King v. Village of Waunakee

Decision Date22 June 1994
Docket NumberNo. 92-0551,92-0551
Citation517 N.W.2d 671,185 Wis.2d 25
CourtWisconsin Supreme Court
PartiesPatricia Smith KING and Joseph J. King, Jr., Plaintiffs-Appellants-Petitioners, v. VILLAGE OF WAUNAKEE, A Wisconsin Municipal Corporation, Maureen O'Malley, Jeff Murphy, Dennis Sweno, Patrick Gile, Patrick Strickland, Paul Holmes and Suzanne Matiash, Defendants-Respondents.

For the defendants-respondents there was a brief by Craig L. Parshall and The Rutherford Institute, Fredericksburg, VA and Frank Bucaida and Axley Brynelson, Madison and oral argument by Craig L. Parshall.

DAY, Justice.

This is a review of a published decision of the court of appeals, King v. Village of Waunakee, 175 Wis.2d 300, 499 N.W.2d 237 (Ct.App.1993), affirming a summary judgment of the circuit court for Dane County, Honorable P. Charles Jones, Judge, which granted summary judgment dismissing the action of the plaintiffs to enjoin the Village of Waunakee from displaying a "creche" that was part of a Christmas season holiday display in a park owned by the Village. We affirm the court of appeals.

"Oyez, oyez, oyez." the Honorable, Chief Justice and the Associate Justices of the Supreme Court of the United States. All persons having business before this honorable Court are admonished to draw nigh and give their attention, for the Court is now sitting. God save the United States and this honorable Court. 1

Thus, does the highest Court in the land recognize the Almighty and implores His protection for the country and for the Court. It's obvious the Court sees no violation of the Establishment Clause of the First Amendment to the United States Constitution in the Court's opening declaration. Chief Justice Rehnquist recalls his impressions when he first heard it and comments: "It was a ritual that had been used to open Anglo-Saxon courts for many centuries." Id.

Justice Sandra Day O'Connor in her concurrence in County of Allegheny v. American Civil Liberties U., 492 U.S. 573, 630-631, 109 S.Ct. 3086, 3121, 106 L.Ed.2d 472 (1989) says:

"It is the combination of the longstanding existence of practices such as opening legislative sessions with legislative prayers or opening Court sessions with 'God save the United States and this honorable Court,' as well as their nonsectarian nature, that leads me to the conclusion that those particular practices, despite their religious roots, do not convey a message of endorsement of particular religious beliefs."

She refers to such as "examples of ceremonial deism." Id.

These examples of public prayers illustrate the profound connection to religion and the Supreme Being that has infused our national life from the beginning. Justice O'Connor's comments explaining her acceptance of the invocation of Deity in the opening court ceremony also shows the ambivalence that must of necessity attend every attempt to apply the meaning of the establishment clause to an infinite variety of fact situations as our people and our various levels of government seek suitable means to celebrate our various holidays.

It is the United States Supreme Court whose evolving and changing interpretation of the phrase, "respecting an establishment of religion," that perforce determines the outcome of the case before us.


The facts as to what is in the annual holiday season display in the case before us are not in dispute. The display shows figures representing the baby Jesus, St. Mary and St. Joseph and other figures. A description along with other pertinent matters involved in this case are set forth in the affidavit of Honorable Maureen O'Malley, President of the Village of Waunakee, Board of Trustees, and is part of the record. Similar affidavits of other Trustees are also in the record. President O'Malley's affidavit reads in part as follows ... As a Village of Waunakee resident, your affiant is familiar with the Village of Waunakee's annual holiday season display ... The Village of Waunakee is a Wisconsin municipality with a population of approximately 6,000.... For approximately forty years the Village of Waunakee has displayed an annual holiday season display in a local park adjacent to the primary business district in the Village of Waunakee ... The ... display was put up on November 20, 1990, and removed on January 3, 1991. The site of the ... display is located eight blocks (approximately three-quarters of a mile) from the Waunakee Village Hall.... On or about November 30, 1990, the Village of Waunakee received a letter from the attorney for the Freedom From Religion Foundation ('FFRF') demanding that the Village remove its ... display from Waunakee Park.... The November 30, 1990, letter was discussed at the December 5, 1990, Village Board meeting but no action was taken at that time as the matter was not on the board meeting agenda.... At the December 17, 1990, Village Board meeting, the Waunakee Village Board considered the demand to remove the ... display from Waunakee Park. The Village Board voted to modify the ... display, based upon advice of the Village's attorney, to assure that display was consistent with the law.... The ... display, as modified pursuant to the Village Board's December 17, 1990, vote, consists of three large evergreen trees which were decorated with colored Christmas lights, a nativity scene, a sign saluting liberty and extending holiday wishes, and a flagpole decorated with colored Christmas tree lights and a plaque of a five pointed star.... Each of the evergreen trees is over twenty feet in height and has a diameter of approximately seven feet. Each tree is decorated with colored Christmas tree lights. Two of the Christmas trees were directly behind and immediately to the left and right of the nativity scene. The third Christmas tree is in front of the liberty sign, nativity scene and the two other Christmas trees. Attached hereto as Exhibit 1 are true and correct copies of photographs which accurately represent the 1990 ... display.... The dimensions of the nativity scene are as follows: the stable is seven feet in height, thirty-two inches deep, and seven and one-half feet in width. The creche is adorned with colored Christmas lights. Wood silhouette figures of three shepherds/wise men and three sheep are located to the left and right of the stable.... The Waunakee ... display also includes decoration of the Waunakee Park flagpole with colored Christmas tree lights and a plaque on which there is a five pointed star. The flagpole is located between two of the large Christmas trees and immediately behind the creche.... The ... display also includes a sign, the dimensions of which are eight feet square. The sign contains the following message written in the holiday colors of red and green:

'During the Holiday Season, the Village of Waunakee salutes liberty. Let these festive lights and times remind us that we are the keepers of the flame of liberty and our legacy of freedom. Whatever your religion or beliefs, enjoy the holidays

Waunakee Village Board'

(Emphasis added)

The sign is decorated with red ribbons and green garland.

... The ... display is stored in the Village garage when it is not on display. Consequently, no Village funds are expended for storage of the ... display.... The nativity scene which is part of the ... display was not purchased by the Village of Waunakee, but rather, was donated to the Village.... As part of the Village of Waunakee's celebration of the winter holiday season, the Village decorates the light poles on both sides of Main Street (Highway 113) with garlands and Christmas ornaments. Waunakee Park, where the Village's ... display is located, is also on Main Street.... With the exception of the present lawsuit, your affiant is not aware of any other complaint ever made to a Village of Waunakee official relating to the Village's ... display.... The Village of Waunakee has not and will not consult with any church or religious organization relating to the content or display of the Village's ... display.... The only tax dollars expended by the Village relating to the ... display are for electricity for lighting the display, including the Christmas trees, and salaries and benefits of Village employees to erect and remove the ... display annually. This amount is minimal and does not exceed $500.00 annually.... Your affiant voted on December 17, 1990, to continue to display the Village of Waunakee's ... display because your affiant believed that the display served the following functions and purposes: to promote community goodwill during the holiday season; to encourage visitors to and citizens of Waunakee to come to the Village's business district; to continue the Village's long-standing tradition of recognizing the national holiday of Christmas and its historical origins; and to recognize that there is significant public sentiment among Village citizens in favor of the ... display.

The first question is, does the Waunakee annual holiday season display violate the "Establishment Clause" of the First Amendment to the United States Constitution?

We conclude that it does not.

The Clause reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."

The word "respecting" means "concerning, regarding, about, anent." 2

"(Religion) ... as used in constitutional provisions or First Amendment forbidding the 'establishment of religion', the term means a particular system of faith and worship recognized and practiced by a particular church, sect, or denomination." (Emphasis added) 3

This amendment was adopted so that Congress could not establish a national church or interfere with churches already "established" and tax supported in several of the states, some of which laws still existed in the early 1800's.

As pointed out by Petitioners in their brief to this Court:

The original purpose of providing that Congress 'shall make no law respecting an establishment of...

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