McCreary v. Stone

Decision Date15 October 1984
Docket NumberNo. 1071,D,1071
Citation739 F.2d 716
PartiesKathleen S. McCREARY, David Drabkin, Ann F. Cawley, Angelina J. Messenger, Edward R. Napolitano, Charles E. Butler, John D. Hawkins, Nancy G. Steger, Richard Cacciato, Carol Ann Pascal, Marty T. Thompson and Gregory De Sousa, Plaintiffs-Appellants, 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-Appellees. The SCARSDALE CRECHE COMMITTEE, Patricia Curran, Cynthia Barsuhn, Grace Fellows, Doris Adler, Mary Tully, Joan Mann and Maria Pedulla, Plaintiffs- Appellants, v. The VILLAGE OF SCARSDALE and The Board of Trustees of the Village of Scarsdale, Defendants-Appellees. ocket 83-9052.
CourtU.S. Court of Appeals — Second Circuit

Marvin E. Frankel, New York City (Kramer, Levin, Nessen, Kamin & Frankel, New York City; Steven E. Greenbaum, Thomas R. Newman, New York City, of counsel; Siff & Newman, New York City), for defendants-appellees.

(Leslie K. Shedlin, New York City; Justin J. Finger, Jeffrey P. Sinensky, Ruti G. Teitel, New York City, of counsel), for Anti-Defamation League of B'nai B'rith as amicus curiae.

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

Vincent K. Gilmore, Michael J. Murphy, New York City, for plaintiffs-appellants Kathleen McCreary, et al.

Before MANSFIELD, PIERCE and PRATT, Circuit Judges.

PIERCE, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the Southern District of New York, Charles E. Stewart, Jr., Judge, entered on December 15, 1983, holding that it was "proper" for defendant-appellee Village of Scarsdale ("Village" or "Scarsdale") to deny plaintiffs-appellants' applications to display a creche in a public park 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. Donnelly, --- U.S. ----, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). Based upon the controlling precedents of Lynch and Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), we reverse and remand.


In simplest terms, this appeal concerns applications by two groups to place a creche at Boniface Circle, a Village-owned park located in the center of the business district of Scarsdale, for a period of approximately two weeks during the Christmas holiday season. Plaintiffs-appellants in the first group, twelve in number, are mainly residents of Scarsdale. We will collectively refer to these plaintiffs and other residents who applied to display a creche in Scarsdale on December 7, 1982, as the "Citizens' Group." Plaintiffs-appellants in the second Scarsdale is a municipal corporation located in the County of Westchester, State of New York. Scarsdale's governing body is known as the Board of Trustees of Scarsdale (the "Board") and usually is elected under a political system known as the Non-Partisan system, in which the Citizens Party nominates candidates for trustees and mayor. The Board governs the affairs of Scarsdale's 17,000 religiously diverse residents.

group, seven in number, are either residents of Scarsdale or have a "Scarsdale, N.Y." post office address. They are representatives of plaintiff-appellant The Scarsdale Creche Committee, which is a private unincorporated association of seven Catholic and Protestant churches; all of the churches are located in Scarsdale or have a "Scarsdale, N.Y." post office address. Each church contributes approximately twenty-five dollars annually to The Scarsdale Creche Committee to defray the costs of maintaining and displaying one of the subject creches herein. We will collectively refer to these local residents, the churches they represent and The Scarsdale Creche Committee as the "Creche Committee" or as the "Committee."

Among the public properties under the jurisdiction, management and control of the Village and its Board are several parks and other public facilities located in Scarsdale; they include Wayside Cottage, Village Hall, the Scarsdale Public Library, Chase Road Park and Boniface Circle. There are eight "Rules and Regulations Governing Park and Recreation Facilities" that have been in effect in Scarsdale since 1979. These rules state, inter alia, that groups desiring use of parks should apply to the Superintendent of Parks, Recreation and Conservation; that groups given permission to use parks should leave them in a clean and orderly condition and will be held responsible for any damage; and that groups using park facilities may be required to obtain public liability insurance. There is no published statute, law, ordinance, rule or regulation in effect in Scarsdale that requires persons wishing to use Scarsdale's parks or other public properties first to apply for permission from the Board, and there are no published standards upon which the Board bases its decisions to grant or deny applicants permission to use Scarsdale's parks or other public properties. However, Village Code Section 4-1-2 states that "[n]o person shall interfere with, take or use any of the property of the Village without first obtaining the consent of the Village Manager."

It is undisputed that throughout the years covered by this litigation, Scarsdale, acting through its Board, usually granted requests for access to and use of its parks and public properties. Rather than issue a complete denial, on each occasion that it did not grant a specific request, the Board usually chose to approve access to and use of alternative public property. For example, in 1957, the Girl Scouts requested permission to conduct a baked goods sale at Boniface Circle. At the mayor's suggestion, the Board passed a resolution granting permission to the Girl Scouts to use Chase Road for its sale because the Board thought this public location was safer.

It is also undisputed that the Board has granted general use of its parks and public properties for purposes such as speechmaking, demonstrating, participating in silent vigils and distributing petitions and other communications. Similarly, the Board has been aware of numerous requests to erect displays on Village-owned property. For example, the Scott Room of the Scarsdale Public Library often has been used for the purpose of exhibiting and displaying articles of an artistic, scientific, literary, civic, cultural, educational or religious nature. Books, miniature military figures, rare stamps and Hanukkah menorahs are among the articles that groups have exhibited and displayed in the library.

Moreover, it is undisputed that Scarsdale has granted access to parks and public properties to groups associated with particular religions. For example, in recent years Scarsdale was aware that Wayside Cottage was the location of religious services by Congregation M'Vakshe Derekh Like innumerable local communities, Scarsdale celebrates several holidays during the course of any given year. The holiday that is the center of discussion herein is Christmas. Christmas and Scarsdale's parks and public properties intersect in several ways. For many years, including 1981 and 1982, Scarsdale permitted use of several streets located in the Heathcote, Central Business (which includes Boniface Circle) and Garth Road areas of the Village by the Scarsdale Chamber of Commerce for the purpose of installing and displaying Christmas lights and ornaments. Scarsdale allowed the Chamber of Commerce to display these lights on Village-owned utility poles for approximately one month each year, commencing on or about December 1. Scarsdale also permitted the members of the Chamber of Commerce to broadcast Christmas music in these areas during the time the Christmas lights and ornaments were displayed.

and the Bahai Faith Group. The parties stipulated that the June 23, 1983, edition of the Scarsdale Inquirer reported that Congregation M'Vakshe Derekh was conducting its regular Sabbath services at Wayside Cottage. Wayside Cottage also has been used for a Catholic Mass, a Unitarian wedding ceremony, Bar Mitzvahs and religious services by the Bet Ami Conservative Synagogue. Further, in 1956, the Board granted permission to the Reconstructionist Synagogue of Westchester to use the Crossway Firehouse for the purpose of conducting worship services in September of that year.

Additionally, for many years, including 1981 and 1982, Scarsdale permitted use of Boniface Circle by the Chamber of Commerce for the purpose of installing and displaying Christmas ornaments for approximately one month each year, commencing on or about December 1, on two lamp posts in Boniface Circle and on the lamp posts directly surrounding Boniface Circle.

In each of the years 1959, 1962 through 1965, and 1968 through 1971, the Village permitted the Town Club, a private group of Scarsdale residents to use Boniface Circle to celebrate Christmas through a Christmas Carol Sing. In 1958, the Town Club held the Carol Sing at Chase Road adjoining Boniface Circle; in 1960, at the public high school in Scarsdale; in 1967, at Chase Road Park. From 1972 through 1981, Scarsdale permitted use of the plaza outside the entrance to Village Hall, the seat of Scarsdale's local government, for the Carol Sing. Clergymen from local churches offered invocations and benedictions at the Carol Sing in 1959, 1960, 1969 and 1970. In some of the above years, Scarsdale provided Village-owned loudspeakers for use in connection with the Carol Sing, and in 1971, Scarsdale permitted use of platforms from the local high school as well. Also, in some of the above years, the mayor or a member of the Board, upon invitation, attended and...

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