Metzl v. Leininger

• Decision Date: 19 June 1995
• Docket Number: No. 94-2563,94-2563
• Citation: 57 F.3d 618
• Parties: , 32 Fed.R.Serv.3d 507, 101 Ed. Law Rep. 112 Andrea METZL, Plaintiff-Appellee, v. Robert LEININGER, State Superintendent of Education, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 618

57 F.3d 618

64 USLW 2009, 32 Fed.R.Serv.3d 507,

101 Ed. Law Rep. 112

Andrea METZL, Plaintiff-Appellee, v. Robert LEININGER, State Superintendent of Education Defendant-Appellant.

No. 94-2563.

United States Court of Appeals Seventh Circuit.

Argued April 5, 1995.

Decided June 19, 1995.

Robert B. Millner (argued), Robert B. Millner, David J. Stagman, Camille E. Bennett Sonnenschein, Nath & Rosenthal, Sylvia Neil, American Jewish Congress, Chicago, IL, for plaintiff-appellee.

Thomas A. Ioppolo, Daniel N. Malato (argued), Asst. Attys. Gen., Civ. Appeals Div., Chicago, IL, for defendant-appellant.

Before POSNER, Chief Judge, and CUMMINGS and MANION, Circuit Judges.

POSNER, Chief Judge.

Christians believe that Jesus Christ was crucified on a Friday afternoon in the spring and that he rose from the dead the following Sunday. The crucifixion is commemorated on Good Friday, the resurrection on Easter Sunday. In 1941 Illinois made Good Friday a state holiday; state facilities, including schools (but not colleges or universities), were to be closed on that day. There is no contemporaneous legislative history but in the following year the governor of Illinois explained in a proclamation that Good Friday "is a day charged with special meaning to multitudes throughout the Christian world" and that Illinois had "lately given statutory recognition" to Good Friday by making it a "legal and school holiday throughout the State." He "commend[ed] the sacred rites and ceremonies of the occasion to thoughtful consideration of churchgoers and believers throughout our State." In 1989, the Illinois legislature rescinded Good Friday as a state holiday but retained it as a school holiday, and so it remains. 105 ILCS Sec. 5/24-2. All public schools (below the college level) in the state are closed that day but the teachers are paid just as for other holidays. Schoolchildren are excused from attending school on other days if their religion requires their absence, 105 ILCS Secs. 5/26-1, 5/26-2b; this alone scotches any argument that the law challenged in this case is necessary to accommodate the religious needs of Christian students in Illinois. And some school districts, apparently without thereby violating any state law, close for major Jewish holidays. But apart from Christmas and Thanksgiving, Good Friday is the only holiday of religious origin or character on which all the public schools of the state are closed, by virtue of the statute here attacked in a suit under 42 U.S.C. Sec. 1983 by a public school teacher who objects, among other things, to the use of public funds derived from taxes that she pays to pay teachers for the Good Friday holiday. Her status as a taxpayer gives her standing to attack a practice, that of making Good Friday a paid school holiday, which her taxes support. Flast v. Cohen, 392 U.S. 83, 105-06, 88 S.Ct. 1942, 1955, 20 L.Ed.2d 947 (1968); Gonzales v. North Township, 4 F.3d 1412, 1416 (7th Cir.1993).

The district judge granted summary judgment for the plaintiff on the ground that the statute is an establishment of religion, and issued a permanent injunction, which has not been stayed and therefore was in force this past Good Friday, against enforcing the statute. 850 F.Supp. 740 (N.D.Ill.1994). Although the injunction is not set forth in a separate document, as Fed.R.Civ.P. 65(d) requires, but rather in the body of the judge's opinion, 850 F.Supp. at 750, our jurisdiction of the appeal is secure. The command in the opinion is unequivocal, and the defendant (the state superintendent of education--effectively, the state) has acknowledged that he can be held in contempt if he disobeys it. It is therefore not a nullity despite the failure to comply with Rule 65(d), so the defendant has standing to appeal. Original Great American Chocolate Chip Cookie Co. v. River Valley Cookies, Ltd., 970 F.2d 273, 276 (7th Cir.1992).

What is more, the district judge issued a declaratory judgment as well as an injunction, and a declaratory judgment is appealable without regard to Rule 65(d). Abbs v. Sullivan, 963 F.2d 918, 923-24 (7th Cir.1992); Gjertsen v. Board of Election Commissioners, 751 F.2d 199, 201 (7th Cir.1984). It is true that like any other sort of judgment a declaratory judgment is supposed to be set forth in a separate document from the opinion. American Inter-Fidelity Exchange v. American Re-Insurance Co., 17 F.3d 1018, 1020 (7th Cir.1994). Rule 58 so requires. But violations of Rule 58 are not jurisdictional. Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (per curiam); Abbs v. Sullivan, supra, 963 F.2d at 923. Occasional statements suggesting that declaratory judgments are not appealable unless entered in conformity with Rule 58, such as "if the opinion contains language awarding declaratory relief, but the judgment does not, the opinion has been reduced to dictum," and hence has no force, Bethune Plaza, Inc. v. Lumpkin, 863 F.2d 525, 527 (7th Cir.1988); see also Bates v. Johnson, 901 F.2d 1424, 1428 (7th Cir.1990), must like all legal generalizations be considered in their context. If it is plain what the judgment declares (as was not the case in Azeez v. Fairman, 795 F.2d 1296, 1297 (7th Cir.1986), leading us to conclude that there was no declaratory judgment before us) and it is also plain that the district court is finished with the case, then, even if Rule 58 has not been complied with, there is appellate jurisdiction.

We turn to the merits. When the Bill of Rights, which in the First Amendment forbids Congress to establish a church, was promulgated, there were established churches in several of the states, as there was, of course, in England and as there are to this day there and in most other European countries. An established church is one that is supported by taxes. What Illinois has done in closing the public schools on Good Friday is remote from the eighteenth-century, or for that matter the modern nonlawyer's, conception of creating or operating an established church. But in modern times the courts have interpreted the establishment clause to forbid government--state and local as well as federal--to promote one religion at the expense of others (or even religion in general at the expense of non-belief). Board of Education v. Grumet, --- U.S. ----, ----, 114 S.Ct. 2481, 2487, 129 L.Ed.2d 546 (1994); County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 605, 109 S.Ct. 3086, 3107, 106 L.Ed.2d 472 (1989); American Civil Liberties Union v. City of St. Charles, 794 F.2d 265, 270 (7th Cir.1986). This principle is qualified, however. As the cases upholding Sunday closing laws (of which more shortly) show, as well as Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), which permitted a city to exhibit a creche (a scene depicting the birth of Jesus Christ in a manger) as part of a Christmas display, a law that promotes religion may nevertheless be upheld either because of the secular purposes that the law also serves or because the effect in promoting religion is too attenuated to worry about. The law may also be defensible as an accommodation of the rights of religious persons to the free exercise of their religion. But that is not a factor here, as we have already noted, since, wholly apart from the challenged law, public school students in Illinois who want to be excused from school on Good Friday for religious reasons are entitled to be excused without penalty save what is implicit in missing a day of school when school is in session.

Some holidays that are religious, even sectarian, in origin, such as Christmas and Thanksgiving, have so far lost their religious connotation in the eyes of the general public that government measures to promote them, as by making them holidays or even by having the government itself celebrate them, have only a trivial effect in promoting religion. Even Easter is becoming gradually secularized; in the week before this past Easter Sunday, a radio station in Chicago was advertising an opportunity to have your pet photographed with the Easter Bunny on Easter Sunday for $5. Good Friday, however, is not a secular holiday anywhere in the United States (with the possible exception of Hawaii, as we shall see). This is not merely our impression. It is the unanimous view of the theologians of diverse faiths who submitted affidavits in the district court. Christmas and Thanksgiving have accreted secular rituals, such as shopping, and eating turkey with cranberry sauce, that most Americans, regardless of their religious faith or lack thereof, participate in. Likewise with Easter egg hunts for children, not to mention photo sessions with the Easter Bunny. Good Friday has accreted no secular rituals. That should come as no surprise. Good Friday commemorates the execution of the Christian Messiah. Cf. American Civil Liberties Union v. City of St. Charles, supra, 794 F.2d at 271-73. It is a day of solemn religious observance, and nothing else, for believing Christians, and no one else. Unitarians, Jews, Muslims, Buddhists, atheists--there is nothing in Good Friday for them, as there is in the other holidays we have mentioned despite the Christian origin of those holidays.

Illinois closes its schools on twelve holidays. Nine are purely secular. Two are religious in origin but secularized: Christmas and Thanksgiving. Only one of the holidays is a purely religious holiday, Good Friday, the holiday celebrated only by believing Christians. School districts are free to close their schools on the major holidays of other religions, but all public schools throughout the state are forced to close on Good Friday regardless of the preference of local school districts and no matter how small the number of students or teachers in a particular district who want to use the day for religious observances. The state has accorded special recognition to Christianity beyond anything that has been shown to be...