Gonzales v. North Tp. of Lake County, Ind., 92-3217

Citation4 F.3d 1412
Decision Date10 September 1993
Docket NumberNo. 92-3217,92-3217
PartiesRosemary GONZALES, Harry Levin, Louis Appleman, Melvin Schlesinger, and Richard Van Orman, Plaintiffs-Appellants, v. NORTH TOWNSHIP OF LAKE COUNTY, INDIANA, an Indiana Municipal Entity, and Horace Mamala, Individually and in his Capacity as Trustee of North Township, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Gregory R. Lyman, Singleton, Crist, Patterson, Austgen & Lyman, Munster, IN, Ivan E. Bodensteiner (argued), Valparaiso, IN, and Richard A. Waples, Indianapolis, IN, for plaintiffs-appellants.

Anthony DeBonis, Jr. (argued), Smith & Debonis, East Chicago, IN, for defendants-appellees.

Robert B. Millner, Amy R. Small, Sonnenschein, Nath & Rosenthal; Sylvia Neil; and Judson H. Miner and Ellen Mayer, American Jewish Congress, Chicago, IL, for amicus curiae.

Before BAUER, Chief Judge, ROVNER, Circuit Judge, and TIMBERS, Senior Circuit Judge. 1

BAUER, Chief Judge.

Rosemary Gonzales, Louis Appleman, Harry Levin, Melvin Schlesinger, and Richard Van Orman sued North Township, a municipal entity in Lake County, Indiana, and Horace Mamala, the Township trustee. The plaintiffs allege that the Township violates the Establishment Clause of the First Amendment because it displays a crucifix in a public park. The parties filed cross motions for summary judgment. The district court dismissed all the plaintiffs but Appleman from the lawsuit for lack of standing and granted summary judgment in favor of the defendants. Gonzales v. North Township of Lake County, 800 F.Supp. 676 (N.D.Ind.1992). The plaintiffs appeal those decisions. We reverse.

I.

Wicker Memorial Park is located in North Township, near the city of Hammond, Indiana. Dedicated in 1927, the Park clubhouse displays a commemorative plaque that bears the inscription:

As the inhabitants of the North Township repair to this park in years to come, as they are reinvigorated in body and mind by its use, as they are moved by the memory of the heroic deeds of those to whom it is dedicated, may they become partakers and promoters of the more noble, more exalted, more inspired American life. Calvin Coolidge.

In 1955 a "memorial" was placed in the Park, ostensibly to honor the heroic deeds of servicemen who gave their life in battle.

The memorial was a crucifix. A crucifix is a depiction of a cross with the figure of Jesus nailed to it. See THE AMERICAN HERITAGE DICTIONARY 344 (2d College Ed.1991). The Wicker Park crucifix rises approximately 18 feet from the ground. The wooden cross is sixteen feet tall, sits on a two-foot base, and is nearly eight feet across. The terra cotta figure of Jesus nailed on the cross is six feet tall with arms that extend six feet across. The top of the crucifix is capped in bronze, and just beneath is mounted a plaque bearing the letters INRI. This abbreviation stands for Iesus Nazarenus, Rex Iudaeorum, or translated, Jesus of Nazareth, King of the Jews. 2 The crucifix is located in an area of the park which borders a busy intersection of Ridge Road and Highway 41. It is visible to virtually anyone who passes through the intersection. We have attached a photograph of the crucifix as Appendix A to this opinion.

For many years the crucifix had a plaque on its base. The plaque bore the following inscription:

For God and Country.

Dedicated to the memory of men and women whose love for this nation enabled them to make the supreme sacrifice of life itself in its defense. Presented by the Fourth Degree Knights of Columbus, October 16, 1955.

The plaque was less than two feet tall and was obscured by shrubs surrounding the base. In November 1983, Park officials discovered the plaque was missing, and for nearly ten years nothing has designated the crucifix as a war memorial.

The crucifix was erected in the Park by the Fourth Degree Knights of Columbus of the Abraham Lincoln General Assembly ("the Knights"). The Knights are a fraternal organization of Roman Catholic men. A Chicago Tribune article printed October 9, 1955, just before the crucifix was dedicated, reported that it was one of five similar statues that the Knights intended to erect near busy intersections throughout Northern Indiana. The article quoted a Knights spokesperson who stated that "the purpose of erecting the crucifixes was to remind motorists of the importance of religion in everyday life and 'to make Lake County [Indiana] the most God-fearing area in the mid-west.' " (R. 37, Exh. D). Another Knight stated: "The cross is a A ceremony was scheduled to formally dedicate the "memorial". The featured speaker originally scheduled to give the dedication address was Rev. Pursley, auxiliary bishop of the Fort Wayne (Indiana) Catholic diocese. But Rev. Pursley did not attend, and instead a local attorney spoke. During his address, he talked about soldiers that died on behalf of the United States, but he also talked about how the nation was founded on principles "laid down by Christ" and that "Christ brought us brotherhood and that is why I am happy to be here today." (R. 37, Exh. C, Att. 5). Secular as well as Catholic groups participated in the ceremony. A mass that had been scheduled to follow the dedication was canceled. During the ceremony, the Knights deeded the cross to the Township. (R. 37, Exh. C).

symbol of Christianity and of our salvation. I do not remember it being any different.... We celebrate in all glory Christ's birth on Christmas, mourn His death upon the Cross on Good Friday, and hail with joy His Resurrection on Easter. And now, publicly, we hear protests against displaying a tribute to that same God." (R. 37, Exh. C, Att. 4).

Both before and after the dedication, several area ministerial associations sought to have the crucifix removed. Meetings were held to discuss the issue. At one of the meetings, a ministerial association issued a statement of its objections to the crucifix in the Park. The objections were twofold. First, it objected because "[t]he erection of such a religious memorial on public property is in violation of the revered American principle of the separation of Church and State." Second, it objected because "[t]he religious symbol which was erected with the intention of uniting our community in reality has proved divisive both between and within religious groups." (R. 37, Exh. C, Att. 7). Other ministerial associations protested that the crucifix should not be erected because it was a symbol of the Roman Catholic Church. (R. 37, Exh. C, Att. 3, 6). In response to the protests, the Township trustee told the press that in his opinion the crucifix was "not a symbol of one religion but of all Christianity." (R. 37, Exh. C., Att. 4). Apparently the trustee was unaware of the fact that religions other than Christianity exist.

Despite the protests, the crucifix remained on display. For nearly thirty years, no formal move was made to remove it. Then in 1983, the plaintiffs sued to have the crucifix taken down. They base their lawsuit on two issues. First, as residents and taxpayers of North Township, they object to the Township's maintenance of the crucifix with taxpayer funds. Second, they object because their use and enjoyment of the Park has been adversely affected by the presence of the crucifix. They claim to have limited or virtually discontinued their use of this public area because they find the crucifix represents the Township's promotion of religion and, specifically, of Catholicism.

II.

This case has lanquished for years. It was filed in the district court in June 1983, where it remained until September 1992 when an appeal was filed in this court. We now resolve the constitutional question, and remand to the district court to order the appropriate relief. The end of this protracted litigation should be at hand.

A. The standing claim

The first issue we must address is whether the plaintiffs have standing to bring this suit. The United States Constitution requires that federal courts resolve only cases and controversies. U.S. CONST. art. III. Only a plaintiff with a personal stake in that case or controversy has standing. Harris v. City of Zion, 927 F.2d 1401 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 3054, 120 L.Ed.2d 920 and cert. denied sub nom. Rolling Meadows v. Kuhn, --- U.S. ----, 112 S.Ct. 3025, 120 L.Ed.2d 897 (1992). This personal stake can be established only if the plaintiff has suffered an injury in fact. Id., (citing Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975)). At the summary judgment stage, the plaintiff must produce evidence in the form of Fed.R.Civ.P. 56(e) affidavits or documents that support the injury allegation. See United States v. Students Challenging Regulatory Agency Procedures (SCRAP) The plaintiffs identify themselves as long-term Township residents and taxpayers, and argue that the expenditure of taxpayer dollars for the crucifix gives them standing. Municipal taxpayers have standing to challenge tax dollar expenditures that allegedly contribute to Establishment Clause violations. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Freedom From Religion Found, Inc. v. Zielke, 845 F.2d 1463, 1470 (7th Cir.1988). In this case, however, the plaintiffs' claim is undercut by their inability to show that tax revenue is spent for the crucifix. The Township did not use government money to buy the crucifix (it was donated). The Township does not use government funds to maintain the crucifix (it just exists, maintenance free). And although Township funds are spent maintaining the Park areas surrounding the crucifix, this cost would be incurred with or without the presence of the crucifix. Without evidence of expenditure of tax revenues, the plaintiffs cannot claim standing by virtue of their taxpayer status. American Civil Liberties Union v. City of St. Charles, 794 F.2d 265, 267 (7th Cir.), cert. denied 479 U.S. 961, 107 S.Ct. 458, 93...

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