Freedom From Religion Found. v. City Marshfield

• Decision Date: 20 March 2000
• Docket Number: No. 99-1639,99-1639
• Citation: 203 F.3d 487
• Parties: (7th Cir. 2000) Freedom From Religion Foundation, Inc., and Clarence Reinders, Plaintiffs-Appellants, v. City of Marshfield, Wisconsin and Henry Praschak Memorial Fund, Inc., Defendants-Appellees
• Court: U.S. Court of Appeals — Seventh Circuit

Page 487

203 F.3d 487 (7th Cir. 2000)

Freedom From Religion Foundation, Inc., and Clarence Reinders, Plaintiffs-Appellants, v. City of Marshfield, Wisconsin and Henry Praschak Memorial Fund, Inc., Defendants-Appellees.

No. 99-1639

In the United States Court of Appeals For the Seventh Circuit

Argued October 1, 1999

Decided February 4, 2000

As Amended on Denial of Rehearing and

Rehearing En Banc March 20, 2000.

Appeal from the United States District Court for the Western District of Wisconsin. No. 98 C 270--John C. Shabaz, Chief Judge. [Copyrighted Material Omitted] Before Cudahy, Easterbrook and Kanne, Circuit Judges.

Kanne, Circuit Judge.

In 1959, the City of Marshfield, Wisconsin ("City"), accepted a gift of a statue of Jesus Christ from the John Eisen Assembly, Fourth Degree Knights of Columbus. The City placed the statue in what was then known as Wildwood Park--undeveloped property owned by the City.

The white marble statue rises fifteen feet in height. It depicts Christ, arms open in prayer, standing atop a large sphere, which in turn rests atop a base bearing the inscription in twelve- inch block letters, "Christ Guide Us On Our Way." See Figures A & B appended to this opinion, infra. The statue faces State Highway 13 (Roddis Ave.), the main thoroughfare into Marshfield from the south, and is clearly visible to travelers from the road. In 1964, Henry Praschak, a member of the Knights of Columbus, offered to construct a comfort station at the site where the statue was located, adding signs, picnic tables and outdoor grills. In response, the City specifically reserved the area for city park purposes and agreed to build the infrastructure necessary to support a public park. The City also agreed to provide electrical service and to maintain the park. In recognition of Praschak's contribution, the Wildwood Park area was renamed Praschak Wayside Park.

Thirty-nine years later a Marshfield businessman, Clarence Reinders, objected to the presence of the statue on public property. Reinders, a member of the Freedom From Religion Foundation, Inc. ("FFRF"), stated that he avoids using the park because of the statue's presence. In addition, Reinders claimed to take alternate travel routes to avoid viewing the statue of Christ from Highway 13. In March 1998, FFRF asked that the City move the statue to private property. The City did not act on that request, so on April 15, 1998, Reinders and FFRF filed suit in federal court seeking declaratory and injunctive relief.

Soon after the lawsuit was filed, the City erected a disclaimer that states, in part, "[t]he location of this statue . . . does not reflect an endorsement of a religious sect or belief by the city of Marshfield." Also a newly-formed organization of Marshfield citizens, the Henry Praschak Memorial Fund, Inc. ("Fund"), offered to purchase the statue and the section of the park on which the statue stands. The City accepted the Fund's offer and sold 0.15 acres of land, a portion of which accesses a public road. See Figure C appended to this opinion, infra. The Fund paid the City $21,560 ($3.30 per square foot), which is the highest price per square foot that the City has received for a sale of its land. The bid process met all Wisconsin statutory requirements for the sale of public land. In addition, the City separated the electrical service required to light the statue from the street lighting system that serves the park. The Fund's warranty deed, dated July 2, 1998, includes a covenant running with the land that restricts the use of the parcel to public park purposes.

Following the sale, the parties conducted limited discovery, then both sides moved for summary judgment. On November 5, 1998, the district court issued a memorandum of law denying all parties' motions for summary judgment. The district court found that the sale of land to the Fund rendered moot the plaintiffs' claim that the statue's placement in Praschak Wayside Park constituted an endorsement of religion. In addition, the court found that the plaintiffs' alternative claim that the sale itself constituted a government endorsement of religion lacked merit because the sale met all relevant Wisconsin statutes. However, the district court found that there was a question of material fact as to the amount of maintenance and service provided by the City to the Fund's parcel. This maintenance, if proven, could constitute a government endorsement of religion in violation of the Establishment Clause.

In December 1998, the parties stipulated that the City did not provide maintenance or electrical services to the Fund's parcel. On this basis, the district court found that neither the City nor the Fund had taken any action that could constitute a violation of the Establishment Clause and, on these grounds, granted the defendants' motions for summary judgment. Reinders and FFRF appeal, claiming that the district court erred in determining that the sale did not constitute a government endorsement of religion and that the Fund does not create a perceived endorsement of religion by maintaining the statue in a manner that constitutes a traditionally public function.

Presently, the statue remains on Fund property, but this 0.15 acres is not visibly differentiated from the city park. The statue and property are maintained by the Fund, and the Fund pays for the electrical service required to light the statue. The disclaimer erected by the City remains in front of the statue on Fund property.

I. Analysis

Reinders and FFRF challenge the district court's grant of summary judgment on two grounds. First, they contend that the land sale was a sham transaction undertaken merely to circumvent the "government action" requirement, and as such, the sale itself should constitute "government action." Second, they contend that the district court erred in determining that the sale of land to the Fund ended the government endorsement of religion, because the continued presence of the statue in proximity to a public park may still reasonably be perceived as the City's endorsement of religion.

We review the district court's grant of summary judgment de novo, drawing conclusions of law and fact from the record before us. See Haefling v. United Parcel Serv., 169 F.3d 494, 497 (7th Cir. 1999). Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions to file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In this case, the parties have stipulated that there are no disputes of material fact and summary judgment was appropriate, so we review de novo the district court's conclusions of law. See Central States, Southeast and Southwest Areas Pension Fund v. Robinson Cartage Co., 55 F.3d 1318, 1322 (7th Cir. 1995).

A. Sale of Land

The Establishment Clause states that "Congress shall make no law respecting the establishment of religion." U.S. Const. amend. I. The Establishment Clause prevents the government from promoting or affiliating with any religious doctrine or organization. See County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 590 (1989); Gonzales v. North Township, 4 F.3d 1412, 1417 (7th Cir. 1993). However, "an Establishment Clause violation must be moored in government action of some sort." Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753, 779 (1995) (O'Connor, J., concurring). The district court found that the sale of the property from the City to the Fund ended any "government action" endorsing religion, precluding a claim that the City continues to endorse religion. Appellants Reinders and FFRF maintain that this sale was a "sweetheart deal," a sham transaction concocted to circumvent the government action requirement of the Establishment Clause. For this reason, they contend that the sale is conduct that constitutes an endorsement of religion by the City.

The City contends that its sale of the property on which the religious statue stands effectively ends the City's religious expression. Because it is assumed that a property owner controls expression conducted on its property, we impute the views expressed on a property onto it. Thus, "the location of the sign is a significant component of the message it conveys." Capitol Square, 515 U.S. at 800 (Stevens, J., dissenting); see also id. at 786 (Souter, J., concurring) ("[A]n unattended display (and any message it conveys) can naturally be viewed as belonging to the owner of the land on which it stands."); City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994) ("Precisely because of their location, such signs provide information about the identity of the 'speaker.'"). The facial result of the transaction at issue is that the City no longer owns the property where the religious expression occurs. Because we can no longer infer the City's expression from property ownership, the City claims that the sale ended its religious expression and cured any Establishment Clause violation.

Because of the difference in the way we treat private speech and public speech, the determination of whom we should impute speech onto is critical. For there is "a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." Board of Educ. v. Mergens, 496 U.S. 226, 250 (1990). Because of the dramatic difference in treatment of private religious expression and government religious expression, we recognize the effect of formal transfer of legal title to property as a transfer of imputed expression from a public seller onto a private buyer. Absent unusual circumstances, a sale of real property is an effective way for a public body to end its inappropriate endorsement of...