American Jewish Congress v. City of Chicago

Decision Date28 August 1987
Docket NumberNo. 86-3021,86-3021
Citation827 F.2d 120
PartiesAMERICAN JEWISH CONGRESS, et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Sylvia M. Neil, American Jewish Congress, Harold C. Hirshman, Sonnenschein Carlin Nath & Rosenthal, Chicago, for plaintiffs-appellants.

Ruth M. Moscovitch, Chief Asst., Corp. Counsel, Chicago, for defendants-appellees.

Before WOOD, FLAUM, and EASTERBROOK, Circuit Judges.

FLAUM, Circuit Judge.

Every winter holiday season for the past thirty years, a creche has been displayed in the lobby of the Chicago City-County Building. In November, 1985, the American Jewish Congress filed this suit against the City of Chicago and others (collectively referred to as "the city"), contending that the display of the creche violated the Establishment Clause of the First Amendment. The district court held that the case was controlled by Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). In Lynch, the Supreme Court held that a city-owned holiday display that included a creche, and that was located in a privately-owned park, was constitutional. The district court therefore granted summary judgment to the defendants. We find that this case is distinguishable from Lynch, and we reverse the judgment of the district court.

I.
A.

The Daley Center Plaza and the City-County Building (better known as "City Hall") form a single unit, divided by Clark Street, but connected by a broad underground corridor. The two buildings house both city and county governmental offices. Each year, from shortly after Thanksgiving Day to New Year's Day, the entire complex is decorated for the winter holiday season. At issue in this case is a nativity scene which, with the city's permission, was on display from December 4, 1985 to January 4, 1986.

The nativity scene was placed at the intersection of the east-west and north-south lobbies of City Hall, slightly north of the center line of the east-west lobby. The scene consisted of several white plaster figures, each under twelve inches in height, representing the infant Jesus, the Virgin Mary, Joseph, the Three Wise Men, and various shepherds and animals. Behind the figures were tree branches strung with miniature holiday lights. The display was arranged on a three-foot-high platform measuring approximately nine feet wide by eight feet deep. At the rear of the platform, and rising from it to a height of ten feet from the lobby floor, was a fabric backdrop, at the top of which was a banner reading "On Earth Peace--Good Will Toward Men." No public funds were expended on the scene for repair, maintenance, rent, or heat. However, a nominal amount of public funds was expended on the electricity required to illuminate the scene. Although the appellants allege that city workers erected and dismantled the display, the city maintains that the workers did so on their own time and were not paid for their work.

In addition to the nativity scene, the City of Chicago erected a number of other displays and decorations in the City Hall lobby for the 1985-86 holiday season. These included: eight Christmas wreaths, each forty-two inches in diameter, hung on the lobby walls above the elevators that service the upper floors of the building; one decorated Christmas tree eighteen feet in height and fifteen feet in diameter, which stood near the LaSalle Street entrance; a mechanical Santa Claus, accompanied by two reindeer and a sleigh that served as a depository for donations to "Share-It", a city program designed to encourage citizens to donate food and supplies to needy persons; and other displays that formed part of the "Share-It" program, such as stacked cartons in the north side of the north-south lobby and a banner strung across and above the intersection of the east-west and north-south lobbies. These decorations and displays were placed from ten to ninety feet away from the nativity scene.

Still further away were other seasonal decorations and displays. For instance, the first-floor window-wells of City Hall contained small Christmas trees with lights; the potted trees along the curb on LaSalle Street were strung with lights; and a ninety-foot, decorated Christmas tree stood in the Daley Center Plaza. As part of the "Share-It" program, the city also erected a large "snowman" and a contribution box display in the plaza.

Finally, the entire complex served as a forum for public performances relating to the holiday season, such as local schoolchildren performing Christmas carols. In addition, recorded holiday music played continuously in the Daley Center Plaza.

B.

The nativity scene at issue has a long and somewhat troubled history. The display was built over thirty years ago by the Chicago Plasterer's Institute, a private entity, and donated to the City of Chicago. In 1978, the American Civil Liberties Union and others sued the city, charging that the display violated the Establishment Clause of the First Amendment. That lawsuit ended in a consent order in 1979. See DeSpain v. City of Chicago, No. 78 C 4997 (N.D.Ill. Dec. 6, 1979). Under the consent order, the city was permitted to continue to display the creche in the City Hall lobby, provided that the city expend no public funds for the display, and that it affix written disclaimer-of-endorsement signs to the display. Consequently, the city attached six rectangular disclaimer signs to the nativity scene, two affixed to the front of the display platform, and two located on each side of the display. Each sign measured approximately seven and one-half inches by ten inches, and read: "Donated by the Chicago Plasterer's Institute--this exhibit is neither sponsored nor endorsed by the Government of the City of Chicago." As a result of the DeSpain litigation, the city alleges that it also transferred title in the display back to the Plasterer's Institute.

In 1984, William Ware, the mayor's chief of staff, ordered that the display be dismantled. However, this decision caused intense public outcry, and Mayor Washington eventually ordered the nativity scene reerected.

The events related to this litigation began in October, 1985, when Sylvia Neil, the Midwest Legal Director of the American Jewish Congress ("AJC"), wrote a letter to Ernest Barefield, the mayor's chief of staff, requesting on behalf of her organization that the city not allow the display of the creche in City Hall during the 1985-86 holiday season. Barefield responded that the nativity scene would continue to be displayed, because: (1) it had been a traditional part of the city's holiday festivities for many years; (2) the Supreme Court had made clear in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) and in Board of Trustees v. McCreary, 471 U.S. 83, 105 S.Ct. 1859, 85 L.Ed.2d 63 (1985) that such displays were not unconstitutional; and (3) public sentiment favored such holiday displays.

The AJC subsequently sued the city for injunctive and declaratory relief, and for damages and costs, arguing that the display violated the Establishment Clause of the First Amendment. After discovery, the district court granted the defendants' motion for summary judgment, and the AJC appealed. We reverse.

II.

The AJC first argues that the district court improperly granted summary judgment to the defendants in this case because there are disputed material issues of fact. We reject this argument.

The AJC points out that the parties differ as to whether the nativity scene should be viewed as self-contained or as part of a larger holiday display; whether the creche depicts a historical event or is a religious symbol; whether the creche has symbolic meaning; and whether the creche communicates a "message of government endorsement," see Lynch, 465 U.S. at 690, 104 S.Ct. at 1368 (O'Connor, J., concurring). But, as the district court correctly noted, these disputes involve conclusions of law rather than facts. The AJC also points to disputes between the parties as to the City's alleged preferential treatment of the creche over other displays in the City Hall lobby, the political divisiveness engendered by the display, and the true ownership of the creche. Although these disputes involve issues of fact, none raises a material issue that would require a remand for trial. We therefore proceed to the merits of the case.

III.
A.

The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const.Amend. I. It has often been contended that the drafters of the amendment had only two narrow purposes in mind: to prevent the establishment of a national church, and to forbid a national preference of one Christian sect over another. Thus, a commentator wrote in 1851 that "the real object of the amendment was, not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating christianity; but to exclude all rivalry among christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government." 2 J. Story, Commentaries on the Constitution of the United States Sec. 1877, at 594 (1851) (quoted in Wallace v. Jaffree, 472 U.S. 38, 52 n. 36, 105 S.Ct. 2479, 2488 n. 36, 86 L.Ed.2d 29 (1985)); see also Wallace, 472 U.S. at 106, 105 S.Ct. at 2516 (Rehnquist, J., dissenting) (The Establishment Clause "forbade establishment of a national religion, and forbade preference among religious sects or denominations."); ACLU v. City of St. Charles, 794 F.2d 265, 269 (7th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 458, 93 L.Ed.2d 403 (1986) (The original purpose of the Establishment Clause was "to prevent the national government from setting up an established church.").

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