Doe v. Small

Citation934 F.2d 743
Decision Date28 May 1991
Docket NumberNo. 89-3756,89-3756
PartiesJane DOE, Plaintiff-Appellee, v. George D. SMALL, Mayor of the City of Ottawa, Illinois; Barbara J. Lindquist, William C. Ferguson, Alan R. Howarter and William N. Stevenson, Members of the City Council of the City of Ottawa, Illinois; and the City of Ottawa, Illinois, a municipal corporation, Defendants, 1 The Ottawa Jaycees, Intervenor-Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Coffey, Circuit Judge, filed a dissenting opinion.

Joseph R. Lundy, Deborah A. Golden, Schiff, Hardin & Waite, Harvey M. Grossman, Jane M. Whicher, Roger Baldwin Foundation, Chicago, Ill., Donald S. Rothschild, Rothschild & Associates, Oak Park, Ill., Elmer Gertz, Chicago, Ill., for plaintiff.

D.J. Sartorio, Mitchell A. Orpett, Michael J. Meyer, Tribler & Orpett, Chicago, Ill., for defendants.

Cynthia Photos Abbott, Joel G. Chefitz, Patrick J. Lamb, Katten, Muchin & Zavis, Chicago, Ill., George C. Hupp, Jr., Hupp, Lanuti, Irion & Martin, Ottawa, Ill., Robert K. Skolrood, Nat. Legal Foundation, Virginia Beach, Va., for defendant-appellant.

Judson H. Miner, Davis, Miner, Barnhill & Galland, Sylvia Neil, Chicago, Ill., for amicus curiae American Jewish Congress.

James D. Holzhauer, Robert A. Helman, Thomas C. Berg, Mayer, Brown & Platt, Chicago, Ill., Jeffrey P. Sinesky, Steven M. Freeman, Jill L. Kahn, Richard E. Shevitz, Michael A. Sandberg, Anti-Defamation League of B'nai B'rith, New York City, for amicus curiae Anti-Defamation League of B'nai B'rith.

Before CUMMINGS and COFFEY, Circuit Judges, and GORDON, Senior District Judge. 2

CUMMINGS, Circuit Judge.

The Ottawa Jaycees ("Jaycees") appeal from the district court's final judgment prohibiting them and the defendant City of Ottawa, Illinois, from mounting in a public park their annual yuletide display of sixteen large paintings depicting various events in the life of Jesus Christ. 726 F.Supp. 713. Finding an absence of any issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2552-2553, 91 L.Ed.2d 265 (1986), the district court entered summary judgment in favor of plaintiff Jane Doe. The Jaycees, who were the intervenor-defendant in the original action, then sought relief from this Court, claiming that the display of paintings did not represent governmental endorsement of religion in violation of the Establishment Clause of the First Amendment. 3 In addition, they asserted an infringement of their own constitutionally protected right of freedom of expression under the First Amendment.

We disagree with the Jaycees. The City encouraged, authorized and endorsed the Jaycees' display of these paintings in a public park, thus offending the core of the Establishment Clause's essential prohibition of state endorsement of religion. Because the City wished to promote the religious message of the paintings by permitting their annual display in Washington Park, we affirm the judgment below.


Before relating the specific facts concerning the Jaycees' display, we must establish the proper scope and perspective of our review of a grant of summary judgment. This Court's review is, of course, de novo, meaning that we look at the record in the case anew from the same standpoint as the trial judge. On review of an entry of summary judgment, we must determine that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In conducting this inquiry to determine whether material facts are at issue, "we must review the record and all inferences therefrom in the light most favorable to the party opposing the A. Facts

                motion."    Local 1545, United Mine Workers v. Inland Steel Coal Co., 876 F.2d 1288, 1292 (7th Cir.1989), citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)

The story of the display of the sixteen large paintings depicting major events in the life of Jesus Christ began in 1956. The Ottawa Retail Merchants' Association, offended by the commercialism overtaking the Christmas holiday, endeavored to "put Christ back into Christmas." The Association's method of choice was to commission sixteen large paintings of Jesus' life for display in Washington Park ("Park"), a city park located on the edge of Ottawa's business district near the center of town. A typical small-town park, the Park occupies an open city block, covered with grass and a few trees. The Park has provided the location for numerous one-time events, including a campaign appearance by George Bush during the 1988 Presidential campaign, and other activities, ranging from a concert for world peace to an all-church concert and a concert for veterans of the Vietnam War. The City has records of activities taking place in the Park from June 1982-September 1988. (Affidavit of Charles Singer, Ottawa City Clerk, Defendant's Exhibit No. 3.) Aside from these one-time events, the only events which appear to have occurred annually in the Park for any extended period of time are a flea market and the display of paintings at issue in this case.

In most years since 1956, during the Christmas season in Ottawa, a passer-by traveling on LaSalle Street along the western edge of the Park would see the following: 16 paintings, each measuring 8 feet 8 inches in height, displayed in two lines that form a "V" spanning most of the Park's west side. No matter whether it was day or night, the paintings were clearly visible at all times, being illuminated at night by street lights.

The paintings together tell the story of the life, crucifixion and resurrection of Jesus Christ, as told in the four gospels of the New Testament, the Books of Matthew, Mark, Luke and John. 4 The scene depicted in each painting can be traced to at least one of these books, which together comprise the central teachings of Christianity. Only three of the 16 paintings relate specifically to the religious holiday of Christmas, celebrating Jesus' birth. These canvases depict the infant Jesus in the manger (Luke 2:7), the announcement of the birth of Jesus being received by the shepherds in the field (Luke 2:8-20), and the three wise men traveling to Bethlehem, the birthplace of Jesus (Matthew 2:1-12). This and the description of the other paintings' content is based primarily upon the Declaration of Graydon F. Snyder, Dean of Chicago Theological Seminary and Professor of New Testament, filed in support of plaintiff's motion for summary judgment (Plaintiff's App. 18). The Jaycees do not dispute the content of the paintings, except to claim that all of the paintings relate to Christmas, because the birth of Jesus is inseparable from the rest of his life.

The remaining thirteen paintings chronicle subsequent events of significance in Jesus' life. In chronological order, painting number four illustrates the flight of Mary, Joseph and the baby Jesus into Egypt (Matthew 2:13-15). In the fifth painting, Jesus is baptized by John the Baptist. Painting number six shows Jesus calling two of his disciples, the "fishers of men." (Matthew 4:18-22; Mark 1:16-20; Luke 5:1-11; and John 1:35-42.)

The seventh painting recalls the "stilling of the storm," in which Jesus and his disciples were in a boat on the lake near Gennesaret in Galilee and a great storm arose. Afraid, the disciples questioned their safety, but Jesus calmed the winds and stilled the storm. (Matthew 8:18, 23-27; Mark 4:37-41; and Luke 8:22-25.)

In the eighth picture, Jesus performs the miracle of the loaves and fishes. The The ninth picture in the display shows Jesus teaching. The picture contains elements of both the Sermon on the Mount (found in Matthew 5:1-7:29) and the story of Jesus teaching young children. The Sermon on the Mount sets forth what are known as the "Beatitudes," such as: "Blessed are the meek; for they shall inherit the earth." (Matthew 5:5.) The other part of the painting portrays Jesus teaching several small children. In the tenth picture, the stone covering the empty tomb of Lazarus is rolled away, after Jesus recalled Lazarus, a close friend of Jesus, from the dead. (John 11:38-44.)

painting recounts the incident where Jesus fed 5,000 people with only five loaves and two fishes. (Matthew 14:13-21; Mark 6:30-44; Luke 9:10-17; and John 6:1-13.)

Jesus enters Jerusalem on what has now become known as Palm Sunday in the eleventh picture. (Matthew 21:1-9; Mark 11:1-10; and Luke 19:28-38.) Palm Sunday falls one week before Easter Sunday and is an important date in the "Passion Narrative," the story of Jesus' death. The next event in the crucifixion story, illustrated in the twelfth painting, is the Last Supper. (Matthew 26:17-29; Mark 14:12-25; Luke 22:7-20; and 1 Corinthians 11:23-27.) At the Last Supper, Jesus celebrated Passover, the Jewish holiday commemorating the flight of the Jews from Egypt under the leadership of Moses.

The display's thirteenth canvas depicts Jesus praying in the Garden of Gethsemane. (Matthew 26:36-46; Mark 14:32-42; and Luke 22:40-46.) Just before his crucifixion, Jesus went to the Garden to contemplate his impending crucifixion and to pray to God. Next, in the fourteenth painting, the Romans try Jesus, accusing him falsely of heresy and treason. (Matthew 27:11-26; Mark 15:1-15; Luke 23:2-25; and John 18:28-19:16.)

The fifteenth scene depicts Jesus' crucifixion. (Matthew 27:27-54; Mark 15:16-41; Luke 23:11-49; and John 19:16-37.) This scene shows Jesus' death, before he rose from the dead on Easter morning. Finally, the sixteenth painting illustrates a scene that takes place after Jesus' resurrection, the "Emmaus Story." (Luke 24:13-35.) In this scene, the resurrected Jesus is recognized by two of his followers, despondent over his death. Jesus explains to them that he, the Messiah, had to suffer, die and be raised again.


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