Grossbaum v. Indianapolis-Marion County Bldg. Authority

• Decision Date: 15 August 1995
• Docket Number: INDIANAPOLIS-MARION,No. 94-3730,94-3730
• Citation: 63 F.3d 581
• Parties: Rabbi Abraham GROSSBAUM and Lubavitch of Indiana, Incorporated, Plaintiffs-Appellants, v.COUNTY BUILDING AUTHORITY and Ronald L. Reinking, in his capacity as General Manager, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 581

63 F.3d 581

Rabbi Abraham GROSSBAUM and Lubavitch of Indiana, Incorporated, Plaintiffs-Appellants, v. INDIANAPOLIS-MARION COUNTY BUILDING AUTHORITY and Ronald L.

Reinking, in his capacity as General Manager,

Defendants-Appellees.

No. 94-3730.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 19, 1995.

Decided Aug. 15, 1995.

Nathan Lewin, Niki Kuckes (argued), David S. Cohen, Miller, Cassidy, Larroca & Lewin, Washington, DC, B. Keith Shake, Henderson, Daily, Withrow & Devoe, Indianapolis, IN, for plaintiffs-appellants Abraham Grossbaum, Rabbi, Lubavitch of Indiana, Inc.

Thomas J. Costakis (argued), Kevin W. Petz, Krieg, Devault, Alexander & Capehart, Indianapolis, IN, for defendants-appellees Indianapolis-Marion County Bldg. Authority, Ronald L. Reinking, in his capacity as Gen. Manager.

Before RIPPLE, MANION and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

For many years the plaintiffs, Rabbi Abraham Grossbaum and Lubavitch of Indiana, Inc., had received annual permission to display a menorah in the lobby of the City-County Building in Indianapolis during the eight days of Chanukah. In 1993, the defendant Indianapolis-Marion County Building Authority ("Building Authority") changed its policy and denied permission for the display. In 1994, following a second refusal to permit the menorah display, the plaintiffs sought injunctive and declaratory relief against the Building Authority and Ronald L. Reinking, its general manager. The district court, acting without the benefit of the Supreme Court's recent guidance in this area, denied the plaintiffs' motion for preliminary injunction. The plaintiffs then timely appealed that decision to this court pursuant to 28 U.S.C. Sec. 1292(a)(1). For the reasons presented in the following opinion, we reverse the judgment of the district court.

I

A. Facts ¹

The City-County Building in downtown Indianapolis is the seat of government for the City of Indianapolis and the County of Marion, Indiana. It is administered by the defendant Building Authority, a municipal corporation. The tenants of the building include many of the offices, agencies and departments of the City and County. The lobby of the building is open to the public during business hours. Mr. Reinking, General Manager of the Building Authority that manages the City-County Building, is responsible for granting or denying requests to use lobby space in the building.

The lobby of the City-County Building is a site where, by policy and longstanding practice, the Building Authority has allowed broad access to a wide variety of public and private speakers. Requests to use the lobby and to place displays or exhibits in the lobby are usually made in writing, addressed to the Building Authority. However, numerous oral requests have been made and granted as well. Of the 117 written requests made from 1990 through September 22, 1994, all were granted, to public and private groups alike, except several requests for sales or fundraising activities, one request for third-time use by the same party, and, in 1993 and 1994, the plaintiffs' requests to display their menorah at Chanukah. ²

Rabbi Grossbaum, an Orthodox Jewish Rabbi, and Lubavitch of Indiana, Inc., an Orthodox Jewish Organization ("Lubavitch"), were granted permission from the Building Authority, through Mr. Reinking, to erect their five-foot wooden menorah in the lobby of the City-County Building throughout Chanukah each year from approximately 1985 During Chanukah 1992, the Building Authority received complaints that the display of the menorah in the City-County Building violated the Establishment Clause of the Constitution. Thereafter, at its October 4, 1993 meeting, the Building Authority considered and unanimously adopted a "Policy on Seasonal Displays," which stated:

                through 1992. 3  Their menorah display was accompanied by a sign stating "Lubavitch wishes you a Happy Chanukah," and plaintiffs were permitted to light the candles
                

Religious displays and symbols are not permitted in the City-County Building in that the display of seasonal religious symbols in the halls of government conveys the appearance of governmental endorsement of religion in violation of the Establishment Clause of the First Amendment of the Federal Constitution.

At first the Building Authority prohibited both the menorah and the Christmas tree in its lobby. However, once it was informed by counsel that courts treat a Christmas tree as a secular, rather than religious, symbol, the Building Authority Board decided in its December 1, 1993 meeting that a Christmas tree in the lobby was consistent with, rather than in violation of, its Policy. It erected a Christmas tree in the lobby, but continued to prohibit display of the menorah on the ground that its Policy on Seasonal Displays forbade religious displays and symbols in the lobby.

Lubavitch did not pursue its efforts to present its display in 1993. In 1994, however, after it again was denied permission to display its menorah on the same ground, the plaintiffs filed a complaint, seeking declaratory and injunctive relief, against the Building Authority and Mr. Reinking in his official capacity. The complaint contained four counts: two free speech claims, alleging viewpoint-based and content-based discrimination against religious speech, an equal protection claim and a free exercise of religion claim. The complaint alleged that, because Lubavitch wanted to erect a menorah during Chanukah 1994 and in future years, the Building Authority's denial of that request to display a menorah constituted a continuing injury. Lubavitch also moved for a temporary restraining order or preliminary injunction as to count I only, the religious discrimination allegation based on viewpoint discrimination.

B. District Court Decision

The district court denied plaintiffs' motion for a preliminary injunction on November 22, 1994. See Grossbaum v. Indianapolis-Marion County Bldg. Auth., 870 F.Supp. 1450 (S.D.Ind.1994). Its evaluation of the preliminary injunction focused on the plaintiffs' reasonable likelihood of success on the merits. The point of disagreement was clearly defined: The plaintiffs alleged that the Building Authority's Policy on Seasonal Displays, which excluded seasonal religious symbols from its lobby, amounted to viewpoint discrimination. In the Building Authority's view, religion was a subject, not a viewpoint.

Because the parties had stipulated, for the purposes of this litigation, that the lobby was a "nonpublic forum," the district court followed the analysis for evaluating access to nonpublic forums under the Free Speech Clause set forth in Lamb's Chapel v. Center Moriches Union Free School District, --- U.S. ----, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993). Under that approach, discrimination on the basis of subject matter was permissible, but discrimination on the basis of viewpoint was not. The district court determined that the Building Authority had not established a "subject," namely the "holiday season," as to which plaintiffs' menorah expressed a "religious viewpoint." The court was not persuaded by the plaintiffs' position that the Building Authority allowed secular symbols and viewpoints, such as the Christmas tree, on the subject of the "holiday season" but prohibited religious symbols and viewpoints, such as plaintiffs' menorah, on the same subject. Nor did the court believe that the Building Authority's Policy barring seasonal displays "for religious purposes" had been unconstitutionally applied to prohibit With the very limited factual showing of uses of the lobby even arguably tied to "the holiday season," the Court is not persuaded the Building Authority has taken any actions that amount to recognizing "the holiday season" as a meaningful category or subject matter for speech and expression of competing "viewpoints" in this nonpublic forum. And without a relevant track record of actual "holiday" uses after the Building Authority adopted its policy in 1993, "the holiday season" is, in the abstract, too broad and too amorphous to be treated as a "subject" for purposes of this analysis.

the plaintiffs' display. According to the court, the record did not show that the Building Authority, since it had adopted the challenged Policy, had permitted private displays expressing "secular viewpoints" on the holiday season. The court then stated:

870 F.Supp. at 1461.

In the district court's view, the viewpoint discrimination forbidden in Lamb's Chapel had not occurred here. Instead of suppressing a point of view, the court opined, the Building Authority had decided to avoid the controversy that might be provoked by displays of religious symbols. The court concluded that "the Building Authority decisions about access to the lobby in this record do not show 'the holiday season' to be a subject for which the Building Authority has opened the lobby for private expressions of various secular and religious viewpoints." Id. at 1462.

Nevertheless, the district court approved the Building Authority's display of a Christmas tree as a secular display that did not establish viewpoint discrimination under this circuit's decision in Lubavitch Chabad House, Inc. v. City of Chicago, 917 F.2d 341 (7th Cir.1990). In fact, the court pronounced Lubavitch Chabad, rather than Lamb's Chapel, to be a case "on all fours factually and control[ling] in this nearly identical factual context." Id. Lubavitch Chabad upheld the decision by the City of Chicago to put a Christmas tree, a secular symbol, in the O'Hare Airport and, at the same time, to exclude private displays of religious symbols; this court held that such refusal did not amount to religious discrimination or an equal protection violation. The district court concluded: "The First Amendment does not force the Building Authority to choose each December between putting up no decorations at all, even purely secular ones, and opening up the lobby to any private group that...