Allen v. Hickel, 23544.

• Decision Date: 10 April 1970
• Docket Number: No. 23544.,23544.
• Citation: 424 F.2d 944
• Parties: Reversed Thomas B. ALLEN et al., Appellants, v. Walter HICKEL, Secretary of the Interior, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

424 F.2d 944 (1970)

Reversed Thomas B. ALLEN et al., Appellants, v. Walter HICKEL, Secretary of the Interior, et al.

No. 23544.

United States Court of Appeals, District of Columbia Circuit.

Argued December 12, 1969.

Decided April 10, 1970.

Mr. Warren K. Kaplan, with whom Messrs. Ralph J. Temple and Lawrence Speiser, Washington, D. C., were on the brief, for appellants.

Mr. Gil Zimmerman, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry and Joseph M. Hannon, Asst. U. S. Attys., were on the brief, for appellees.

Mr. Joel H. Levy, Washington, D. C., filed a brief on behalf of The American Jewish Congress, as amicus curiae.

Before TAMM, LEVENTHAL and ROBB, Circuit Judges.

LEVENTHAL, Circuit Judge:

On December 15, 1969, the President, following a tradition established in 1923 by President Harding, threw a switch lighting the National Christmas Tree. The tree was located in the Ellipse (an elliptically shaped park across the street from the White House). Nearby were 57 other lighted and decorated Christmas trees representing the 50 states and seven of the territories of the United States. Also present were reindeer, a burning Yule log, and the center of the controversy before us: an illuminated life-size crèche, or Nativity scene, depicting the birth of Christ attended by his mother Mary, St. Joseph, shepherds, animals, and the three Magi. The National Christmas tree and all the rest of these items, together with singing, instrumental concerts, and other seasonal observances, formed the 1969 presentation of the annual Christmas Pageant of Peace. The Pageant is an event co-sponsored by the National Park Service and a non-profit corporation called Christmas Pageant of Peace, Inc. A prime purpose of the Pageant is to proclaim the message of "peace on earth to men of good will."

The plaintiffs, now appellants, in this case are an Episcopalian minister, a Catholic priest, a rabbi, the president of the American Ethical Union, and an officer of the National Humanist Association. Plaintiffs' complaint objected to the inclusion of the crèche in the Pageant of Peace celebration as a violation of the Establishment and Free Exercise clauses of the First Amendment to the Constitution. They sought an injunction in the District Court against construction and maintenance of the crèche on federal park land. On September 30, 1969, the District Court, after hearing oral argument, granted appellees' motion to dismiss on the ground that appellants lacked standing, and alternatively granted appellees' motion for summary judgment, denied appellants' motion for preliminary injunction, and dismissed the action. On December 12, 1969, this court, without opinion, denied appellants' motion for injunction pending the outcome of this litigation.

Two substantial issues are presented by appellants' suit: whether or not they have standing to sue for the relief they have requested; and whether or not the construction and maintenance of the crèche on federal park lands violates the Establishment and Free Exercise clauses.

I. Standing

Appellants assert that they have standing to sue because of their status as taxpayers, citing Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Flast states the standard for taxpayer standing in the following way:

In ruling on standing, it is both appropriate and necessary to look to the substantive issues for another purpose, namely, to determine whether there is a logical nexus between the status asserted and the claims sought to be adjudicated. * * *

The nexus demanded of federal taxpayers has two aspects to it. First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. * * * Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. 392 U. S. at 102, 88 S.Ct. at 1953

Uncontradicted affidavits for the appellees state that no Government funds are expended in the construction, maintenance, disassembly, or storage of the crèche. Appellants argue, however, that the general funds which support the Christmas Pageant of Peace must be considered as expended partially for the crèche. They argue, in effect, that this court should retrospectively allocate among the Christmas trees, the Yule log, the reindeer, and the crèche those funds which were spent for extra police personnel, debris collection, and other services. We need not reach a determination of that argument in the present case, however, since we conclude that plaintiffs have standing to raise the crèche issue in the federal courts apart from the expenditures of public funds entailed.

The Supreme Court has recently made clear that standing to present claims founded on the Constitution, or Federal statutes, may stem from non-economic values as well as economic values. See Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed. 2d 184 (March 3, 1970), citing Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 616 (2d Cir. 1965); Office of Communication of United Church of Christ v. FCC, 123 U.S.App. D.C. 328, 335-340, 359 F.2d 994, 1001-1006 (1968). The Court made it particularly clear that there is a readiness to find standing conferred by non-economic values in order to consider issues concerning the Establishment Clause and the Free Exercise Clause.¹

In the present case we conclude that the issues under the Free Exercise and Establishment Clauses are presented by plaintiffs who have standing, who present an injury, in the impairment of non-economic values, giving them a "personal stake in the outcome of the controversy,"² as contrasted with mere airing of "generalized grievances about the conduct of the government."³ An aspect of the case that underscores the standing of the plaintiffs is their allegation that the defendants are proposing to devote Government park property to uses inconsistent with the Free Exercise and Establishment Clauses. Park lands are dedicated to public use and enjoyment.⁴

Plaintiffs are all residents of the metropolitan area of the District of Columbia served by park lands in the District. And in a broader sense the Ellipse park serves all citizens of the nation who come to the Nation's Capital not merely to present grievances but also, and indeed more typically, to visit its sites and monuments as one means of maintaining and strengthening their ties with the nation's values and heritage. Citizens may sue to enjoin a government holding land in trust as a park from impermissibly diverting the use so as to destroy their beneficial interests as park uses.⁵ They likewise have standing to complain when the park lands are impermissibly devoted to uses that contravene the Establishment Clause.

Since a claim under the Establishment Clause does not require a showing that plaintiffs' religious freedom is infringed, a claim that park land which plaintiff has a beneficial right be maintained for public purposes is being devoted to the use of an established religion is sufficient personal involvement to provide standing. School District of Abington Township v. Schempp, 374 U.S. 203, 224, 83 S.Ct. 1560, 10 L. Ed.2d 844 (1963).

The standing issue was perhaps clarified, in terms of perspective, when Government counsel put it at argument that if the plaintiffs didn't like to look at the crèche, they could avoid walking near the Ellipse while it was occupied by the crèche.⁶ Plaintiffs were entitled, as members of the public, to enjoy the park land and its devotion to permissible public use; a government action cannot infringe that right or require them to give it up without access to the court to complain that the action is unconstitutional.⁷

II. The Establishment of Religion Issue

A. The Purpose of the Crèche

The Government does not contend the Establishment Clause is rendered inapplicable by reason of the fact that the crèche is supplied, erected, maintained, and stored at the expense of a private organization. That position would be difficult to maintain in view of the applicable policy of the Park Service⁸ which allows construction on public park land by private groups only in connection with events sponsored by the National Park Service. Such sponsorship, supplying as it does the only means by which a display may legally be erected and maintained, constitutes a Government activity.⁹ We must therefore consider whether the activity contravenes the scope of the First Amendment.

The Government contends that the use of the crèche objected to by the plaintiffs is wholly secular, and therefore avoids any entanglement with the First Amendment. That surely over-states the matter. The crèche is not wholly secular. On the contrary, as set forth in the official pamphlet of the Christmas Pageant of Peace:¹⁰ "The spiritual meaning of Christmas is offered in the form of a life-sized Nativity Scene * * *" (emphasis added). But the First Amendment does not require the Government to ignore the existence of certain beliefs and customs on the part of large numbers of its citizens. In Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 96 L.Ed. 954 (1952), the Court, per Justice Douglas, noted: "We are a religious people * * *" As Justice Brennan stated in his concurring opinion in School District of Abington Township, Pa. v. Schempp, supra, 374 U.S. at 295, 83 S.Ct. at 1611, "Nothing in the Constitution compels the organs of government to be blind to what everyone else perceives — that religious differences among Americans have important and pervasive implications for our society."

The applicable rule may fairly be stated thus: The Government may depict objects with spiritual content, but it may not promote or give its stamp of approval to such spiritual content. Illustrative of this principle, and the difficulty of applying it, is the recent case of Lowe v. City of Eugene, Or., 459 P. 2d 222 (1969...