698 F.2d 1098 (11th Cir. 1983), 81-7356, American Civil Liberties Union of Georgia v. Rabun County Chamber of Commerce, Inc.

Docket Nº:81-7356.
Citation:698 F.2d 1098
Party Name: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-Appellees, v. The RABUN COUNTY CHAMBER OF COMMERCE, INC., The Honorable Joe D. Tanner, Commissioner
Case Date:February 04, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1098

698 F.2d 1098 (11th Cir. 1983)


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-Appellees,



Joe D. Tanner, Commissioner, Department of Natural

Resources, State of Georgia, and The Honorable George D.

Busbee, Governor, State of Georgia, Defendants-Appellants.

No. 81-7356.

United States Court of Appeals, Eleventh Circuit

February 4, 1983

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[Copyrighted Material Omitted]

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Sutton & English, P.C., Frank Sutton, Clayton, Ga., and Ford, Harrison, Sullivan, Lowry & Sykes, G. Paris Sykes, Jr., Atlanta, Ga., for Rabun County.

Blake Craft, pro se.

John A. Pickens, Atlanta, Ga., for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of Georgia.


(Opinion June 21, 1982, 11 Cir., 1982, 678 F.2d 1379)

Before KRAVITCH and JOHNSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.


The Order of this Court dated January 7, 1983, denying the Petition for Rehearing and Rehearing En Banc having been entered inadvertently without the modification of the original opinion, is hereby withdrawn and the following Order is substituted therefor:

Following petition for rehearing by the appellants, we have once again carefully read the transcript of evidence introduced in the trial court. As a result, we conclude that a more specific and detailed statement of the grounds upon which we base our conclusion that the plaintiffs had standing is needed. We therefore strike all of section II of our opinion and substitute a new section II in its place. For convenience, we republish the entire opinion containing the newly substituted section II dealing with standing:

This case presents important questions concerning the scope of the Establishment Clause of the First Amendment and the plaintiffs-appellees' ability to demonstrate Article III standing thereunder. The operative facts of this case are relatively simple. In 1979 the Rabun County Chamber of Commerce (Chamber), with initial approval

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from the State of Georgia, erected an illuminated latin cross on a 85 foot structure in Black Rock Mountain State Park. The plaintiffs-appellees, the ACLU of Georgia and five individuals, brought suit in federal district court, seeking to enjoin the maintenance of the cross on public property. The district court, 510 F.Supp. 886, held that the plaintiffs-appellees had met the Article III requirements for standing and that the maintenance of the cross in the state park violated the Establishment Clause of the First Amendment, as applied to the states through the Fourteenth Amendment. We affirm for the reasons which follow.


In 1956 a private corporation erected a large iron structure atop a rock outcropping on Black Rock Mountain, which is located in a state park in Rabun County, Georgia. This structure, when lighted, formed the shape of a Christmas tree. In 1957 the structure was altered by superimposing a second circuit of lights in the shape of a cross. The structure remained lighted, alternatively in the shape of a Christmas tree or a cross, for a number of years. Easter Sunrise Services, which had been held at this site prior to 1956, continued to be held at the base of the structure throughout this time period. Sometime between 1974 and 1976 the structure fell into a state of ill repair and was removed.

In early 1979, the Rabun County Chamber of Commerce approved a plan for the erection of a new cross on Black Rock Mountain to replace the old structure. Chamber representatives then discussed four possible sites for the cross with the Park Superintendent, an employee of the Georgia Department of Natural Resources. A small knoll located in the corner of the park between two camping areas was ultimately chosen as the site for the cross. From this location the cross, when illuminated, not only floods the two camping areas with light but is visible for several miles from the major highways which traverse the mountains. 1

On March 5, 1979, the Executive Director of the Chamber wrote to the Georgia Department of Natural Resources (Department) seeking approval of the Chamber's project. The letter, which indicated that the Chamber would take full responsibility for the fund-raising of both the construction and maintenance costs, stated that the Chamber hoped to have the cross ready for dedication on Easter Sunday. By letter of March 19, 1979, the Department approved the Chamber's request for permission to erect the cross in the state park pending preparation of a license agreement. 2 Although never executed by the state, a revocable license was later prepared and sent to the Chamber.

In March and April of 1979, several press releases were issued by the Chamber. The March 19, 1979 release stated in part:

The cross is a symbol of Christianity for millions of people in this great nation and the world.

* * *

There are now 33 days before Easter. Mayor Savage says "Wouldn't it be great if we could dedicate our cross on Easter morning--the most meaningful day for a cross."

The other press releases also discussed the plan to dedicate the cross at the 21st Annual Easter Sunrise Service. Although the construction of the cross was not completed by Easter morning, the district court found that it was dedicated at the Easter services.

Shortly thereafter, the Chamber and the Department received objections from the ACLU of Georgia to the placement of the cross on state property. At the Department's suggestion, a proposed resolution designating the cross as a memorial for deceased persons was drafted, although

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never passed. 3 After further correspondence between the Department and the Chamber, the Department, in June of 1979, ordered the Chamber to remove the cross from state property. The Chamber refused to remove the cross, however, and the state failed to take any affirmative action requiring it to do so. 4

On November 2, 1979, the ACLU of Georgia and five individuals filed suit seeking to permanently enjoin the maintenance of the cross on public property as a violation of the Establishment Clause. Following a full evidentiary hearing on the merits, the district court held in favor of the plaintiffs-appellees and ordered the cross to be removed. After the Chamber filed its notice of appeal, the district court stayed its order of removal pending determination of the appeal by this Court. An injunction against the illumination of the cross, however, continues to remain in effect.


Few issues involving First Amendment analysis have engendered as much debate in recent years as the question of standing to bring an Establishment Clause claim. The difficulties of defining and applying the constitutional requirements and prudential considerations reflected by the case and controversy language of Article III have often been noted. 5 The concerns over whether a particular plaintiff has a personal stake in the outcome of a case are far from academic and indeed draw into consideration broader questions about the "proper--and properly limited--role of the courts in a democratic society." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975). 6 In the context of an Establishment Clause claim, the difficulties of applying principles of standing are enhanced by the reality that included among the various motivations for pursuing such a claim are the spiritual, value-laden beliefs of the plaintiffs. 7 Because of these inherent difficulties and in light of the special and sensitive treatment accorded First Amendment rights in general, courts and commentators alike have often placed Establishment

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Clause cases in a separate category of standing concerns. 8 Recently, however, in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), the Supreme Court has clarified this area of the law by retreating from a more specialized approach towards citizen standing under the Establishment Clause. Thus, in Valley Forge, the Supreme Court stated that there is no "sliding scale" of standing, id. at 484, 102 S.Ct. at 765, and that neither a mere spiritual stake in the outcome nor an intense commitment to separation of church and state is a "permissible substitute for a showing of injury itself." Id. at 486, 102 S.Ct. at 766. Moreover, the Court expressly held that the mere "psychological consequence presumably produced by observation of conduct with which one disagrees" is not a cognizable injury. Id.

Relying primarily upon the Valley Forge decision, the appellant in this case asserts that we must reverse the district court's judgment for the plaintiffs-appellees on the basis that they had no standing to initiate the suit. The district court, in an opinion issued prior to the decision in Valley Forge, held that the plaintiffs had standing based on their "spiritual stake in First Amendment values." 510 F.Supp. at 890 (quoting Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970)). While we agree with the appellant that the district court's rationale is inconsistent with the teachings of Valley Forge, we believe that the plaintiffs-appellees have demonstrated a cognizable injury in fact sufficient to invoke the jurisdiction of this Court.

The plaintiffs in the instant case include the ACLU of Georgia and five...

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