American Civil Liberties Union of Illinois v. City of St. Charles

• Decision Date: 06 June 1986
• Docket Number: No. 86-1007,86-1007
• Citation: 794 F.2d 265
• Parties: AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS, Kathryn Giuntoli, and Joan Markley, Plaintiffs-Appellees, v. CITY OF ST. CHARLES and Fred T.L. Norris, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 265

794 F.2d 265

AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS, Kathryn

Giuntoli, and Joan Markley, Plaintiffs-Appellees, v. CITY OF ST. CHARLES and Fred T.L. Norris, Defendants-Appellants.

No. 86-1007.

United States Court of Appeals, Seventh Circuit.

Argued May 14, 1986.

Decided June 6, 1986.

Jack M. Siegel, Siegel & Warnock, Chicago, Ill., for defendants-appellants.

Fay Clayton, Sachnoff, Weaver & Rubenstein, Ltd., Chicago, Ill., for plaintiffs-appellees.

Before POSNER and EASTERBROOK, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

POSNER, Circuit Judge.

For many years, the government of St. Charles, a city outside of Chicago, has between Thanksgiving day and New Year's day festooned a six-acre area of trees and public buildings with colored lights to celebrate Christmas. The display includes Christmas trees, wreaths, snowflakes, reindeer, Santa Claus, and other common Christmas symbols, but it also includes (and has for 15 years) a cross. On top of the fire department (a three-story building, clearly marked as the fire department) is a 35-foot-high television aerial. About three-fifths of the way up the aerial is an 18-foot metal cross-bar, which is no longer a functional part of the aerial. When lit up at night the aerial and cross-bar form the unmistakable symbol of Christianity. Although only a part of the municipal Christmas display, it is a prominent part. At 75 feet above street level it is one of the tallest structures in St. Charles, and there was evidence that it is several hundred feet away from any other structure of comparable height. One of the individual plaintiffs testified that the lighted cross "is an overpowering feature of the Christmas decorations that are in that area," and both testified that there is no taller object in the city's Christmas display.

Shortly before the cross was to be lit for the 1985 Christmas season, two residents of St. Charles, and an association to which they belong, sued the city and its mayor under 42 U.S.C. Sec. 1983 to enjoin the lighting of the cross. One of the individual plaintiffs is a Methodist who is offended by what she regards as a display inconsistent with the separation of church and state; the other, though raised as a Christian, is a nonbeliever. Affidavits attached to the motion for preliminary injunction attest that the individual plaintiffs were so offended by the lighted cross that they departed from their accustomed routes of travel to avoid seeing it. They argue that the display of the lit cross (unlit it is just an aerial) is an establishment of religion forbidden by the First Amendment to the Constitution, which the Supreme Court has held to be applicable to the states by virtue of the Fourteenth Amendment. The district judge granted a preliminary injunction against lighting the cross, 622 F.Supp. 1542 (N.D.Ill. 1985), and the town and its mayor (the defendants) appeal under 28 U.S.C. Sec. 1292(a)(1).

The first question we consider is the plaintiffs' standing to maintain this suit; since the American Civil Liberties Union alleges no injury to itself, its standing depends on that of its members, the individual plaintiffs. Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 476 n. 14, 102 S.Ct. 752, 761 n. 14, 70 L.Ed.2d 700 (1982). In most suits to enforce the establishment clause the plaintiff is a taxpayer complaining about the use of tax revenues to finance an activity that supports religion or a particular denomination or faith. See, e.g., Grand Rapids School Dist. v. Ball, --- U.S. ---, 105 S.Ct. 3216, 3221 n. 5, 87 L.Ed.2d 267 (1985). The complaint in this case alleges that the individual plaintiffs are taxpayers but not that any part of the expense of the cross is paid for out of tax revenues; hence the plaintiffs' status as taxpayers is irrelevant. As a matter of fact the lights are put up by the city's volunteer firemen, on their own time, and the minuscule cost of the electricity required to keep the lights lit is defrayed by voluntary contributions from city residents. (The record doesn't show who owns the lights.) Conceivably the city incurs some expense in maintaining the cross-bar, whose principal and perhaps only use at present is to complete the skeleton for the lighted cross; but this is not the basis on which the plaintiffs claim to have standing, and there is evidence that the cross-bar helps to brace the aerial. Nor do the plaintiffs suggest that if the aerial with cross-bar were not used as a lighted cross the city might lease it for commercial or other private display at Christmas and is therefore forgoing public revenues by not doing so.

The fact that the plaintiffs do not like a cross to be displayed on public property--even that they are deeply offended by such a display--does not confer standing, see Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., supra, 454 U.S. at 485-87, 102 S.Ct. at 765-66; Diamond v. Charles, --- U.S. ---, 106 S.Ct. 1697, 1706, 90 L.Ed.2d 48 (1986); Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 3326-27, 82 L.Ed.2d 556 (1984); Brashich v. Port Authority, 484 F.Supp. 697, 701-03 (S.D.N.Y.1979), aff'd without opinion, 628 F.2d 1344 (2d Cir.1980), for it is not by itself a fact that distinguishes them from anyone else in the United States who disapproves of such displays. To be made indignant by knowing that government is doing something of which one violently disapproves is not the kind of injury that can support a federal suit. People Organized for Welfare & Employment Rights v. Thompson, 727 F.2d 167, 171 (7th Cir.1984). Maybe it ought to make a difference if (as here) a plaintiff is complaining about the unlawful establishment of a religion by the city, town, or state in which he lives, rather than about such an establishment elsewhere; he might be intensely distressed to find himself living in a jurisdiction that had an established church. But there is no need to get into degrees of distress, because distress is not the only injury that the individual plaintiffs in this case claim to have suffered. They say they have been led to alter their behavior--to detour, at some inconvenience to themselves, around the streets they ordinarily use. The curtailment of their use of public rights of way is similar to the alleged curtailment of the plaintiffs' use of the national parks in United States v. SCRAP, 412 U.S. 669, 688-89, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254 (1973). The cost in this case is no doubt slight, but it was even slighter in SCRAP; and the willingness of plaintiffs (or even just one plaintiff, as we shall see) to incur a tangible if small cost serves to validate, at least to some extent, the existence of genuine distress and indignation, and to distinguish the plaintiffs from other objectors to the alleged establishment of religion by St. Charles.

To the argument that the plaintiffs have inflicted this cost on themselves and can avoid it by continuing to follow their accustomed routes and shrugging off the presence of the lighted cross, the decision in Abington School Dist. v. Schempp, 374 U.S. 203, 224 n. 9, 83 S.Ct. 1560, 1572 n. 9, 10 L.Ed.2d 844 (1963), is a complete reply. The Court held that schoolchildren and their parents had standing to complain that the reading of the Bible and the recitation of the Lord's Prayer in the public school which the children attended violated the establishment clause. That the injury to the plaintiffs could have been averted by the parents' taking their children out of public school and putting them in a secular private school did not deprive the plaintiffs of standing. See also Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., supra, 454 U.S. at 486 n. 22, 102 S.Ct. at 766 n. 22.

Behind the result in Schempp lies the practical recognition that if the injury, tenuous though it be, suffered by the involuntary audience for a display alleged to constitute an establishment of religion does not confer standing to sue, there will be no judicial remedy against establishments of religion that do not depend on public funds. Suppose the City of St. Charles conceived, proclaimed, organized--in a word, established- --the "Church of St. Charles" but appropriated no moneys for its support, counting instead on voluntary contributions to pay for the acquisition and upkeep of the city's religious edifices and the salaries of its ministers, and suppose that as a result of this establishment a resident of the city, deeply offended, moved away. If he lacked standing to attack the establishment, no one would have standing. This would not matter if the Supreme Court took the view that violations of the establishment clause are not justiciable in the absence of public expenditures (after all, not all violations of the Constitution are justiciable, see, e.g., Highland Farms Dairy, Inc. v. Agnew, 300 U.S. 608, 612, 57 S.Ct. 549, 551, 81 L.Ed. 835 (1937)), but quite obviously the Court does not take that view, and that is conclusive of the issue of standing in this case as it was in Schempp. A more elaborate discussion of the issue, reaching the same conclusion, is found in American Civil Liberties Union v. Rabun County Chamber of Commerce, Inc., 698 F.2d 1098, 1102-09 (11th Cir.1983), a case with facts much like those of the present case. See also Hawley v. City of Cleveland, 773 F.2d 736 (6th Cir.1985); Bell v. Little Axe Independent School Dist. No. 70, 766 F.2d 1391, 1398-99 (10th Cir.1985).

At the preliminary injunction hearing only one of the two individual plaintiffs testified that she detours from her accustomed route to avoid the cross when it is lit. But one plaintiff is all that is needed to enable the suit to be maintained, and anyway the test for standing, as for jurisdiction generally, is the good-faith allegations of the complaint, rather than what the evidence shows. South East Lake View...