AM. CIV. LIBERTIES v. RABUN CTY. CHBR. OF COMMERCE, Civ. A. No. C79-2035A.

• Citation: 510 F. Supp. 886
• Decision Date: 26 March 1981
• Docket Number: Civ. A. No. C79-2035A.
• Parties: The AMERICAN CIVIL LIBERTIES UNION OF GEORGIA; Gene Guerrero, individually, and as Executive Director of the American Civil Liberties Union of Georgia; Eduard N. Loring, Robert W. Karnan, Juda H. Mintz, and Joseph C. Cavallo, individually, Plaintiffs, v. The RABUN COUNTY CHAMBER OF COMMERCE, INC.: The Honorable Joe D. Tanner, Commissioner, Department of Natural Resources, State of Georgia; and the Honorable George D. Busbee, Governor, State of Georgia, Defendants.
• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia

510 F. Supp. 886

The AMERICAN CIVIL LIBERTIES UNION OF GEORGIA; Gene Guerrero, individually, and as Executive Director of the American Civil Liberties Union of Georgia; Eduard N. Loring, Robert W. Karnan, Juda H. Mintz, and Joseph C. Cavallo, individually, Plaintiffs, v. The RABUN COUNTY CHAMBER OF COMMERCE, INC.: The Honorable Joe D. Tanner, Commissioner, Department of Natural Resources, State of Georgia; and the Honorable George D. Busbee, Governor, State of Georgia, Defendants.

Civ. A. No. C79-2035A.

United States District Court, N. D. Georgia, Atlanta Division.

March 26, 1981.

COPYRIGHT MATERIAL OMITTED

John Pickens, Atlanta, Ga., for plaintiffs.

Isaac Byrd, Atlanta, Ga., Frank Sutton, Clayton, Ga., G. Paris Sykes, Jr., Atlanta, Ga., Dennis Cathey, Cornelia, Ga., and James V. Pleasants, St. Simons Island, Ga., for defendants.

MEMORANDUM OPINION

HORACE T. WARD, District Judge.

This dispute was engendered by the presence of a large, lighted Latin cross in Black Rock Mountain State Park, a Georgia state recreational facility located in Rabun County. Plaintiffs are the American Civil Liberties Union and its director, two Protestant ministers, a Catholic priest, and a rabbi. Defendants are the Rabun County Chamber of Commerce, which caused the cross to be erected, and two state officials. At issue is whether the Establishment Clause of the First Amendment¹ requires that the cross be dismantled, since it stands on state property. Plaintiffs' motion for a preliminary injunction has been consolidated with the trial on the merits held in January, 1981, and the court's findings of fact and conclusions of law are set forth below.

Findings of Fact

Intermittently since 1957 a lighted cross has stood in Black Rock Mountain State Park. The initial structure, a large metal frame in the shape of a Christmas tree² on which a lighted crossbar was placed, was removed in the early 1970's. In March, 1979, defendant Rabun County Chamber of Commerce decided that a new cross would be erected in the state park if the approval of Georgia's Department of Natural Resources could be obtained. While the question of whether the state actually gave its approval is disputed, the parties agree that a new cross was placed on Black Rock Mountain in early 1979 by the Rabun County Chamber of Commerce.

The cross in question is a rather formidable structure which bears 31 mercury vapor lights of 175 watts each and sits atop an 85-foot telephone pole. The lighted portion is 26 feet by 35 feet and is illuminated approximately from sunset until 10:15 or 10:30 p. m. each night. It is in the shape of a Latin cross, the traditional insignia of the Christian religion, and readily recognizable as that symbol. Even in the summer, when because of foliage it is least visible, the cross can be seen at night from at least four miles away. The Chamber of Commerce pays the costs of its electricity bills and upkeep.

Defendant Rabun County Chamber of Commerce claims that the cross was not erected for a religious purpose but for the secular one of promoting tourism. There was considerable and convincing evidence, however, that the cross was placed on the mountain for religious reasons. At the time the erection of the present cross was initially proposed, the chairman of the fund raising committee organized by the Chamber of Commerce stated that "broad financial support" for the project from Rabun County churches would be "fitting and appropriate." Plaintiffs' Exhibit 12 (press release by Rabun County Chamber of Commerce of March 19, 1979, also published in Clayton Tribune, March 22, 1979).³ He also stated that it would be "great" if the cross could be ready in time to be dedicated on Easter, "the most meaningful day for a cross." Id. The cross was in fact dedicated in a religious service held on Easter Sunday, 1979, although not yet in place.

The state's position in this controversy is rather undefined. A state employee, superintendent of the park, initially gave his approval to placement of the cross in the tent camping area. The Chamber's written request to the Department of Natural Resources for permission to erect the cross was then approved in March, 1979, as evidenced by a letter from Director Henry Struble. He stated that this approval was given pending preparation of a revocable license to put up the cross.⁴ A license was mailed later, attached to a letter dated April 4, 1979, but never executed. At one point employees of the Department of Natural Resources actually contacted the Chamber's attorney and suggested that it be designated a memorial to the dead; this suggestion was never implemented by the Chamber of Commerce. When it was made known to the Department of Natural Resources that plaintiff American Civil Liberties Union objected to the cross's presence on state property, however, defendant Commissioner Tanner advised the Chamber that the cross would have to be removed. Plaintiffs' Exhibit 26 (letter of June 8, 1979). The Chamber refused to comply with this request on the grounds that considerable funds had already been expended and that the structure was now its private property. Several months later plaintiffs filed this action for injunctive relief.⁵ Although it no longer sanctions the presence of the cross in Black Rock Mountain State Park, the state of Georgia opposes any grant of injunctive relief on the ground that the Establishment Clause has not been contravened. The non-Christian plaintiffs, ACLU Director Gene Guerrero and Rabbi Juda Mintz, testified that the cross's location on public land had an inhibitory effect on them. All plaintiffs except Joseph Cavallo, who did not testify, and plaintiff Loring were familiar with the cross through personal observation; Loring had seen photographs of it. All were opposed to the presence of the cross in Black Rock Mountain State Park on Establishment Clause grounds.

Standing

Defendants urge that plaintiffs lack standing to bring this suit because they fail to allege "a real and immediate injury." It is apparently their contention that the so-called "injury in fact" requirement for standing has not been established. See, e. g., Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970) (to have standing, a party must allege "that the challenged action has caused him injury in fact, economic or otherwise"). The Supreme Court has limited citizen standing to bring suits challenging government action when plaintiffs have no interest in the suits other than that shared by all Americans. In the context of an Establishment Clause case, however, standing is more broadly permitted. See Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 227, 94 S.Ct. 2925, 2935, 41 L.Ed.2d 706 (1974); United States v. Richardson, 418 U.S. 166, 179-80, 94 S.Ct. 2940, 2947-48, 41 L.Ed.2d 678 (1974). When an Establishment Clause claim is raised, "the requirements for standing ... do not include proof that particular religious freedoms are infringed." Abingdon School Dist. v. Schempp, 374 U.S. 203, 224 n.9, 83 S.Ct. 1560, 1572 n.9, 10 L.Ed.2d 844 (1963). Rather, "a spiritual stake in First Amendment values will be sufficient to give standing to raise issues concerning the Establishment Clause." Association of Data Processing Service Organizations v. Camp, supra, 397 U.S. at 154, 90 S.Ct. at 830. With the exception of Joseph Cavallo, the individual plaintiffs in the instant case gave testimony on their concerns with the separation of church and state, and this is sufficient to demonstrate standing to sue. They have alleged injury in fact to an interest protected by the Establishment Clause which each has a personal right to enforce.⁶ "Unless individuals averring an encroachment of their legal rights have some recourse other than to the political process for the vindication and protection of those rights, the proud claim that individual citizens have rights against the government may be emptied of significance." Americans United for Separation of Church and State v. HEW, 619 F.2d 252, 265 (3d Cir. 1980).

As to the one plaintiff not a natural person, the ACLU, its standing is conferred by the testimony of its director, plaintiff Guerrero. Compare Americans United, supra (nonprofit, tax-exempt organization had standing to sue under Establishment Clause when four of its individual directors joined in suit), with Citizens Concerned for Separation of Church and State v. City and County of Denver, 628 F.2d 1289, 1294 (10th Cir. 1980) (appeal of unincorporated citizens' association dismissed when no constitutionally protected interest of any member was identified and where record failed even to identify any individual persons as members of association). Defendants' argument that plaintiffs lack standing to bring this suit is accordingly rejected.

Conclusions of Law

The standards for evaluating the validity of a state statute under the Establishment Clause are clearly set out in Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971) (Lemon I) (holding unconstitutional state aid to parochial schools). To pass muster under the Establishment Clause a state law must have a secular legislative purpose; its principal and primary effect must be one that does not advance or inhibit religion; and it must not foster an excessive government entanglement with religion. See also Stone v. Graham, ___ U.S. ___, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (state could not constitutionally require Ten Commandments to be posted on classroom walls).

The case at bar does not present a statute for review, but this does not bar application of the three-part constitutional test. It is the effect of a state's acts which brings constitutional scrutiny to bear, not the manner of their implementation. State acts may be legislative, administrative, or judicial; so long as they use state resources in a manner offensive to the Constitution, federal...