American Civil Liberties Union of Kentucky v. Wilkinson
| Decision Date | 17 April 1990 |
| Docket Number | Nos. 89-5049,89-5258,s. 89-5049 |
| Citation | 895 F.2d 1098 |
| Parties | AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, et al., Plaintiffs-Appellants, v. Wallace G. WILKINSON, Governor of Kentucky, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
David A. Friedman (argued), American Civil Liberties Union of Kentucky, Louisville, Ky., for plaintiffs-appellants.
J. Patrick Abell, Gen. Counsel (argued), Kevin Hable, Office of the Governor, Frankfort, Ky., for defendant-appellee.
Before WELLFORD and NELSON, Circuit Judges, and SUHRHEINRICH, * District Judge.
During the 1988 Christmas holiday season, the Commonwealth of Kentucky erected a rustic stable on the grounds of the state capitol in Frankfort. The stable was furnished with a manger, two large pottery jugs, a ladder, railings, and some straw, but not with the figurines or statues commonly found in a creche.
On at least three occasions, church groups were permitted to use the stable for pageants in which the biblical story of the birth of Jesus was reenacted by living people. Before entry of the order that is before us in this appeal, the State's intention had been to permit groups to use the stable for that purpose alone.
Alleging that the Commonwealth's conduct constituted an establishment of religion in violation of the First and Fourteenth Amendments, the American Civil Liberties Union of Kentucky and three Kentucky citizens brought the present action against the Governor. The complaint ended with a prayer for declaratory relief, an injunction against the conduct complained of, and such further relief as the plaintiffs might be entitled to.
After conducting a hearing and viewing the site personally, the district court entered a judgment order establishing the following conditions:
--That a notice be prominently displayed in the immediate area of the stable advising that the area is a public forum "available to all responsible citizens and civic and religious groups for holiday ceremonies, pageants or displays;"
--That the Commonwealth adopt a formal written policy consistent with the notice;
--That all expenditures of public funds in connection with the display be defrayed by private contributions; and
--That a disclaimer be prominently displayed in front of the stable, in letters big enough to be read from an automobile passing on the street before it, stating that the display "was not constructed with public funds and does not constitute an endorsement by the Commonwealth of any religion or religious doctrine."
The order gave the Commonwealth five days to comply. The injunction sought against maintenance of the stable was denied on the proviso that the Commonwealth comply with the conditions set forth in the order. The district court retained jurisdiction to assure compliance.
The plaintiffs appealed. There was no cross-appeal by the defendant. The principal issue before us, as we see it, is whether maintenance of the stable under the conditions established by the district court constitutes an "endorsement" of Christianity by the Commonwealth. Concluding that it does not, we shall affirm the district court's judgment.
Kentucky's state capitol, which houses the offices of the Governor and Attorney General, the General Assembly, and the Supreme Court, is situated on grounds containing approximately 20 acres of land. The main entrance to the capitol grounds is a broad and imposing thoroughfare, one-half mile in length, called Capitol Avenue.
In the center island of Capitol Avenue stands a row of old-fashioned light poles. During the 1988 Christmas season, these light poles were decorated with evergreen strands and red bows. In addition, two parallel rows of trees along Capitol Avenue were decorated with white lights. Approximately 70 lamp posts situated on the capitol grounds were decorated with strands of greenery and red ribbons. The facade of the capitol building was decorated with similar greenery and ribbons, as were light poles along the capitol steps. The Governor's mansion, immediately adjacent to the capitol grounds, was adorned with greenery, wreaths, and lighted trees. The rotunda of the capitol was decorated with eight lighted trees, greenery, and red ribbons. Outside the capitol building, in a direct line between it and Capitol Avenue, was placed a lighted Christmas tree 30 feet in height. The Christmas tree was entwined from top to botton with a golden, rope-like strand.
Approximately 100 yards toward Capitol Avenue from the Christmas tree was the stable (also called the "barn" or "nativity scene") that gave rise to the present lawsuit. The structure was about 15 feet in height, and its floor area was about 30 feet by 20 feet. Approximately 20 yards from the stable was a corral. From the Capitol Avenue entrance, an observer would see the corral and stable at the end of the line of decorated light poles, with the brightly decorated Christmas tree above the stable and the dome of the capitol above the Christmas tree. Undecorated evergreen trees were placed in stands five to ten feet away from the stable. There was an area directly in front of the stable from which the Christmas tree would not be visible.
The stable was constructed by the Commonwealth at a total cost of approximately $2,400. Erected late in November, it was to be removed around Christmas Day. Among the rather extensive holiday decorations, the stable was apparently the only element not considered secular in nature.
The stable was first used on Monday, November 28, 1988, when children from a Roman Catholic school staged a live nativity scene there in connection with a Christmas parade along Capitol Avenue and a ceremonial lighting of the Christmas tree. 1 Children from the school played the roles of Joseph, Mary, Jesus, shepherds, angels, and the three wise men. The scene also featured live camels, a donkey, a goat, and a cow. Carols were performed by a county high school band, the Kentucky State University choir, and a contingent from the Kentucky Opera Association. All of this activity went on in front of the capitol steps, which had been the site of numerous speeches, demonstrations and other public events in the past. The area is, as the district court found, "a recognized public forum."
The stable was used for the presentation of live nativity scenes on two occasions subsequent to November 28. On each of these occasions the scene was put on by children from the same Catholic school. It has been stipulated that "the nativity scene" (apparently meaning the stable alone) was intended to symbolize the birth of Jesus Christ--an event, the stipulation reminds us, "of particular religious significance to Christians."
The plaintiffs filed a verified complaint on December 2, 1988. The complaint asserted, on information and belief, that the challenged structure "will only be used for recreation of the nativity scene," and that neither non-Christian religious groups nor secular groups would be permitted to use it at all. Unless continued maintenance and use of the structure were enjoined, the complaint alleged, the plaintiffs--three of whom were identified as adult citizens of the Commonwealth--would suffer irreparable harm in the form of deprivation of rights secured by the Establishment Clause of the First Amendment and the Due Process Clause of the Fourteenth Amendment. An amendment to the complaint filed on December 14, 1988, alleged that "[t]he sectarian use of the State Capitol grounds, as described [in the complaint], impairs each plaintiff's actual use and enjoyment of that property."
It never became necessary for the defendant to file an answer to the complaint. The plaintiffs moved for a temporary restraining order and a preliminary injunction, and the district court scheduled a hearing on these motions for December 8, 1988. On December 6 the defendant moved for dismissal of the complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P.; the defendant asserted that the plaintiffs lacked standing to maintain the action, that the display complained of had a secular purpose, that its primary effect was not to advance any particular religion, and that there was no impermissible entanglement between the state and religion.
On the day of the hearing, the parties presented the district court with an extensive stipulation of facts. It was agreed that each side would be heard both on the issue of standing and on the merits, the hearing on the merits being consolidated with that on the preliminary injunction. See Rule 65(a)(2), Fed.R.Civ.P. Oral arguments were given by the parties and by two amici. Following the arguments, the court (accompanied by counsel) conducted a view of the capitol grounds and their immediate environs. An additional stipulation of facts was filed the following day.
On December 14, 1988, the court filed an extensive opinion--now reported at 701 F.Supp. 1296--concluding (a) that the plaintiffs had standing to protest the presence of the stable on the capitol grounds, and (b) that the stable would not be unconstitutional if the conditions we have already described were complied with. The opinion was accompanied by a judgment order, id at 1316, permitting continuance of the structure during the holiday season subject to these conditions. 2 The Governor evidently decided to accept the court's conditions, and the plaintiffs perfected a timely appeal.
The Governor contends on appeal, as he did in the district court, that the plaintiffs lack standing. Like the district court, we would be reluctant to dispose of the case on that ground. In Hawley v. City of Cleveland, 773 F.2d 736, 739-40 (6th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1266, 89 L.Ed.2d 575 (1986), where the plaintiffs alleged that the maintenance of a chapel at Cleveland Hopkins...
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