842 F.2d 655 (3rd Cir. 1988), 87-3395, American Civil Liberties Union, Greater Pittsburgh Chapter v. Allegheny County

Docket Nº:Appellants No. 87-3395.
Citation:842 F.2d 655
Party Name:AMERICAN CIVIL LIBERTIES UNION, GREATER PITTSBURGH CHAPTER, Ellen Doyle, Michael Antol, Reverend Wendy L. Colby, Howard Elbling, Hilary Spatz Levine, Max A. Levine and Malik Tunador v. COUNTY OF ALLEGHENY, a political subdivision of the Commonwealth of Pennsylvania and the City of Pittsburgh, a political subdivision of the Commonwealth of Pennsylva
Case Date:March 15, 1988
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 655

842 F.2d 655 (3rd Cir. 1988)


Ellen Doyle, Michael Antol, Reverend Wendy L.

Colby, Howard Elbling, Hilary Spatz

Levine, Max A. Levine and Malik Tunador


COUNTY OF ALLEGHENY, a political subdivision of the

Commonwealth of Pennsylvania and the City of

Pittsburgh, a political subdivision of

the Commonwealth of




Appeal of AMERICAN CIVIL LIBERTIES UNION, Greater Pittsburgh

Chapter, Ellen Doyle, Michael Antol, Reverend

Wendy L. Colby, Howard Elbling, Hilary

Spatz Levine, Max A. Levine,

Appellants No. 87-3395.

Appeal of Malik TUNADOR, Appellant No. 87-3436.

Nos. 87-3395, 87-3436.

United States Court of Appeals, Third Circuit

March 15, 1988

Argued Jan. 20, 1988.

As Amended April 7, 1988.

Rehearing and Rehearing In Banc Denied April 19, 1988.

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Roslyn M. Litman (argued), James B. Lieber, Litman, Litman, Harris, Brown and Watzman, P.C., Jon Pushinsky (argued), Pushinsky and Rosenfield, Pittsburgh, Pa., for appellants American Civ. Liberties Union, Greater Pittsburgh Chapter, Ellen Doyle, Michael Antol, Reverend Wendy L. Colby, Howard Elbling, Hilary Spatz Levine and Max A. Levine in No. 87-3395.

Arlene Fickler, Hoyle, Morris and Kerr, Philadelphia, Pa., for amicus curiae American Jewish Congress in No. 87-3395.

Nathan Lewin (argued), Miller, Cassidy, Larroca & Lewis, Washington, D.C., Charles H. Saul, Pittsburgh, Pa., for appellee Chabad.

S. Asher Winikoff, Jones, Gregg, Gregg, Creehan & Gerace, Pittsburgh, Pa., Ruti Teitel, Justin L. Finger, Jeffrey P. Sinensky, Michael Schultz, Michael Eisenberg, Anti-Defamation League, New York City, for appellant Malik Tunador in No. 87-3436.

George M. Janocsko (argued), Second Asst. Sol., Robert L. McTiernan, Asst. Sol., Allegheny County Law Dept., Pittsburgh, Pa., for appellee Allegheny County.

George R. Spector (argued), Deputy City Sol., D.R. Pellegrini, City Sol., City of Pittsburgh, Dept. of Law, Pittsburgh, Pa., for appellee City of Pittsburgh.

Before GIBBONS, Chief Judge, and WEIS and GREENBERG, Circuit Judges.


GREENBERG, Circuit Judge.

This action was commenced on December 10, 1986 by plaintiffs American Civil Liberties Union, Greater Pittsburgh Chapter, and certain individuals against Allegheny County and the City of Pittsburgh, political subdivisions of the Commonwealth of Pennsylvania. In general, plaintiffs alleged that the county had unlawfully permitted the erection of a creche or nativity scene depicting the birth of Jesus Christ inside the main entrance of the Allegheny County Courthouse and the city was about unlawfully to permit the erection of a menorah, a nine-branched candelabrum used by Jews as part of the religious celebration of Chanukah, on the steps of the main entrance of the City-County Building jointly owned and operated by defendants. It was asserted that the expenditure of public funds and the display of the religious symbols violated the Establishment Clause of the First Amendment of the United States Constitution applicable to the states under the Fourteenth Amendment, thus giving rise to a cause of action under 42 U.S.C. Sec. 1983. Plaintiffs sought declaratory and

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injunctive relief as well as nominal damages and attorneys' fees.

Following an evidentiary hearing on December 15, 1986, the court in an oral opinion made findings and denied a preliminary injunction. Thereafter Chabad, the Jewish organization which owns the menorah, was permitted to intervene and present additional evidence. On May 8, 1987 the district judge issued a memorandum opinion incorporating his prior oral findings and adding findings regarding the menorah. On that day the court entered an order denying the application for an injunction and on May 29, 1987 it entered a final judgment in favor of the defendants judgment denying and this appeal followed.

The facts in this case are simple and essentially undisputed. Annually since 1981 the county has permitted the display of a creche enclosed by a fence on the grand staircase of the first floor of the county courthouse. The creche consists of traditional figures ranging in height from three to 15 inches, including a wooden stable with the infant Jesus, the Virgin Mary, Joseph, the Three Wise Men, shepherds, various animals and an angel holding a banner reading "Gloria in Excelsis Deo" ("Glory to God in the Highest"). The creche, though stored in the basement of the courthouse, is the property of the Holy Name Society of the Diocese of Pittsburgh, a Catholic men's organization and thus a sign in front of it recites: "This display donated by the Holy Name Society." Though it is erected, arranged and disassembled each year by the moderator of the Holy Name Society, the county supplies a dolly and minimal aid to transport it to and from the courthouse basement. While the county provides no special security or illumination for the display, its Bureau of Cultural Programs decorates the creche with red and white poinsettia plants and evergreen trees purchased at public expense. The county also displays wreaths purchased through county funds. Other decorations such as trees, Santa Clauses and additional wreaths are displayed by various departments and offices throughout the courthouse building.

The creche is displayed for about six weeks from late November to early January. During the weeks prior to Christmas the county sponsors Christmas carol programs on the first floor of the courthouse with the chorale groups using the creche for a foreground. The choirs, typically high school students, sing popular songs and religious and secular Christmas carols. The caroling is broadcast by loudspeakers to the public in the courthouse. The programs are dedicated to the universal themes of world peace and brotherhood and to the memory of persons missing in action in the Vietnam War. The grand staircase and the surrounding area are used throughout the year for art displays and other civic and cultural events and programs.

The courthouse houses the principal offices of the county, including those of its governing officers, the county commissioners, and the treasurer and controller, as well as the criminal and some civil courts of Allegheny County. In view of the creche's location, it is probably seen by many visitors to the courthouse including taxpayers, lawyers trying cases or serving as arbitrators, litigants, persons desiring to search certain court records and people with business at the sheriff's office.

The City-County Building, the site of the menorah, is one block from the courthouse. The various public offices in the building include those of the city treasurer, county prothonotary, marriage license bureau and the register of wills. In addition, certain courts sit in the building. Although the building bears the name of both political subdivisions, the menorah is placed in an area maintained solely by the city. For a number of years during the Christmas season the city has installed a 45 foot Christmas tree on a platform on the front steps of the main entrance of the building and next to the tree on the steps of the main entrance to the building since 1982 the city has annually erected an approximately 18 foot high menorah. The menorah, which was purchased by Chabad, is put in place at the time of the Jewish celebration of Chanukah. In front of the tree a sign bearing

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the mayor's name has been erected. It recites:


During this holiday season, the City of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom.

The display, which includes the tree and its ornaments, the platform, the sign and the menorah, is installed by city employees. In addition, the City has placed signs advertising a charity fund drive and a seasonal celebration of a flower display in front of the building.

In the district judge's oral opinion, he indicated that the case was controlled by the Supreme Court's decision in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). He found that neither the display of the creche nor of the menorah conveyed a message of governmental enforcement of religion. He noted:

... none of the people who enter the Courthouse are required to do anything; they are not required to read, or to sing, or to pause or to reflect. Neither are people required to pause or look or read or make any gestures where the menorah is concerned; they are merely displays.

While he did not doubt the sincerity of witnesses who testified that the creche offended some visitors to the courthouse, he pointed out that "the Governments of the United States, Local and State and Federal do many things that are offensive to many people, and ... mere offense is not sufficient to impel the Court to issue an injunction." He continued: "There must be more substantial injury than mere offense that is felt inwardly. But it is not felt because one must read, or sing, or talk, or pause, or do something affirmatively." The judge concluded:

The mere displays, therefore, are found to be de minimis in the context of the First Amendment. I don't think there's any danger whatever that they will establish any religion. I don't think the County Commissioners or the Mayor and the City intend to affect anyone's religion, or even offend anyone. On the contrary, I think the intention was to celebrate the holiday season, and I doubt that the County or City officials paused to think that they were offending anyone. So, therefore, I just do not see very much chance of the plaintiffs succeeding on the merits. I don't think that there has...

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