Separation of Church and State Committee v. City of Eugene of Lane County, State of Or., 93-35094

• Decision Date: 20 August 1996
• Docket Number: No. 93-35094,93-35094
• Citation: 93 F.3d 617
• Parties: 96 Cal. Daily Op. Serv. 6187, 96 Daily Journal D.A.R. 10,127 SEPARATION OF CHURCH AND STATE COMMITTEE; Jeff Lewis; Jimi Mathers, Plaintiffs-Appellants, v. CITY OF EUGENE OF LANE COUNTY, STATE OF OREGON, a Municipal Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 617

93 F.3d 617

96 Cal. Daily Op. Serv. 6187, 96 Daily Journal

D.A.R. 10,127

SEPARATION OF CHURCH AND STATE COMMITTEE; Jeff Lewis; Jimi Mathers, Plaintiffs-Appellants, v. CITY OF EUGENE OF LANE COUNTY, STATE OF OREGON, a Municipal Corporation, Defendant-Appellee.

No. 93-35094.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 16, 1994.

Decided Aug. 20, 1996.

Charles O. Porter, Eugene, Oregon, for plaintiffs-appellants.

William F. Gary, Harrang, Long, Watkinson, Laird & Rubinstein, Eugene, Oregon, for defendant-appellee.

David Schuman and Allen L. Johnson, American Civil Liberties Union Foundation of Oregon, Eugene, for amicus ACLU.

Steven K. Green, Americans United for Separation of Church and State, Silver Springs, Maryland, for amicus Americans United.

Appeal from the United States District Court for the District of Oregon, Michael R. Hogan, District Judge, Presiding. D.C. No. CV-91-06164-MRH.

Before LAY, ^* PREGERSON and O'SCANNLAIN, Circuit Judges.

Per Curiam Opinion; Concurrence by Judge O'SCANNLAIN.

PER CURIAM.

In this second of two similar cases, ¹ we must decide whether the City of Eugene, Oregon violates the Establishment Clause of the United States Constitution by its ownership and display of a fifty-one foot concrete Latin cross in a public park on Skinner's Butte.

I

The City of Eugene ("City") maintains a public park on and around Skinner's Butte, a hill cresting immediately north of the City's downtown business district. The land was donated to the City and has been maintained as a public park for many years. From the late 1930s to 1964, private individuals erected a succession of wooden crosses in the park, one replacing another as they deteriorated. In 1964, private individuals erected the cross at issue in this litigation. It is a fifty-one foot concrete Latin cross with neon inset tubing, and it is located at the crest of Skinner's Butte. The parties who erected the cross did not seek the City's permission to do so beforehand; however, they subsequently applied for and received from the City a building permit and an electrical permit.

Since 1970, the City has illuminated the cross for seven days during the Christmas season, five days during the Thanksgiving season, and on Memorial Day, Independence Day, and Veteran's Day.

The cross has been the subject of litigation since the time it was erected. In 1969, the Oregon Supreme Court held that the cross violated both the federal and the Oregon Constitutions because it was erected with a religious purpose and created the inference of official endorsement of Christianity. Lowe v. City of Eugene, 254 Or. 518, 463 P.2d 360, 362-63 (1969), cert. denied, 397 U.S. 1042, 90 S.Ct. 1366, 25 L.Ed.2d 654, reh'g denied, 398 U.S. 944, 90 S.Ct. 1838, 26 L.Ed.2d 283 (1970). Soon after, the City held a charter amendment election, and on May 26, 1970, the voters, by a wide margin, approved an amendment to the City Charter designating the cross a war memorial. Pursuant to that amendment, the cross was deeded to the City as a gift, and a bronze plaque was placed at the foot of the cross dedicating it as a memorial to war veterans. The Eugene City Charter provides that the "concrete cross on the south slope of the butte shall remain at that location and in that form as property of the city and is hereby dedicated as a memorial to the veterans of all wars in which the United States has participated."

After the election, the parties who erected the cross brought suit to have Lowe set aside. The Oregon Supreme Court did so on the basis of the "changed circumstances" that had occurred since Lowe was decided and held that the cross no longer violated the state and federal constitutions. Eugene Sand and Gravel, Inc. v. City of Eugene, 276 Or. 1007, 558 P.2d 338, 345 (1976), cert. denied, 434 U.S. 876, 98 S.Ct. 226, 54 L.Ed.2d 155 (1977).

In this case, Separation of Church and State Committee ("Separation"), ² brought suit in the United States District Court for the District of Oregon seeking injunctive and declaratory relief under 42 U.S.C. § 1983, alleging a violation of the Establishment Clause of the United States Constitution. ³ The parties filed cross-motions for summary judgment, and the district court granted the City's motion. The district court held that the cross has a secular purpose, does not advance religion, and does not foster an excessive entanglement with religion. See Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111-12, 29 L.Ed.2d 745 (1971).

II

The fifty-one foot Latin cross located in a public park on Skinner's Butte clearly represents governmental endorsement of Christianity. The maintenance of the cross in a public park by the City of Eugene may reasonably be perceived as providing official approval of one religious faith over others.

The Supreme Court has focused Establishment Clause analysis on whether governmental practice has the effect of endorsing religion. Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 592, 109 S.Ct. 3086, 3100, 106 L.Ed.2d 472 (1989). As Justice Blackmun observed for the Court in Allegheny:

Whatever else the Establishment Clause may mean (and we have held it to mean no official preference even for religion over nonreligion, see, e.g., Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 109 S.Ct. 890, 103 L.Ed.2d 1 (1989)), it certainly means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions). "The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another." Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 1683, 72 L.Ed.2d 33 (1982).

Id. at 605, 109 S.Ct. at 3107.

In the present case, the City urges that the cross is no longer a religious symbol but a war memorial. This argument, however, fails to withstand Establishment Clause analysis. In Grand Rapids School District v. Ball, 473 U.S. 373, 390, 105 S.Ct. 3216, 3226, 87 L.Ed.2d 267 (1985), the Supreme Court stated:

It follows that an important concern of the effects test is whether the symbolic union of church and state effected by the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices.

Id. (emphasis added). Furthermore, as Justice O'Connor observed in her concurring opinion in Lynch v. Donnelly, 465 U.S. 668, 687, 104 S.Ct. 1355, 1366-67, 79 L.Ed.2d 604 (1984), the "effect" prong of the Lemon test "asks whether, irrespective of government's actual purpose, the practice ... in fact conveys a message of endorsement or disapproval." Id. at 690, 104 S.Ct. at 1368 (O'Connor, J., concurring); see also Wallace v. Jaffree 472 U.S. 38, 56 n. 42, 105 S.Ct. 2479, 2489-90 n. 42, 86 L.Ed.2d 29 (1985) (quoting Lynch, 465 U.S. at 690, 104 S.Ct. at 1368 (O'Connor, J., concurring)).

There is no question that the Latin cross is a symbol of Christianity, and that its placement on public land by the City of Eugene violates the Establishment Clause. Because the cross may reasonably be perceived as governmental endorsement of Christianity, the City of Eugene has impermissibly breached the First Amendment's "wall of separation" between church and state. ⁴

REVERSED and REMANDED. ⁵

O'SCANNLAIN, Circuit Judge, concurring in the result:

I concur in the result but not in the court's legal analysis. I write separately because I believe the court owes the people of the City of Eugene a better explanation of why, having been judicially reviewed four times over the last twenty-five years, the very cross at issue in this appeal has been first condemned, then twice approved, and now once again condemned, all by well-intentioned judges seeking to apply the Establishment Clause of the United States Constitution. I write separately, as well, to emphasize that the court applies the wrong legal standard, notwithstanding it reaches the judgment compelled by current Supreme Court jurisprudence.

I

The text of the Establishment Clause, the deliberations of the framers, and the practices that were prevalent at the time the First Amendment was passed all suggest that the Establishment Clause was intended to serve a relatively limited purpose and was so regarded for over a century and a half of our constitutional history. By contrast, however, the Supreme Court in the last half-century has constructed and zealously policed a "wall of separation" between church and state that was unknown and, indeed, unthinkable at the time of the framing. Wallace v. Jaffree, 472 U.S. 38, 106, 105 S.Ct. 2479, 2515, 86 L.Ed.2d 29 (1985) (Rehnquist J., dissenting). ¹

Inclusion of the Establishment Clause in the Bill of Rights validates Justice Douglas' eloquent and oft-quoted exclamation: "We are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 683-84, 96 L.Ed. 954 (1952). The text of the Clause and the deliberations of the framers indicate that the Establishment Clause was designed to prevent Congress from establishing a national religion--that is, from officially preferring one religious sect over others. Wallace, 472 U.S. at 99, 105 S.Ct. at 2511-12; see Lee v. Weisman, 505 U.S. 577, 639-41, 112 S.Ct. 2649, 2683, 120 L.Ed.2d 467 (1992) (Scalia, J., dissenting). ² The Clause did not target the establishment of religions as such. This we know because several states maintained established religions at the time the First Amendment was ratified and continued to maintain them for many years. ³ We can thus infer that the Establishment Clause was not designed to embody a general theory governing the appropriate relationship between government and religion. Rather, its purpose was far more limited: to prohibit Congress from legislating on the subject of...