American Civil Liberties Union v. Wilkinson, Civ. A. No. 88-102.

• Decision Date: 14 December 1988
• Docket Number: Civ. A. No. 88-102.
• Citation: 701 F. Supp. 1296
• Parties: AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, et al., Plaintiffs, v. Wallace G. WILKINSON, etc., Defendant.
• Court: U.S. District Court — Eastern District of Kentucky

701 F. Supp. 1296

AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, et al., Plaintiffs, v. Wallace G. WILKINSON, etc., Defendant.

Civ. A. No. 88-102.

United States District Court, E.D. Kentucky, Frankfort Division.

December 14, 1988.

COPYRIGHT MATERIAL OMITTED

David L. Friedman, Louisville, Ky., for plaintiffs.

Pat Abell and Kevin Habel, Office of the Governor, Frankfort, Ky., for defendant.

OPINION

BERTELSMAN, District Judge:

INTRODUCTION

This is a civil rights action brought under 42 U.S.C. § 1983 by the American Civil Liberties Union of Kentucky and individual state taxpayers challenging the Commonwealth's construction and use of a structure resembling a biblical-age stable on the public grounds of the Kentucky Capitol building in Frankfort, Kentucky. Plaintiffs contend that state ownership and use of the structure is a violation of the Establishment Clause of the First Amendment. Operation of the State Capitol property is a function of the executive branch of government. Governor Wilkinson was named as the defendant, in his official capacity, which is equivalent to suing the state itself.

Plaintiffs filed a motion for a temporary restraining order and preliminary injunction. At a hearing on December 8, 1988, the parties filed a stipulation of facts (supplemented the next day) and agreed that the court should decide the case finally on the merits on the basis of the supplemented stipulation and the court's own inspection of the Capitol grounds.

Jurisdiction is conferred on this court by 28 U.S.C. § 1331, which provides for original jurisdiction over federal questions and by 28 U.S.C. § 1343, which provides for federal jurisdiction in actions authorized by 42 U.S.C. § 1983.

FINDINGS OF FACT

The evidentiary facts herein are largely undisputed. The parties' stipulation is as follows:

"STIPULATIONS OF FACT

"The parties hereby stipulate to the following facts:

"I. CONSTRUCTION AND LOCATION

"1. The Commonwealth of Kentucky (the state) has erected a nativity scene on the grounds of the State Capitol, in Frankfort, Kentucky.

"2. The State Capitol grounds are owned, operated and maintained by the state.

"3. The State Capitol is the seat of the Kentucky State government. It houses the offices of the Governor and Attorney General, the General Assembly (Legislature), and the Supreme Court of Kentucky.

"4. The nativity scene was constructed by state workers on state time and at state expense.

"5. The cost to the state of constructing the nativity scene was approximately $2,400, including labor.

"6. The nativity scene was constructed at the direction of executive branch officials, who are agents of the defendant.

"II. DESCRIPTION

"7. The nativity scene is approximately thirty (30) feet wide, twenty (20) feet deep and fifteen (15) feet high.

"8. The nativity scene is a barn or stable-like structure. It consists of a manger, a ladder leading to the loft, two large pottery jugs, railings and straw. A corral stands approximately twenty (20) yards in front of the nativity scene.

"9. The nativity scene is intended to symbolize the birth of Jesus Christ.

"10. The birth of Jesus Christ is of particular religious significance to Christians.

"11. A lighted Christmas tree stands approximately one hundred (100) yards behind the nativity scene, toward the State Capitol. The tree is approximately thirty (30) feet tall.

"12. Approximately seventy (70) lamp posts throughout the State Capitol grounds have each been decorated with strands of greenery and a red ribbon.

"13. The facades of the State Capitol and Annex have been decorated with similar greenery and red ribbons.

"14. Two parallel rows of trees along Capitol Avenue, totalling approximately thirty-five (35) in number, have been decorated with white lights.

"15. The nearest of these trees stands approximately fifty (50) yards from the nativity scene.

"16. A floral clock on the far side of the State Capitol has been decorated in a snowflake motif, with many multicolored lights.

"17. The exterior grounds of the State Capitol, comprising approximately twenty (20) acres, do not contain any Santa Clauses, elves, reindeer, sleighs, or candy canes.

"18. No other decorations or adornments are placed within one hundred (100) yards of the nativity scene.

"19. The nativity scene is located at the State Capitol end of Capitol Avenue. Capitol Avenue is the one-half mile long main entrance to the State Capitol grounds.

"20. Facing the State Capitol from Capitol Avenue, the nativity scene is in the foreground, with the decorated Christmas tree one hundred (100) yards behind it and the State Capitol behind it.

"21. The rotunda of the State Capitol is decorated with eight lighted trees, greenery and red ribbons.

"22. The Governor's Mansion, immediately adjacent to the Capitol grounds, is adorned with similar greenery, wreaths and lighted trees.

"III. INITIAL CEREMONY

"23. The nativity scene was first used at a ceremony held on Monday, November 28, 1988.

"24. The ceremony consisted of a Christmas Parade along Capitol Avenue, the lighting of the thirty (30) foot tree, a live reenactment of the nativity scene, and caroling.

"25. Participants in the live reenactment of the nativity scene were children from the Good Shepherd School.

"26. The Good Shepherd School is affiliated with the Good Shepherd Catholic Church.

"27. The state invited the Good Shepherd Catholic Church to furnish participants for the live nativity scene.

"28. The live nativity scene included individuals playing the roles of Joseph, Mary, Jesus, shepherds, angels and the three wise men. The scene also contained live camels, a donkey, goat and cow.

"29. The nativity scene was adorned to depict the Biblical version of Christ's birth.

"30. Caroling was performed by the Casey County High School band, the Kentucky State University choir, and a contingent from the Kentucky Opera Association.

"31. The parade consisted of more than one hundred (100) entries, including Santa Claus, reindeer, candy and toys.

"IV. SUBSEQUENT USE

"32. The nativity scene remains on the State Capitol grounds and will remain there until around Christmas Day.

"33. The state has permitted and will permit groups to use the nativity scene for their own live reenactments.

"34. The state will not permit the nativity scene to be used for any other purpose. Specifically, the state will not permit its use for secular reenactments of any kind, for reenactment of non-Christian themes, or for reenactment of Christian themes other than the nativity scene.

"35. Approval for use of the nativity scene must be secured from a state official in the executive branch. Scheduling is done by the state on a first-come basis.

"36. To date, the nativity scene has been used two additional times for live reenactments. Each use was by children from the Good Shepherd School."

Following the hearing in open court, in response to questions by the court, the parties filed the following additional stipulations.¹

37. "A state official accepts requests over the telephone for use of the site for a live presentation of a nativity scene, and if no other group has previously scheduled the site for that time period, permission is granted. Other than verifying that the proposed use is for a nativity scene, the official asks no questions about the nature of the proposed presentation, and there is no monitoring by the state of the performance.

38. "The steps of the State Capitol have been the site of numerous speeches, demonstrations and other public events.

39. "The state has no written or oral regulation concerning the use of the land immediately adjacent to or in front of the nativity scene."

Inspection by the Court

In addition to the facts contained in the above stipulation, the court makes the following additional findings of fact, pursuant to F.R.Civ.P. 52(a), based on its personal inspection of the Capitol grounds and the approach to them along Capitol Avenue following the hearing in open court on December 8, 1988.

The controlling precedents require that the structure complained of be analyzed in the physical context of the surrounding holiday decorations. This display is unique in that its impact may vary as seen from differing perspectives. The court finds from its inspection that it is necessary to consider two perspectives in particular. A good part of the dispute between the parties is that each is viewing the scene from a different perspective.

Capitol Avenue is a broad, impressive divided thoroughfare. The stipulation recites that it is half a mile in length. It seems longer. Down the center of a wide island dividing the traffic lanes stand numerous old fashioned light poles, perhaps 20 feet high, each with two street lights at the top. These poles are positioned to line up directly with the Capitol steps on which the structure complained of is located. All of the poles have been festively decorated with evergreen strands and red bows which are secular symbols of the holiday. As stipulated, there are also decorated trees along the two curblines.

The structure complained of here is obviously a rustic stable. As the parties have stipulated, it is a symbol of the Christian origins of the Christmas holiday. It is, however, unlike any of the nativity scenes described in the numerous cases cited below in this opinion.

The structure has apparently been designed to be viewed from afar, as one approaches the Capitol Building down the broad Capitol Avenue thoroughfare.

Also, unlike any outdoor nativity scene of that size the court has ever seen, this display does not contain animals and statues for spectators to file by and view. Unless a special pageant as described in the parties' stipulation is in progress, there would be no reason for a spectator to attempt to look into the structure. Indeed, during the court's formal inspection, there was no one in the vicinity of the display except the court's staff, the attorneys, reporters, and some spectators from the courtroom who had followed...