Alvarado v. City of San Jose
| Citation | 94 F.3d 1223 |
| Decision Date | 19 September 1996 |
| Docket Number | No. 95-15519,95-15519 |
| Parties | 96 Cal. Daily Op. Serv. 6279, 96 Daily Journal D.A.R. 10,338, 96 Daily Journal D.A.R. 11,498 Raquel ALVARADO; Sylvia Beadleston; Anne Collett; Roger Litwin; Gerry Litwin; Manuel Salazar, Plaintiffs-Appellants, v. CITY OF SAN JOSE, a California Municipal Corporation; Redevelopment Agency of the City of San Jose, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
J. Thomas Diepenbrock, United States Justice Foundation, Milpitas, California, for plaintiffs-appellants.
Clifford S. Greenberg, Deputy City Attorney, San Jose, California, for defendants-appellees.
Appeal from the United States District Court, for the Northern District of California, James Ware, District Judge, Presiding. D.C. No. CV-94-20773-JW.
Before: T.G. NELSON and TASHIMA, Circuit Judges, and BURNS, * District Judge.
Raquel Alvarado ("Alvarado") and others appeal the district court's summary judgment in favor of the City of San Jose and the City Development Agency (collectively, "the City"), in their 42 U.S.C § 1983 action alleging that the City's installation and maintenance of the "Plumed Serpent" sculpture in a city park violated the Establishment Clause of the First Amendment and Articles I § 4 and XVI § 5 of the California Constitution. The district court concluded that while the statue had "religious significance," it did not promote or endorse religion in violation of either the state or federal constitutions. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the judgment.
In 1991, an art committee ("the Committee") formed by the City of San Jose approached renowned Hispanic artist Robert Graham ("Graham") regarding the commission of a sculpture to commemorate Mexican and Spanish contributions to the City's culture. 1 Graham proposed a sculpture representing Quetzalcoatl, or the "Plumed Serpent," of Aztec mythology. The Committee chairman, City Councilmember Blanca Alvarado, responded enthusiastically to Graham's proposal, declaring the Plumed Serpent to be a symbol "universal in its celebration of ancient people," drawing on "mythology and history to link the essence of the past to the strength of the present Mexican American community." The Committee agreed that the City should commission the piece.
The Art in Public Places Advisory Panel ("the Panel") found the proposed work to be of significant artistic and cultural value and unanimously endorsed the Committee's recommendation. On September 8, 1992, the Visual Art Committee held a public hearing, received input from the community, and concurred in the Panel's endorsement of the sculpture. The Parks and Recreation Commission also reviewed the project as to its appropriateness for location within San Jose's Plaza Park. On September 15, 1992, the Urban Design Review Board considered and unanimously approved the staff recommendation for the location of the statue.
On December 3, 1992, the Redevelopment Agency Board ("the Board"), members of which also sit as the City Council, held a public hearing at which members of the public were given an opportunity to voice their opinions and concerns regarding the statue. None of the named plaintiffs spoke at the hearing. The Board unanimously approved an agreement with Graham on December 10, 1992. Under that agreement, the City agreed to pay the artist not more than $400,000 and to pay for the transportation and installation of a bronze and concrete sculpture, in the form of a coiled serpent, projected In the fall of 1993, the City Council ("the Council") held meetings to discuss renaming Plaza Park "Cesar Chavez Park." Around this time, controversy over the sculpture was heating up in the community. According to an article in the San Jose Mercury News, submitted by plaintiffs, the piece was initially opposed by certain Christians who associated the statue with the serpent from the Garden of Eden and by persons of Mexican ancestry who associated Quetzalcoatl with human sacrifice. Several members of the public, including three of the named plaintiffs, spoke out at one of the Council meetings in opposition to the Plumed Serpent project.
to weigh about 10 tons, to stand about 20' to 25' high, and to measure about 15' to 20' in diameter.
Contrary to some of its detractors, defenders of the sculpture maintain that Quetzalcoatl, or a priest by that name, was responsible for stopping the practice of human sacrifice. Disputants and historians agree that Quetzalcoatl was originally a Mesoamerican creator-deity represented by the Plumed Serpent, among other symbols, as early as 1200 B.C.; that Quetzalcoatl, also known as Kulkulcan, was worshipped in Aztec and Mayan cultures from about 100-300 A.D. until the time of the Spanish conquest; that in the tenth (some say the twelfth) century A.D., a fair-haired Aztec priest or ruler named Topiltzin adopted the name Quetzalcoatl and urged his followers to abandon the practice of human sacrifice; that five centuries later, some Aztecs took the fair-haired Spanish conquistador Fernando Cortes to be the reincarnation of Topiltzin-Quetzalcoatl; and that the Aztecs and their religion died out in the sixteenth century with the Spanish conquest of what is now Mexico. In dispute here is the current religious significance, if any, of Quetzalcoatl or the Plumed Serpent. Plaintiffs submit "New Age" and Mormon writings to support their claim that worship of this ancient deity is a going concern.
On July 8, 1994, a private organization called the United States Justice Foundation wrote to the City Attorney demanding that it terminate the Plumed Serpent project as an unconstitutional promotion of religion. On November 9, 1994, nine days before the scheduled dedication and unveiling of the sculpture, plaintiffs filed suit to enjoin the installation, dedication, and maintenance of the artwork on the grounds that it promotes religion in violation of the federal and state constitutions. Following a hearing, the district court denied the motion for a preliminary injunction on the basis of its finding that "the Plumed Serpent is an artistic representation of an ancient civilization and is not a religious object."
The statue was unveiled and dedicated two days later in a ceremony which included speeches by local dignitaries and performances by traditional Aztec dance and drum groups. Local elementary school students participated in the ceremonial procession to the sculpture. According to the plaintiffs, some observers laid offerings of flowers and food at the base of the statue, while others "ma[de] obeisance" to the statue and burnt incense. One of the plaintiffs found a business card left at the base of the statue bearing the handwritten words: "O Dei Quetzalcoatl/ May your many feathers loft our/ diverse (?) souls across the chasm of religious artifice."
On January 13, 1995, the City filed a motion for summary judgment. The district court conducted a hearing on February 10, 1995, and granted the City's motion, holding that the sculpture had secular purposes and did not promote religion in violation of either the state or federal constitutions. Judgment was entered for the City on February 23, 1995. Plaintiffs timely appeal.
A grant of summary judgment is reviewed de novo. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996); Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). The appellate court's review is governed by the same standard used by the trial court under Fed.R.Civ.P. 56(c). Jesinger, 24 F.3d at 1130.
Before turning to the issue of whether the statue violates the Establishment Clause, or the religion clauses of the California Constitution, we must first consider whether the object in question can be defined as "religious" for establishment purposes. See Fleischfresser v. Directors of Sch. Dist. 200, 15 F.3d 680, 687 (7th Cir.1994); Malnak v. Yogi, 440 F.Supp. 1284, 1312-13 (D.N.J.1977) (" Malnak I "), aff'd, 592 F.2d 197 (3d Cir.1979) (" Malnak II "). The district court found at the hearing that the statue had "some religious significance," but not enough to prove a constitutional violation. In its written order, the court stated that "[r]eligious significance [by itself] is ... insufficient to prove a constitutional violation."
Plaintiffs suggest that the City has conceded the issue, but this oversimplifies the City's position. While the City has admitted to confusion about the meaning of religion, and states in its brief that it does not want to argue about "what is or is not a religious symbol," it also avers that the "Plumed Serpent does not involve current religious beliefs" and asks this court to determine whether the Plumed Serpent is in fact a religious symbol for First Amendment purposes.
The City's confusion and trepidation are understandable. Attempting to define religion, in general and for the purposes of the Establishment Clause, is a notoriously difficult, if not impossible, task. See James M. Donovan, "God is as God Does: Law, Anthropology, and the Definition of 'Religion,' " 6 Seton Hall Const. L.J. 23 (1995) (reviewing courts' efforts to deal with the problem to date); and see Africa v. Pennsylvania, 662 F.2d 1025, 1031 (3d Cir.1981), cert. denied, 456 U.S. 908, 102 S.Ct. 1756, 72 L.Ed.2d 165 (1982) ().
While there is no question that Quetzalcoatl was at one time a religious figure, the parties agree that for First Amendment purposes, a symbol must have current religious adherents to be considered religious. Not surprisingly, there are no cases holding that a religious belief must...
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