475 F.2d 29 (10th Cir. 1973), 72-1286, Anderson v. Salt Lake City Corp.

Docket Nº72-1286, 72-1287.
Citation475 F.2d 29
Party NameAlma F. ANDERSON et al., Plaintiffs-Appellees, v. SALT LAKE CITY CORPORATION and Salt Lake County, Defendants-Appellants.
Case DateMarch 16, 1973
CourtUnited States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 29

475 F.2d 29 (10th Cir. 1973)

Alma F. ANDERSON et al., Plaintiffs-Appellees,

v.

SALT LAKE CITY CORPORATION and Salt Lake County, Defendants-Appellants.

Nos. 72-1286, 72-1287.

United States Court of Appeals, Tenth Circuit.

March 16, 1973

Argued and Submitted Sept. 18, 1972.

Page 30

Ray L. Montgomery, Asst. Salt Lake City Atty., and Merrill K. Davis, Deputy, Salt Lake County Atty. (Jack L. Crellin, Salt Lake City Atty., and Carl J. Nemelka, Salt Lake County Atty., with them on the briefs), for defendants-appellants.

Bryce E. Roe, Salt Lake City, Utah (William G. Fowler, Salt Lake City, Utah, with him on the brief), for plaintiffs-appellees.

Before MURRAH, SETH and DOYLE, Circuit Judges.

MURRAH, Circuit Judge.

The Boards of Commissioners of Salt Lake City and Salt Lake County informally permitted the Fraternal Order of Eagles to erect on city-county court-house grounds a permanent 3 x 5-foot granite monolith inscribed with a version of the Ten Commandments and certain other symbols representing the All Seeing Eye of God, the Star of David, the Order of Eagles, letters of the Hebraic alphabet, and Christ or peace. After erection of the monolith in a prominent place near the courthouse entrance, the Commissioners of the City formally authorized the installation and maintenance of lighting equipment to illuminate and enhance the display, at City and County expense. Similar monoliths have been erected in public places across the United States and Canada-nine of them in Utah-as part of the Eagles' established and continuing "youth guidance program, " and ". . . to inspire all who pause to view them, with a renewed respect for the law of God, which is our greatest strength against the forces that threaten our way of life."

The plaintiffs, all residents and taxpayers of Salt Lake County, brought this suit seeking removal of the monolith and an injunction prohibiting the City and County from permitting erection or maintenance of any similar monument on public land, alleging that the presence of the monolith is a violation of the Establishment Clause of the First Amendment, United States Constitution, and Article 1, Section 4, of the Utah Constitution.

Upon trial, the court, 348 F.Supp. 1170, held that the message conveyed by the monolith was "clearly religious in character;" that by their actions the Boards of Commissioners must be deemed to have adopted the program of the Order of Eagles, with the purpose and primary effect of advancing the cause of religion and certain religious concepts, thus inhibiting the ideas of persons with alternative beliefs, contrary

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to the prohibitions of the Establishment and Free Exercise Clauses of the First Amendment. Judgment was entered for the plaintiffs. We cannot agree, and, therefore, reverse the judgment.

The City and County challenge the standing of the plaintiffs to bring this suit, alleging lack of a proper nexus between plaintiffs' status and the alleged constitutional infringement, and failure to show any direct injury. But we think the requisite standing is clearly conferred by non-economic religious values when the plaintiffs assert a litigable interest under the Establishment and Free Exercise Clauses of the Federal Constitution. E. g., Allen v. Hickel, 138 U.S.App.D.C. 31, 424 F.2d 944, 946 (1970), citing Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), and Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 616 (2d Cir. 1965). We think the plaintiffs have standing based on their beliefs about religion to question whether those beliefs have been infringed upon by an alleged use of public property for religious purposes.

We do not understand either the City or County to contend that the erection and maintenance of the monolith was not done under color of state law, in the constitutional sense in which the question is presented here for decision. Cf. Lowe v. City of Eugene, 254 Or. 518, 463 P.2d 360 (1969), cert. denied, Eugene Sand & Gravel v. Lowe, 397 U.S. 1042, 90 S.Ct. 1366, 25 L.Ed.2d 654 (1970); Allen v. Hickel, supra, 424 F.2d at 947; and Everson v. Board of Education, 330 U.S. 1, 15-16, 67 S.Ct. 504, 91 L.Ed. 711 (1947). The City and County do invoke the abstention doctrine, contending that the federal court should have stayed its hand while the matter in issue is litigated in the state courts under the similar clauses of the state and federal constitutions. But this is not a case or circumstance calling for abstention of the exercise of federal jurisdiction. The right asserted here is a basic First Amendment right, of which the federal court has jurisdiction, and, although a like provision of the state constitution is involved, proper resolution of the federal right is not conditioned upon resolution of any state question, law, or constitution. See, e. g., Lewis v. Kugler, 446 F.2d 1343 (3d Cir. 1971); Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), quoting Stapleton v. Mitchell, 60 F.Supp. 51, 55 (D.C.Kan.1945); and Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

This brings us to the point of applying the Establishment Clause to the facts in this case. Surely nothing we can say at this time or place concerning the scope and effect of the Establishment Clause can serve to add to what has already been so prolifically said elsewhere. From Everson v. Board of Education, supra, to Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), the Supreme Court has treated the Establishment and Free Exercise Clauses under various factual situations with perplexing diversity of views. 1 But throughout all these scholarly

Page 32

and authoritative writings runs a strain of consistency-one clear and distinct tenet of which we can be sure-the Constitution mandates complete government neutrality in religious matters. See, e. g., Everson v. Board of Education, supra; and Abington School Dist. v. Schemp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963).

The government may not ". . . pass laws which aid one religion, aid all religions, or prefer one religion over another . . . ." Everson v. Board of Education, supra, 330 U.S. at 15, 67 S.Ct. at 511. Nor can one cent of taxpayers' money be devoted to religious purposes. E. g., Douglas, J., concurrence, Lemon v. Kurtzman, supra, 403 U.S. at 640, 91 S.Ct. 2105, and Everson v. Board of Education, supra, 330 U.S. at 16, 67 S.Ct. 504.

In Lemon v. Kurtzman, supra, Chief Justice Burger reviewed and summarized the case history of the Establishment Clause. Said he, "[o]ur prior holdings do not call for total separation between church and state; total...

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60 practice notes
  • 548 P.2d 112 (N.M.App. 1976), 2258, State v. Vogenthaler
    • United States
    • New Mexico Court of Appeals of New Mexico
    • March 9, 1976
    ...Commandments and various symbols including '. . . the Star of David . . . and Christ or peace', Anderson v. Salt Lake City Corporation, 475 F.2d 29 (10th Cir.1973), cert. denied, 414 U.S. 879, 94 S.Ct. 50, 38 L.Ed.2d 124 (1973); statute prohibiting disturbances of religious meetings, Riley ......
  • 663 F.Supp. 606 (W.D.Wis. 1987), 85-850, Freedom From Religion Foundation, Inc. v. Zielke
    • United States
    • Federal Cases United States District Courts 7th Circuit Western District of Wisconsin
    • June 22, 1987
    ...Abington School Distrit v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). See also Anderson v. Salt Lake City Corporation, 475 F.2d 29, 31 (10th Cir. 1973) ("the plaintiffs have standing based on their beliefs about religion to question whether those beliefs have been inf......
  • 656 P.2d 662 (Colo. 1982), 82SA267, Conrad v. City and County of Denver
    • United States
    • Colorado Supreme Court of Colorado
    • December 6, 1982
    ...of the federal court on whether Denver's display comports with First Amendment requirements. Cf. Anderson v. Salt Lake City Corporation, 475 F.2d 29 (10th Cir.1973) (where a basic federal constitutional right is asserted, the federal court will not stay exercise of its jurisdiction to await......
  • 22 Cal.3d 792, 30830, Fox v. City of Los Angeles
    • United States
    • California Supreme Court of California
    • December 15, 1978
    ...Free Exercise Clauses under various factual situations with perplexing diversity of views." (Anderson v. Salt Lake City Corp. (1973) 475 F.2d 29, 31.) That observation pertains to the panoply of views set forth more recently in Wolman v. Walter (1977) 433 U.S. 229, 97 S.Ct. 2593, 53 L.......
  • Request a trial to view additional results
54 cases
  • 548 P.2d 112 (N.M.App. 1976), 2258, State v. Vogenthaler
    • United States
    • New Mexico Court of Appeals of New Mexico
    • March 9, 1976
    ...Commandments and various symbols including '. . . the Star of David . . . and Christ or peace', Anderson v. Salt Lake City Corporation, 475 F.2d 29 (10th Cir.1973), cert. denied, 414 U.S. 879, 94 S.Ct. 50, 38 L.Ed.2d 124 (1973); statute prohibiting disturbances of religious meetings, Riley ......
  • 663 F.Supp. 606 (W.D.Wis. 1987), 85-850, Freedom From Religion Foundation, Inc. v. Zielke
    • United States
    • Federal Cases United States District Courts 7th Circuit Western District of Wisconsin
    • June 22, 1987
    ...Abington School Distrit v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). See also Anderson v. Salt Lake City Corporation, 475 F.2d 29, 31 (10th Cir. 1973) ("the plaintiffs have standing based on their beliefs about religion to question whether those beliefs have been inf......
  • 656 P.2d 662 (Colo. 1982), 82SA267, Conrad v. City and County of Denver
    • United States
    • Colorado Supreme Court of Colorado
    • December 6, 1982
    ...of the federal court on whether Denver's display comports with First Amendment requirements. Cf. Anderson v. Salt Lake City Corporation, 475 F.2d 29 (10th Cir.1973) (where a basic federal constitutional right is asserted, the federal court will not stay exercise of its jurisdiction to await......
  • 22 Cal.3d 792, 30830, Fox v. City of Los Angeles
    • United States
    • California Supreme Court of California
    • December 15, 1978
    ...Free Exercise Clauses under various factual situations with perplexing diversity of views." (Anderson v. Salt Lake City Corp. (1973) 475 F.2d 29, 31.) That observation pertains to the panoply of views set forth more recently in Wolman v. Walter (1977) 433 U.S. 229, 97 S.Ct. 2593, 53 L.......
  • Request a trial to view additional results
3 books & journal articles
  • Public displays of affection ... for God: religious monuments after McCreary and Van Orden.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 32 Nbr. 1, January 2009
    • January 1, 2009
    ...(92.) Id. at 1670. (93.) Van Orden, 545 U.S. at 704 (Breyer, J., concurring in the judgment). (94.) See Anderson v. Salt Lake City Corp., 475 F.2d 29, 30 (10th Cir. 1973), superseded by Van Orden, 545 U.S. 677, and McCreary County v. ACLU, 545 U.S. 844 (2005), as recognized in Soc'y of Sepa......
  • Government-sponsored religious displays: transparent rationalizations and expedient post-modernism.
    • United States
    • Case Western Reserve Law Review Vol. 61 Nbr. 4, June 2011
    • June 22, 2011
    ...(Stevens, J., dissenting) (quoting Anderson v. Salt Lake City Corp., 348 F. Supp. 1170, 1171-72 (D. Utah 1972), rev'don other grounds, 475 F.2d 29 (10th Cir. 1973)). (44) See, e.g., Barnes v. Inhabitants of First Parish in Falmouth, 6 Mass. (5 Tyng) 401,40608 (1810) 0ustifying the Massachus......
  • Moral duty and the rule of law.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 31 Nbr. 1, January 2008
    • January 1, 2008
    ...F.3d 1271 (11th Cir. 2003) (upholding depiction of Ten Commandments in official seal of county court); Anderson v. Salt Lake City Corp., 475 F.2d 29 (10th Cir. 1973) (upholding display of Ten Commandments monument at entrance of city-county courthouse); State v. Freedom from Religion Found.......