Kreisner v. City of San Diego
| Decision Date | 03 March 1993 |
| Docket Number | No. 90-55354,90-55354 |
| Citation | 988 F.2d 883 |
| Parties | Howard T. KREISNER, et al., Plaintiffs-Appellants, v. CITY OF SAN DIEGO, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael A. Jacobs, John F. Delaney, Susan St. Amour, Morrison & Foerster, San Francisco, CA, for plaintiffs-appellants.
Mary Kay Jackson, Deputy City Atty., San Diego, CA, for defendant-appellee.
Appeal from the United States District Court for the Southern District of California.
Before: BOOCHEVER, KOZINSKI, and O'SCANNLAIN, Circuit Judges.
This appeal squarely presents a conflict between two of our most deeply cherished liberties: freedom of speech and freedom of religion. The question we must decide is whether the City of San Diego may, consistent with the Establishment Clause of the United States Constitution, permit a private group to erect a religious display in a public park during the Christmas season. Because the park is a traditional public forum removed from the seat of government, we hold that the City may permit the display provided it does so in a non-discriminatory manner.
San Diego's Balboa Park is a 1200-acre public park containing recreational facilities ranging from theatres, museums, and a zoo to picnic areas and sporting fields. Every year during the Christmas holiday season, Balboa Park is the site of a holiday display. The City, in conjunction with a private non-profit group known as the Community Christmas Center Committee ("the Committee" or "the Christmas Committee"), sponsors a secular holiday display, which includes a Santa Claus, reindeer, a Christmas tree, and numerous festive colored lights. That display is not challenged here.
Some 250 feet away from the secular display, and partially separated from it by a wall and a road, is a small, open-air amphitheatre known as the Organ Pavilion. Each year, the Christmas Committee is granted a permit to set up a display consisting of scenes from the New Testament in the Organ Pavilion. The Committee's display, which remains in place for approximately six weeks from late November through early January, includes eight scenes, four of which are placed on each side of the Pavilion's stage. Each scene is housed in a palm-covered booth ten feet high and fourteen feet wide. Each contains life-size statuary depicting a biblical scene from the life of Christ, a painted backdrop, and a descriptive sign. Seven of the eight scenes also include gospel passages in English and Spanish. As described by the signs, the eight scenes and their accompanying biblical passages are as follows:
Scene Biblical Quotation
The Annunciation "Fear not Mary: for thou hast found favour with God; and
behold, thou shalt bring forth a son, and shalt call his
name Jesus."
Luke 1:30"31
[no description; "there was no room for them at the Inn."
Mary and Joseph
being turned away
from the inn.]
Luke 2:7
Scene Biblical Quotation
Angel appearing "The shepherds said, let us now go ... and they came with
before the haste and found both Mary and Joseph, and the babe lying
shepherds in a manger."
Luke 2:15"16
The birth of Christ [text does not appear in record]
Wise Men on their "Behold, wise men from the east came to Jerusalem saying
way to Bethlehem Where is he that is born King of the Jews? ... for we
are come to worship him."
Matt. 2:1"2
The Flight into "Arise and take the young child and his mother, and flee
Egypt into Egypt, for Herod will seek the young child to
destroy him, and Joseph took them by night."
Matt. 2:13"14
Christ in the [no text]
Temple
Suffer the little "But Jesus said, Suffer the little children to come unto
children to come me, and forbid them not; for to such belongeth the
unto me Kingdom of God."
Mark 10:14
---------- One or more disclaimer signs, stating that the Biblical display is privately sponsored and not allied with the City, accompany the display. The record does not reveal the size, text, or location of these disclaimers.
The Committee pays no fee for its use of the Organ Pavilion. The City ordinarily charges organizations who wish to reserve the Pavilion for exclusive use a fee varying from $440 to $1,325 per day, depending upon the nature of the use and the user. City regulations allow waiver of these fees for non-profit community services organizations, defined as "recognized group[s], club[s], agenc[ies] or organization[s] whose activities are of a service or character building nature, who give service to the community as a whole, and ... where no portion of the net earnings are used for or inure to the benefit of any individual or member of the group."
The City explains that it charges no fee for the Committee's display because the Committee's use of the Organ Pavilion is "non-exclusive." Other groups and individuals can and do use the Pavilion while the display is in place. The City represents that, if another user so requests, it will require the Committee to cover the display while any overlapping exclusive use permit is in effect.
The Committee's Biblical display has been an annual tradition in Balboa Park since 1953. The Committee has always owned the statuary and booths. Before 1988, the display was erected and removed each year by City employees, and stored on City property. In the wake of an opinion issued by the City Attorney to the effect that the City's involvement was unconstitutional, the Committee now erects, removes, and maintains the display itself, and stores it on private property. The Committee reimburses the City $150 for the estimated cost of electricity used by the display. The City provides no other services in connection with the display.
To help defray the costs of the display, the Committee maintains donation barrels at the site. It also maintains a stock of small pamphlets, which contain a schedule of concerts and events to be held at the Pavilion during the Christmas season, a brief history of the Christmas Committee, and a plea for donations to support the Committee's activities.
Acting pro se, appellant Howard Kreisner filed suit in the federal district court seeking to prevent the City from allowing the Committee to erect the display on public property. Kreisner alleged that the City's decision to permit the display in Balboa Park violated the religion clauses of both the federal and state constitutions. His complaint requested declaratory and injunctive relief, as well as punitive and other damages. 1
The parties agreed that no material facts were in dispute, and submitted cross motions for summary judgment. On November 8, 1989, Judge Enright granted judgment for the City on the federal claim and dismissed the state claim. 2 788 F.Supp. 445 This timely appeal followed. This court appointed counsel to represent Kreisner on appeal.
After the appeal was argued before this panel, it became obvious that the parties disagreed about the nature of the City's permit policy in Balboa Park. They submitted competing declarations and affidavits describing the policy to us. Rather than resolve the dispute ourselves, we remanded to the district court for entry of factual findings. 3 The district court (Judge Huff, following Judge Enright's recusal) held a hearing and determined that the City followed a first-come, first-served policy in Balboa Park. Judge Huff also reaffirmed Judge Enright's conclusion of law that permitting the display on public property did not violate the Establishment Clause of the United States Constitution.
We solicited additional briefing from the parties, and postponed submission pending the decision of the Supreme Court in Lee v. Weisman, --- U.S. ----, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). We now affirm.
The First Amendment provides that "Congress shall make no law respecting an establishment of religion...." U.S. Const. amend. I. Although written as a limitation upon congressional power, this clause also operates, through the Fourteenth Amendment, to constrain the power of state governments. See Everson v. Board of Educ., 330 U.S. 1, 8, 67 S.Ct. 504, 507, 91 L.Ed. 711 (1947).
Like most cherished social values, the principle of religious freedom that is embodied in the Establishment Clause is easy to proclaim but difficult to define: "Candor compels acknowledgment ... that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law." Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). The Supreme Court has, however, generally articulated the boundaries of the Clause's coverage. In a world of constant compromise and qualification, the Establishment Clause
means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to...
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