Freedom From Religion Foundation, Inc. v. Zielke

• Decision Date: 10 May 1988
• Docket Number: No. 87-2160,87-2160
• Citation: 845 F.2d 1463
• Parties: FREEDOM FROM RELIGION FOUNDATION, INC., a Wisconsin Nonstock Corporation, Phyllis Grams, Annie Laurie Gaylor, and Anne Nicol Gaylor, Plaintiffs- Appellants, v. Patrick ZIELKE, individually and as Mayor of the City of La Crosse, Wisconsin, Common Council of La Crosse, Wisconsin, and City of La Crosse, Wisconsin, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1463

845 F.2d 1463

FREEDOM FROM RELIGION FOUNDATION, INC., a Wisconsin Nonstock Corporation, Phyllis Grams, Annie Laurie Gaylor and Anne Nicol Gaylor, Plaintiffs- Appellants, v. Patrick ZIELKE, individually and as Mayor of the City of La Crosse, Wisconsin, Common Council of La Crosse Wisconsin, and City of La Crosse Wisconsin, Defendants-Appellees.

No. 87-2160.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 9, 1987.

Decided May 10, 1988.

Richard B. Jacobson, Borns, MacAulay & Jacobson, Madison, Wis., for plaintiffs-appellants.

G. Jeffrey George, Steele, Klos & Flynn Chtd., LaCrosse, Wis., for defendants-appellees.

Before CUMMINGS and FLAUM, Circuit Judges, and GRANT, Senior District Judge. ^*

FLAUM, Circuit Judge.

Phyllis Grams, Annie Laurie Gaylor, Anne Nicol Gaylor, and the Freedom from Religion Foundation, Inc. (collectively "the appellants") filed an action in federal court pursuant to 42 U.S.C. Sec. 1983 to enjoin the City of La Crosse from displaying a monument of the Ten Commandments in a city park. The appellants alleged that the display violated their rights under the first and fourteenth amendments to the Constitution to be free from public and governmental support for religion. They also asserted that alleged expenditures of public funds on the monument violated Article I, Sec. 18 of the Wisconsin Constitution. The district court dismissed the appellants' action on the ground that they lacked standing to bring the suit, 663 F.Supp. 606 (1987), and we affirm.

I.

In 1899 the City of La Crosse, Wisconsin purchased a one-acre plot of land for $6,000 and created a public park. The park, called Cameron Park, is located near the La Crosse business district. In 1964 the Fraternal Order of Eagles donated a monument of the Ten Commandments to the city for display in Cameron Park. ¹ The La Crosse City Park Commission voted to accept the monument, which was dedicated on June 19, 1965.

The monument resembles a tombstone, and contains an English translation of one version of the Ten Commandments. It is about five feet, four inches high, thirty-three inches wide and ten inches deep; the monument is located eight feet from the sidewalk that surrounds the park, and is clearly visible from the sidewalk. At night the monument is lighted from the roof of the Eagles' building across the street from Cameron Park. Aside from a few park benches, the monument is the only man-made structure in the park. Although the City of La Crosse owns and maintains Cameron Park, the city did not buy the monument nor does it expend funds on the monument's maintenance.

In 1985 Phyllis Grams, a resident of La Crosse, became aware of the monument when a friend brought it to her attention. Grams then went to see the monument for herself. At trial, Grams testified that she was offended by the display because she viewed it as a message from the city about the religious beliefs that private citizens should hold. Grams was sufficiently offended by the Ten Commandments monument that she complained about it to the Common Council of La Crosse. Appellant Anne Nicol Gaylor, President of the Freedom From Religion Foundation, also wrote a letter to the Common Council complaining about the monument. After receiving these complaints, the Common Council held a public hearing on the question of the monument's presence in Cameron Park. Following the hearing, the Common Council decided not to take any action on the monument.

As a result, the appellants filed an action in district court pursuant to 42 U.S.C. Sec. 1983 to enjoin the appellees from continuing to display the monument in Cameron Park. The appellants contended that the continued display of a monument of the Ten Commandments in a city-owned park was a governmental endorsement and establishment of religion which violated the first and fourteenth amendments to the United States Constitution. Additionally, the appellants asked the district court to exercise pendent jurisdiction over their claim that the city's expenditure of funds on the monument violated Article I, Sec. 18 of the Wisconsin Constitution.

Following a bench trial, the district court concluded that the appellants failed to meet the "case or controversy" requirement of Article III of the Constitution. The district court therefore dismissed the action because the appellants lacked standing to contest the constitutionality of the monument's presence in Cameron Park.

On appeal the individual appellants argue that they have standing because they have been injured by the existence of the monument. ² They also contend that the Freedom From Religion Foundation has organizational standing as a representative of its members, several of whom were allegedly injured by the city's display of the monument in Cameron Park. Finally, the appellants assert that Phyllis Grams has standing to challenge the constitutionality of the display because she is a taxpayer of the City of La Crosse and the city has allegedly used tax money to support the display.

In contrast, the appellees argue that the appellants do not have standing to challenge the constitutionality of the monument because none of the appellants has demonstrated a distinct and palpable injury resulting from the defendants' allegedly unconstitutional activity. Further, the appellees assert that Phyllis Grams does not have standing to bring this action as a taxpayer of the City of La Crosse because she failed to allege or prove that she is actually a La Crosse taxpayer. Finally, the appellees claim that even if Grams is a taxpayer, she cannot have standing on that ground because she did not establish that the City of La Crosse has ever used tax funds on the monument.

II.

A.

The sole issue on appeal is whether the appellants have standing to challenge the constitutionality of the monument of the Ten Commandments on display in Cameron Park. An analysis of a litigant's standing to bring an action in federal court focuses not on the claim itself, but on the party who is bringing the challenge. Foster v. Center Township of LaPorte County, 798 F.2d 237, 241 (7th Cir.1986). Standing is a threshold question in every federal case because if the litigants do not have standing to raise their claims the court is without authority to consider the merits of the action. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975). See also Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986) (because it affects jurisdiction, courts are obligated to consider the question of standing even if the parties do not raise it).

Standing "involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise." Warth, 422 U.S. at 498, 95 S.Ct. at 2205. The constitutional limitations of the standing requirement stem from Article III of the Constitution which limits the jurisdiction of the federal courts to the resolution of cases or controversies. U.S. Const. art. III. See Bender, 475 U.S. at 541, 106 S.Ct. at 1331 ("Federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto.") (citing Marbury v. Madison, 1 Cranch 137, 173-80, 2 L.Ed. 60 (1803)). For a party to have standing, at a minimum Article III

requires the party who invokes the court's authority to "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 [99 S.Ct. 1601, 1608, 60 L.Ed.2d 66] (1979), and that the injury "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision," Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 [96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450] (1976).

Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (footnote omitted). Thus, at a minimum the appellants must be able to establish that they suffered a distinct and palpable injury as a result of the actions of the City of La Crosse. See Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984) (to have standing a plaintiff must allege a "personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief."); Valley Forge, 454 U.S. at 473, 102 S.Ct. at 759; Warth, 422 U.S. at 501, 95 S.Ct. at 2206.

Provided a litigant alleges the existence of a distinct and palpable injury, even a minor injury can satisfy the case or controversy requirement of Article III. See American Civil Liberties Union of Illinois v. City of St. Charles, 794 F.2d 265 (7th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 458, 93 L.Ed.2d 403 (1986) (plaintiffs' averment that they altered their normal routes of travel to avoid viewing a lighted cross displayed on public property satisfied Article III standing requirements). Furthermore, standing can be predicated on a non-economic injury. United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). The injury that the appellants claim they have suffered as a result of the Cameron Park display is a non-economic injury. They allege that the display is a rebuke to their religious beliefs and that they are offended by its presence; but they admit that they have not altered their behavior as a result of the monument. The psychological harm that results from witnessing conduct with which one disagrees, however, is not sufficient to confer standing on a litigant. Valley Forge, 454 U.S. at 485-86, 102 S.Ct. at 765-66. See also City of St. Charles, 794 F.2d at 268 (the mere fact that plaintiffs were offended by display of a lighted cross on public property could not confer...