Chabad-Lubavitch of Georgia v. Miller

• Decision Date: 18 October 1993
• Docket Number: No. 92-8008,CHABAD-LUBAVITCH,92-8008
• Citation: 5 F.3d 1383
• Parties: OF GEORGIA, Yossi New, Rabbi, Yossi Lerman, Rabbi, Plaintiffs-Appellants, v. Zell MILLER, Governor of Georgia, Michael J. Bowers, Attorney General of Georgia, Luther Lewis, Acting Director, Georgia Building Authority, Max Cleland, Secretary of State of Georgia, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1383

5 F.3d 1383

62 USLW 2260

CHABAD-LUBAVITCH OF GEORGIA, Yossi New, Rabbi, Yossi Lerman Rabbi, Plaintiffs-Appellants, v. Zell MILLER, Governor of Georgia, Michael J. Bowers Attorney General of Georgia, Luther Lewis, Acting Director Georgia Building Authority, Max Cleland, Secretary of State of Georgia, Defendants-Appellees.

No. 92-8008.

United States Court of Appeals, Eleventh Circuit.

Oct. 18, 1993.

Nathan Lewin, Stuart A. Levey, David S. Cohen, Miller, Cassidy, Larroca & Lewin, Washington, DC, for plaintiffs-appellants.

Ray O. Lerer, Sr. Asst. Atty. Gen., Atlanta, GA, for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, Chief Judge, FAY, KRAVITCH, HATCHETT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, and CARNES, Circuit Judges.

TJOFLAT, Chief Judge:

In this case, a state refuses to allow a religious group to erect and maintain a religious display in a public forum within a core government building for the duration of an eight-day religious holiday. The state claims that the Establishment Clause of the First Amendment, which prohibits it from establishing a religion, requires that it deny the group's request. The religious group, contending that the state's refusal denies the group's First Amendment right of free speech, seeks an injunction requiring the state to allow the display.

The district court concluded that the state had a compelling interest in avoiding an Establishment Clause violation, and it therefore denied the religious group's application for injunctive relief. We conclude that no such interest is present in this case. Although the state has a compelling interest in avoiding violations of the Establishment Clause, granting the group's request to maintain its display in the public forum at hand will not convey the message that the state is endorsing, and thus establishing, the group's religion. Accordingly, we reverse.

I.

Appellants are Chabad-Lubavitch of Georgia (Chabad) and Rabbis Yossi New and Yossi Lerman, both of whom are members of Chabad. Chabad is the local affiliate of Chabad-Lubavitch, a nonprofit religious organization with offices throughout this country and around the world. Chabad-Lubavitch seeks to minister to the needs of the Jewish community; its primary goal is to reawaken Jews' interest in their Jewish heritage.

In 1989, Chabad sought and obtained permission from the Georgia Building Authority and the Governor's office to erect and maintain a Chanukah menorah ¹ on the plaza ² in front of the State Capitol Building during the eight-day celebration of Chanukah. During that period, Chabad continuously displayed its privately owned, fifteen-foot tall, stainless steel menorah on the plaza. A bright yellow sign proclaiming "HAPPY CHANUKAH from CHABAD OF GEORGIA" accompanied the menorah. In addition, at sundown each day, Chabad conducted a forty-five minute candle-lighting ceremony. Other than during this ceremony, no Chabad representative stayed with the menorah.

In October 1990, Chabad again sought permission to erect and maintain its menorah and accompanying sign on the plaza during Chanukah. The Governor's office responded by informing Chabad that permission to erect the menorah would turn on the Georgia Attorney General's forthcoming opinion letter on the constitutional implications of Chabad's intended menorah display.

The Attorney General's opinion letter issued on November 30, 1990, and concluded that allowing Chabad's intended eight-day display would violate the Establishment Clause of the First Amendment. ³ On December 3, the Governor's office denied Chabad's request to display the menorah. The office indicated, however, that Chabad could conduct a candle-lighting celebration on December 18, the last night of Chanukah, if Chabad removed the menorah from the plaza following the ceremony.

With Chanukah to begin at sundown on December 11, 1990, Chabad brought this suit on December 7 against the Governor, the Attorney General, the Secretary of State of Georgia, and the Acting Director of the Georgia Building Authority (collectively "Georgia" or the "State"). Alleging that Georgia's denial of its request to erect and maintain a menorah on the plaza in front of the Capitol Building for the duration of Chanukah violated its First Amendment right of free speech, ⁴ Chabad sought preliminary and permanent injunctive relief requiring the State to allow the display. ⁵

On filing its complaint, Chabad applied for a temporary restraining order (which, if issued, would in effect grant the organization a preliminary injunction). On December 11, the district court denied Chabad's application. In its dispositive order, the district court found that, although Chabad had a First Amendment right to exhibit the menorah on the plaza because the plaza is a public forum, its right was subject to the Georgia Building Authority's content-neutral restrictive-use policy, which prohibits private citizens from placing objects, such as the menorah, on public property, such as the plaza. See Chabad, 752 F.Supp. at 1066-68. Chabad appealed and immediately moved this court to grant the coercive relief the district court had denied. We declined to grant the relief, and Chabad dismissed its appeal.

On January 9, 1991, Chabad requested permission from the Governor's office to place a menorah either on the plaza in front of the Capitol Building or inside the Capitol Rotunda for the duration of Chanukah 1991. The Rotunda is an open space under the dome in the center of the Capitol Building.

Over the past decade, Georgia has opened the Rotunda to Georgia's citizenry for their expressive activities both secular and religious in nature. Secular programs that have taken place in the Rotunda include a Mental Health Awareness event, a "Just Say No" event, a National Organization for the Reform of Marijuana Laws press conference, a Georgia Family Council news conference, a "Parental Notification" group press conference, and a "Georgia Rights to Abortion" press conference. Religious programs held in the Rotunda have included invocations by a Methodist minister at the annual presentation of a state-sponsored Christmas tree and two Holocaust Commemoration ceremonies with religious benedictions. Additionally, certain groups have erected and maintained unattended displays in the Rotunda for various periods of time, including an eighteen-foot tall Indian Wattle and Daub Hut during the annual Indian Heritage Week (five days), a forty-one poster exhibit sponsored by the Atlanta Jewish Federation (eight days), and a thirty-five flag exhibit during "International Week" (five days). As the district court subsequently found, Georgia has permitted these and other cultural, educational, historical, and religious events to take place in the Rotunda pursuant to a "content-neutral, equal access policy ... on a first-come, first-serve basis to all interested parties." Chabad-Lubavitch of Ga. v. Miller, 976 F.2d 1386 app. at 1390 (11th Cir.1992).

On April 25, 1991, Chabad, having received no response to its January 9 request, amended, with leave of court, the complaint it had filed on December 7, 1990. The amended complaint presented two First Amendment claims for injunctive relief. In count I, Chabad asked the court to require the State to allow it to display its menorah for the duration of Chanukah 1991 on the plaza in front of the State Capitol Building; in count II, Chabad asked for the same relief in the Rotunda of the Capitol Building.

On November 7, 1991, Chabad moved for summary judgment on count II. ⁶ The next day, Georgia moved for summary judgment on both counts. On December 5, 1991, the district court, concluding that concern for violating the Establishment Clause gave the State a compelling (and thus valid) reason for denying Chabad's request, granted Georgia's motion for summary judgment. ⁷ Chabad immediately appealed, challenging the district court's disposition of count II. A divided panel of this court affirmed, adopting, in full, the district court's order granting summary judgment. Chabad-Lubavitch of Ga. v. Miller, 976 F.2d 1386 (11th Cir.1992). On April 5, 1993, we granted Chabad's petition for rehearing en banc. Chabad-Lubavitch of Ga. v. Miller, 988 F.2d 1563 (11th Cir.1993).

II.

The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech." U.S. Const. amend. I. Religious speech enjoys sanctuary within the First Amendment. See Widmar v. Vincent, 454 U.S. 263, 269, 102 S.Ct. 269, 274, 70 L.Ed.2d 440 (1981) ("[R]eligious worship and discussion ... are forms of speech and association protected by the First Amendment."). The Supreme Court has "long recognized that [the First Amendment's] protection does not end at the spoken or written word." Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 2539, 105 L.Ed.2d 342 (1989). Our sister circuits have recognized as a matter of course that displaying a religious symbol is protected speech under the First Amendment. See, e.g., Kreisner v. City of San Diego, 988 F.2d 883, 891 (9th Cir.1993); Americans United for Separation of Church and State v. City of Grand Rapids, 980 F.2d 1538, 1542 (6th Cir.1992) (en banc ); Doe v. Small, 964 F.2d 611, 618-19 (7th Cir.1992) (en banc ); cf. Johnson, 491 U.S. at 406, 109 S.Ct. at 2540 (burning American flag is protected speech under the First Amendment); Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 505-06, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969) (wearing a black armband is protected speech). We agree.

The district court properly identified Georgia's exclusion of Chabad's menorah display from the Rotunda as based solely upon the religious content of Chabad's speech. A state's content-based exclusion of a display from a public forum is permissible only if the exclusion withstands strict scrutiny review. See United States v. Kokinda, 497 U.S. 720, 726, 110 S.Ct. 3115,...