American Civil Liberties Union v. City of Birmingham

• Decision Date: 11 June 1986
• Docket Number: No. 84-1637,84-1637
• Parties: AMERICAN CIVIL LIBERTIES UNION, and Micki Levin, Plaintiffs-Appellees, v. CITY OF BIRMINGHAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1561

791 F.2d 1561

55 USLW 2006

AMERICAN CIVIL LIBERTIES UNION, and Micki Levin, Plaintiffs-Appellees, v. CITY OF BIRMINGHAM, Defendant-Appellant.

No. 84-1637.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 27, 1986.

Decided June 11, 1986.

Jon H. Kingsepp, Beier, Howlett, Hayward, McConnell, McCann, Jones, Kingsepp, Shea, Charles J. Porter (argued), Bloomfield Hills, Mich., for defendant-appellant.

Daniel J. Popeo, George Smith, Washington, D.C., amicus curiae (Washington Legal Foundation).

James Schuster, Robert A. Sedler (argued), Detroit, Mich., for plaintiffs-appellees.

Before LIVELY, Chief Judge, and MERRITT and NELSON, Circuit Judges.

LIVELY, Chief Judge.

This First Amendment case involves the Christmastime display of a city-owned creche, or nativity scene, on the front lawn of the city hall of Birmingham, Michigan. Much of the argument before the district court concerned the application to this case of the Supreme Court's decision in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). In Lynch the Court found no First Amendment violation in Pawtucket, Rhode Island's inclusion of a city-owned creche in a seasonal display containing many familiar Christmas symbols such as decorated trees, candy striped poles and a Santa Claus house and reindeer-powered sleigh. The district court distinguished Lynch and held that the display violated the Establishment Clause. American Civil Liberties Union v. City of Birmingham 88 F.Supp. 1337 (E.D.Mich.1984).

I.

The facts are not in dispute. The district court stated the admitted facts as follows:

1. Annually, during the Christmas season, from approximately late November through early January of the following year, the City of Birmingham displays a nativity scene on the lawn of the Birmingham City Hall. The nativity scene is comprised of figurines depicting the Christ Child, the Mother Mary, Joseph, three costumed shepherds, and several lambs. Absolutely nothing else is included in the display.

2. In all matters herein, the defendant city was acting as a governmental unit under color of state law, custom or usage, by and through its functionaries, employees, agents or elected officials.

3. The nativity scene was displayed on public property in front of Birmingham City Hall, a place open to the general public. When not displayed on public property, it was stored on public property. The figures in the nativity scene were built at public expense, and the electricity used in connection with the display was furnished out of public funds. The nativity scene was cleaned, restored, repaired and maintained at public expense, and was dismantled and conveyed to storage by public employees at public expense.

588 F.Supp. 1338. The district court described the Christmas display challenged in Lynch and discussed the Supreme Court's holding as follows:

The Pawtucket display was situated in a park owned by a non-profit organization and was located in the heart of the Pawtucket shopping district. It consisted of many of the figures and decorations traditionally associated with the winter holiday season, including a Santa Clause [sic] house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing a clown, an elephant, and a teddy bear, a "SEASONS GREETINGS" banner and hundred of lights, as well as the nativity scene. The court in Lynch determined that the display was sponsored by the city of Pawtucket in order to celebrate the holiday season and to depict the origins of that holiday, and that there were legitimate secular purposes for the display. There being secular purposes for the display, the court found that there was no attempt by the defendant city to express any kind of subtle government advocacy of a particular religious message.

Although the Lynch opinion is replete with references to the significant role that religion has played in the development of our nation, it does not, either on its face or in any implicit proclamation, hold that a nativity scene standing alone, or that any other single religious symbol or group of such symbols erected on public property with public funds, complies with the requirements of the separation of church and state required by our Constitution.

Id. at 1338-39.

As the Supreme Court did in Lynch, the district court in the present case applied the three-part test of Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971), to determine whether a challenged practice is permitted:

First, the practice must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, it must not foster an excessive government entanglement with religion.

Id. at 1339.

The district court concluded that the Birmingham creche display failed all three prongs of the Lemon test. Emphasizing the absence of any nonreligious Christmas symbols in the Birmingham setting, the district court found no secular purpose for the display. In addition, the district court found it clear that the primary effect of the display "must be to advance, affirm, approve and otherwise validate the Christian religion, in that implicit government support of the religion represented by the sacred figures must be presumed by onlookers." Id. The district court found that the display failed the third Lemon test--excessive entanglement--because its purely religious character "might cause political divisiveness." Id.

II.

This appeal was well briefed by the parties and amici, and well argued. There is a temptation for the court to write too much in a case such as this, since the Establishment Clause has produced a confusing body of law, which is sometimes difficult to apply. Despite the absolute language employed by the authors of the First Amendment and Thomas Jefferson's metaphorical reference to the "wall" between church and state, the Supreme Court has approved many "accommodations" to the religious heritage of the nation.

The particular condition that the Founding Fathers sought to prohibit by inclusion of the Establishment Clause in the First Amendment was the often tyrannical alliance between European governments and their official state religions. There was to be no established national church in the United States. However, the Establishment Clause was concerned with a larger evil, most often embodied in the establishment of official churches. The larger evil is government involvement in individual religious decisions. Every person must be free to make decisions in religious matters without any compulsion or interference by government. A statute or government practice that has the effect of impeding individuals from making free choices in religious matters by appearing either to embrace or reject a particular religion violates the Establishment Clause. This analysis seems consistent with that of Justice O'Connor, who concurred separately in Lynch, a 5 to 4 decision. Justice O'Connor stated the central issue in Lynch as whether the city endorsed Christianity by its display of the creche. After eliminating the issue of excessive entanglement, she approached the remaining two prongs of the Lemon test as follows:

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, 465 U.S. at 690, 104 S.Ct. at 1368.

A majority of the Supreme Court appears to have adopted this approach. In Grand Rapids School District v. Ball, --- U.S. ----, 105 S.Ct. 3216, 3226, 87 L.Ed.2d 267 (1985), Justice Brennan wrote for the Court:

Government promotes religion as effectively when it fosters a close identification of its powers and responsibilities with those of any--or all--religious denominations as when it attempts to inculcate specific religious doctrines. If this identification conveys a message of government endorsement or disapproval of religion, a core purpose of the Establishment Clause is violated. See Lynch v. Donnelly, 465 U.S. 668, 687, 104 S.Ct. 1355, 1366, 79 L.Ed.2d 604 (1984) (O'CONNOR, J., concurring).

(Citation omitted).

We will attempt the same approach in the present case.

III.

In support of the district court's holding, the plaintiffs point to differences between the facts in Lynch and those disclosed by the present record. In his opinion for the Lynch majority Chief Justice Burger described the Pawtucket Christmas display:

Each year, in cooperation with the downtown retail merchants' association, the city of Pawtucket, R.I., erects a Christmas display as part of its observance of the Christmas holiday season. The display is situated in a park owned by a nonprofit organization and located in the heart of the shopping district. The display is essentially like those to be found in hundreds of towns or cities across the Nation--often on public grounds--during the Christmas season. The Pawtucket display comprises many of the figures and decorations traditionally associated with Christmas, including, among other things, a Santa Claus house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, a large banner that reads "SEASONS GREETINGS," and the creche at issue here. All components of this display are owned by the city.

The creche, which has been included in the display for 40 or more years, consists of the traditional figures, including the Infant Jesus, Mary and Joseph, angels, shepherds, kings, and animals, all ranging in height from 5"" to 5'. In 1973, when the present creche was acquired, it cost the city $1,365; it now is...