Americans United For Separation of Church and State v. City of Grand Rapids

• Citation: 980 F.2d 1538
• Decision Date: 16 November 1992
• Docket Number: 91-1391 and 91-1448,Nos. 90-2337,s. 90-2337
• Parties: AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; Benjamin Baum; Phyllis Ball; Walter Bergman; John Charles Bearden; Gilbert R. Davis; and James T. Weaver, Plaintiffs-Appellees, v. CITY OF GRAND RAPIDS, Defendant-Appellant (91-1448), Chabad House of Western Michigan, Inc., Intervenor-Appellant (90-2337/91-1391). . Re
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1538

980 F.2d 1538

61 USLW 2327

AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE Benjamin Baum; Phyllis Ball; Walter Bergman John Charles Bearden; Gilbert R. Davis and James T. Weaver Plaintiffs-Appellees, v. CITY OF GRAND RAPIDS, Defendant-Appellant (91-1448), Chabad House of Western Michigan, Inc., Intervenor-Appellant (90-2337/91-1391).

Nos. 90-2337, 91-1391 and 91-1448.

United States Court of Appeals, Sixth Circuit.

Reargued Aug. 12, 1992.

Decided Nov. 16, 1992.

Albert Dilley, Grand Rapids, Mich. (argued and briefed), for plaintiffs-appellees.

G. Douglas Walton, Deputy City Atty., Grand Rapids, Mich. (argued and briefed), for defendant-appellant.

Richard G. Leonard, Douglas P. Vanden Berge, Rhoades, McKee, Boer, Goodrich & Titta, Grand Rapids, Mich., David G. Webbert, Bradford M. Berry, Nathan Lewin (argued and briefed), David I. Gelfand, Niki Kuckes, Miller, Cassidy, Larroca & Lewin, Washington, D.C., for intervenor-appellant.

Before: MERRITT, Chief Judge; KEITH, KENNEDY, MARTIN, JONES, MILBURN, GUY, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, and BATCHELDER, Circuit Judges; and LIVELY, Senior Circuit Judge.

BOGGS, Circuit Judge.

In this case, we sit en banc to determine whether a privately-funded menorah display, erected during Chanukah in a traditional public forum in Grand Rapids, Michigan, violates the Establishment Clause of the first amendment, as applied to state and local governments by the fourteenth amendment. We hold that it does not.

I

Each year since 1984, Grand Rapids has granted Chabad House of Western Michigan, Inc. a permit to display a 20-foot high steel menorah in Calder Plaza during the eight days of the Jewish holiday of Chanukah. The menorah was purchased entirely with private funds and is owned by Chabad House, a private organization. Grand Rapids has no role in the planning, erection, removal, maintenance, or storage of the menorah. All display costs have been paid with private funds, except for the small cost of providing electricity for the display; however, even this cost is probably offset by a $2.50 permit fee charged by Grand Rapids.

Calder Plaza is located in the center of downtown Grand Rapids, and is the principal public plaza in the area, being four and one-half acres in size. The Plaza features a large sculpture by Alexander Calder, a drawing of which appears on the city's signs, vehicles, and stationery. The Kent County Building and Grand Rapids City Hall are also located on the Plaza, as are three flagpoles flying the flags of the United States, Kent County, and the City of Grand Rapids. Monroe Avenue runs along the west side of the Plaza. The Hall of Justice, which houses the district and circuit courts for Kent County and Grand Rapids, and the police station stand across Monroe Avenue from the Plaza. The Federal Building is on the Plaza's north side. Ottawa Avenue runs along the Plaza's east side, and across Ottawa Avenue stand the State of Michigan Office Building, the Probate Court Building, the Frey Building, and the National Bank of Detroit Building. The Old Kent Building and the Calder Plaza Building border the Plaza to the south and southwest. The Frey, National Bank of Detroit, Old Kent, and Calder Plaza Buildings are all private office buildings.

The menorah stands at the east side of the Plaza, 162 feet from the nearest governmental building, the Kent County Administration Building, and 256 feet from Grand Rapids City Hall. The menorah is adjacent to the three flagpoles, and 150 feet from the Calder sculpture. Grand Rapids requires that the menorah be accompanied by two signs, measuring two feet by three feet, which are illuminated at night. The signs read as follows:

Happy Chanukah to All

This Menorah display has been erected by Chabad House, a private organization. Its presence does not constitute an endorsement by the City of Grand Rapids of the organization or the display.

From 1984 to 1988, one such sign was displayed. Since 1989, Grand Rapids has required Chabad House to display two illuminated signs. The signs are visible from the front and the back of the menorah. Chabad House conducts a candlelighting ceremony at the menorah for up to one hour on each of the eight nights of Chanukah. Other than these ceremonies, no Chabad House representative regularly attends the menorah. In previous years, there have been no displays of Christmas decorations on the Plaza contemporaneously with the menorah. Such displays have not been discouraged; Grand Rapids has simply chosen not to erect a Christmas display in the Plaza, and has received no applications for permits to display Christmas decorations.

Grand Rapids has made the Plaza available to the public for all forms of speech and assemblage; all parties agree that the city has treated the Plaza as a traditional public forum. Since 1969, a City Commission policy has provided guidelines for the Plaza's use. The guidelines provide:

[T]he City of Grand Rapids may, on behalf of itself and the County of Kent, authorize any person, organization, association, club, society or other group of any type to use and occupy any portion of the so-called Plaza area of the City-County Complex for the purpose of making or presenting any program, public address, exhibit or display, or for any other organized or semi-organized purpose whatever.

Between 1986 and 1990, Grand Rapids allowed numerous groups to use Calder Plaza for expressive activities of many types. For example, permits have been granted for a Right to Life rally, a Hunger Walk by the Grand Rapids Center for Ecumenism, and an Italian Festival (including a Catholic Mass on Sunday). Several of the previous events have involved the use of temporary structures comparable in size to the menorah. An Arts Festival involved a three-day erection of booths and exhibit areas, the Italian Festival involved a two-day erection of similar structures, and a Tennis Exhibition involved laying down a large canvas with court markings for two days. Furthermore, at oral argument, counsel for Grand Rapids stated that several shanties were recently erected in Calder Plaza to symbolize the plight of the homeless, and that these shanties stood for "quite some time."

In 1990, Chabad House once again applied for a permit to display its menorah in the Plaza from December 11 to 20, 1990, and Grand Rapids was prepared to grant that request. However, Americans United for Separation of Church and State, along with Benjamin Baum, Phyllis Ball, Walter Bergman, John Charles Bearden, Gilbert R. Davis, and James T. Weaver, brought suit in federal district court to enjoin Grand Rapids from allowing the proposed display. ¹ On November 13, 1990, the plaintiffs moved for a preliminary injunction. The district court heard argument on the motion on December 5. Because Chanukah was imminent, the district court issued an oral opinion from the bench that granted the preliminary injunction. On December 21, the district court issued a full written opinion explaining its decision.

When Chabad House learned that Grand Rapids might not appeal this decision, it sought to intervene. On December 7, the district court scheduled a hearing on the motion to intervene for December 18. Because this schedule would prevent Chabad House from being heard before Chanukah, Chabad House filed an emergency notice of appeal with this court on December 10. The next day, this court granted Chabad House's motion to intervene and stayed the injunction entered by the district court. A full opinion was issued two days later. Americans United for Separation of Church and State v. City of Grand Rapids, 922 F.2d 303 (6th Cir.1990).

On February 25, 1991, the parties filed a stipulation of facts with the district court, as summarized above. These facts were not substantially different from those that faced the district court when it initially ruled on this case. On March 21, 1991, the district court granted the plaintiffs' request for a permanent injunction preventing Grand Rapids from allowing Chabad House to erect its menorah. In doing so, the district court relied largely on its opinion of December 21, 1990. Both Chabad House and Grand Rapids appealed to this court, and all appeals were consolidated. A panel of this court affirmed the district court. Americans United for Separation of Church and State v. City of Grand Rapids, Nos. 90-2337; 91-1391/1448, 1992 WL 77643, 1992 U.S.App. LEXIS 7513 (6th Cir. Apr. 21, 1992). However, on June 25, 1992, the full court vacated the panel's decision and granted a rehearing en banc.

II

All parties to this case agree that since Calder Plaza was opened in 1969, Grand Rapids has treated it as a traditional public forum, allowing all forms of speech and assembly. No group has ever been denied permission to use the plaza. The city's decision to treat Calder Plaza as a traditional public forum grants Chabad House significant constitutional protection. In Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), the Supreme Court recognized that "these quintessential public forums" " 'have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.' " 460 U.S. at 45, 103 S.Ct. at 954-55 (quoting Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 963, 83 L.Ed. 1423 (1939)). The Court held that no government may exclude speech from a traditional public forum unless "its regulation is necessary to serve a compelling state interest and ... is narrowly drawn to achieve that end." 460 U.S. at 46, 103 S.Ct. at 955; see also International Soc'y for Krishna Consciousness, Inc. v. Lee, --- U.S. ----, ----, 112 S.Ct. 2701, 2705, 120 L.Ed.2d 541 (1992) ("regulation of speech on government property that has traditionally been available for public expression is subject to the highest scrutiny"). In this case,...