch, 465 U.S. at 687, 104 S.Ct. at 1366; Wallace v. Jaffree, 472 U.S. at 67, 105 S.Ct. at 2495 (O’Connor, J., concurring).
In ascertaining the effect of the paintings, the Supreme Court in Allegheny
Second, Allegheny articulates the method for determining here whether the pictures in the Park have the effect of endorsing religion: “[T]he question is ‘what viewers may fairly understand to be the purpose of the display.’ ” 492 U.S. at 595, 109 S.Ct. at 3102. This understanding, of course, depends upon the content of the message and the context of the display. An examination of the content and context of the display, the Allegheny opinion rightly notes, requires that the unique circumstances of a display be scrutinized to determine whether it gives rise to governmental endorsement of religion. Id. There is no need in the following analysis of content and context here to split hairs to arrive at a decision. This analysis will demonstrate clearly the extent to which the content and context of this display effect an endorsement of religion by the City.
a. The content of the paintings
The content of the display is undeniably religious. The paintings pictorially narrate important events in the life of Jesus Christ. As the description of each painting in Part I.A. demonstrates, the paintings convey core beliefs of Christianity — the birth of a Saviour, the miracles that he performed, his spiritual teachings, his crucifixion, and his resurrection. Only three of the paintings depict New Testament scenes arguably related to Christmas and to a creche (the infant Jesus in the manger, the announcement of his birth to the shepherds and the visitation of the three wise men), and these too promote a religious message when considered alone or alongside the other thirteen paintings.
The remaining paintings convey different messages associated with a range of Christian holidays and with events in Jesus’ life taking place long after his birth. To the extent that most of the paintings bear no direct relation to Christmas, the pictures in the Park are more like a cross than a creche. Therefore, this Court’s analysis and decision in ACLU v. City of St. Charles, 794 F.2d 265 (1986), certiorari denied, 479 U.S. 961, 107 S.Ct. 458, 93 L.Ed.2d 403, is particularly applicable. St. Charles affirmed an injunction issued against the display of a cross atop a city firehouse. There we distinguished between the public display of a Nativity scene, which has been upheld at times because of its close connection to the secular celebration of Christmas, and the display of a Latin cross, which calls to mind a very different message, one that is inconsistent with the Christmas holiday:
When Christmas is considered in its secular signification, as a public holiday for Americans of whatever system of religious belief (or nonbelief), the introduction of the cross into the Christmas celebration strikes a discordant chord; for most Americans do not like to think about death in connection with birth. At any rate the cross is not in fact a common Christmas symbol, as far as any member of this panel is aware or the record shows.
St. Charles, 794 F.2d at 273. The thirteen paintings are like the Latin cross, in our analysis, because they encapsulate aspects of Christianity that do not bear any relation specifically to the story of Christmas. Christians commemorate Christmas in different ways: through children’s stories such as “The Little Drummer Boy” or through Christmas carols such as “Silent Night,” “We Three Kings,” “Hark, the Herald Angels Sing,” and “What Child is This.” All of them celebrate or recount the story of the birth of Jesus. None of them recall the events depicted in thirteen of the paintings. The story of the loaves and fishes, the baptism of Jesus, the road to Emmaus and the Last Supper simply do not figure into the story of the holiday in either its religious or secular variations.
Similarly, the pictures in the Park evoke in the mind of the observer much more than the story of Jesus’ birth. Indeed, the name of the display itself, “The Greatest Story Ever Told,” encompasses the life, crucifixion, and resurrection of Jesus — not just the Christian miracle of his birth. It is a Christian display, not a Christmas display. Indeed, the paintings proclaim and showcase the core tenets of the Christian religion by communicating the entire story of Jesus. While Allegheny recognized that a créche, in limited circumstances, might be permissible under the Establishment Clause, the City may not celebrate Christmas “in a way that endorses Christian doctrine.” 492 U.S. at 601, 109 S.Ct. at 3105. Because the content is undeniably religious, it becomes necessary to turn to a consideration of the context of the display to determine whether a reasonable observer might conclude that the circumstances of the display overcome the message of endorsement to be derived from its content.
b. The context of the paintings
Allegheny mandates a close examination of the context of the display to determine whether its overall effect endorses religion. This requires consideration of several factors, the most important being its physical setting. Allegheny, 492 U.S. at 597-598, 109 S.Ct. at 3103. In Allegheny, the context was determinative in the Court’s decision to find unconstitutional the display of the creche while upholding the display of the Chanukah menorah.
Before evaluating the context of the paintings, it is worth noting that the inquiry into context does not proceed based on any fixed criteria. The Supreme Court has identified physical setting as central to the inquiry. This makes sense when the constitutional question turns on whether the government has endorsed religion by erecting or permitting a display with religious content. However, this does not mean that the contextual inquiry proceeds without considering, where necessary, other elements of the context in addition to the physical setting. Webster’s Third New International Dictionary defines “context” as “the interrelated conditions in which something exists or occurs.” This definition corresponds with what Justice O’Connor identified as the proper approach for evaluating government practices that implicate the Establishment Clause: “Every government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion.” Lynch, 465 U.S. at 694, 104 S.Ct. at 1370. In addition to setting, the context of the paintings also encompasses what the district judge called “their history and ubiquity”; the presence or absence of other holiday symbols in and around the display; and the nature of any written declarations on or near the display.
Consideration of the physical setting of the display involves several elements. First is the actual location of the display. The Court in Allegheny found unconstitutional the display of a créche on the Grand Staircase of the County Courthouse building. The créche there stood alone on the staircase in the foyer of the Courthouse. Id. 492 U.S. at 598-599, 109 S.Ct. at 3104. In this way, the display had the effect of endorsing Christianity by sending to observers of the créche and accompanying Latin cross the message that the religious aspects of Christmas were close to the seat of judicial power in the county.
Similarly, in American Jewish Congress, this Circuit held against the City of Chicago, finding that its display of a créche in City Hall violated the Establishment Clause. In reaching its decision, the Court applied the endorsement inquiry and concluded that the particular placement of the créche inside City Hall, a center of government functions and the seat of city and county governments, sent a message of endorsement to observers:
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,*766 inevitably creates a clear and strong impression that the local government tacitly endorses Christianity.
American Jewish Congress, 827 F.2d at 128. Therefore, it was the placement of the créche in the lobby of the seat of government in Chicago that compelled us to conclude that the display violated the Establishment Clause.
The physical placement of the paintings in this case is admittedly different. Washington Park is three blocks away from City Hall but the Illinois Appellate Court, Third District, is directly across the street. While the message of endorsement here is different from cases where the religious display is placed at the center of government power (e.g., the lobby of a city hall), the placement of the paintings in the Park still effects an impermissible endorsement of religion. Government endorsement of a religious message, contrary to the Jaycees’ suggestion, can be manifested in many ways. The constraints imposed on government by the Establishment Clause do not diminish as we move farther away from City Hall. Endorsement is equally unconstitutional regardless of whether the endorsement manifests itself on the steps of City Hall or in a public picnic area on the outskirts of town. In either ease, courts must determine whether the government practice passes the endorsement test.
In addition, as noted in Part I.A., the paintings occupy much of the length of the entire western side of the Park.
The City, in allowing the construction of thirty-two new, concrete-filled holes and metal sleeves to support the paintings, has manifested its intent that their permanent home will be in the Park. The holes and metal sleeves were dug especially for the paintings — to date, they have supported no other display. The permanent presence of physical supports for the paintings sends a message that the government property provides a permanent home for an annual private religious display. Even when the paintings are not on display, the specially designed covered holes remind passers-by that the paintings’ annual home is the Park.
The paintings’ physical location is not the sole consideration for examining the context of the display. In addition to location, Allegheny also directs the Court’s attention to the physical setting of a display. This inquiry was dispositive to a majority’s finding unconstitutional the display of the creche, while at the same time upholding the display of the menorah. The Court distinguished its findings from its earlier decision in Lynch, where the Court found that the display of a créche alongside other secular symbols of the holiday season, each of which was a prominent part of the overall holiday display, did not send an overall message of endorsement. In Allegheny, the Court found that the créche was not part of an overall holiday setting: it sat alone in the foyer of the County Courthouse, framed by traditional flowers of the season and a Latin cross. Allegheny, 492 U.S. at 598-599, 109 S.Ct. at 3104. Rather than drawing attention away from the créche, those decorations served only to draw additional attention to the message within the frame. Id. In contrast, the Court found the display of the Chanukah menorah in front of the City-County Building to be a part of an overall holiday dis
The City of Ottawa was not blind to the Supreme Court’s reasoning in Lynch and Allegheny. After deciding in 1986 not to remove the display of paintings from the Park, the City attempted to turn what had been a singular display of paintings into an “overall holiday display” that would pass muster under these decisions. In this effort, the City mistook the careful contextual consideration required by the “endorsement” test for a formalistic approach to this problem. The Jaycees would first have this Court ignore all the years during which the paintings stood alone in the Park and consider instead only those years when the City added its secular trimmings to the display. As demonstrated below, the history of the display is indispensable to this Court’s contextual analysis. But even considering only the period when the paintings were accompanied by the “Festival of Lights,” this attempt to “neutralize” the display of paintings must fail.
As Justice O’Connor recognized in Lynch, a creche has undeniable sectarian significance, and the presence of secular symbols does not neutralize the religious elements. Rather, the creche, despite its inherent religiosity, was constitutionally acceptable in Lynch because it was not the primary focus of the display and because the display, although state-sponsored, was situated in a privately owned park. The secular symbols were equally prominent both in their size and as separate visual foci of Pawtucket’s Christmas arrangement. Additionally, the creche was part of the “overall holiday display” because it was an appropriate part of the celebration of the Christmas holiday.
Similarly in Allegheny, the Chanukah menorah was an admittedly religious symbol, but Justice Blackmun recognized that the city had “few reasonable alternatives that are less religious in nature.” Allegheny, 492 U.S. at 618, 109 S.Ct. at 3114. Additionally, the menorah was placed alongside a secular symbol, the tree, and a secular slogan, the salute to freedom, diminishing the possibility that the city wished to endorse the Jewish religion. Id. at 617-619, 109 S.Ct. at 3114-3115. The Court concluded that the overall effect of this display was to emphasize the legacy of freedom and not to endorse Judaism. Id.
In contrast, the City in this case has attempted in vain to include the paintings as part of an overall holiday display in the Park. By installing a 15-foot-tall lighted snowman and stringing lights, bows, snowflakes and giant candles on the trees, the City has attempted to neutralize the religious content of the paintings, engaging in what one member of this Court has described as constitutional “interior-decorating,” American Jewish Congress v. City of Chicago, 827 F.2d 120, 129 (7th Cir. 1987) (Easterbrook, J., dissenting). Unfortunately for the City, to paraphrase this Court’s decision in Crestwood, not even a battalion of giant snowmen or a blizzard of snowflakes would absorb the paintings into an overall holiday display. See Crestwood, 917 F.2d at 1479 (“[E]ven a herd of reindeer and a forest of jumbo candy canes could not neuter a mass — a religious observance that does substantially more than mark the birth of a figure with religious significance.”).
The paintings, unlike a creche, do not lend themselves to becoming a part of an overall Christmas display. As already noted, with the exception of three of the paintings, the message of the display commemorates much more than the story of Jesus’ birth. A painting of the Sermon on the Mount, the stilling of a lake storm, the Last Supper, or the crucifixion does not complement the secular symbols of Christmas to make an integrated Christmas holiday display — each canvas portrays religious elements of Christian theology.
The district judge rightly noted that the inquiry into context did not end with an examination of the location and the setting of the display. While the location to some extent, and the setting to a much greater extent, raise constitutional problems, the history of the paintings only strengthens this Court’s conclusion that the City endorsed the display. In Allegheny, Justice O’Connor articulated the relevance of the history and ubiquity of a practice to Establishment Clause analysis:
Under the endorsement test, the ‘history and ubiquity’ of a practice is relevant not because it creates an ‘artificial exception’ from that test. On the contrary, the ‘history and ubiquity’ of a practice is relevant because it provides part of the context in which a reasonable observer * * * would view such long-standing practices as a disapproval of their particular religious choices.
Allegheny, 492 U.S. at 630, 109 S.Ct. at 3121 (O’Connor, J., concurring). This part of the endorsement test draws our attention to the duration of the display. In his review of the dates during which the display remained in the Park, the district judge correctly concluded that the paintings outlasted the Christmas season and all of the secular holiday decorations in the town. By the defendant’s own conservative estimates, on two occasions the paintings were still on display in February and in one year they remained on display until the beginning of March. The reasonable observer could still view the paintings, although Christmas itself faded into memory. Even when this Court draws factual inferences in favor of the Jaycees and accepts their admitted approximations for the duration of the display from 1980-1988, we agree with the district judge, who recognized that “in every year since 1980 the paintings were displayed beyond (and in virtually every year, well beyond) any reasonable definition of the ‘Christmas season.’ ” Doe v. Small, 726 F.Supp. 713 at 717 (1939) (emphasis in original). While it is true that in 1988-1989, the duration of the display shortened dramatically, the shorter time period was in response to threatened litigation, and not some recognition by the City that a display of religious paintings for a quarter of a year or more
The Jaycees contend that this Court should consider only the most recent year of the litigation in applying the endorsement test. However, given the history of the display, that would be inappropriate.
Moreover, as with other factual issues, the dissent accuses this Court of a failure to view the duration of the display in a light most favorable to the non-moving party. This dispute, like the other contested material facts, does not require a trial. As the Supreme Court recognized in Anderson v. Liberty Lobby, Inc., 477 U.S. 242 at 248, 106 S.Ct. 2505 at 2510, 91 L.Ed.2d 202 (1986), “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” The shorter time period attested to by the Jaycees does not negate the paintings’ religious content and the message of endorsement embodied in the context and content of the display. While the advent and duration of the Christmas season can be measured by a calendar, the legality of the Jaycees’ display is measured by the Constitution.
c. The park as a public forum
The Jaycees also argue (and they view this as their strongest point) that their admittedly private religious expression in the Park should receive First Amendment protection under the freedom of speech clause of the First Amendment, since they are a private organization and the Park is a traditional public forum. In arguing that the doctrine of the public forum rescues the City from Establishment Clause analysis, the defendant would have us invent an unprecedented exception to the Establishment Clause.
The Jaycees claim that the display is protected speech because it occurs in a public park, drawing attention to Supreme Court decisions upholding free expression in a public forum: “Parks have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939). We accept wholeheartedly the assertion that the Park is a public forum. However, identifying a public forum provides merely a starting point for treating the right constitutional questions. It does not relieve a court of its duty to conduct the proper inquiry into a constitutionally suspect practice.
Where private speakers desire access to a public forum, the relevant constitutional inquiry remains the same. Neither the Park’s status as a public forum nor the display’s sponsorship by the Jaycees, a private organization, resolves the conflict between the Establishment Clause and free speech clause in favor of the defendant. The Supreme Court in Allegheny recognized that “the Establishment Clause does not limit only the religious content of the government’s own communications. It also prohibits the government’s support and promotion of religious communication by religious organizations.” Allegheny, 492 U.S. at 600, 109 S.Ct. at 3105.
We have already demonstrated the extent to which the content and context of the display compel a conclusion that the City endorsed religion by permitting the Jaycees to display the paintings, and we have shown the City’s failure to articulate a secular purpose sufficient to satisfy the first prong of the Lemon test. The record in this case, therefore, does not permit drawing a bright line between city involvement and private sponsorship.
The City has identified itself with the display to so great an extent that the display cannot be viewed as a case of purely private expression in a public forum. For this reason, the public forum analysis as the Jaycees would have us apply it is inappropriate. This Court need not find a compelling interest sufficient to curtail the Jaycees’ private expression, because the degree of government involvement and endorsement brings the case squarely within the purview of the Establishment Clause analysis.
This Court’s recent decision in Crest-wood provides no support for the Jaycees’ “public forum” argument. Crestwood, applying Establishment Clause analysis, found unconstitutional the village’s endorsement and sponsorship of a Roman Catholic mass in a public park during the city’s Italian festival. Crestwood, 917 F.2d at 1476. In the decision finding an unconstitutional endorsement of religion, we added the following dicta: “If the Festival * * * is open to private groups that wish to participate, and if [a private group] were the sponsor of the mass, it would be difficult to find an obstacle in the establishment clause of the first amendment.” Crestwood, 917 F.2d at 1478.
This suggestion rests on two assumptions, neither of which exists in this case. The hypothetical case described in Crest-wood posits a policy of equal access, whereby a variety of groups would be welcome to express their views in the public forum. The second part of this statement, that private sponsorship of a religious display would require a different outcome, presumes that sponsorship is wholly private. The facts in this case belie both assumptions, failing to bring the case within the purview of the dicta in Crestwood. As discussed above, there is no explicit or visible policy of equal or open access to the Park. The record shows that the paintings and a flea market are the only regular group uses of the Park. There is no evidence that any other group besides the Jaycees has mounted a religious or any other display with regularity in the Park. Moreover, the sponsorship is not, nor has it ever been, wholly private. The degree of government involvement in endorsing the Jaycees’ display blurs the line between pri
It is worth noting here that this suit was brought pursuant to 42 U.S.C. § 1983, and that doctrine governing liability of private persons under § 1983 provides a useful analogy for understanding why the Jaycees’ display violates the Establishment Clause. Private persons can be held liable under § 1983 for deprivation of a constitutional right where the defendant has acted “under color of law.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970); Monroe v. Pape, 365 U.S. 167, 184, 187, 81 S.Ct. 473, 482, 484, 5 L.Ed.2d 492 (1961). Where a private person conspires with a state official to deprive an aggrieved party of constitutional rights by engaging in a prohibited action, § 1983 liability will attach. Adickes, 398 U.S. at 152, 90 S.Ct. at 1605-1606. This is true regardless of whether the police action was authorized officially or lawfully. Id.
In this case, public and private conduct cannot be easily separated so that the Jaycees’ display evades constitutional scrutiny with the City effectively immunized from its responsibility to adhere to the Establishment Clause. The City’s longstanding support of the display, combined with the official authorization contained in the City Council Resolution and the Mayor’s statements in favor of the continued display of the paintings, blurs the line between public and private in this case.
Because the Supreme Court upheld private religious expression in a public forum in Widmar and more recently in Board of Educ. v. Mergens, 110 S.Ct. at 2356, the Jaycees argue that the analysis upholding expression in those cases mandates a similar outcome in this case. The Jaycees are wrong. These decisions are readily distinguishable on their facts, and in calling our attention to the outcomes the Jaycees avoid the Supreme Court’s consistent application of Establishment Clause analysis in both cases. In Widmar and Mergens the Court decided that student religious groups, at a public university and a public school respectively, could use educational facilities for group meetings. In Widmar, the Court applied the Establishment Clause analysis and found that the religious group was but one of a broad class of 100 recognized student groups permitted to use university meeting facilities as part of an “open forum” policy. Widmar, 454 U.S. at 274, 102 S.Ct. at 276. Furthermore, the
There is no valid comparison between the university’s stated open access policy and the City’s endorsement of the paintings. In applying the Establishment Clause analysis from Widmar, the majority noted that “the provision of benefits to so broad a spectrum of groups is an important index of secular effect.” Id. Here the paintings are no part of any broad spectrum: they are the only visual display erected with any regularity whatsoever in the Park, and the Jaycees are the only group to use the Park to engage in expression for an extended period of time.
Furthermore, the Widmar Court found no empirical evidence that by allowing the religious group to meet, they would in some way dominate the open forum. Id. at 275, 102 S.Ct. at 277. Here the paintings, taking up a portion of one side of the Park, dominate the public forum during and after the Christmas season. They remained the focus of the display even after the City attempted to neutralize the religious message of the display by installing secular symbols of the holiday season. Considerations specific to open access to a university forum prompted the Supreme Court in Widmar to conclude that the university’s policy effected no endorsement of religion. They are not present here, making Wid-mar an unpersuasive case for the Jaycees.
Nor does Mergens provide any additional support for the Jaycees’ position. In Mer-gens, the Court considered the limited question of whether the Equal Access Act, 98 Stat. 1302, 20 U.S.C. §§ 4071-4074, prevents a high school from denying a student religious group permission to meet on school property during non-instructional time. Mergens, 110 S.Ct. at 2362. The Court held that the school’s denial of permission, based on Establishment Clause concerns, violated the students’ right to equal access within the meaning of the Act. Id. at 2370.
Mergens is distinguishable for several reasons. The case was decided on statutory grounds, and the Court looked to the legislative history of the Equal Access Act and to the findings of Congress that high school students were capable of distinguishing between a school’s sponsorship of religious speech and a student-run, student-created religious group. Moreover, the Court echoed its decision in Widmar by stating that the religious club was only one of many different voluntary student organizations permitted to use school facilities, and that there was no empirical evidence that the religious group would dominate the open forum. Mergens, 110 S.Ct. at 2373. In reaching its conclusion, the Court still adhered to the framework of earlier Establishment Clause analysis, but found there would be no message of government endorsement were the school to permit the student religious group to meet.
Unlike Mergens, which was essentially a statutory decision, there was no statute in the City of Ottawa explicitly setting forth a policy of equal access to the Park. Rather, the Court has before it only the defendant’s assertion that an unwritten equal access policy exists. Therefore, the Court’s decision in Mergens adds nothing to Widmar for purposes of this case. Instead it serves to reaffirm this Court’s conclusion that neither the municipal policies or practices in Ottawa support a finding that the City had a policy of equal access to the Park.
The Jaycees’ “public forum” argument suffers from the same defect as their other attempts to remove the display from the scrutiny of the Establishment Clause. The mere existence of a “public forum” does not confer on private speakers an automatic right to free expression. As this Court recognized recently in Lubavitch
We are not cognizant of * * * any private constitutional right to erect a structure on public property. If there were, our traditional public forums, such as our public parks, would be cluttered with all manner of structures. Public parks are certainly quintessential public forums where free speech is protected, but the Constitution neither provides, nor has it ever been construed to mandate, that any person or group be allowed to erect structures at will.
Lubavitch, 917 F.2d at 347 (emphasis supplied).
In Lubavitch, the Court concluded that the City restriction preventing a menorah from being displayed in a public area of the airport was a reasonable time, place or manner restriction on speech under applicable First Amendment jurisprudence considering the display might obstruct the use of the airport or interfere with operations there. Lubavitch, 917 F.2d at 346-347. This recognition has broader application to other cases in which claimed access to a public forum brings constitutional rights into conflict. The essential point is that claims to constitutionally protected access to a public forum do not trump other constitutional provisions. Here the Establishment Clause prohibits the Jaycees from mounting their display in a public park because of the unconstitutional message of governmental endorsement associated with the paintings.
The Jaycees’ argument in support of a per se rule concerning private speech in a public forum, not unlike the one rejected by the Court in Lubavitch, illustrates the apparent clash between the government’s obligation to adhere to the Establishment Clause and a private speaker’s right of free expression. Resolving the tension between the two provisions which coexist within the First Amendment does not require us to create a hierarchy of constitutional rights. On the contrary, the Supreme Court has expressly rejected efforts to assign priority to constitutional rights. In Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) the Court, in weighing the First Amendment freedom of expression against a criminal defendant’s Sixth Amendment right to a fair trial, declined to favor one amendment over another. Instead, the Court evaluated the extent to which the constitutional rights at stake would be served, concluding that a prior restraint on the press was inappropriate when there were other means available to the trial court to ensure a fair trial. Id. at 569, 96 S.Ct. at 2807-2808.
The analogy to cases involving public access to trials is useful here. Like the Supreme Court in Nebraska Press Ass’n, we decline to prioritize constitutional rights and reject the Jaycees’ argument that the free speech clause should override the Establishment Clause. Instead, this Court looks to the facts before it and recognizes the degree to which paintings in the Park effect an impermissible endorsement of religion in violation of the Establishment Clause. Our decision imposes a minimal burden on the Jaycees’ right to free expression, given the availability of alternative fora for the display.
The Second Circuit also recognized that the assertion of a public forum does not permit a private actor to ignore the Establishment Clause. In Kaplan v. City of Burlington, 891 F.2d 1024 (1989), certiorari denied, — U.S. -, 110 S.Ct. 2619, 110 L.Ed.2d 640 (1990), the court held unconstitutional the display of a Chanukah menorah in a public park next to city hall and noted that “the existence of a public forum is simply a factor to be taken into account in determining whether the context of the display suggests government endorsement.” Id. at 1029. If a reasonable observer, upon viewing a religious display in a public forum, concludes that the dis
In a recent decision, the Fourth Circuit, in a case with facts similar to those before this Court, also recognized that private religious speech in a public forum may be restricted if there is an Establishment Clause violation. Smith v. County of Albemarle, 895 F.2d 953 (1990), certiorari denied, — U.S. -, 111 S.Ct. 74, 112 L.Ed.2d 48. At issue in Albemarle was the erection of a nativity scene by the local Jaycees on the public lawn in front of the county office building. The Jaycees also claimed in that case that prohibiting the display in a public forum would violate their First Amendment right to freedom of expression. Albemarle, 895 F.2d at 958. However, the Fourth Circuit found that the county had a compelling interest in enforcing a content-based regulation of speech in the local rules governing displays, in order to satisfy the Establishment Clause tests set forth in Lemon and Widmar. Albemarle, 895 F.2d at 959. The county possessed a compelling interest to avoid the unmistakable message of endorsement conveyed by “a prominent religious display in a government setting,” thus justifying removal of the Jaycees’ nativity scene from the front lawn of the county office building. Id.
In reaching this decision, the Fourth Circuit recognized that excluding the creche from public property was necessary and the most narrowly tailored means available to the court to comply with the Constitution. Furthermore, the court recognized that excluding private religious speech from a public forum does not prohibit the Jaycees from exercising their religious beliefs. Id. at 960. On the contrary, the Jaycees there were free to take their display elsewhere. Similarly, there is no question in this case that the Ottawa Jaycees also can move their display to private property. The record reflects that the Jaycees had such an offer to move the paintings onto the property of a local bank and were prepared to move the display, until the City reversed its initial decision to exclude the paintings from the Park and instead provoked a constitutional challenge by the original plaintiff. Removing the display from the Park permits the government to steer the constitutionally required course of neutrality “among religions, and between religion and non-religion.” Id., quoting Grand Rapids School Dist. v. Ball, 473 U.S. 373, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985).
III. CONCLUSION
The current constitutional tests under the Establishment Clause required us to engage in an extensive review of the Jaycees’ display in reaching the conclusion that this exhibition of paintings in Washington Park violates the Establishment Clause. Our decision imposes no content-based restriction on a private person’s freedom of expression in a public forum. On the contrary, this Court recognizes that true freedom of religious expression and freedom from governmental establishment of religion are inextricably linked features of our constitutional order: “The First Amendment rests on the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere.” Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203, 212, 68 S.Ct. 461, 465, 92 L.Ed. 649 (1948).
In finding there to be an unmistakable message of governmental endorsement un
The district court’s entry of summary judgment for plaintiff is affirmed.
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. The Establishment and Free Exercise Clauses of the Constitution read, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; * * *." U.S. Const. Amend. 1. The First Amendment applies to the states through the Fourteenth Amendment. Everson v. Board of Educ., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947); Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972).
. Photographs of the 16 paintings are reproduced here in the appendix to the majority opinion.
. Nothing in the record indicates that, aside from the illumination provided by the street lights on LaSalle Street, special lighting was ever installed expressly for the purpose of illuminating the paintings at night.
. The district judge properly admitted this and other newspaper articles as party admissions. On appeal, defendants have not contested this evidentiary ruling by the trial court.
. Plaintiff disputes the Jaycees’ approximations, arguing that the defendant based its approximation on information and belief, making this chronology improper evidence in support of defendant’s motion for summary judgment. Plaintiff claims that the paintings were on display for an average of 11 weeks each year. (Plaintiffs Br. at 4 n. 3.)
. Rohrer subsequently lost standing to pursue the suit when he moved out of state. The district court permitted the substitution of Jane Doe, allowing her to proceed anonymously so that she would not be subjected to the same vilification and harassment as Rohrer endured. Rohrer and Doe both alleged injuries sufficient to confer standing to bring this action. In contrast to a recent opinion of this Court, Harris v. City of Zion, 927 F.2d 1401 (7th Cir. 1991), in which Judge Easterbrook’s doubts about the plaintiffs’ standing provided a basis for his dissent, id. at 1419-1422, the plaintiffs standing in this case is uncontested.
. To the extent that there are contested facts to be decided here that determine the outcome of this lawsuit, they are facts considered in light of the law to resolve the ultimate constitutional legal questions at issue. These have also been described by other jurisdictions as "constitutional facts” or "mixed questions of law and fact.” They are therefore subject to de novo review by this Court. Bose Corp. v. Consumers Union, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). In Bose, the Supreme Court held in a defamation suit that evidence of actionable "actual malice” had to be independently considered by a reviewing court, because "[¡judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof,” id. at 511, 104 S.Ct. at 1965. Bose contains language confirming its application across First Amendment jurisprudence: "The simple fact is that First Amendment questions of 'constitutional fact’ compel this Court’s de novo review.” Id. at 509 n. 27, 104 S.Ct. at 1964 n. 27.
The determination as to whether a particular government practice survives scrutiny under the Establishment Clause turns on what can be described as the evaluation of constitutional facts. In her concurrence in Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985), Justice O’Connor identified the relevant constitutional factual inquiry in scrutinizing the constitutionality of a legislated moment of silence in public schools. The question is “whether an objective observer, acquainted with the text, legislative history, and implementation of the [challenged] statute, would perceive it as a state endorsement of prayer in public schools.” Wallace v. Jaffree, 472 U.S. at 76, 105 S.Ct. at 2500 (O'Connor, J., concurring).
Two appellate courts have also recognized the applicability of the constitutional fact doctrine to cases involving alleged violations of the religion clauses of the First Amendment. New Life Baptist Church Academy v. Town of East Long-meadow, 885 F.2d 940, 942-943 (1st Cir. 1989) (recognizing the reviewing court’s obligation under Bose to make an independent examination of the whole record to determine the constitutional significance of the facts in the case), certiorari denied, — U.S. -, 110 S.Ct. 1782, 108 L.Ed.2d 784 (1990); Bender v. Williamsport Area School Dist., 741 F.2d 538, 542 n. 2 (3rd Cir. 1984) (applying constitutional fact doctrine to Establishment Clause analysis in case involving the use of a public area for a non-denominational prayer club meeting), vacated for lack of standing, 475 U.S. 534, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). The court in Bender suggested on its review of the grant of summary judgment that where constitutional facts are at issue, a reviewing court is not required to draw inferences in a light most favorable to the non-moving party: ”[A]n appellate court is free to draw its own inferences from the record. * * * As a result [of Bose ] we do not defer to the same extent to factual inferences drawn from the record by the district court as we might in a case not involving constitutional and, in particular, first amendment rights.” Bender, 741 F.2d at 542 n. 3.
. This is not the first time that the Framers’ intent and Supreme Court jurisprudence have been the object of controversy in Washington Park. As the Jaycees note, the Park was the site of the first debate between incumbent Illinois Senator Stephen Douglas and candidate Abraham Lincoln in the future President's unsuccessful effort to unseat Douglas in 1858. Then the issue was slavery, not religion, and the Supreme Court decision at issue was Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L.Ed, 691, not Allegheny. Lincoln invoked the intent of the founding fathers, arguing that they would have favored halting the spread of slavery in preparation for slavery’s "ultimate extinction.” First Lincoln-Douglas Debate, Ottawa, Illinois, 1 Abraham Lincoln, Speeches and Writings 514 (D. Fehrenbacher ed. 1989).
. Professor Laycock responds to the arguments in support of the coercion approach by pointing out that such a narrow reading makes the two religion clauses of the Constitution redundant:
Religious coercion by the government violates the free exercise clause. Coercion to observe someone else’s religion is as much a free exercise violation as is coercion to abandon my own. If coercion is also an element of the establishment clause, establishment adds nothing to free exercise.
Laycock, "Nonpreferential” Aid to Religion: A Fabe Claim About Original Intent, 27 Wm. & Mary L. Rev. 875, 922 (1986).
For a contrasting view supporting the "coercion" approach to Establishment Clause analysis, see Michael W. McConnell, Coercion: The Lost Element of Establbhment, 27 Wm. & Mary L. Rev. 933 (1986).
. The third Lemon prong, the "entanglement” prong, was not considered by the district court.
. The City attempted to offer a secular purpose for the Resolution by engaging in a quasi-legislative historical analysis. The City pointed to a 1988 deposition by the Mayor pro-tem at the time. The Jaycees claim that he testified that the City passed the resolution to avoid litigation by the Jaycees for an unconstitutional restriction on their right of access to a public park.
Although the City attempted to offer this testimony as the history of the resolution, this testimony related to events that took place two years after the Resolution endorsing the Jaycees’ activities was passed. The statements by the May- or pro-tem concerned another entirely different resolution passed in response to Rohrer's 1988 request that the City remove the pictures from the Park. This resolution denied the Jaycees’ request to display the paintings during 1988-89. It was subsequently reversed when the City decided to permit the display and risk litigation by Rohrer. The district judge determined that even if the testimony were offered as a secular purpose for the City’s 1986 resolution endorsing the Jaycees’ display, it would fail to provide a secular purpose for the paintings. If a governmental body were permitted to argue that its secular purpose in endorsing a religious message was to avoid threatened litigation, then private parties couldengage in a variety of religious activities in disregard of the requirement of the Establishment Clause, and the governmental body would offer in defense its fear of litigation as a secular purpose. Doe v. Small, 726 F.Supp. 713, 720 (N.D.Ill. 1989). Such a post hoc justification fails to provide a secular purpose for actions undertaken in support of an undeniably religious message.
. As noted above in Part LA. on one occasion, George Bush, campaigning for the Presidency, made an appearance in Washington Park. A temporary platform was erected for his visit — it was dismantled after the campaign event. See
. As demonstrated below, this case is easily, distinguished from the cases where the Supreme Court upheld the right of student religious groups to meet on the premises of an educational institution. Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981); Board of Educ. v. Mergens, — U.S. -, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990). See also Smith v. County of Albemarle, 895 F.2d 953, 959-960 (4th Cir. 1990) (finding that the county government had a compelling interest in prohibiting the Jaycees’ display of a créche on a public lawn). See discussion in Part II.B.2.C. infra.
. The Jaycees argue that Allegheny is irrelevant to an examination of secular purpose, because that case focused only on endorsement. Instead, the Jaycees would have this Court adopt a bright-line rule based on its reading of Lynch and American Jewish Congress. Both cases found that the celebration and recognition of the Christmas holiday season evince a permissible secular purpose. This recognition does not end the inquiry, for a court scrutinizing the display must ascertain whether or not the practice in question actually advances the asserted
The inquiry into secular purpose does not end with the mere assertion of a purpose. Rather, the purported purpose must be applied to the specific facts at hand to determine whether that purpose is advanced by the display. To that extent, there is inevitably some overlap between the application of the first two prongs of the Lemon test. A thorough inquiry into purpose necessitates consideration of a display’s content and context. Therefore, the analysis of Allegheny is indispensable to a consideration of secular purpose. To suggest otherwise overlooks the import of Allegheny, the most recent case from the Supreme Court bearing a factual similarity to this one in that Allegheny also considered the constitutionality of a religious display.
. The dissent accepts as fact the Jaycees’ contention that the paintings embrace an area equal to only 6.34 percent of the Park. See Dissent at 794. It is undisputed, however, that the length of the display from one end to another is 177 feet and that the side of the Park on which the paintings are aligned measures 366 feet. The Jaycees’ area measurement appears to include the airspace above the foundations of the paintings. On the other hand, plaintiff asserts that the paintings occupy fully 20 percent of the Park. Even if we accept the defendant’s asserted measurements, the resolution of this factual dispute will not alter the outcome of the suit under governing Establishment Clause analysis. Constitutionality does not turn on the creative use of a tape measure.
. Nor are the paintings like the display of a Nativity scene that was upheld by this Circuit in Mather, 864 F.2d 1291, 1293. In that case, the Court found constitutional a display that included a creche along with many other symbols of the Christmas season. Like the creche in Lynch, viewers of Mundelein’s display would see a grouping of symbols, “most of which are secular.” Mather, 864 F.2d at 1293. Because the creche was a part of a larger display, it passed constitutional muster despite its location on the grounds of city hall.
. The Jaycees urge us to consider only the most recent year of the display, claiming that the history of the display is constitutionally irrelevant. In arguing that we should consider only the "status quo,” the Jaycees rely on Lovell v. Brennan, 728 F.2d 560 (1st Cir. 1984). In Lovell, the court declined to grant injunctive relief where the defendants ceased their unconstitutional conduct. In this case, there is no indication that the City agreed to discontinue its unconstitutional conduct; therefore, we cannot overlook the City’s longstanding Establishment Clause violation. Presently, there is no “mootness” problem while the constitutional violation persists, and the case remains ripe for this Court's consideration.
. The dissent relies on two recent Sixth Circuit cases to support its position that a private religious display in a public forum is constitutionally protected expression. Dissent at 809-810. In the first case, Americans United for Separation of Church and State v. City of Grand Rapids, 922 F.2d 303 (6th Cir. 1990) (“AUSCS"), the court held that a private religious group responsible for the display of a menorah in a public forum could intervene as of right in an action against the city to enjoin the display. Although the court "strongly emphasize[d] that we are not now deciding the appeal," it stayed the district court’s decision to issue an injunction against the City believing that the private religious group was likely to succeed on the merits. Id. at 306-307. Unlike the Jaycees' display, the record in AUSCS lacks evidence of a history of government approval of the display. Moreover, the court found the disclaimer sign to be “large and explicit,” id. at 310. The menorah was displayed in a public forum that was equally available to other religious groups with permission. In contrast, access to Washington Park was admittedly governed by no policy at all. The court in AUSCS also acknowledged that the demographics in Grand Rapids made it unlikely that the reasonable observer would conclude that the city endorsed Judaism. In Ottawa, the demographics, given the history of the display and the public reaction against the filing of the lawsuit, could only mediate in favor of a contrary conclusion. See, e.g., Voice of the People, Ottawa Daily Times, Nov. 11, 1986, Plaintiffs Exhibit No. 50 (letter to the editor recognizes that the display commemorates “our country’s major religion”).
The other Sixth Circuit case embraced by the dissent also failed to reach the merits of the alleged Establishment Clause violation. In Congregation Lubavitch v. City of Cincinnati, 923 F.2d 458 (6th Cir. 1991), the court vacated the district court’s issuance of a preliminary injunction against the display of a menorah in a public square. However, the analysis by the court is thin, for the court concludes simply that Cincinnati’s exclusion of the menorah was not content neutral. Id. at 461. In addition, the case is easily distinguishable, for the display was exclusively sponsored by a private group and the public square provided a forum for other displays over an extended period of time. Id. at 462.
. There is a permanent veterans memorial in the Park but it has no religious connotations.
. The Jaycees’ position plainly proves too much. If the City not only permitted the Jaycees to display the paintings, but also allowed the organization to build a church so that citizens could attend services at the same time they visited the Park to view the paintings, the use of public lands for a house of worship would offend the core of the Establishment Clause even though the Park is a public forum.
. The Jaycees argue that the presence of their small disclaimer alongside the paintings display shows that the display is protected speech by a private group. However, the disclaimer was posted by the Jaycees, and not by the City. The conclusion to be drawn is that the City endorses the activity of a private organization on public grounds. Justice Blackmun, addressing the presence of a similar disclaimer in Allegheny, wrote:
The fact that the créche bears a sign disclosing its ownership by a Roman Catholic organization does not alter this conclusion [of endorsement]. On the contrary, the sign simply demonstrates that the government is endorsing the religious message of that organization, rather than communicating a message of its own.
Allegheny, 492 U.S. at 600, 109 S.Ct. at 3105.
Dissenting Opinion
dissenting.
We are faced with the issue of whether a private display of religious paintings by the local chapter of Junior Chamber of Commerce in a quintessential public forum, well removed from the seat of government, is protected under the Freedom of Speech Clause or violates the Establishment Clause. In the majority's eagerness to participate in the creation of an absolute wall of separation between church and state, which has never existed (see Doe v. Village of Crestwood, Ill., 917 F.2d 1476, 1481-82 (7th Cir. 1990) (Coffey, J., dissenting)), petition for cert. filed, 59 U.S.L.W. 3726 (U.S. Apr. 23, 1991) (No. 90-1573), it has embarked on a journey whose end would exclude any and all religious types of expression from public forums. In its attempt to establish this novel and dangerous precedent, the majority has distorted the defendant’s arguments, misapplied the law and construed the facts on appeal from a summary judgment in the light most favorable to Doe, the moving party rather than in the light most favorable to the non-moving party, the Jaycees. The majority, in an action that is unseemly for a federal court, has performed an analysis of the proper theological content of a religious Christmas display and, while denying doing so, prioritized constitutional rights to afford less protection to religious expression in a pub-lie forum than to other forms of speech. The majority has failed to come to grips with the fact that this case must be analyzed under free speech and public forum concepts rather than as a religion clause matter, since, as I demonstrate below, it is private speech (the City has no on-going involvement with the display) and not government conduct that is primarily at issue. And the majority’s Lemon test analysis essentially raises a red herring by evaluating the Jaycee’s conduct rather than the City’s conduct.
I. FACTS
The majority’s selective presentation of the facts as well as the decisions cited in support of its holding requires that I fill in the missing elements to complete the picture. Initially let us establish that Washington Park, located in Ottawa, Illinois, is well removed from the seat of the City government; City Hall is three blocks away, and no buildings acquired or owned
“Q. So if I wanted to display my pictures depicting worship of the devil tomorrow in Washington Park, I could just go in and put up those displays, is that correct?
s(c $ >¡e * ‡
“The Witness: You can put them up, we might have to have, maybe, the engineer or someone that knows where the wiring is at so you don’t get electrocuted, but yes.
>(t * # sjc Jfc ‡
“Q. And other than checking the wiring in the ground, are there any other limits on installing concrete holes in the park?
“A. No.
“Q. So I could place these holes anywhere in the park without seeking City of Ottawa’s permission, so long as I complied with the wiring in the ground, is that correct?
“A. Yes.
“Q. And the City Engineer would advise me as to whether or not I was complying with any requirements or concerns with respect to wiring in the ground?
“A. Yes.”
* * * # * *
“Q. And I could, in fact, use the Jaycee holes to display paintings depicting devil worship without seeking the permission of the City of Ottawa, is that correct?
“A. That’s correct.
* * * * * *
“Q. I could do so without seeking the permission of the Ottawa Jaycees?
“A. Yes.
“Q. So long as I got there first?
“A. Yes.”
Deposition of City Council Member William C. Ferguson at 44, 86-88.
Unrestricted public access to Washington Park dates back some 133 years to the year 1858 when Abraham Lincoln and Steven Douglas made use of the Park for one of their famous debates. In 1988, President Bush likewise chose Washington Park as a forum for a speech and rally during his presidential campaign. According to City records, the Park has been the site of a broad array of private activities in recent years, including religious activities:
1982
June 19, 1982 Residents Against Polluted Environment sponsored “Earth Day”
Aug. 2, 1984 Tora! Tora! held a concert for world peace
1983
Oct. 29, 1983 Open air meeting sponsored by the Congregation of the New Life Ministry, Inc.
1984
June 28, 1984 Special Church Service
July, 1984 Religious Concert
Aug., 1984 Concert for World Peace
Aug., 1984 Cut a Thon by Cosmetologists
1985
Jan., 1985 Illinois Valley Citizens for Life Prayer Vigil
May, 1985 Concert in Washington Park
June, 1985 United Methodist Church Services
July, 1985 University Women Book Sale
July, 1985 Grade School Band Social and Concert
Oct., 1985 United Way Lunch
*794 1986
June, 1986 Camp Fire Girls Ceremony
June, 1986 Art League Display
June, 1986 Pastor Reed Church Service
July, 1986 Arts & Crafts Show — Art League
July, 1986 A.A.U.W. Book Sale
July, 1986 Decatur Park Concert
Aug., 1986 Grade School Band Concert
Aug., 1986 Flea Market
Aug., 1986 A.A.U. Book Sale
Sept., 1986 Ottawa Lioness Club Flea Market
Sept., 1986 Nam Vets POW/MIA National Recognition Ceremony
1987
May, 1987 Ottawa Retail Council Flea Market
May, 1987 Amazing Grace Fellowship Meeting and Concert
July, 1987 New Lite Ministries Rummage Sale
July, 1987 Nam Vets — Concert
Aug., 1987 Sesquicentennial Celebration Activities
Sept., 1987 Lioness Club Flea Market
Sept., 1987 Nam Vets POW/MIA National Recognition Ceremony
Oct., 1987 All Church Concert
1988
May, 1988 Mayfest Flea Market
July, 1988 Art Show
July, 1988 Book Sale
July, 1988 Dance Show
Aug., 1988 Flea Market
Sept., 1988 Lioness Flea Market
Sept., 1988 POW/MIA National Recognition Ceremony
(Emphasis added.)
For many years the City of Ottawa in the spirit of the season and “goodwill toward others” has combined with private parties in a joint effort to decorate the downtown area during the Yuletide season. As part of the City’s decorations, it displayed a Santa Claus house in the Park each year during the 1960s and 1970s, but more recently the City displays the house in alternate years. Additionally, the lamp posts in the downtown area as well as those lamp posts in and surrounding Washington Park are garnished with Christmas decorations. In 1988 the City added the “festival of lights” to the Christmas display in Washington Park. The festival of lights included lights, candles, bows, artificial snowflakes and a fifteen foot snowman. The lights were placed on various memorials in the Park as well as on tree branches, including the trees surrounding the paintings at issue in this appeal. The giant candles, bows, snowflakes and the fifteen foot snowman all served as different focal points and were visible from in and around the Park. The Christmas display in the Park also included an evergreen Christmas tree displayed by the Salvation Army that provided its own focal point.
The paintings at issue on this appeal occupy less than one-half of the west side of Washington Park in a slightly V-shaped angle (150°), and the vertex of the display is forty-eight feet from the street. Including the area between the paintings and the sidewalk, the paintings occupy 6.34 percent of the Park. The content of the paintings can be discerned only from the west side of the Park, but the City’s Christmas display, as distinguished from the J.C.C.’s display, can be viewed from any place in the Park. A 20%' wide by 21" high sign with letters 1 1/16" high, clearly legible from the side
In November of 1986, Richard Rohrer wrote a letter to the City Council requesting that the paintings be removed from Washington Park because they “represent an unacceptable endorsement of Christianity by the city and violate the constitutional rights of all Ottawans who are not Christians.” On December 2, 1986, the Ottawa City Council passed the following resolution:
“WHEREAS, for many years, the City of Ottawa has celebrated the Christmas season with many public displays of seasonal decorations throughout the community, and
“WHEREAS, the downtown area of the City has, for more than 20 years, been decorated through a coordinated effort of private and public bodies, including the County of LaSalle, City of Ottawa, Ottawa Area Chamber of Commerce, Retail Merchants Association, Ottawa Jaycees and various church and other private groups owning property in or near the downtown area, and
“WHEREAS, the decorations have consisted of ornamental lighting on the streets in downtown Ottawa; ornamental lighting, Christmas trees, lighted and festooned trees throughout the downtown area; Santa Claus house on the Courthouse lawn; ornamental lighting, and eighteen large paintings celebrating the Christmas spirit in Washington Park; nativity scenes and other seasonal decorations on private property surrounding Washington Park; ornamental lighting on the Fire and Police station and other decorations in keeping with the season, and
“WHEREAS, because of a single complaint filed with it concerning the paintings in Washington Park the City has reviewed the history of the paintings and find that they were initially commissioned by the Retail Merchants Association over 20 years ago as a portrayal of ‘The Greatest Story Ever Told’ in conjunction with and in commemoration of the spirit of Christmas; that the Retail Merchants Association for many years erected the pictures in Washington Park as part of the Christmas decorations for downtown Ottawa in keeping with the spirit of the season; that in recent years the pictures had been maintained, erected, dismantled and stored by the Ottawa Jaycees as their part in providing appropriate decorations for the community as part of the Christmas season, and
“WHEREAS, the City Council of the City of Ottawa finds that the decorations in downtown Ottawa which have been erected for more than the last 20 years by public and private agencies truly represent a cooperative effort by the community to provide appropriate seasonal yuletide spirit so that the people attracted by the Christmas decorations to shop and otherwise do their business in the downtown area will be benefitted by the traditional, beautiful and seasonally appropriate decorations which they have come to know and love for 2 decades.*796 The City Council specifically finds the pictures erected by the Jaycees in Washington Park are an integral part of the seasonal decorations epitomizing Christmas in the hearts and minds of the citizens of the City.
“NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ottawa, that after due consideration and reflection upon the complaint raised concerning the pictures in Washington Park, that this council endorse the activities of the Ottawa Jaycees in maintaining, erecting, dismantling and storing said pictures and incorporating them in the overall Christmas display that annually graces the downtown area of the City and further thanks all the other groups, public and private, who also maintain, erect, dismantle and store other portions of the Christmas decorations which are integral to the annual yuletide season and the spirit thereof.”
Subsequent to this resolution the J.C.C., at its own expense, replaced the original supports for the paintings with new concrete supports containing metal sleeves which would allow the paintings to be erected and removed with little expenditure of labor. The Jaycees designed the new supports and installed them in locations approved by the City Engineer and City Commissioner of Public Improvement (the mayor testified that any installation of a concrete foundation must be approved by the City Engineer to avoid cutting electric or water lines). Richard Rohrer filed a complaint seeking to enjoin the display of the paintings August 11, 1988; he modified his complaint January 11, 1989 to request an injunction absent restrictions on the frequency and duration of the display; and the complaint was once more amended on June 12, 1989 to substitute Jane Doe as plaintiff after Rohrer moved from Ottawa.
II. DISCUSSION
Contrary to well-established law, the district court and (to a lesser extent) the majority have for some reason unexplained viewed the record and the inferences to be drawn from it in the light most favorable to the plaintiff. In granting summary judgment as well as on an appeal from the district court’s entry of summary judgment, such preferential and improper treatment of the moving party is clearly erroneous as a matter of law. “In reviewing a grant of summary judgment, we must view the record and all inferences drawn therefrom in the light most favorable to the party opposing the motion. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).” Beard v. Whitley County, REMC, 840 F.2d 405, 409 (7th Cir. 1988). When the record and appropriate inferences drawn from it are construed in the light most favorable to the Jaycees as required in a motion for summary judgment, it is clear that the J.C.C.’s display of the paintings in Washington Park passes constitutional muster because the display constitutes private religious speech in an open public forum; hence, it is protected under the Free Speech Clause and cannot violate the Establishment Clause of the United States’ Constitution. Even if we were to view the facts from the majority’s perspective, which allows them to achieve their desired result by cleverly transforming this private display into a public one and denying that Washington Park is an open public forum, the paintings would still pass constitutional muster under County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989).
A. Private Religious Speech in a Public Forum
Throughout the pleadings the J.C.C. emphatically asserts that the paintings are a private display entitled to First Amendment protection. Its contention is that since the City provides no support for the display and has no involvement other than to allow the Jaycees to use the space in the Park as it has allowed many a person all the way back to Lincoln and Douglas in their debate of 1858, the display may not be viewed as public speech. Yet the majority somehow construes the record as demonstrating that “[t]he City has identified itself with the display to so great an extent
1) In 1980 an article in an Ottawa newspaper reported that a City official had discovered the paintings in storage and that the mayor “hoped to find a private group willing to display the paint-ings_” Maj.Op. at 748.
2) In 1986 the City Counsel passed a resolution refusing to censor the Jaycees’ display by banning it from Washington Park.
3) In 1986 the City Counsel allowed the J.C.C., at the Jaycees’ expense, to replace the original, wornout supports for the paintings with new supports constructed according to a better design and installed at a different angle.
4) The City engineer met with the Jaycees in the Park to make certain that the new supports did not interfere with electrical or water lines.
5) In 1988 when the City Counsel decided to ban the display in response to the initiation of this law suit, the mayor expressed his personal appreciation of the paintings.
6) In 1988 the City instituted the “festival of lights” in Washington Park.
Initially, it is important to note that the mayor did not say that “he hoped to find a private group willing to display the paintings.” Maj.Op. at '748. The entirety of the reference to the mayor in the article the majority references follows:
“Mayor Jim Thomas said the city will pay the electrical bill for illuminating the paintings and help ‘in any way we can,’ except financially, if a group wants to display them again.
“ ‘These pictures would be very, very costly today to duplicate,’ he said. ‘They were considered quite expensive even at that time.’ ”3
The record is void of any evidence that the City took action to find a private sponsor for the display (or that the City has helped the Jaycees in any way other than allowing them to display the paintings). The City Parks Superintendent who discovered them in an old grandstand stated:
“ ‘We’ve got to find a home for them, got to find an owner,’ he said. ‘This building will be torn down early next spring, and the city doesn’t have another place big enough to store them.’ ”
Upon reading about the discovery of the paintings, the Jaycees contacted the City and volunteered to display the paintings; the Jaycees have been the caretakers of the paintings since that time. Since the City was forced to “find a home” for [the paintings] as a result of the old grandstand being “torn down,” there is little else the City could have done short of destroying them. Thus, stating that the City would “help ‘in any way we can,’ except financially, if a group wants to display them again” is more indicative of a desire to preserve a work of art than to “identify” the City with the message of the paintings.
Secondly, the majority somehow conjures up City “identification” with the paintings in the City Counsel resolution refusing to censor the display. In view of the fact that the issue arose only becaüse of a request to
Fifth, the majority seems to perceive City “identification” with the paintings through statements from Mayor Small that demonstrate his personal appreciation of the display. How can a public official’s complimentary remarks concerning a private display of art transform the display into governmental speech? Significantly, the mayor never went on record as stating that the paintings reflected his, much less the municipality’s, religious beliefs. Since the paintings are a work of art with value independent of their religious message, the mayor’s appreciation may well be in reference to the aesthetic quality of the paintings rather than their message. Can we violate the Constitution by expressing our aesthetic approval of a piece of art? I think not. Finally, the majority’s statement that the City added the “festival of lights” “[i]n the hope of vindicating their legal position vis-a-vis the display” is sheer speculation and in contradiction of the record. A news article in Doe’s exhibits demonstrates that the “festival of lights” was initiated in order to replace the decoration provided by the paintings:
“While Ottawa reluctantly decided to ban the 16 paintings of Jesus displayed in Washington Park, the City Council Tuesday turned to another way to decorate the park for Christmas.
“James Bruehler, president of the Ottawa Area Chamber of Commerce and Industry, discussed adding lights and decorations to the park. The city is considering spending $3,500 of the estimated $9,600 cost.”
Ottawa Daily Times, Oct. 19, 1988 (emphasis added). Thus, the addition of the “festival of lights” to the Christmas decorations in the Park is unrelated to a City attempt to justify allowing the paintings to remain in the Park, and. it fails to establish a connection between the City and the Jaycees’ display.
Even viewing the evidence referred to and inferences therefrom objectively (rather than in the light most favorable to the Jaycees), the majority’s conclusion that the
Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) is the appropriate starting point for an analysis of private speech in a quintessential public forum:
“In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’ Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 963, 83 L.Ed. 1423 (1939). In these quintessential public forums, the government may not prohibit all communicative activity. For the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Carey v. Brown, 447 U.S. 455, 461, 100 S.Ct. 2286, 2290, 65 L.Ed.2d 263 (1980).”
Id., 460 U.S. at 45, 103 S.Ct. at 954-55. The Supreme Court has not as of this date directly addressed the question of private religious speech in a “quintessential public forum.” In Allegheny, a case the majority considers to be factually similar to this one, the Court specifically noted that it was not addressing the kind of public forum issue we have before us. Indeed, the Supreme Court cited McCreary v. Stone, 739 F.2d 716 (2nd Cir. 1984), aff'd by an equally divided court, sub nom. Board of Trustees of Scarsdale v. McCreary, 471 U.S. 83, 105 S.Ct. 1859, 85 L.Ed.2d 63 (1985), as an example of a case addressing private religious speech in a public forum: “the créche here does not raise the kind of ‘public forum’ issue presented by the créche in McCreary v. Stone.” Allegheny, 109 S.Ct. at 3104 n. 50. Thus, in order for the J.C.C.’s display located in a public forum to be analyzed properly, it must be viewed like the créche located in a public forum in McCreary, precedent which the majority casts aside and fails to acknowledge, rather than the créche positioned on the Grand Stairway entering the County Courthouse in Allegheny.
In McCreary, a Village in. New York refused to grant a private organization permission to place a créche in a public park, which the district court found to be a public forum because “the Village has never shown an inclination to legally establish or even describe [the park] as anything other than a park of the kind that is traditionally dedicated to First Amendment activi-ties_” McCreary v. Stone, 575 F.Supp. 1112, 1123 (S.D.N.Y. 1983). The Second Circuit stated that the issue before it was “whether the Village’s content-based denials of the applications to display a créche for a period of approximately two weeks during the Christmas holiday season at Boniface Circle, a traditional public forum, were necessary in order to serve the compelling state interest of avoiding contravention of the Establishment Clause of the First Amendment.” 739 F.2d at 723. The district court had decided that the content-based exclusion was proper through distinguishing Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), but the Circuit Court disagreed. McCreary, 739 F.2d at 723. Relying on Widmar as well as Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), the Second Circuit reversed and remanded “for the entry of an injunction prohibiting the Village from relying on the Establishment Clause as a reason for prohibiting the erection of a créche [in the] traditional public forum, for a period of approximately two
It is well established that private religious speech is protected under the Free Speech Clause of the First Amendment. “[R]eligious worship and discussion ... are forms of speech and association protected by the First Amendment. See, e.g., Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981); Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267 (1951); Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948).” Widmar v. Vincent, 454 U.S. at 269, 102 S.Ct. at 274 (footnote omitted). The Supreme Court has to date not been asked to address the question of whether the Establishment Clause or the Free Speech Clause would prevail if the two were in conflict, see id. at 273 n. 13, 102 S.Ct. at 276 n. 13, but there is little reason to believe that the two clauses could be in conflict. As Justice O’Connor writing for the Court, noted last year, “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” Board of Educ. of Westside Community Schools v. Mergens, — U.S. -, 110 S.Ct. 2356, 2372, 110 L.Ed.2d 191 (1990) (emphasis original). When there is an Establishment Clause violation, there must either be a governmental expression involved or a governmental policy benefit-ting, endorsing or entangling the government with the religious message of a private speaker. See Allegheny, 492 U.S. 573, 109 S.Ct. 3086 (County allowed a private display of créche at seat of government in area not normally open to private structures); Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (Ten Commandments on classroom walls constituted government speech); Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (State support of religious schools caused excessive entanglement between state and religion); American Jewish Congress v. Chicago, 827 F.2d 120 (7th Cir. 1987) (Creche in seat of government implied city endorsement of message); American Civil Liberties Union v. City of St. Charles, 794 F.2d 265 (7th Cir. 1986) (Cross on fire station was government speech). Private religious speech itself in a quintessential public forum does not and cannot violate the Establishment Clause, since it limits the government alone, and thus an analysis of private religious speech under traditional Establishment Clause analysis is inappropriate.
The majority improperly applies .the Lemon test to private religious speech in a public forum in order to justify its rejection of the J.C.C.’s public forum argument. The majority follows the erroneous rational of the district court in making the novel and analytically deficient assertion that “[i]f a group asserts that particular religious speech in a public forum does not offend the Establishment Clause, it is still obliged to show that the expression satis
“is not unconstitutional simply because it allows churches to advance religion, which is their very purpose. For a [practice] to have forbidden ‘effects’ under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence. As the Court observed in Walz, ‘for the men who wrote the Religion Clauses of the First Amendment the “establishment” of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity.’ 397 U.S., at 668, 90 S.Ct. at 1411.”
Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 337, 107 S.Ct. 2862, 2869, 97 L.Ed.2d 273 (1987) (emphasis original). The majority has clearly erred in applying the Lemon test to private speech rather than government action. It is inconceivable under the clear mandate of existing Supreme Court case law that private religious speech in a public forum must pass the Lemon test, for nearly all private religious expression has the purpose of promoting some religious belief or practice. If the Lemon test were applicable to private religious speech in a public forum, all religious speech would have to be excluded from public forums.
The majority’s orchestrated confusion on the application of the Lemon test is evident throughout its opinion in its conflation of the Jaycees’ practice of exhibiting the paintings with the City policy allowing the display as well as in its consistent references to the unconstitutional purpose of the paintings and even to the “Jaycees’ unconstitutional purpose.” Maj.Op. at 759. How can a private party’s purpose be unconstitutional? State action is the sine qua non of a First Amendment violation, and the J.C.C. is acting for and on behalf of itself, a privately sponsored group, not for the City or any governmental agency. A private party may certainly request governmental action, but neither the request nor the party’s motive (or “purpose”) necessarily implicates the Constitution. The majority further states that “it is beyond dispute that endorsement of religion was the reason for the display,” id. at 760, as if a private group is not entitled to endorse whatever religion they deem proper, if any. Of course the Jaycees intended to endorse the message of the paintings, which they view as conveying the true meaning of Christmas.
Because of the majority’s misapplication of the Lemon test, it assumes that the
In the instant case, the district judge found the Jayeees’ display to be unconstitutional, and directed his injunction against the City: “Jayeees’ display ... doubly violates the Establishment Clause ... City is therefore ordered to have the paintings re-moved_” Doe v. Small, 726 F.Supp. at 724-25. While the district court had jurisdiction under the Establishment Clause of the First Amendment to determine whether the City policy was constitutional and to enjoin unconstitutional governmental policies or conduct, the court was without jurisdiction to determine the constitutionality of private speech, as there is no constitutional limitation on private speech. Since private speech in and of itself cannot violate the First Amendment, the Constitution affords no basis of jurisdiction for evaluating private speech. Thus, the district court, and this Court, are without jurisdiction to decide that the Jayeees’ display passes or fails the Lemon test. Indeed, the plaintiffs pleadings on file with the court do not request absolute exclusion of the paintings from Washington Park. The plaintiff’s second amended complaint requested the court to “[e]nter a permanent injunction prohibiting defendants from allowing the display of the paintings in Washington Park without [any] limits on the frequency and duration of such display sufficient to avoid violation of the Establishment Clause of the First Amendment to the United States Constitu-tion_” (Emphasis added). If the plaintiff has suffered a constitutional injury, which I do not concede, it can only be grounded on the lack of regulation from the City. I know of no precedent that justifies mandating regulation of public forums, but if there were, the district court, pursuant to the remedy requested, should have only required the City to draft proposed regulations.
It is clear that the district court based its decision on the same twisted application of the Lemon test to private speech that the majority propounds, thus concluding that “it makes no difference to the analysis or result that Washington Park may be a public forum.” Doe v. Small, 726 F.Supp. at 724. The district judge repeatedly demonstrates and repeats his analytical error in referring to the unconstitutional purpose and effect of the paintings. After quoting the Lemon formula, he states, “[i]f the challenged display violates any one oí those criteria, the display is unconstitutional.... Here plaintiff urges the paintings run afoul of not just one but each of the first two prongs.” Id. at 719 (emphasis added and emphasis in original). The court for reasons unknown failed to distinguish between a governmental display, Lynch v.
“Because Jaycees’ display of paintings depicting .the life of Jesus in the park has both the primary purpose and primary effect of endorsing an overtly religious message, the display doubly violates the Establishment Clause of the First Amendment to the Constitution. This Court has been advised that the paintings have already been put up on display for the current season. City is therefore ordered to have the paintings removed by December 8, 1989 and to forego any future display of the paintings in the Park 'by any group.”
Id. at 724-25 (emphasis added) (footnotes omitted). I fail to understand how private speech in a public forum far removed from the seat of government could be declared unconstitutional. This misapplication of the Lemon test to private religious speech in a public forum is without precedent and must not be allowed to stand.
Despite the district court’s and the majority’s rather cavalier dismissal of the relevance of the public forum to this case, the fact that Washington Park is a public forum is the decisive factor. There is ample support in Supreme Court jurisprudence for the proposition that any regulation of speech in a public forum must allow for equal access to religious speech in order to pass constitutional muster. Indeed, subsequent events in the history of the Menorah at issue in Allegheny clearly demonstrates the constitutional mandate of equal access for religious speech:
“In 1989, following the Allegheny County decision, the City of Pittsburgh rejected a request to place the Menorah again, and suit was brought in an at*804 tempt to force the City to do so, under the traditional doctrine that if a use is permissible in a public forum, it is unconstitutional discrimination and deprivation of first amendment rights to deny use based on the message conveyed, or on any grounds other than generally applicable regulations of time, place, and manner of use. The following sequence of decisions then resulted.
“The district court granted an injunction requiring the City to allow the placement, on public forum grounds. Chabad v. City of Pittsburgh, CA No. 89-2432 (W.D.Pa. Dec. 21, 1989).
“The Third Circuit stayed that order. No. 89-3793 (3rd Cir. Dee. 21, 1989).
“Justice Brennan vacated the order of the Third Circuit, leaving in effect the order requiring the city to allow the placement. 58 U.S.L.W. 3426 (Dec. 22, 1989).
“The Supreme Court, three justices dissenting, declined to vacate the stay granted by Justice Brennan. [ — ] U.S. [-], 110 S.Ct. 708 [107 L.Ed.2d 729] (Dec. 29, 1989).
“Thus, although there was no clear statement of law or reasoning in any of the decisions, all of which were rendered within one week, start to finish, the ultimate result was that a city was forced to allow the display of a nearly-naked menorah on the grounds that it was being placed in a traditional public forum and contained appropriate and sufficient disclaimers.”
Americans United for Separation of Church and State v. City of Grand Rapids, 922 F.2d 303, 308-09 (6th Cir. 1990). The above series of events, resulting in the City of Pittsburgh being required to allow the placement of a Menorah in a public forum, highlights the inappropriateness of analyzing private religious speech under the Establishment Clause as opposed to the free speech and public forum doctrines. Additionally, it illustrates the district court’s and the majority’s error in excluding the J.C.C.’s religious expression from a public forum.
In both Widmar, 454 U.S. at 270-76, 102 S.Ct. at 275-78, and Mergens, 110 S.Ct. at 2370-73, the Supreme Court rejected the argument that the Establishment Clause should bar the use of limited public forums by religious groups. Nonetheless, the district court and the majority rely on Widmar for the proposition that the “government has a compelling interest in complying with the constitutional requirement not to violate the Establishment Clause.” Maj.Op. at 770; see Doe v. Small, 726 F.Supp. at 724. The Widmar Court did state that “the interest of the University in complying with its constitutional obligations may be characterized as compelling.” Widmar, 454 U.S. at 271, 102 S.Ct. at 275 (emphasis added). However, the Supreme Court refused to hold that allowing equal access to the limited public forum at issue in Widmar would violate the Establishment Clause. The Establishment Clause concerns were insufficient to justify a content-based exclusion of religious speech from a forum open to all other student groups.
Moreover, in Mergens the Supreme Court, citing Widmar, stated that a policy of equal access to religious speech, even in a limited public forum, is constitutionally mandated:
“The message [sent by equal access] is one of neutrality rather than endorsement; if a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion. ‘The Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities.’ ”
Mergens, 110 S.Ct. at 2371 (citation omitted) (emphasis added). The district court’s absolute ban on exhibiting the paintings in Washington Park is a clear demonstration of such “hostility toward religion” because the Park is open to all other legal activities. I am convinced that there is a stronger policy for equal access in an open public forum such as Washington Park than in a limited one like Widmar (university facili
In a further attempt to distinguish Wid-mar, the majority states that “the Widmar Court found no empirical evidence that by allowing the religious group to meet, they would in some way dominate the open forum. Here the paintings, taking up a portion of one side of the Park, dominate the public forum during and after the Christmas season.” Maj.Op. at 772. The majority’s distinction is fundamentally flawed in that it overlooks the reason the forum in Widmar (as well as the forum in Mergens) was deemed public — the forum was a gov-ernmentally created limited public forum precisely because of the broad spectrum of groups using it; in contrast, a public park is a quintessential public forum by its very nature. The Supreme Court’s passing mention of a possible concern over religion dominating a limited public forum created
In attempting to avoid and cast asunder the equal access mandate of Mergens and Widmar, the majority somehow without support in the record comes to the conclusion “that neither the municipal policies or practices in Ottawa support a finding that the City had a policy of equal access to the Park.” Maj.Op. at 772.
The majority also justifies its rejection of the Jaycees’ public forum argument by holding that
“[t]he City has identified itself with the display to so great an extent that the display cannot be viewed as a case of purely private expression in a public forum. For this reason, the public forum ■analysis as the Jaycees would have us apply it is inappropriate. This court need not find a compelling interest sufficient to curtail the Jaycees’ private expression, because the degree of government involvement and endorsement brings the case squarely within the purview of the Establishment Clause analysis.”
Maj.Op. at 770.
“[t]he Park is a public forum. If the Festival, too, is open to private groups that wish to participate, and if the Crest-wood Women’s Club (or a church) were the sponsor of the mass, it would be difficult to find an obstacle in the Establishment Clause of the First Amend-ment_ A government may not close its public forums to religious practice by private parties. Widmar v. Vincent, 454 U.S. 263 [102 S.Ct. 269, 70 L.Ed.2d 440] (1981); Fowler v. Rhode Island, 345 U.S. 67 [73 S.Ct. 526, 97 L.Ed. 828] (1953). Although the holding of the mass in a public park creates a possibility that some members of the public will assume sponsorship (as opposed to acquiescence) by the polity, the government’s obligation not to discriminate against religious speech in circumstances in which secular speech would be allowed prevails.”
Id. at 1478 (emphasis added). In order that they might support their argument, the majority in their opinion selectively quoted only the second sentence of the four sentences treating the subject matter at issue. Obviously, it is because the reasoning set forth in the four sentences dealing with this issue flies directly in the face of and in contradiction of the majority’s holding. In Crestwood, the majority concluded that the festival was not open to all private groups (it assumed, as we should here, that a public forum is governed by the constitutional mandate of equal access) and that the district court’s finding that the Italian mass was sponsored by the Village was not clearly erroneous. In the instant case there is no question, based upon the record, that the Jaycees sponsor the display and that Washington Park is an open forum. The majority assumes, however, that “[t]he second part of this statement [from Crest-wood], that private sponsorship of a religious display would require a different outcome, presumes that sponsorship is wholly private.” Maj.Op. at 770. That assumption leaves much to be desired, as the majority in Crestwood never dealt with the issue of dual sponsorship, and in fact never stated that sponsorship must be “wholly private”: “if the Crestwood Women’s Club (or a church) were the sponsor of the mass, it would be difficult to find an obstacle in the Establishment Clause....” Neither the majority in Crestwood nor the majority here has cited any precedent for enjoining private speech rather than public sponsorship in the event there is dual sponsorship of religious speech. Moreover, the majority in Crestwood “assume[d] that the dis
As further justification for refusing to apply the public forum doctrine to the Jaycees’ display, the majority also cleverly misconstrues our recent opinion in Lubavitch Chabad House, Inc. v. Chicago, 917 F.2d 341 (7th Cir. 1990), and distorts the Jaycees' public forum argument. In referring to our opinion in Lubavitch, the majority states that “the Court concluded that the City restriction preventing a menorah from being displayed in a public area of [O’Hare Ajirport was a reasonable time, place or manner restriction on speech under applicable First Amendment jurispru-dence_” Maj.Op. at 773 (emphasis added). The City regulations in Lubavitch did not prohibit “a menorah from being displayed in a public area of the airport.” The regulations at issue, in clear and unambiguous language, prohibited only the erecting of free-standing structures without the leasing of space from the governmental unit for that purpose, thus enabling the City to avoid “obstructions to the use of the airport or interference with airport operations.” Lubavitch, 917 F.2d at 346. The regulations made no distinction as to types of structures prohibited; any and all structures were prohibited from being erected outside of areas designated as leased space. Once again the majority justifies its fallacious reasoning through a selective quotation and once again takes words out of context and fails to quote the sentence following our statement that the Constitution does not mandate unrestricted access to public forums for the purpose of erecting structures at will: “First Amendment jurisprudence certainly does mandate that if the government opens a public forum to allow some groups to erect communicative structures, it cannot deny equal access to others because of religious considerations, Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), but the record is clear that the City has prohibited all groups from erecting structures in the airport public areas.” Id. at 347 (emphasis added). The majority omits this sentence for reasons obvious, as the reasoning recited therein clearly states that we would have held unconstitutional a regulation that excluded religious structures, including Menorahs, while allowing non-religious structures. In summary we stated that “we are of the opinion that Lubav-itch has no constitutional right at issue, since it is free to exercise the right to display religious symbols at O’Hare in the same manner as anyone else — by leasing space or by carrying hand-held symbols or signs.” Id. (emphasis added). Ignoring this statement, as well as the fact that the regulations involved in Lubavitch were content-neutral and that O’Hare is a limited public forum, the majority states: “This recognition [that the regulations provided reasonable time, place and manner restrictions] has broader application to other cases in which claimed access to a public forum brings constitutional rights into conflict." Maj.Op. at 773 (emphasis added). Clearly Lubavitch had no constitutional right at issue since the regulations were content-neutral, so there were no conflicting constitutional rights in Lubavitch;
The majority finds support for its exclusion of the paintings from Washington Park in two Circuit Court cases decided since the Supreme Court’s decision in Allegheny, Kaplan v. City of Burlington, 891 F.2d 1024 (2d Cir. 1989), and Smith v. County of Albemarle, 895 F.2d 953 (4th Cir. 1990), both of which contain strong and well-reasoned dissents. In Kaplan, a Chanukah Menorah was excluded from “City Hall Park,” which was next to City Hall, and in Smith, a créche was excluded from the front lawn of the County Office Building. The majority overlooks the emphasis both courts placed on the placement of the displays in relation to the near proximity of the seat of government, a factor not present here. Although I agree with the dissents in both of those cases, the J.C.C.’s display of the paintings in Washington Park is readily distinguishable from Kap-lan and Smith because Washington Park is far removed (three blocks away) from any Ottawa seat of government. Thus, Kaplan and Smith are unpersuasive support for the majority’s treatment of the public forum issue.
I am persuaded that two recent Sixth Circuit cases are far more convincing than Kaplan or Smith. In Americans United for Separation of Church and State v. City of Grand Rapids, 922 F.2d 303 (6th Cir. 1990) (AUSCS), the plaintiff sued the City of Grand Eapids in an -effort to exclude a Chanukah Menorah from being displayed in a public forum surrounded by city buildings. Chabad House had displayed the Menorah during the Chanukah season for the past six years. The district court enjoined the display of the free-standing Menorah, and the Sixth Circuit stayed the injunction pending the final disposition of the suit. The court reasoned that Chabad House would ultimately prevail, since the
“the City has not made a strong showing that [the district judge] was incorrect in concluding on the facts and arguments before him that ‘where a public square is maintained for the presentation of various forms of belief, social, political and religious, the municipality may not bar from that square a religious symbol which is an expression of first amendment free speech.’ ”
Id. at 462. Under this reasoning, if the City of Ottawa had acquiesced in Rohrer’s request to ban the paintings from Washington Park, the Jaycees would have been entitled to an injunction removing the ban.
I am of the opinion that we should follow the reasoning of the Sixth Circuit in AUSCS and Congregation Lubavitch rather than the Kaplan and Smith cases upon which the majority rely. Congregation Lubavitch is the only post-Allegheny decision (of which I am aware) dealing with religious expression in open public forums removed from the seat of government, such as we have here, and the majority opinion is directly in conflict with it. Secondly, the AUSCS ease, dealing with a Menorah in a public forum near the seat of government, seems more in line with opinions of our Court that have demonstrated a strong belief that private parties have a constitutionally protected right to equal access to public forums for the purpose of religious expression. Finally, the physical setting of the paintings in a public forum far removed from the seat of government creates less danger of a perception of governmental endorsement of religion than the displays in either Kaplan or Smith. Thus, the majority is on shaky ground when relying on Kaplan and Smith for excluding the Jaycees’ exhibit from the Park. If the district court was of the opinion that the Jaycees’ disclaimer sign was inadequate as to size or content, it might readily have remedied that problem by issuing an order requiring larger letters and a more specific disclaimer on the part of the City, including the placement thereof.
The majority seems to recognize that any content-based restriction on speech in a public forum must be narrowly tailored to serve a compelling state interest (although it never says so), Perry, 460 U.S. at 45, 103 S.Ct. at 955, and then in an ineffectual attempt to support its holding implies that exclusion of the J.C.C.’s display is the most narrowly tailored means available to Ottawa.
B. The Lemon Test
As I have established above, when private religious speech in a quintessential public forum is at issue, the Lemon test applies to the government policy alone, cf. Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (Lemon test applied to equal access policy, not the religious speech in a limited public forum), for if it applies to private religious speech, all religious expression, whether it be Buddhist, Catholic, Episcopalian, Jewish, Lutheran, Muslim, Protestant or other, would be excluded from public forums. Since Doe has failed to demonstrate that any person or group has been excluded from Washington Park, I accept as true the City’s assertion that it follows the constitutional mandate of allowing equal access to the Park. Thus, the Lemon test applies only to the question of whether Ottawa’s equal access policy has a secular purpose, has the primary effect of advancing religion, or promotes excessive entanglement with religion. See Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). Because the majority mistakenly evaluates the Jaycees’ display under the Lemon test,
1. Secular Purpose
The City policy of allowing equal access to Washington Park is mandated under the First Amendment. A policy of equal access is an undeniably secular purpose under current Establishment Clause jurisprudence: “ ‘an open-forum policy, including nondiscrimination against religious speech would have a secular purpose,’ and would in fact avoid entanglement with religion.”
The majority focused primarily on whether there was a secular message in the paintings themselves, and states that “[t]he Jaycees fail in their argument to overcome the core of the paintings’ spiritual nature-” Maj.Op. at 759. This statement illustrates at best the continued confusion on the part of the majority over the application of the Lemon test. Throughout its application of the Lemon test, the majority speaks of attempts on the part of the Jaycees or the City to neutralize the religious message
The majority finds evidence of an absence of a City secular purpose for allowing the display in the City’s resolution rejecting an effort to exclude the paintings from the annual Christmas decorations in Washington Park. In focusing on the City’s alleged endorsement of the display’s religious message, the majority fails to note that there was a secular purpose for allowing the display stated in the same resolution:
“WHEREAS, the City Council of the City of Ottawa finds that the decorations in downtown Ottawa which have been erected for more than the last 20 years by public and private agencies truly represent a cooperative effort by the community to provide appropriate seasonable Yuletide spirit so that people attracted by the Christmas decorations to shop and otherwise do their business in the downtown area will be benefitted by the traditional, beautiful and seasonally appropriate decorations which they have come to know and love for 2 decades. The City Council specifically finds the pictures erected by the Jayeees in Washington Park are an integral part of the seasonal decorations epitomizing Christmas in the hearts and minds of the citizens of the City.”
(Emphasis added). The resolution states the permissible secular purpose of attracting people to the downtown area “to shop and otherwise do their business in the downtown area.” The majority acknowledges that the Jayeees raise this argument, but inexplicably removes its acknowledgment from its discussion of the resolution, and states: “Although this purpose may in fact be secular, the City must show that there is a particularly good reason for the City to accomplish its purposes through religious means.” Maj.Op. at 763 (emphasis added).
“NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ottawa, that after due consideration and reflection upon the complaint raised in the pictures in Washington Park, that this Council endorse the activities of the Ottawa Jaycees in maintaining, erecting, dismantling and storing said pictures and incorporating them in the overall Christmas display that annually graces the downtown area of the City and further thanks all the other groups, public and private, who also maintain, erect, dismantle and store other portions of the Christmas decorations which are integral to the annual Yuletide season and the spirit thereof.”
(Emphasis added). The City never endorsed the message of the paintings, but the activities of the Ottawa Jaycees “in maintaining, erecting, dismantling and storing said pictures and incorporating them in the overall Christmas display that annually graces the downtown area of the City....” The City’s endorsement was of a private party’s efforts and investment in contributing to the City’s Christmas decorations. I plead ignorance as to how one could conceive that it would be unconstitutional for the government to express its appreciation for a private party’s free and voluntary action of contributing to a Christmas display because the private party’s contribution has religious content.
In a context entirely distinct from its discussion of the resolution, the majority states:
“Despite the usual deference of courts to statements of legislative purpose, the Constitution prevents us from acquiescing to the Jaycees’ attempt to articulate a secular purpose where really none is to be found. The Jaycees have failed to convince this Court that the City has*816 satisfied the secular purpose requirement of Lemon.’’
Maj.Op. at 763 (emphasis added).
2. Primary Effect or Endorsement
The second prong of the Lemon test prohibits a statute or practice from having the primary effect of advancing or inhibiting religion. Lemon, 403 U.S. at 612, 91 S.Ct. at 2111. In Allegheny, the Supreme Court adopted Justice O’Connor’s “endorsement” test from Lynch as the relevant query for the primary effect of a government statute or practice. See Allegheny, 109 S.Ct. at 3100-03. Whether a government practice endorses religion “depends upon the message that the government’s practice communicates: The question [when a government display is at issue] is ‘what viewers may fairly understand to be the purpose of the display.’ ” Id. at 3102. The majority overlooks the context of the Court’s statement in Allegheny and applies this statement directly to the Jaycees’ display. It is only when the government presents the display, however, that a viewer’s perception of the display is an issue;
The Supreme Court has clearly rejected the proposition that allowing equal access for religious speech in limited public forums has the primary effect of advancing religion, see Mergens, 110 S.Ct. at 2371 (“the message [sent by equal access] is one of neutrality rather than endorsement”), Widmar, 454 U.S. at 273-74, 102 S.Ct. at 276 (“In this context we are unpersuaded that the primary effect of the public forum, open to all forms of discourse, would be to
Rather than analyzing the primary effect of the City’s policy, the majority focuses on the alleged effect of the paintings. It asserts that Allegheny requires an examination of the context as well as the content of this private display in a public forum.
“the paintings occupy much of the length of the entire western side of the Park. When they are on display, they are visible so that passers-by on La Salle Street will view them night and day. The extent to which the paintings are a prominent fixture of the Park during the Christmas season and beyond supports the finding that the City, in approving this major display, endorsed its religious message.”
Id. at 766 (footnote omitted). The paintings occupy less than one half of the length of the western side of the Park, and even a casual glance at the Jaycees’ night photographs of Washington Park (Jaycees’ Exhibit Q, Q-2, R and S) reveals that the paintings are dwarfed by the rest of the Christmas decorations. Moreover, since the Constitution prohibits the City from excluding religious speech from a public forum on the basis of its content, Ottawa was without constitutional authority to disapprove the display. The City’s only constitutional alternative to placing no restrictions on the display would have been to enact reasonable time, place and manner restrictions that would apply to all private speech equally. There is no constitutional requirement, however, that the City must enact such regulations. Secondly, the majority argues that the presence of the concrete foundations to support the paintings “sends a message that the government property provides a permanent home for an annual private religious display.” Id. at 766. So what follows? Public forums are required to be open to religious messages as well as secular ones. Indeed, the Park is far less a permanent home for the display than it is for the War Memorial, for
“[W]ith the exception of three of the paintings, the message of the display commemorates much more than the story of Jesus’ birth. A painting of the Sermon on the Mount, the stilling of a lake storm, the Last Supper, or the crucifixion does not complement the secular symbols of Christmas to make an integrated Christmas holiday display — each canvas portrays religious elements of Christian theology.”
Id. at 76'7. The celebration of Christ’s life as well as his birth is indistinguishable from celebrations of the birthdays and lives of George Washington, Abraham Lincoln, or Martin Luther King. In each of these celebrations, the birth of the person would be irrelevant without the accomplishments of the person’s life. I fail to see why the celebration of Christ’s birthday should be different.
The majority relies on the history and duration of the display to reject the Jaycees’ suggestion that in light of the addition of the Festival of Lights in 1988, the specific physical context of the paintings would not violate the Constitution even if they were displayed by the City. Maj.Op. at 768. This novel and unprecedented departure from Justice O’Connor’s use of the “history and ubiquity” of a practice is invalid. In Allegheny, Justice O’Connor stated
“Under the endorsement test, the ‘history and ubiquity’ of a practice is relevant not because it creates an ‘artificial exception’ from the test. On the contrary, the ‘history and ubiquity’ of a practice is relevant because it provides part of the context in which a reasonable observer evaluates whether a challenged governmental practice conveys a message of endorsement of religion.”
Allegheny, 109 S.Ct. at 3121. The majority once again quotes selectively, thus taking this language out of context. It omits the last phrase of this quotation, “evaluates whether a challenged governmental practice conveys a message of endorsement of religion” and continues down nearly one-half of the column until it comes to the language “would view such long-standing practices as a disapproval of their particular religious choices” to turn this language of Justice O’Connor’s, which justifies upholding religious practices which might otherwise be excluded, to justify excluding religious practices because of their history and ubiquity.
3. Government Entanglement with Religion
Under the third prong of the Lemon test, a state policy “must not foster ‘an excessive government entanglement with religion.’ ” Lemon, 403 U.S. at 613, 91 S.Ct. at 2111 (citation omitted). The inevitable result of the majority’s holding is that governmental entities will be thrust into direct entanglement with religion anytime a private speaker wishes to display or communicate religious concepts in a public forum. The majority’s detailed analysis of the paintings and holding them unconstitutional because they are “a Christian display, not a Christmas display,” Maj.Op. at 765, implies that the City of Ottawa should have censored the religious content of the display before deciding to allow it.
Furthermore, who are we, a United States Court of Appeals, to sit in judgment on the theological content of a religious message? The majority states:
“Christians commemorate Christmas in different ways: through children’s stories such as ‘The Little Drummer Boy’ or through Christmas carols such as ‘Silent Night,’ ‘We Three Kings,’ ‘Hark, the Herald Angels Sing,’ and ‘What Child is This.’ All of them celebrate or recount the story of the birth of Jesus. None of them recall the events depicted in thirteen of the paintings. The story of the loaves and fishes, the baptism of Jesus, the road to Emmaus and the Last Supper simply do not figure into the story of the holiday in either its religious or secular variations.
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“[T]he pictures in the Park evoke in the mind of the observer much more than the story of Jesus’ birth. Indeed, the name of the display itself, ‘The Greatest Story Ever Told, ’ encompasses the life, crucifixion, and resurrection of Jesus — not just the Christian miracle of his birth. It is a Christian display, not a Christmas display. Indeed, the paintings proclaim and showcase the core tenets of the Christian religion by communicating the entire story of Jesus.”
Maj.Op. at 764-765 (emphasis added).
“As far as possible, judicial forums should be reserved for doing only that which cannot be done elsewhere.
*820 “The American public perceives the courts as a jack-of-all trades available to furnish the answer to whatever may trouble them. Shall a war be prosecuted or peace made? What is life, or when does death begin? Shall racial integration be achieved by ... busing of children to far away schools? How shall prisons and mental institutions be operated? Shall nuclear power plants be built, and if so, where? Shall the Concorde fly to these shores? Is affirmative action really inverse discrimination? Shall the snail darter survive? [Is the entire life of Christ an appropriate subject to consider at Christmas?]”
(Quoted in In Matter of Guardianship of Eberhardy, 102 Wis.2d 539, 587, 307 N.W.2d 881 (1981) (Coffey, J., concurring) (emphasis added)). Deciding issues such as the proper theological content of a Christmas display undermines the legitimacy of our judicial function of deciding disputed issues of fact and applying the law thereto.
In decreeing what it feels is an appropriate Christmas message, the majority has apparently ignored the Jaycees’ answer to the Second Amended Complaint, which denied “that the life of Jesus is irrelevant to the story of Christmas,” as well as the testimony from a representative of the Jaycees to the effect that:
“In order for there to be death there has to be life and at Christmastime we celebrate the life of Christ, and to celebrate a figure who has lived and his earthy [sic] remains have died, it is appropriate that we recollect his entire being and Christmastime is a time that we appreciate Jesus, not just his birth, but his entire life.”
Even if it were appropriate for a federal court to determine the proper content of a religious message at Christmastime, which I doubt, on this record and on review of a summary judgment, we should accept as true the testimony that the paintings convey a suitable Christmas message for all. Regardless, in order to avoid excessive entanglements with religion, governmental entities should leave such theological judgments to theologians.
C. Constitutionally Protected Speech
Although Doe has framed this litigation as a request for relief from a violation of the Establishment Clause, when the smoke screen spawned by Doe’s argument is dissipated, it is clear that this suit is nothing more than a complaint that the J.C.C.’s private religious expression offends Doe. The fact that a certain type of private speech may offend one or more listeners, however, is certainly inadequate to justify excluding it from a public forum. See Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 (1971) (four-letter word on jacket in Courthouse constitutionally protected even though morally offensive); Collin v. Smith, 578 F.2d 1197, 1205-06 (7th Cir. 1978) (trauma likely to be created by Nazi march in Skokie, Illinois inadequate to support prohibition of parade: “mere public intolerance or animosity cannot be the basis for abridgement of these constitutional freedoms.”). The Jaycee’s exhibit is analogous to Cohen’s jacket containing offensive words and the Nazi parade in Skokie, Illinois in that all are modes of expression protected under the First Amendment. When the speech at issue is private speech, as here, interference with another private person’s enjoyment of public facilities fails to constitute a cognizable harm. Indeed, even if the City of Ottawa were to adopt Doe’s belief that the paintings are offensive, the Constitution would prevent the City from banning the paintings from the Park:
“Of course, the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense.... The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is ... dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.... Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes. And, while it may be that one has a more substantial claim to a recognizable priva*821 cy interest when walking through a courthouse corridor than, for example, strolling through Central park, surely it is nothing like the interest in being free from unwanted expression in the confines of one’s own home.”
Cohen, 403 U.S. at 21-22, 91 S.Ct. at 1786. In the instant case, Doe is unable to assert a privacy interest in the use of Washington Park. Thus, if the Jaycees’ exhibit offends her, she is free to avert her eyes. If the Constitution prohibits the government from excluding the morally offensive speech involved in Cohen or the hate-inspired parade of the Nazis in Collin v. Smith, it certainly prohibits both this Court and the City of Ottawa from excluding the J.C.C.’s exhibit from the Park.
CONCLUSION
In applying the Lemon test to private speech in a quintessential public forum, the majority is instituting a dangerous and novel precedent of far reaching import. If this decision stands, private religious speech will be banned from public forums. Rather than demonstrating neutrality toward religion, a policy of banning private religious speech from a public forum clearly demonstrates hostility.
Such judicial hostility toward religion is particularly inappropriate at this time with the recent war in the Persian Gulf bringing about an out-pouring of public acknowl-edgement of faith in God and public acknowledgment of prayer to Him. Immediately after the war began, the news media was full of references to prayers from public leaders as well as private individuals. Are we to consider all of their remonstrations examples of unconstitutional activity? On February 17, 1991, CNN reported that synagogue and church attendance was up twenty to twenty-five percent nation-wide as a result of the war. Furthermore, our ground forces as well as our pilots in the Mid-East were requesting additional chaplains. Thus, the war has highlighted the fact that America is a religious nation. The judiciary should not allow itself to be the willing tool of those who wish it were otherwise.
“Our nation should encourage its citizens to express their religious beliefs or lack thereof, within constitutional limits whether it be through Judaism, Christianity or any other belief that emphasizes the importance of moral values. What better vehicle do we have to strengthen the eroding moral fibre of this nation, which has been sapped of its very vitality by the increased emphasis in public education and all facets of life on materialism, relativism and on unhealthy secularism? We should strive for a rebirth of morality and human responsibility (with every right there is a corresponding obligation) in a concerted effort through public education, the pulpit, the bema, the news media, radio and television programs. What better course can we follow to effectively address the escalating national cancers of child abuse (2 million a year), drug abuse (four million heavy drug users), teen pregnancies (1 million per year), unwed mothers (Vi of all births), divorce (one out of two marriages) and murder (one every 24 minutes)? No great nation has ever maintained its position as a world power without a strong moral foundation. See 1 A. Toynbee, A Study of History (abr. ed. 1947). Let us not contrive ways to make it difficult for people to practice the religion of their choice.”
Doe v. Village of Crestwood, 917 F.2d at 1494 (Coffey, J., dissenting) (emphasis original). I regret to point out that the majority seems to have forgotten that we were founded and remain a “nation under God with liberty and justice for all” whether they be atheists, Christians, Jews or otherwise. The decision of the district court should be reversed, and summary judgment should be entered for the Jaycees.
I dissent.
. Although I address the Lemon test here out of necessity in response to the majority’s opinion, I am unconvinced that the Lemon test is capable of providing a consistently principled rationale for analyzing religious expression. The test has received criticism from members of the Supreme Court, see, e.g., County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 3134, 106 L.Ed.2d 472 (1989) (Kennedy, J., concurring in part and dissenting in part) and cases cited therein, as it yields incongruent results. As an example, a majority of the Court reasoned in Allegheny that a creche on the steps of the County Courthouse failed the Lemon test while a Chanukah Menorah outside the City-County Building was proper. In our own Circuit, we have held that a governmental entity may display a creche on public property, see Mather v. Village of Mundelein, 864 F.2d 1291 (7th Cir. 1989), but the majority here would exclude a private religious display from public property. Such inconsistencies demonstrate that the Lemon test is an inadequate barometer of the constitutionality of religious speech and conduct. I am of the opinion that we would achieve results that are far more principled and consistent under the Establishment Clause if we were to focus our inquiry on the issue of whether the government has engaged in some form of coercion, either overt or subtle, that presents a realistic danger that the government is attempting to establish a particular religion. Without such coercion, I doubt that there can be a governmental establishment of religion. See Allegheny, 109 S.Ct. at 3136; see also Doe v. Village of Crestwood, 917 F.2d 1476, 1491 (7th Cir. 1990) (Coffey, J., dissenting). Analyzing claims such as Doe's under a "coercion" test would a) clearly portray the spurious nature of Doe’s hypothetical "injury” from the Jaycees’ display, b) provide a principled rationale for deciding Religion Clause cases in a consistent manner, c) remove the impression of judicial hostility toward religion engendered by the inconsistent application of the Lemon test, and, perhaps, d) restore a measure of the religious liberty, guaranteed by our Constitution, that has eroded under the consistent assaults of those who are striving to exclude religion from public cognizance.
. The complaint does not allege that the Jaycees are acting for or on behalf of the government, thus the actions of the City prior to the date the Jaycees began displaying the paintings are immaterial to the issue of whether the Jaycees’ display is private speech.
. The record manifests, as the majority concedes, that the City has neither provided lighting nor paid any electric bills ■ to illuminate the paintings (the paintings are not illuminated). The paraphrase of the mayor stating that the City would pay electric bills but would not provide financial help is inconsistent. The record is clear that the City has incurred no expense for the Jaycees' display of the paintings. Indeed, the City is not even defending this law suit — the Jaycees through the National Legal Foundation is defending it.
. The majority once again misstates the record, this time as to the Jaycees’ argument when it says, ‘‘[i]n arguing that the doctrine of the public forum rescues the City from Establishment Clause analysis, the defendant would have us invent an unprecedented exception to the Establishment Clause.” Maj.Op. at 769. The Jaycees have not argued, however, “that the doctrine of the public forum rescues the City from Establishment Clause analysis.” Rather, the Jaycees argue that the Lemon test is inapplicable to private speech in a quintessential public forum. Thus, the Jaycees’ argument requests no "exception” from the Establishment Clause, for the Establishment Clause has never before been applied to private religious speech in an open public forum removed from the seat of government.
. Indeed, almost all who identify with a Christian belief respect the biblical record of the miraculous birth, life, death and resurrection of Christ.
. The majority finds an “apparent clash between the government’s obligation to adhere to the Establishment Clause and a private speaker's right of free expression.” Maj.Op. at 773. This clash is non-existent, for a private speaker's expression fails to implicate the Establishment Clause. It is only when governmental conduct, as opposed to private conduct, discriminates in favor of religion that there is a violation of the Establishment Clause. Such governmental conduct is unconstitutional, but eliminating discriminatory conduct in favor of religion has never justified discrimination against religion. Government policy must be neutral.
. This is a non sequitur for two reasons: (1) Whether private speech in a public forum is secular or religious is irrelevant to whether the government intends to promote it, and there is no presumption that every private speech in a public forum is promoted by government: (2) The government is not required to limit private speech in a public forum to secular messages— if so, no religious group could ever use public parks. Indeed, as I shall demonstrate hereinafter, it would be unconstitutional for the City to exclude the display on the basis of its religious content. Thus, the most reasonable inference to draw from the City allowing the display is that the City was following the constitutional mandate of allowing equal access to public forums, a concept the district court neglected to consider.
. The majority tracks the district court's position: "Indeed, it would be surprising if City had in fact acted to promote the now-asserted open forum policy. City Defendants admit City has never formally stated any such policy, and nothing in its conduct really supports the notion that any such concept was at work here." Doe v. Small, 726 F.Supp. at 720 n. 16.
. I have demonstrated above that the majority's implication that the display is not private speech is invalid. See supra at 796-799.
. Even if the City’s conduct in recent years could be construed as making it a sponsor of the display, the appropriate resolution of the problem would be an order enjoining any such further sponsorship.
. “[T]he Fourth Circuit [in Smith ] recognized that excluding the creche from public property was necessary and the most narrowly tailored means available to the court to comply with the Constitution.” Maj.Op. at 774.
. The Jaycees’ 20!/2" by 21'A" sign, which the plaintiffs photograph in Exhibit 17 demonstrates, is easily readable from the sidewalk, states in I'/u" high letters, "THIS DISPLAY HAS BEEN ERECTED AND MAINTAINED SOLELY BY THE OTTAWA JAYCEES A PRIVATE ORGANIZATION WITHOUT THE USE OF PUBLIC FUNDS.” The district court and the majority state that the sign cannot be read from the street, but they fail to set forth or cite anything in the record as a basis for this finding. The photograph was apparently taken from the sidewalk, and the sign is clearly legible even in the photograph.
The majority relies on Allegheny for the proposition that since the sign was posted by the Jaycees rather than the City, the City is endorsing the activity of the Jaycees. The majority’s proposition is an invalid application of Justice Blackmun’s statement in Allegheny that a sign accompanying a display in a limited public forum in the seat of government merely tells whose message is being endorsed. In a quintessential public forum, the ownership of the sign is irrelevant; the content of the message alone is significant, and furthermore, there is no presumption of government endorsement of messages in a public forum, as the majority implies.
. The majority takes an over-broad approach to what it views as the required governmental neutrality toward religion: "The Establishment Clause means that government may not prefer one religion over another, nor may it aid all religions evenhandedly.” Maj.Op. at 756. While the majority’s approach may have some support in the Supreme Court, I doubt that it is likely to prevail. In Chief Justice Rehnquist’s dissent in Wallace v. Jaffree, 472 U.S. 38, 106, 105 S.Ct. 2479, 2515, 86 L.Ed.2d 29 (1985) (Rehnquist, J., dissenting) Justice Rehnquist stated: "The Establishment Clause did not require government neutrality between religion and irreligión nor did it prohibit the Federal Government from providing nondiscriminatory aid to religion.” Likewise, in Justice Kennedy’s recent Allegheny dissent, joined by Chief Justice Rehnquist, Justice White, and Justice Scalia, Justice Kennedy stated, "[rjather than requiring government to avoid any action that acknowledges or aids religion, the Establishment Clause permits government some latitude in recognizing and accommodating the central role religion plays in our society." Allegheny, 109 S.Ct. at 3135 (Kennedy, J., dissenting). Moreover, Justice O’Connor, joined by Chief Justice Rehnquist, Justice White and Justice Blackmun, in Mergens stated "that although incidental benefits accrued to religious groups who used university facilities [in Wid-mar], this result did not amount to an establishment of religion." Mergens, 110 S.Ct. at 2371. Thus, I am unconvinced that any incremental benefits that may accrue from some type of
. The majority states that under my analysis, “assertedly private speech is exempt from Establishment Clause analysis." Maj.Op. at 759. This is a misstatement of my argument, however, for my critique of the majority’s application of the Lemon test turns not on the assertion of private expression, but on a finding of private expression in an open public forum removed from the center of government. Contrary to the majority’s assertion that ”[i]t is precisely through the application of the Lemon and endorsement tests that a reviewing court makes a determination whether expression is private or whether it bears the imprint of government endorsement,” the Lemon test is immaterial to a determination of whether speech is private or public.
. See Section 3 infra for a discussion of how the majority’s holding requires entanglement with religion.
. The majority also states that “[o]nly the Jaycees’ claimed ‘equal access’ earned them the explicit endorsement and input of the City in designing the concrete-filled holes and metal sleeves especially to support the paintings.” Maj.Op. at 760-761. There is no evidence in the record implying that the City designed or helped design the sleeves in the replacement supports. The record states only that the City engineer approved the location of the concrete-filled holes. The mayor testified that this type of action on the part of the engineer was necessary in order to avoid damaging underground electrical or water lines. In the absence of evidence to the contrary, the appropriate inference to be drawn from the City engineer's advice is that he would provide similar advice to anyone else who wished to install any object below the ground. See discussion of diggers’ hotline supra at 797-798.
. The majority states that "the City has attempted to neutralize the religious content of the paintings, engaging in what one member of this Court has described as constitutional ‘interi- or-decorating,’ American Jewish Congress v. City of Chicago, 827 F.2d 120, 129 (7th Cir. 1987)." Maj.Op. at 767. The majority fails to note that the comment regarding "interior-decorating” is in a Judge Easterbrook dissent in which he strongly condemns evaluating the context of a religious display on the basis that such an analysis ”requir[es] scrutiny more commonly associated with interior-decorators than with the judiciary.” American Jewish Congress v. City of Chicago, 827 F.2d at 129 (Easterbrook, J., dissenting). Thus, Judge Easterbrook’s comment hardly supports describing the City’s addition of the Festival of Lights as "interior-decorating."
.The majority assumes, without analysis, that the religious message of a display must be neutralized in order to have a secular purpose.
"[N]either Lynch nor Allegheny, however, requires that the context of [even] a government exhibit or action neutralize its religious character. Indeed, the Lynch majority specifically denied that it viewed the creche as having only secular meaning:
'Justice Brennan states that “by focusing on the holiday 'context’ in which the nativity scene appears,” the Court "seeks to explain away the clear religious import of the creche” ... and that it has equated the creche with a Santa's house or reindeer.... Of course this is not true.’"
Doe v. Village of Crestwood, 917 F.2d at 1484 (quoting Lynch, 465 U.S. at 684 n. 12, 104 S.Ct. 1365 n. 12) (Coffey, J., dissenting). In Lynch, the Court found a secular purpose in the City's action of displaying a religious symbol even though the creche retained its religious significance. Allegheny did not add a requirement that the religious content of a display be neutralized, and the majority neglected to argue that such a requisite exists. The majority states that "where a city’s display of an undeniably religious symbol has been upheld, see Allegheny, 492 U.S. at 573, 109 S.Ct. at 3086; Lynch, 465 U.S. at 688, 104 S.Ct. at 1355; Mather, 864 F.2d at 1291; McCreary, 739 F.2d at 716; Clawson, 915 F.2d at 244, the analysis turns on the extent to which the religious message is either ‘neutralized’ by the presence of other secular symbols or messages, or is part of an overall, integrated holiday display." Maj.Op. at 762. Once again, the majority makes no effort to support this bald conclusory statement, nor could it. It is
. The majority, unaccountably, relies on a case where a City permanently erected a cross on a government building and tried to justify it as a "promotion of tourism” to support its argument, since “a government may not 'employ religious means to reach a secular goal unless secular means are wholly unavailing.' ” Maj.Op. at 763 (quoting American Civil Liberties Union v. Rabun County Chamber of Commerce, 698 F.2d 1098, 1111 (11th Cir. 1983)). I would think that even in the majority's eagerness to affirm the district court, it would in all fairness distinguish a private Christmas display in a quintessential public forum from a cross permanently erected on a public building by the government. Moreover, in light of Allegheny and Lynch, there can be no doubt that a city may permissibly use and allow the use of religious symbols in Christmas displays. Thus the secular purpose expressed in the resolution would be an adequate secular purpose even if the City were displaying the paintings.
. Even if I were to agree, which I do not, that the City’s resolution was an impermissible endorsement of religion, the proper judicial response would be to enjoin further resolutions, not the Jaycees’ private speech. Because there is no legal basis, it is most inappropriate, as the majority decision mandates, to punish a private party for an alleged governmental violation of the Constitution.
. The last sentence of this quotation appears to be the single acknowledgment from the majority that it is the City who must have a secular purpose.
. In the context of the "festival of lights” in the 1988 Christmas decorations of Washington Park, there is no reason to suppose that viewers would have perceived the paintings as a governmental endorsement of religion. As in Lynch, the variety of decorations in the Park provided a number of focal points of which the paints were merely one. The lights, candles, bows, artificial snowflakes and the fifteen foot snowman as a whole dwarfed the paintings. The Jaycees' night photographs of Washington Park (Jaycees’ exhibit Q, Q-2, R and S) clearly demonstrate that the paintings are merely one part of the overall Christmas display in Washington Park. Thus, even if the City were sponsoring the display, it would pass constitutional muster, since under Lynch and Allegheny, religious symbols that are part of a governmental display are clearly constitutional when surrounded by other secular symbols of the season.
. For a discussion of the "content" argument, see section 3, infra, Government Entanglement with Religion.
. See, e.g., Deposition of City Council Member William C. Ferguson, supra at 792-793.
. The majority finds the duration of the display indicative of governmental endorsement. If that were so, which I do not believe, the proper remedy would be the one Doe requested — reasonable time, place and manner restrictions on the use of the Park.
. I find it strange that the government may not interfere with the display of morally offensive paintings, absent a finding that they are legally "obscene,” see Contemporary Arts Center v. Ney, 735 F.Supp. 743, 744 (S.D.Ohio 1990), but the majority thinks the government must interfere with the display of religious paintings.
. Will we next be requested to censor religious art in government funded art galleries if there is too much of it?
Reference
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- Jane DOE v. George D. SMALL, Mayor of the City of Ottawa, Illinois Barbara J. Lindquist, William C. Ferguson, Alan R. Howarter and William N. Stevenson, Members of the City Council of the City of Ottawa, Illinois and the City of Ottawa, Illinois, a municipal corporation, The Ottawa Jaycees, Intervenor-Defendant-Appellant
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