McCreary v. Stone

Decision Date08 December 1983
Docket Number83 Civ. 3266 (CES).,No. 83 Civ. 987 (CES),83 Civ. 987 (CES)
PartiesKathleen S. McCREARY, David Drabkin, Ann F. Cawley, Angelina J. Messenger, Edward R. Napolitano, Charles E. Butler, John D. Hawkins, Nancy G. Stegar, Richard Cacciato, Carol Ann Pascal, Mary T. Thompson and Gregory DeSousa, Plaintiffs, v. Jean STONE, Elisabeth M. Brown, Edward Falkenberg, Beatrice K. Underweiser, the Board of Trustees of the Village of Scarsdale and the Village of Scarsdale, Defendants. The SCARSDALE CRECHE COMMITTEE, Patricia Curran, Cynthia Barsuhn, Grace Fellows, Doris Adler, Mary Tully, Joan Mann and Maria Pedulla, Plaintiffs, v. The VILLAGE OF SCARSDALE and the Board of Trustees of the Village of Scarsdale, Defendants.
CourtU.S. District Court — Southern District of New York


Vincent K. Gilmore, Michael J. Murphy, New York City, for plaintiffs The Citizens Group, et al.

Marvin Schwartz, Sara Goodman, New York City, for plaintiffs The Scarsdale Creche Committee, et al.

Kramer, Levin, Nessen, Kamin & Frankel, Siff & Newman, P.C., New York City, for defendants; Marvin E. Frankel, Steven E. Greenbaum, Adam E. Eilenberg, Stuart I. Parker, Mark Landman, Audrey Rogers, New York City, of counsel.


STEWART, District Judge:

In these cases we are asked to decide whether defendants, the Village of Scarsdale (the "Village"), its governing board of trustees (the "board of trustees" or the "trustees" or the "board") and, in 83 Civ. 987, two individual trustees,1 acted within the bounds of the Constitution in denying access to a Village-owned park for the purpose of displaying a privately owned "creche" or nativity scene. There are two groups of plaintiffs (collectively they will be referred to as the "plaintiffs") in this consolidated action. The plaintiffs are known as the Scarsdale Creche Committee (the "Creche Committee") and the Citizens Group. Plaintiffs bring their claims pursuant to 28 U.S.C. § 2201 and 42 U.S.C. § 1983 asserting a denial of free speech and free exercise rights as guaranteed by the First and Fourteenth Amendments. The Creche Committee also alleges a denial of equal protection. Plaintiffs seek both a declaration that their rights have been denied and a permanent injunction against further denials. The case was tried on July 20, 1983 and the record consists exclusively of stipulations of fact, depositions, answers to interrogatories, and exhibits. The parties do not dispute the authenticity of any documents submitted as exhibits, and have agreed that the depositions and answers to interrogatories may be received in evidence as if given as testimony at trial. Jurisdiction is premised on 28 U.S.C. §§ 1331 and 1343(3). This opinion sets forth the court's findings of fact and conclusions of law.


The Village of Scarsdale is a municipal corporation located north of New York City in the County of Westchester. It has a population of about 17,000 people, Tooley dep. at 38, and its residents include persons of varying religious faiths.2

In 1931 a small plot of land, which has come to be known as Boniface Circle, was deeded to the Village of Scarsdale. Boniface Circle is one of a number of parks in the Village. It has a dimension of 3,255 square feet, is bounded on all sides by roadways and is surrounded by both residential and commercial property, the latter including professional offices, a restaurant, and sporting goods, clothing (for men, women and children), grocery, and other stores. The park is oval in shape, largely grass-covered, and is considered to lie in the center of the retail business district of the Village.

Located in the park are a large evergreen tree, various hedges, two benches, two lamp posts, a walkway and a flagpole. Also located in the park is a war memorial to the veterans of World War II. The war memorial, built in 1949, consists of a stone wall on which plaques recalling the names of war dead are mounted. In front of the wall is a small terrace of flagstones and some steps leading up to the slightly higher ground level of the rest of the park. The entire memorial occupies about one-sixth of the park. Boniface Circle is visited year round by persons of "all stripes", id. at 84, for what appear to be varying reasons, among them as a way-through for pedestrians from one street in the business district to another. Parking meters surround about half of the park.

Over the years access to Boniface Circle for assembly or speech purposes has been somewhat limited. A detailed description of such uses is set out below in the portion of this opinion discussing Boniface Circle's status as a "public forum." Suffice it to say here that applications for its use for First Amendment purposes have historically been passed upon by the board of trustees, the Village's governing body, that there are no statutes or regulations setting forth guidelines upon which the board bases its decision to grant or deny access, and that there are no statutes or ordinances which otherwise set forth guidelines as to how and when Village property may be used for such purposes.

One of the primary uses to which Boniface Circle has been put is as a locus for Christmas celebration. Every year the Village has allowed the Chamber of Commerce to decorate the two lamp posts in the park and the lamp posts surrounding it with ornaments of various kinds. The Town Club, a private organization, has been granted access to Boniface Circle in 1959, 1962 through 1965, 1968 through 1971 and in 1982 to hold a Christmas Carol Sing. On other Occasions the Town Club has met on other Village-owned property for caroling. In 1982 the Village itself installed Christmas ornaments on the large evergreen tree in Boniface Circle, and displayed them for two and one-half weeks. And, beginning in 1956 and continuing through December 1980, Boniface Circle has been the site of a privately owned creche, displayed for about two weeks each year.

From 1957 through 1980 the sponsor of the creche display has been the Creche Committee. The Creche Committee is a private unincorporated association of seven Protestant and Catholic churches. Five of the churches are located in the Village of Scarsdale and two are located outside the Village but have a "Scarsdale, N.Y." post office address. Each church is represented on the Committee by one person and each pays a small annual donation to defray the cost of maintaining and displaying the creche. Except for a period prior to 1977 when the Village paid for the electricity to light a small light bulb in the creche, the entire cost of displaying and maintaining the creche has been borne by the Creche Committee. Since 1977 the creche has been unlit altogether.

The creche which since 1957 the Creche Committee has displayed at Boniface Circle consists of a wooden frame, approximately six feet high at the tallest point, and dropping off on both sides to about three and a half feet. The frame is nine feet long, three feet deep, and is covered on the inside by an oil painting. Placed inside the frame are nine hand-carved wooden figures ranging in size from six and one-half inches to three and a half feet. The creche is intended to portray the birth of Jesus Christ.

In each year from 1957 through 1983 the Creche Committee has submitted a written application to the board seeking permission to display the creche at Boniface Circle. In 1981 and 1982, for the first time, the trustees denied permission. In 1981 the Creche Committee accepted an offer to display the creche across the street from Boniface Circle on private property belonging to the Frog Prince Proper Restaurant. In 1982, the Creche Committee elected not to display the creche at all when its application for Boniface Circle was denied. The board vote to deny permission to erect the creche was 4-3 in both 1981 and 1982. The 1983 application is still pending. Also pending is an application to display a creche by the Citizens Group, a private unincorporated association of persons not representing churches. The Citizens Group first applied to display their creche in December 19823 after the Creche Committee's request for that year was turned down. The Group reapplied in early 1983 to display their creche the following December with the apparent intention of bringing this suit if the application was not approved. The board of trustees has taken the position that it should not act on the pending applications for 1983 while this lawsuit is under submission.

In recent times the question of whether the board should permit the displaying of the creche at Boniface Circle has been hotly contested, but it has not always been so. The original application by the Creche Committee in 1957, which expressed a desire to display the creche in order to convey "the real significance of Christmas" (Stipulation of Fact, hereafter "Stip.", 8, Ex. 3), was unanimously approved by the board as were all subsequent applications through 1972. However, as early as 1960 events began to transpire which made what had been a routine approval by the board, not routine at all. In 1960 the American Jewish Congress, prompted by members of its Scarsdale chapter, wrote the board expressing concern over the placement of a "religious display on public property." The letter stated, "We, as members of the Jewish faith, find religious display natural and acceptable on Church property, but are distressed by them sic when they appear in a public place which is shared by all residents of our community." The letter asked the board to "safeguard the neighborly feeling in our community by arriving at a decision which will strengthen the American principle of separation of Church and State." (Ex. 6).

The board, as it had in the past, unanimously approved the creche application for 1960, but the next year it appointed a "Special Committee" to study and report on the issue. In 1962 the Special Committee recommended after meeting with persons of differing views, including...

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8 cases
  • Lynch v. Donnelly
    • United States
    • United States Supreme Court
    • March 5, 1984
    ...have claimed the right to place a creche as part of a wholly private display on public land. Cf. Widmar v. Vincent, supra; McCreary v. Stone, 575 F.Supp. 1112 (1983). Nor is the inclusion of the creche necessary to serve wholly secular goals; it is clear that the City's secular purposes of ......
  • Doe v. Small
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • May 28, 1991
    ...park] as anything other than a park of the kind that is traditionally dedicated to First Amendment activities...." McCreary v. Stone, 575 F.Supp. 1112, 1123 (S.D.N.Y.1983). The Second Circuit stated that the issue before it was "whether the Village's content-based denials of the application......
  • McCreary v. Stone, 1071
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • October 15, 1984
    ...during the Christmas holiday season in order to avoid contravening the establishment clause of the first amendment. McCreary v. Stone, 575 F.Supp. 1112, 1133 (S.D.N.Y.1983). The district court's decision was rendered prior to the Supreme Court's decision in another creche case, Lynch v. Don......
  • Planned Parenthood Ass'n v. Chicago Transit Auth., 84 C 4976.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • August 9, 1984
    ...messages of various sorts and commercial messages of all sorts, all as detailed in Findings 8 and 21. See McCreary v. Stone, 575 F.Supp. 1112, 1123-25 (S.D.N.Y.1983). 9. Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974), the only Supreme Court transit case......
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