Smith v. Lindstrom

• Decision Date: 09 November 1988
• Docket Number: Civ. A. No. 87-0068-C.
• Citation: 699 F. Supp. 549
• Court: U.S. District Court — Western District of Virginia
• Parties: Rev. William S. SMITH, et al., Plaintiffs, v. Timothy LINDSTROM, et al., Defendants.

699 F. Supp. 549

Rev. William S. SMITH, et al., Plaintiffs, v. Timothy LINDSTROM, et al., Defendants.

Civ. A. No. 87-0068-C.

United States District Court, W.D. Virginia, Charlottesville Division.

November 9, 1988.

D. Brock Green, MacQueen, Rosenfield & Green, Charlottesville, Va., for plaintiffs.

George R. St. John, Charlottesville, Va., for defendants.

James J. Knicely, Graber & Knicely, P.C., Williamsburg, Va., Roy W. Ferguson, Harrisonburg, Va., for amicus curiae.

MEMORANDUM OPINION

MICHAEL, District Judge.

This case is before the court on cross motions for summary judgment by plaintiffs and defendants. The action arises under the establishment clause of the first amendment of the United States Constitution, as applied to the states through the fourteenth amendment. U.S. Const. amend. I; U.S. Const. amend. XIV; Everson v. Board of Education, 330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947); Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). For the reasons elaborated below, this court grants plaintiffs' motion for summary judgment and finds that in permitting the erection of a nativity scene on the front lawn of the Albemarle County Office Building, defendants violated the Establishment Clause of the first amendment of the United States Constitution.

I.

Plaintiffs are a group of local citizens, some of whom are ordained clergy. Defendants are the Board of Supervisors of Albemarle County, Virginia.

All pertinent facts in this matter have been stipulated by agreement of both parties. Immediately prior to December 2, 1987, the Charlottesville—Albemarle Jaycees asked the Albemarle County Supervisors (defendants) for permission to place a nativity scene on the front lawn of the County Office Building. At their meeting of December 2, 1987, the defendants, by a vote of four to two, allowed the display of the nativity scene. The front lawn of the County Office Building is a grassy expanse located at one of the busiest intersections in Charlottesville. The County Office Building is a large brick building with "Albemarle County Office Building" prominently displayed on the front of the building clearly above and behind the location of the creche. The American and Virginia flags flank the front of the building and are also in the general line of vision when viewing the creche. The creche consists of large figures, easily visible, and illuminated at night. The creche was erected on December 6, 1987, and remained until January 10, 1988. No other seasonal symbols were present in the display. The erection and maintenance of the creche involved no expenditures of County funds. Immediately after the creche had been erected, an 18" by 6" disclaimer sign reading "Sponsored by Charlottesville Jaycees" was placed next to the creche. After this suit was filed on December 14, 1987, a larger disclaimer sign was placed next to the creche.

This site has been the location of the County Office Building only since 1981. However, since that time, the lawn has been used sporadically for occasional activities: a beauty pageant, a billboard for the United Way, two Easter "sunrise" services, several assorted weddings, municipal band concerts, and a civil rights demonstration.

Despite the fact that this is the office building for Albemarle County, it is located in downtown Charlottesville. It is a highly visible location. Indeed, the president of the Jaycees testified that he sought to erect the creche in that location because of the site's visibility, although he insisted that the choice of that property was not motivated by the fact that the lawn was situated in front of the County Office Building.

In deciding how the parameters of this situation fit with earlier legal tests for determining violations of the establishment clause, this court takes particular note of the following aspects of the display. First, the creche consists of large figures, readily visible, which are brightly lit at night. Second, the creche was displayed for a five-week period. Finally, and most significantly, the creche was displayed in the context of a government site. That is, one could not readily view the creche without also viewing the trappings and identifying marks of the state. Objectively, the visual association was unmistakable and impossible to sever.

II.

In determining whether a nativity display or creche violates the establishment clause, this court must follow the controlling law set out in the case of Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). The City of Pawtucket, Rhode Island, erected a creche in a park in the downtown shopping district. Id. at 671, 104 S.Ct. at 1358. The display contained a variety of seasonal symbols, both thoroughly religious symbols and symbols which had lost their overt religious denotation. The display was owned by the City and the park itself was owned by a nonprofit organization. Id.

In the context of deciding this case, the Supreme Court made several observations which form the intellectual background for inquiries into violations of the Establishment Clause and for the application of any specific legal test. First, the Supreme Court recognized that there was a certain tension inevitably present in Establishment Clause cases: "In every Establishment Clause case, we must reconcile the inescapable tension between the objective of preventing unnecessary intrusion of either the church or the state upon the other, and the reality that, as the Court has so often noted, total separation of the two is not possible." Id. at 672, 104 S.Ct. at 1359. The Supreme Court went on to argue that not only is a literalistic application of the "wall of separation" metaphor impracticable and undesirable, but it is one which does not find favor with the Supreme Court. Id. at 678, 104 S.Ct. at 1361. In no small part, the Court argued, the inadequacy of a "bright line" construct, like the inadequacy of the "wall" metaphor, rises out of the pluralism and complexity of contemporary American society. As the Court reasoned, "In our modern, complex society, whose traditions and constitutional underpinnings rest on and encourage diversity and pluralism in all areas, an absolutist approach in applying the Establishment Clause is simplistic and has been uniformly rejected by the Court."¹Id. In addition to noting the inevitable tensions at work in Establishment Clause cases and the need for a non-absolutist way of reading the Establishment Clause which exhibits deference to the pluralism of contemporary American society, the Court also noted the role that religion plays in American life. Indeed, Chief Justice Burger took great care to detail what he termed the "unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789." Id. at 674, 104 S.Ct. at 1360. This recognition of the role of religion in American life provided not merely the historical and intellectual backdrop to the Court's holding in Lynch, but was transformed by the Chief Justice from a descriptive datum into a pointed normative tool, a warrant for finding that the creche which was displayed in Pawtucket, Rhode Island did not violate the Establishment Clause of the first amendment.

A.

The standard test for determining whether the Establishment Clause has been violated was developed in the case of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). In Lynch, the Supreme Court also utilized the three-prong inquiry developed in Lemon.² Even as the Supreme Court was applying the three prongs of the Lemon test to the Pawtucket creche, it noted its continuing, if episodic, "unwillingness to be confined to any single test or criterion in this sensitive area." Lynch, 465 U.S. at 679, 104 S.Ct. at 1362.

The Supreme Court first looked at the secular purpose prong of the Lemon inquiry. The Court found that

The display is sponsored by the City to celebrate the Holiday and to depict the origins of that Holiday. These are legitimate secular purposes. The district court's inference, drawn from the religious nature of the creche, that the City had no secular purpose was, on this record, clearly erroneous.

Lynch, 465 U.S. at 681, 104 S.Ct. at 1363 (footnote omitted). The Court ruled that since some secular purposes were clearly at work in the display of the creche this initial prong of the Lemon test was satisfied. It need not be shown that the City had exclusively or solely secular purposes in displaying the creche. Id. at 681, n. 6, 104 S.Ct. at 1363 n. 6.

The second prong of the Lemon test examines the primary effect of the government action and asks whether the effect of that action is to benefit religion. In Lynch, the Supreme Court utilized what has been called a "more than" test. Van Alstyne, Remarks at the Proceedings of the Forty-Fifth Judicial Conference of the D.C. Circuit, 105 F.R.D. 251, 421 (1984). That is, the Supreme Court found that this creche was no more beneficial to religion than other programs or activities which had passed muster previously. "We are unable to discern a greater aid to religion deriving from inclusion of the creche than from these benefits and endorsements previously held not violative of the Establishment Clause." Lynch, 465 U.S. at 682, 104 S.Ct. at 1364. Furthermore, the Court found that whatever benefit would accrue to a particular sect or religion or to religion in general from the display of this creche was sufficiently "indirect, remote, and incidental" to avoid violation of the second prong of the Lemon test. Id. at 683, 104 S.Ct. at 1364. The Chief Justice argued that the display in Pawtucket did not constitute any more of an endorsement of religion than governmental proclamations about the holiday of Christmas or the display of paintings with religious themes in museums supported by the government.³ Id.

The final prong on the Lemon test is the inquiry into whether the...