Amer. Civil Liberties Union of Ohio v. City of Stow

• Decision Date: 16 December 1998
• Docket Number: No. 5:97 CV 3271.,No. 5:97 CV 3272.,5:97 CV 3271.,5:97 CV 3272.
• Citation: 29 F.Supp.2d 845
• Parties: AMERICAN CIVIL LIBERTIES UNION OF OHIO, INC., et al., Plaintiffs, v. CITY OF STOW, Defendant. City of Stow, Plaintiff, v. American Civil Liberties Union of Ohio, Inc., et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

29 F.Supp.2d 845

AMERICAN CIVIL LIBERTIES UNION OF OHIO, INC., et al., Plaintiffs, v. CITY OF STOW, Defendant.

City of Stow, Plaintiff, v. American Civil Liberties Union of Ohio, Inc., et al., Defendants.

No. 5:97 CV 3271.

No. 5:97 CV 3272.

United States District Court, N.D. Ohio, Eastern Division.

December 16, 1998.

J. Dean Carro, Akron, OH, Joan M. Englund, American Civil Liberties Union Of Ohio Foundation, Inc., Cleveland, OH, for Plaintiffs.

Thomas W. Watkins, City of Stow, Department of Law, Stow, OH, Alan E. Johnson, Leo R. Ward, Ward & Associates, Cleveland, OH, John G. Stepanovich, American Center for Law and Justice, Chesapeake, VA, for Defendant.

Concerned Citizens for Constitutional Freedom George Fisher, Stow, OH, for Movant.

Jerome F. Weiss, Cleveland, OH, for Amicus.

MEMORANDUM OPINION

POLSTER, District Judge.

Before this Court are cross motions for summary judgment filed on May 15, 1998 (Doc. #'s 35 & 36 in Case # 5:97cv3271, and Doc. #'s 28 & 29 in Case # 5:97cv3272, respectively). On December 16, 1997, both The City of Stow (hereinafter "The City") and The American Civil Liberties Union of Ohio, Inc., (hereinafter "ACLU") filed suit to determine whether the City of Stow's municipal seal violates the Establishment Clause because one of the four quadrants contains Christian symbolism. By order of January 21, 1998, the two actions were consolidated.

The seal at issue was adopted by the City of Stow back on June 23, 1966 after the Stow City Council conducted a city-wide competition for the creation of an official Stow City seal. A private citizen, Harold F. Baer, submitted the winning selection. This circular seal is divided into four equal quadrants, each bearing a different symbolic illustration of the "life in Stow."¹ The upper left quadrant has an open book, overlaid with a large cross. The lower left quadrant has a sketch of a factory. The upper right quadrant has a sketch of a home and the lower right quadrant has a scroll with a quill and ink bottle. The City of Stow seal is displayed on City government vehicles, the City flag, on official City stationary and letterhead, at City Hall, and on City tax forms.

On behalf of its clients John and Jane Does' 1, 2, and 3, the ACLU moves this Court to find that as a matter of law, the cross and open book appearing on the Stow City seal comprise a religious symbol integral to Christianity, thus constituting an endorsement of religion in violation of the Establishment Clause of the First Amendment to the United States Constitution, and Article I, Section 7 of the Ohio Constitution.

The City of Stow moves the Court for summary judgment, contending that its municipal seal does not, as a matter of law, violate either the First Amendment or the corresponding provision of the Ohio Constitution. The City maintains that, taken as a whole, the seal does not endorse any particular religion, or even religion in general. The City contends that the two symbols merely reflect "an acknowledgment that people living in any community each have ... their individual `Ultimate Concern': a concern, the content of which varies from person to person, for what each person considers most important from a spiritual or philosophical perspective, whether that concern be a particular religion, a particular secular philosophy, or a concern with social justice." (Stow Mot. for Summ.J. at 4-5).

The Establishment Clause of the First Amendment to the United States Constitution states that "Congress shall make no law respecting an establishment of religion." See U.S. Const. amend. I. The Free Exercise Clause of the First Amendment provides that "Congress shall make no law ... prohibiting the free exercise [of religion]." Id. The interplay between the Establishment and Free Exercise Clauses of the Constitution has vexed generations of courts and legal scholars. These two clauses can never be fully reconciled, because they reflect a fundamental tension that has existed since the Pilgrims landed in the early 17th Century. Simply put, this country was founded by profoundly religious people, who left England because they did not want anyone, particularly the government, telling them how to pray. Nearly 400 years later, federal courts across the country are struggling on a daily basis to balance the right of each American, both as an individual and as part of a community, to engage in religious expression with the companion right of each American not to feel excluded or ostracized by a community's expression of religious sentiment which conflicts with his or her own personal beliefs.

Today, when a court is presented with a governmental practice suggestive of a "denominational preference," precedent demands that the practice is treated as suspect and that "strict scrutiny" is applied in adjudging its constitutionality. See Allegheny County v. American Civil Liberties Union, 492 U.S. 573, 608-609, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), citing Larson v. Valente, 456 U.S. 228, 246, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982).

In Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), the Supreme Court enunciated a three-part test for determining whether a government practice violates the Establishment Clause. Under the Lemon analysis, the Establishment Clause is violated if any one of the three following conditions are not met. First, the governmental action in question must have a secular purpose. Second, its principal or primary effect must be one that "neither advances nor inhibits" religion. And, third, the action must not foster an excessive government entanglement with religion. Lemon, 403 U.S. at 612-613, 91 S.Ct. 2105. Each prong of the Lemon test is independent and the challenged government action must survive all three to be permitted under the Establishment Clause. Edwards v. Aguillard, 482 U.S. 578, 583, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987).

While the Supreme Court has been unwilling to endorse the Lemon test as the "be-all" and "end-all" in Establishment Clause cases, it has continued to apply it almost exclusively. See Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 2008, 138 L.Ed.2d 391 (1997); Board of Education of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 695, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994); Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 396, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993); Lee v. Weisman, 505 U.S. 577, 587, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) ("We do not accept the invitation ... to reconsider our decision in Lemon v. Kurtzman"); Lynch v. Donnelly, 465 U.S. 668, 679-685, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). Moreover, this three-pronged test continues to be applied regularly by the Circuit Courts, and in particular, the Court of Appeals for the Sixth Circuit. See i.e. Chaudhuri v. State of Tennessee, 130 F.3d 232, 236 (6th Cir.1997); Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1482 (6th Cir.1995), cert. denied, 517 U.S. 1135, 116 S.Ct. 1421, 134 L.Ed.2d 545 (1996); Americans United for Separation of Church and State v. City of Grand Rapids, 980 F.2d 1538, 1543 (6th Cir. 1992) (en banc).

In interpreting and applying the Lemon test, the Court has "paid particularly close attention to whether the challenged governmental practice either has the purpose or effect of `endorsing' religion...." Allegheny County v. American Civil Liberties Union, 492 U.S. 573, 592, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989). "The fullest realization of true religious liberty requires that government ... effect no favoritism among sects or between religion and nonreligion." Id. at 593, 109 S.Ct. 3086, (quoting Justice Goldberg in Abington School District v. Schempp, 374 U.S. 203, 305, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963)). Whether tile key word is "endorsement," "favoritism," or "promotion," the essential principle remains the same. The Establishment Clause, "at the very least, prohibits government from appearing to take a position on questions of religious belief or from `making adherence to a religion relevant in any way to a person's standing in the political community.'" Allegheny County, 492 U.S. at 594, 109 S.Ct. 3086 (quoting Lynch v. Donnelly, 465 U.S. 668, 687, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984)).

In a concurring opinion written in Lynch v. Donnelly, 465 U.S. 668, 687-694, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), Justice O'Connor explained the "purpose" and "effect" prongs of the Lemon test:

The purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion. The effect prong asks whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval. An affirmative answer to either question should render the challenged practice invalid.

Lynch v. Donnelly, 465 U.S. at 690 104 S.Ct. 1355 (1984).

In that same concurring opinion, Justice O'Connor also proposed a new two-pronged test for Establishment Clause cases: "entanglement" and "endorsement." Lynch, 465 U.S. at 688, 104 S.Ct. 1355. Her endorsement test has received support from other members of the Court and it appears that a majority of the Court applied it in Allegheny County, supra. Under Justice O'Connor's endorsement test, the Establishment Clause is violated when an objective and informed observer would conclude that the government action in question "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." Lynch, 465 U.S. at 688, 104 S.Ct. 1355.

To date, the Sixth Circuit Court of Appeals has not addressed the issue of a cross on a municipal seal, but three other Circuit Courts have done so. Two of those three Circuit Courts have found that the presence of a cross on a governmental seal violates the Establishment Clause of the First Amendment. The...