Burelle v. City of Nashua

• Decision Date: 18 December 1984
• Docket Number: Civ. No. 82-705-D.
• Citation: 599 F. Supp. 792
• Parties: Albert BURELLE; Bliss Woodruff v. CITY OF NASHUA; James W. Donchess, individually and officially as Mayor of the City of Nashua; Irving Gallant, individually and as Treasurer for the City of Nashua; Noel Trottier, individually and as Director of Department of Parks and Recreation of the City of Nashua.
• Court: U.S. District Court — District of New Hampshire

599 F. Supp. 792

Albert BURELLE; Bliss Woodruff v. CITY OF NASHUA; James W. Donchess,¹ individually and officially as Mayor of the City of Nashua; Irving Gallant, individually and as Treasurer for the City of Nashua; Noel Trottier, individually and as Director of Department of Parks and Recreation of the City of Nashua.

Civ. No. 82-705-D.

United States District Court, D. New Hampshire.

December 18, 1984.

I. Michael Winograd, Concord, N.H., for plaintiffs.

Steven A. Bolton, Nashua, N.H., for defendants.

MEMORANDUM OPINION

DEVINE, Chief Judge.

The United States was founded by persons who fled largely from religious persecution. Indeed, when the new states debated the proposed federal constitution, the proponents of that charter of freedom made clear that established religion was to be therein prohibited.²

Frightened by what they perceive to be forces of darkness, some Americans in the modern age seek to exorcise their fears by insistence upon religious conformity. In so doing, they disregard the sensitivity of equally loyal citizens whose approach to the most private matter of religious belief differs from their own.

The instant litigation is one of numerous unnecessary controversies arising from the perceived use of publicly-owned property to espouse tenets of an individual religious belief. It concerns the propriety of the erection and maintenance of a privately-owned crèche, or Nativity scene, on the grounds of the building which houses the municipal government offices of the City of Nashua, New Hampshire. A litigation of this class has recently been described by a contemporary political columnist, who is a sometime Presidential debate coach, as "unneighborly",³ but it nevertheless involves significant constitutional questions.

The relief sought by these plaintiffs is injunctive in nature. In turn, the Court must therefore consider whether plaintiffs will suffer irreparable injury if the injunction is denied, whether such injury outweighs any harm that injunctive relief would cause the defendants, whether plaintiffs have a likelihood of succeeding on the merits, and whether the public interest would not be harmed by a preliminary injunction. Wald v. Regan, 708 F.2d 794, 801 (1st Cir.1983), rev'd on other grounds, sub nom., Regan v. Wald, ___ U.S. ___, 104 S.Ct. 3026, 82 L.Ed.2d 171 (1984); San Francisco Real Estate Investors v. Real Estate, et al., 701 F.2d 1000, 1002 (1st Cir.1983). It is, of course, elemental that loss of First Amendment freedom for even minimal periods of time unquestionably constitutes irreparable harm. Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976) (plurality opinion by Brennan, J.).

Briefly stated, the relevant facts are as follows. For a number of years prior to December 1982, defendant City owned, erected, and displayed the crèche in question on its City Hall plaza, a piece of ground between the sidewalk proper and the front of the City Hall building. Upon the original filing of this litigation in that month and year, the City conveyed all of its right, title, and interest in and to the crèche and its components to Heart of Nashua Foundation, Inc. ("Foundation"), a nonprofit corporation composed of a group of downtown merchants. Deft.Ex.A. At the same time, defendant City granted to Foundation a license to erect and maintain holiday scenes and decorations between November 1 and the following January 31 over various streets and sidewalks in Nashua "together with the plaza in front of the Main Street entrance to City Hall". Deft. Ex.B. Since December 1982, therefore, Foundation has stored and erected the crèche at its own expense. However, the crèche has always been placed in a prominent position on the City Hall plaza, unadorned with any secular symbols of the holiday season.

Plaintiff Woodruff,⁴ an architect by profession, and a resident taxpayer of the City of Nashua, professes a religious belief other than that which accepts Christ to be the Son of God.⁵ On the morning of the day of hearing, he viewed the crèche, which, as it had been observed by him for many years, stood in the same prominent position alone on the plaza of City Hall between the sidewalk and front entrance of the municipal building. No secular symbols accompanied the free-standing crèche, nor were there any disclaimer signs announcing to those of the viewing public that the Nativity scene was in fact the property of and erected by Foundation.

Woodruff testified that he felt that such display of a religious symbol caused him to sustain irreparable harm, as it conveyed the message that the Trinitarian form of Christianity was the religion favored by his municipal government and that those who did not follow such beliefs were, of necessity, second-class citizens.

It appears that over the years defendant City has granted to various religious and philanthropic groups free licenses to use the plaza area for fund raising and other such activities. None of such events, however, have apparently lasted more than twenty-four hours or been of permanent placement around-the-clock over a period of time.

Reverend Alden Flanders, an Episcopal priest and teacher of religion at St. Paul's School in Concord, New Hampshire, testified that the crèche is definitely a religious symbol, denoting to those who see it memory of the birth of the Christ Child. While the birth of Christ is a historical fact, the witness testified that the Wise Men, shepherds, and other attendants at the Nativity scene have not so been verified.

Before moving to discussion of the particulars of the legal rules here applicable, the Court first turns to the contention of defendants that the matter cannot proceed without the necessary presence of Foundation. Presumably grounded on Rule 19(a), Fed.R.Civ.P.,⁶ the thrust of this argument is that without Foundation before it, the Court will be unable to fashion an order which will solve the problems here raised. Guided, as it must be, by the pragmatic considerations which turn on the particular facts of this case, Lopez v. Arraras, 606 F.2d 347, 353 (1st Cir.1979) (and authorities therein cited), the Court determines that in "equity and good conscience", Rule 19(b), Fed.R.Civ.P.,⁷ this action can proceed without the presence of Foundation.

The First Amendment to the Constitution of the United States provides in pertinent part that "Congress shall make no law respecting an establishment of religion...." Applicable to the states, Everson v. Board of Education, 330 U.S. 1, 8, 67 S.Ct. 504, 508, 91 L.Ed. 711 (1947); Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940), the Establishment Clause, when litigated, has presented "especially difficult questions of interpretation and application". Mueller v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 3065, 77 L.Ed.2d 721 (1983).

On its facts, the instant case is strikingly similar to McCreary v. Stone, 575 F.Supp. 1112 (S.D.N.Y.1983), rev'd, 739 F.2d 716 (2d Cir.1984), cert. granted sub nom., Village of Scarsdale Board of Trustees v. McCreary, ___ U.S. ___, 105 S.Ct. 291, 83 L.Ed.2d 227 (1984). In that case, the Village governing body, its board of trustees, denied certain private groups access to a public park for the purpose of displaying a privately-owned crèche. Such display had in fact been permitted in prior years, albeit amidst growing acrimony. Attempts to moderate the dispute by removal of the crèche to private property were rejected by its sponsors, who claimed constitutional validity for their "tradition" of display of the crèche in the public park. The Village trustees having denied access to the park for such purpose, the protagonists of such display brought suit.

In a thorough and scholarly opinion, the trial court found that (1) the placing of a religious symbol—the crèche—on public land converted such public land into a bearer of a religious message; and (2) in such instance, members of the public would assume that the religious message thus depicted was supported by the municipal government. McCreary v. Stone, supra, 575 F.Supp. at 1130-31. In so ruling, the court distinguished other past usages of the park, such as church picnics, use of public buildings for religious ceremonies, use of public ways to raise funds for religious philanthropies, or the saying of prayers or giving of benediction at holiday gatherings on public property. This distinction was based on the fact that, in contrast to such public gathering usages, both the supporters of and objectors to display of the crèche on public property assumed their respective positions precisely because such usage gave an aura of Village support to the crèche. Id. at 1131. The court therefore held that the Village acted properly in accordance with the requirements of the Establishment Clause in denying access to the public park for display of the crèche.

Subsequent to the decision of the trial court in McCreary, supra, the Supreme Court handed down its decision in Lynch v. Donnelly, ___ U.S. ___, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). In that case, the Court held that a publicly-owned crèche which was included in an annual holiday display erected by the City of Pawtucket, Rhode Island, in a private park was not violative of the Establishment Clause. As the crèche was but one part of a display which included such secular symbols of the holiday season as "a Santa Claus house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, carolers, cut-out figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, a large banner that reads `SEASONS GREETINGS'", as well as the crèche, 104 S.Ct. at 1358, the creation of such display fell within the parameters of a legitimate secular purpose. Id. 104 S.Ct. at 1363.

If the presence of the crèche in this display violates the Establishment Clause, a host of other forms of taking official note of Christmas, and of our religious

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