Chabad-Lubavitch of Georgia v. Miller

• Decision Date: 10 November 1992
• Docket Number: CHABAD-LUBAVITCH,No. 92-8008,92-8008
• Citation: 976 F.2d 1386
• 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 1386

976 F.2d 1386

61 USLW 2328

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.

Nov. 10, 1992.

Gerald L. Pouncey, Jr., Morris, Manning & Martin, Atlanta, Ga., Nathan Lewin, Stuart A. Levey, David S. Cohen, Miller, Cassidy, Larroca & Lewin, Washington, D.C., 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 KRAVITCH and COX, Circuit Judges, and DYER, Senior Circuit Judge.

PER CURIAM:

Appellants are a Jewish organization and two rabbis who were denied permission by the State of Georgia to display a Chanukah menorah in the State Capitol Rotunda for the eight-day Chanukah observance in 1991. The district court granted summary judgment in favor of the State, based on its conclusion that by permitting the display in the Rotunda the State would send an impermissible message of the State's endorsement of religion in violation of the Establishment Clause.

The district court found that the State intentionally opened the Rotunda to numerous varieties of speech and symbolic expression, from political to religious, through its consistent application of a content-neutral, equal access policy. The district court concluded as a matter of law that the Rotunda is a "limited" or "created" public forum, but that the proposed unattended display of a 15-foot tall menorah for an 8-day period was properly denied by the State.

We agree with the decision of the district court and adopt its opinion, which we attach as an appendix, as the opinion of this court.

AFFIRMED.

APPENDIX

United States District Court

Northern District of Georgia

Atlanta Division

Chabad-Lubavitch of Georgia, Yossi New, and Yossi Lerman

vs.

Zell Miller, Michael J. Bowers, Luther Lewis, and Max Cleland

Civ. No. 1:90-cv-2730-ODE

ORDER

This case alleging violations of the First Amendment is before the court on Plaintiffs' motion for partial summary judgment and injunctive relief on Count II of Plaintiffs' Second Amended Verified Complaint and on Defendants' motion for summary judgment.

Plaintiff Chabad-Lubavitch of Georgia ("Chabad") is a Hasidic Jewish group based in Georgia which is dedicated to reawakening and educating other Jews and the public on the Jewish faith. Plaintiffs Rabbi Yossi New and Rabbi Yossi Lerman are two members of Chabad. This dispute arises from Plaintiffs' attempt to maintain a menorah on the plaza in front of the State Capitol building in Atlanta, Georgia, or alternatively in the Rotunda of the Captitol Building, for the duration of Chanukah, 1991.

The facts in this case are uncontested. Much of the procedural and factual history of this case has previously been recounted in this court's opinion of December 11, 1990 which denied Plaintiffs' motion for temporary restraining order. See Chabad-Lubavitch of Georgia, Inc. v. Harris, 752 F.Supp. 1063 (N.D.Ga.1990). For ease of reference, the court will again summarize the history of the case.

During Chanukah, 1989, Plaintiffs erected a fifteen foot high steel menorah on the plaza in front of the State Capitol. The menorah was accompanied by a bright yellow sign which read "HAPPY CHANUKA from CHABAD OF GEORGIA." The menorah was lit in a religious ceremony and remained on the plaza for the eight days of Chanukah. Each day it was re-lit for thirty to forty-five minutes. Prior to placing the menorah on the plaza in 1989, Plaintiffs sought permission from the Georgia Building Authority which, along with the Governor's office, has authority over the Capitol grounds. They received permission from Defendant Luther Lewis, who was then Acting Director of the Georgia Building Authority.

During December, 1989, while the menorah was on display, Stanley Gunter of the Governor's staff noticed it. At the hearing on Plaintiffs' motion for temporary restraining order, Mr. Gunter testified that he became concerned about the establishment clause implications of the display and that he resolved to check out that concern if Chabad made another request to display the menorah. At about the same time, Mr. Gunter also noticed a live nativity scene, sponsored and organized by the Georgia Building Authority, in the Rotunda of the Capitol. The nativity scene was surrounded by a Christmas tree, reindeer, gifts and a Santa Claus.

Prior to Chanukah, 1990, an employee of Chabad telephoned Mr. Gunter and requested permission to once again erect the menorah on the plaza. A request was also made to repeat the candle-lighting ceremony. On November 1, 1990, the office of Governor Joe Frank Harris sent a letter to Attorney General Michael J. Bowers requesting that he review and analyze the proposed 1990 Rotunda Christmas display, the menorah display and the proposed Chanukah candle-lighting ceremony to determine whether they violated the establishment clause of the First Amendment. In response, the Attorney General sent Governor Harris an opinion letter. That letter concluded that the 1990 Rotunda display, which would have consisted of a live nativity scene and would have been opened with religious music and prayers, violated the establishment clause. As to Plaintiffs' activities, the Attorney General concluded that the candle-lighting ceremony, which included the display of the menorah for a short period in the plaza area, did not violate the First Amendment. However, the Attorney General opined that the display of the menorah for the entire eight days of Chanukah created an impermissible appearance of State sponsorship.

On November 14, 1990, Mr. Gunter telephoned Chabad and related the Attorney General's opinion that the menorah display throughout Chanukah would be unconstitutional. At that time, Mr. Gunter denied Chabad's request for the eight day display. A candle-lighting ceremony, including use of the menorah, was approved for December 18, 1990. ¹ On December 7, 1990, in response to the denial of their request to display the menorah during the eight days of Chanukah, Plaintiffs filed a complaint and motion for temporary restraining order. Three days later, Plaintiffs filed their first amended complaint. That complaint alleged that by denying Plaintiffs' request to erect and maintain a menorah during Chanukah, Defendants had engaged in content-based discrimination that was not supported by a compelling governmental interest. Chabad sought a preliminary and permanent injunction authorizing and ordering Defendants to permit the erection and maintenance of the menorah on the plaza of the State Capitol for the duration of Chanukah.

On December 10, 1990, the court held an evidentiary hearing on Plaintiffs' motion for temporary restraining order. By order dated December 11, 1990, the court denied that motion on the grounds that the Georgia Building Authority Buildings and Grounds Policy, adopted at the annual meeting of the Georgia Building Authority more than two years prior to Plaintiffs' request, forbade the placement of any unattended display on the Capitol grounds. The court found that this policy was a reasonable time, place and manner regulation in that it was "content neutral", "narrowly tailored to serve a significant government interest" and "[left] open ample alternative channels of communication." 752 F.Supp. at 1068. Therefore, the court found that Chabad was unlikely to succeed on the merits in showing a violation of the First Amendment.

Chabad immediately filed an emergency motion with the United States Court of Appeals for the Eleventh Circuit. On December 12, the Court of Appeals denied Plaintiffs' emergency motion. Thereafter, Plaintiffs' dismissed their appeal, and elected to proceed to judgment in this court.

In January, 1991, Chabad renewed its request to display its menorah on the grounds of the State Capitol. In addition to that request, which was identical to the request of previous years, Chabad made an alternative request to erect its menorah inside the Capitol Rotunda. On March 13, 1991, after receiving no response to either of these requests, Plaintiffs filed a motion to amend their complaint. ² By order dated April 25, this court granted Plaintiffs' motion as unopposed. Plaintiffs' second amended complaint added a Count II in which Plaintiffs sought a permanent injunction authorizing and ordering Defendants to permit the erection and maintenance of a menorah in the Rotunda of the State Capitol. On November 7, 1991, Plaintiffs filed a motion for partial summary judgment on Count II. The next day, Defendants filed a motion for summary judgment on both counts of Plaintiffs' complaint.

For the sake of simplicity, the court will address Defendants' motion for summary judgment first. In Plaintiffs' brief in opposition to Defendants' motion for summary judgment, Plaintiffs acknowledge that the State is entitled to summary judgment on Count I of the complaint. Specifically, Plaintiffs agree that the Georgia Building Authority Buildings and Grounds Policy--which prohibits the placing of unattended objects on the plaza of the State Capitol--has been enforced by the State in a content-neutral manner. As such, Plaintiffs acknowledge that the State may refuse to permit Chabad to place its menorah on the Capitol plaza for the eight-day duration of Chanukah. Accordingly, Defendants' motion for summary judgment as to Count I of Plaintiffs' complaint is GRANTED as unopposed.

Defendants' motion for summary judgment as to Count II of the complaint requires substantially more analysis. The parties agree that the Georgia Building Authority Buildings and Grounds Policy, which prohibits the placing of unattended objects on the plaza of the State...