CITIZENS, ETC. v. City and County of Denver

• Decision Date: 04 December 1981
• Docket Number: Civ. A. No. 80-DW-1661.
• Citation: 526 F. Supp. 1310
• Parties: CITIZENS CONCERNED FOR SEPARATION OF CHURCH AND STATE, Plaintiff, v. The CITY AND COUNTY OF DENVER, Defendant.
• Court: U.S. District Court — District of Colorado

526 F. Supp. 1310

CITIZENS CONCERNED FOR SEPARATION OF CHURCH AND STATE, Plaintiff, v. The CITY AND COUNTY OF DENVER, Defendant.

Civ. A. No. 80-DW-1661.

United States District Court, D. Colorado.

December 4, 1981.

Jonathon B. Chase and Mark J. Loewenstein, Boulder, Colo., for plaintiff.

Stan M. Sharoff and Darlene M. Ebert, Denver, Colo., for defendant.

MEMORANDUM DECISION AND ORDER

WINDER, District Judge.

This is a civil action in which Citizens Concerned for Separation of Church and State (Citizens), an unincorporated association, seeks a declaratory judgment and an injunction to prevent the City and County of Denver (City) from displaying, storing, and appropriating public funds for a nativity scene which is part of the City and County of Denver's annual Christmas lighting display. The claim arises under 42 U.S.C. § 1983 and jurisdiction is based upon 28 U.S.C. § 1343(3). The plaintiff's principal contention is that the presence of the creche on the steps of the City and County Building violates the Establishment Clause of the First Amendment.

Plaintiff's motion for a preliminary injunction was heard in January of 1981 (Preliminary Hearing). At that hearing, both sides offered extensive evidence in support of their positions. Although consolidation as provided for in Fed.R.Civ.P. 65(a)(2) was neither agreed to by the parties nor ordered by the court, the admissible evidence received there may be considered in determining the case on the merits. Most of the evidence supporting this decision was introduced at the preliminary hearing. The history and facts of the case are adequately set forth in the opinion denying preliminary injunctive relief. Citizens Concerned for Separation of Church and State v. The City and County of Denver, 508 F.Supp. 823 (D.Colo.1981). That opinion is adopted as the final decision in this case with the following additions and corrections that were necessitated by the final hearing on the merits (Final Hearing) held in August, 1981.

This case is governed by the three part test for determining whether governmental activity violates the Establishment Clause of the First Amendment.

First, the action must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion ...; finally, the action must not foster `an excess of governmental entanglement with religion.'

Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745. The application of this test to the facts of this case is discussed at length in the court's prior opinion.

I. PURPOSE

The court remains convinced that City has shown a sufficient secular legislative purpose for its sponsorship of the display and the inclusion of a creche in that display. No re-examination of the court's decision on this subject is necessitated by the evidence adduced at the final hearing. Since the original decision in this matter, however, the United States District Court for the District of Rhode Island has reached an opposite conclusion on similar facts. See Donnelly v. Lynch, 525 F.Supp. 1150 (D.R.I. 1981). That decision was based in part on a finding that a creche is an exclusively religious symbol and that the scene "was made part of the display in order to express the City's approval and endorsement of the religious message that the symbol conveys." Id., at 1174. On the basis of the evidence that has been introduced in this case, this court cannot make the same finding, with all due respect to the Rhode Island decision.

II. EFFECT

The evidence introduced at the final hearing does, however, require a re-examination and expansion of that portion of the opinion which concerns the effect prong of the test. The focus of the effect prong is whether the "principal or primary effect" of the government's activity advances or inhibits religion.

At the final hearing, Citizens argued that the Supreme Court's decision in Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973), changed the focus of the effect prong. In Citizens' view, the inclusion of a nativity scene in a city sponsored Christmas lighting display would violate the Establishment Clause if the display's tendency to advance or inhibit religion was more than remote or indirect. In support of that contention, Citizens cited footnote 39 of the Nyquist decision where the Court declined to determine the primary effect of the school aid program at issue in relation to secular objectives. The government argued in Nyquist that the court must find a single principle or primary effect and find the school aid program unconstitutional only if that effect is to advance or inhibit religion. In this court's view, the Supreme Court did not intend to lessen the standard of impermissible effect by its decision in Nyquist. In fact, the standard which the Court applies in that case was the primary effect standard. Nyquist, supra, at 773-774, 93 S.Ct. at 2965-2966. The "metaphysical judgment" the Court declined to make in Nyquist was the determination of a single primary effect. It recognized that there may be more than one primary effect and that government action which has the "direct and immediate" or, as stated elsewhere in footnote 39, "the direct and substantial" effect of advancing or inhibiting religion also has that primary effect.

The difference between the standard urged by Citizens and that adopted by the court in this case may be more semantic than practical, but Citizens cannot prevail on a mere showing that the nativity scene in the City's display has only a remote or indirect tendency to advance or inhibit religion. Rather, it is required to show that the effect is direct and immediate.

In this case, determining the standard is easier than applying the facts to that standard. In the school aid cases such as Lemon and Nyquist, the government attempts to confer a tangible financial benefit on an educational institution. In cases of that sort, the determination of whether a primary or direct benefit is conferred upon a religion is comparatively easy. It is more difficult in the context of this case, where the benefit or detriment is conferred by the public display of what may be perceived as a religious symbol. Such a benefit or detriment is by its nature intangible and the determination of whether it is direct and immediate is, therefore, elusive.

Citizens maintains that the prohibited effect arises in the appearance of the government's endorsement of a particular religious persuasion. The court agrees that an endorsement by the City of a particular faith through the display of a religious symbol could have a direct and immediate effect of advancing or inhibiting religion. The problem arises in determining whether the City's use of a nativity scene as part of a larger display constitutes such an endorsement: Is the test whether the court, viewing the matter objectively, perceives such an endorsement, or should the court be governed by the subjective perceptions of the scene's viewers? If the test is subjective, the issue is one of degree: How broadly must an endorsement of religion by the City be perceived before the religious effect becomes "direct and immediate?"

Citizens contends that the impermissible effect of advancing or inhibiting religion arises if any reasonable person perceives the display as an endorsement by the City of the Christian faith. The City argues that before a violation of the Establishment Clause can be found the consensus of the viewers must perceive the impermissible endorsement.

In the court's view, neither test advanced by the parties is completely appropriate. Requiring that a consensus of the community perceive the religious endorsement before the effect is impermissible does not provide adequate protection for members of the community who endorse a faith (or lack of faith) other than that of the majority. However, it seems equally clear that City does not directly advance or inhibit religion merely because a reasonable person or indeed a group of reasonable people perceive the City's display as an endorsement of religion. Reasonable people, as the evidence in this case illustrates, can find endorsement by the government of religion in ceremonies and traditions that the Supreme Court has stated, at least in dicta, do not violate the First Amendment. Zorach v. Clauson, 343 U.S. 306, 312-13, 72 S.Ct. 679, 683, 96 L.Ed. 954 (1952).

In reaching its decision in the case, the court will borrow elements of both possible tests. First, the court must determine in light of all the evidence in the case whether the message conveyed by the City's use of a creche is one of endorsement of a religion. Secondly, recognizing that the City's display of a creche scene as part of the Christmas lighting display has been perceived by some reasonable people as an endorsement by the City of the Christian faith, the court must assess the reasonableness of that perception in light of the nature of the symbol involved, the circumstances of its use, and the number of viewers who are likely to share that perception.

A. The nativity scene as a religious symbol.

The nature of the nativity scene as a symbol is the subject of some controversy. While it is unquestionably of religious origin the evidence adduced in this case demonstrates that it has "acquired a significance which is no longer confined to the religious life." Florey v. Sioux Falls School District, 619 F.2d 1311 at 1316 (8th Cir.). The United States District Court for the District of Rhode Island found the display of a nativity scene in similar circumstances unconstitutional largely because of its view of the nature of the symbol involved. Donnelly v. Lynch, supra. The court in that case premised its decision on two assumptions. First, that the celebration of Christmas can be compartmentalized into its distinctly religious and secular dimensions and secondly, that the nativity scene belonged...