Allen v. Morton

• Decision Date: 26 September 1973
• Docket Number: No. 71-1909.,71-1909.
• Citation: 495 F.2d 65
• Parties: Reverend Thomas B. ALLEN et al. v. Rogers C. B. MORTON, Secretary of the Interior, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

495 F.2d 65 (1973)

Reverend Thomas B. ALLEN et al. v. Rogers C. B. MORTON, Secretary of the Interior, et al.

No. 71-1909.

United States Court of Appeals, District of Columbia Circuit.

Argued June 6, 1972.

Decided September 26, 1973.

COPYRIGHT MATERIAL OMITTED

Warren K. Kaplan, Washington, D. C., with whom Ralph J. Temple and Hope Eastman, Washington, D. C., were on the brief, for appellants.

Edwin E. Huddleson, III, Atty., Dept. of Justice, L. Patrick Gray, III, Washington, D. C., was also on the brief at the time it was filed. Harold H. Titus, Jr., U. S. Atty., and Alan S. Rosenthal, Atty., Dept. of Justice, were on the brief, for appellees. Morton Hollander, Atty., Dept. of Justice, John A. Terry, Joseph M. Hannon and Gil Zimmerman, Asst. U. S. Attys., also entered appearances for appellees.

Before TAMM, LEVENTHAL and ROBB, Circuit Judges.

PER CURIAM:

The court is of the view that the judgment must be reversed because the plaintiffs are entitled to a decree enjoining the continuance of the Government's current participation in the Christmas Pageant of Peace, including as it does a membership in planning and organization committees that violates the "entanglement" test of the Establishment clause of the First Amendment. On this point the opinions filed by Judges Tamm and Leventhal are in accord.

Following the reinstatement of the complaint plaintiffs will be entitled to a decree, but a question may arise as to its proper scope. No further legal question arises if the pertinent groups and officials of the Christmas Pageant of Peace conclude that the creche will be discontinued as to future Pageants. If the creche is retained, and the Government decides to terminate all sponsorship or connection with the Pageant, appropriate plaques should be ordered by the District Court, as set forth in Judge Leventhal's opinion. If the creche is retained and the Government wishes to maintain a connection with the Pageant—say, limited to the financial aid presently provided and/or technical sponsorship—it will have to prepare new regulations or amendments to the existing regulations. These regulations or modifications would have to be grounded in neutral principles and criteria that assure non-discriminatory definition of the events that are afforded any such Government aid or technical sponsorship. It is the opinion of the Court, however, that if the Government promulgates the regulations and the Christmas Pageant of Peace qualifies for financial aid or technical sponsorship thereunder, such Government involvement will not be constitutionally defective.^* Of course, any proposal for retention of Government connection with the Pageant would have to be accompanied by a proposal for appropriate plaques.

Reversed and remanded for further proceedings.

Opinion filed by Circuit Judge TAMM in which Circuit Judge ROBB concurs.

TAMM, Circuit Judge.

In Women Strike for Peace v. Hickel, 137 U.S.App.D.C. 29, 420 F.2d 597, 602 (1969), a decision dealing with the right of access to Government owned property, Judge Leventhal noted that the Government's co-sponsorship of the Christmas Pageant of Peace "might raise more questions than it answers." One of those questions, specifically that relating to the First Amendment's establishment and free exercise clause, has been tortuously wending its way through the courts since July 4, 1969, and today hopefully reaches final disposition. Mr. Justice Powell has recently noted that cases arising under the First Amendment clauses "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," have presented "some of the most perplexing questions to come before this Court." Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 760, 93 S.Ct. 2955, 2959, 37 L.Ed.2d 948 (1973). This case, we unhappily anthropomorphize, is similarly disposed to perplex, confuse, and even frustrate, so sensitive and complex are the issues it presents.

We will not unduly quantify our opinion with a re-recitation of facts already ably and extensively set out in Judge Leventhal's opinion herein, in the 1970 opinion of this court remanding this very action to the district court for further fact-finding, Allen v. Hickel, 138 U.S.App.D.C. 31, 424 F.2d 944 (1970), and in the district court's opinion from which this appeal was taken, Allen v. Morton, 333 F.Supp. 1088 (D.D.C.1971). We will structure the opinion within the framework of the purpose, primary effect, and excessive entanglement tests, reiterating only those facts specifically relevant to our analysis. The propriety of that three-part test is well established, as Mr. Justice Powell stated recently in Nyquist, supra, 413 U.S. at 772-773, 93 S.Ct. at 2965:

The now well defined three-part test that has emerged from our decisions is a product of considerations derived from the full sweep of the Establishment Clause cases. Taken together these decisions dictate that to pass muster under the Establishment Clause the law in question, first, must reflect a clearly secular legislative purpose, e. g., Epperson v. Arkansas, 393 U.S. 97 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), second, must have a primary effect that neither advances nor inhibits religion, e. g., McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); School District of Abington Township v. Schempp, 374 U.S. 203 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), and, third, must avoid excessive government entanglement with religion, e. g., Walz v. Tax Comm\'n, 397 U.S. 664, 90 S. Ct. 1409, 25 L.Ed.2d 697 (1970). See Lemon v. Kurtzman, 403 U.S. 602, 612-614, 91 S.Ct. 2105, 29 L.Ed. 2d 745 (1971); Tilton v. Richardson, 403 U.S. 672, 678 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971). (footnote omitted.)

I. Purpose

When determining "purpose" in this situation we are faced with an unusual problem, for as Judge Leventhal has pointed out in his opinion we are unable to follow "the familiar analysis of the intent of a legislature" and rather must "discern the purposes of activities of officials of the Executive Branch." Our de novo look at the record has convinced us when considering both the stated purposes of the Pageant and the actions of the Government officials involved over the past two decades as reflecting upon the Government's adherence to those stated purposes, that the Government's involvement in the Pageant of Peace "reflects a clearly secular . . . purpose."

The Pageant itself is an outgrowth of the traditional National Community Christmas Tree Celebration, and as the record amply demonstrates evolved in 1954 as a vehicle for bolstering tourism in the District of Columbia.¹ On a more philosophical level its continually expressed purpose has been that of manifesting this "nation's desire for `Peace on Earth, Goodwill Toward Men.'" The Pageant is conducted each year at the approximate time of the celebration of the national legal holiday of Christmas, and is meant to serve as "a visible expression of this Nation's aspiration to foster peace, understanding and friendship between the nations of the world and the American People." The creche itself, while obviously a religious symbol, is part of a commemoration of "the Nation's celebration of Christmas as a national holiday, by depicting all the traditional aspects of our national history associated with Christmas." While the creche is utilized neither to promote nor profane any religion, it is "intended to be reverential to the religious heritage aspect of Christmas."²

These are the express purposes for both the existence of the pageant as a whole and the creche as one of its many integral parts, and they have been consistently stated throughout the history of the Pageant. We can find nothing in the record to convince us that the Government's involvement, which is similar in kind to its cooperation with other national celebration events, e. g., The Cherry Blossom Festival, the President's Cup Regatta, and the National Independence Celebration, is predicated upon any other, non-secular purpose.³ We note, however, that "the propriety of . . . purposes may not immunize from further scrutiny a law which either has a primary effect that advances religion, or which fosters excessive entanglements between Church and State." Nyquist, supra, 413 U.S. at 774, 93 S.Ct. at 2966.⁴

II. Primary Effect

The Government's participation in the Pageant is twofold: (1) Various Government officials play an active role in its management and organization, occupying two of the five positions on the Executive Committee, and two of the ten positions on the important Program Committee;⁵ (2) the Government "co-sponsors" the Pageant and provides labor assistance in the assembly, dismantling, cleaning and restoration of the area, along with various materials and equipment for use in the Pageant. The expense involved is more than nominal —in 1968, for example, the cost to the Government for the services it expended amounted to nearly $72,000.⁶ Since 1968, however, the Government has refrained from supplying any assistance in the assembly, storage, or maintenance of the creche. The Christmas Pageant of Peace, Inc. bears the cost of electricity used to light the creche and is solely responsible for its use.⁷ As we find the former type of participation infirm under the entanglement test discussed infra, for purposes of discussion of the primary effect of the Government's involvement we will consider only the effect of its financial assistance and nominal co-sponsorship.

The recent Nyquist opinion elucidates that Government action may have multiple "primary" effects, in the sense that the constitutional propriety of an action depends not on whether the primary effect is legitimately secular but on whether the action in any way has the "direct and immediate effect of advancing religion," or conversely "only a `remote and incidental' effect advantageous to religious institutions." Nyquist, supra, 413 U.S. at 784, 93...