Murray v. City of Austin, Tex., No. 90-8561

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore GOLDBERG, SMITH, and BARKSDALE; BARKSDALE; GOLDBERG
Citation947 F.2d 147
Decision Date04 November 1991
Docket NumberNo. 90-8561
Parties, 21 Fed.R.Serv.3d 316 Jon G. MURRAY and Society of Separationists, Inc., Plaintiffs-Appellants, v. CITY OF AUSTIN, TEXAS and Travis County, Texas, Defendants-Appellees.

Page 147

947 F.2d 147
60 USLW 2367, 21 Fed.R.Serv.3d 316
Jon G. MURRAY and Society of Separationists, Inc.,
Plaintiffs-Appellants,
v.
CITY OF AUSTIN, TEXAS and Travis County, Texas, Defendants-Appellees.
No. 90-8561.
United States Court of Appeals,
Fifth Circuit.
Nov. 4, 1991.
Rehearing Denied Dec. 3, 1991.

Page 149

John W. Vinson, Austin, Tex., for plaintiffs-appellants.

Orlinda L. Naranjo, Asst. Co. Atty., Austin, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before GOLDBERG, SMITH, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

Today, we address an issue grounded in part of the bedrock on which our Country stands--freedom of religion. The issue springs from the inclusion of a Christian cross in the insignia of the City of Austin, Texas. The cross found its way into the insignia because it was part of the coat of arms of the person for whom the City is named, Stephen F. Austin, the "father of Texas".

Jon Murray and the Society of Separationists, of which he is a member, sued the City, among others, claiming that the insignia violates the Establishment and Free Exercise Clauses of the First Amendment (as incorporated by the Fourteenth Amendment), because it contains the cross, among other symbols. Agreeing that there are no disputed issues of material fact, the parties filed cross-motions for summary judgment. The district court granted summary judgment for the City and sua sponte imposed Rule 11 sanctions against Murray and the Society. 744 F.Supp. 771 (W.D.Tex.1990). 1 We AFFIRM the summary judgment, but VACATE the award of sanctions. 2

I.

In 1916, the Austin City Council sought proposed designs for a municipal flag and chose a design that incorporated, with some modifications, the family coat of arms of Stephen F. Austin, the "father of Texas" and the person after whom the City is named. The original Austin family coat of arms was a crest with three cross-crosslets and a wreath, supporting a Latin cross between two wings. (A Latin cross is the symbol of the Christian religion; its three upper arms are shorter than the lower arm, while a crosslet is "a small cross; esp: one used as a heraldic bearing". Websters New Collegiate Dictionary 308-09, illustrations 1 and 18 (9th ed. 1989). A cross-crosslet is defined as "heraldry: a cross with a crossbar near the end of each arm". Websters New International Dictionary 541 (3d ed. 1986).) The Latin cross in the coat of arms signified that a progenitor had participated in a crusade; and the wings represented St. Austin (also known as St. Augustine), the Archbishop of Canterbury. (See Appendix 1.) Stephen F. Austin modified the original coat of arms by replacing the three cross-crosslets with a deer's head to symbolize that he was an American pioneer. He also changed the Latin cross atop the crest into a form of cross-crosslet: a Latin cross with crosslets on only the three upper arms. (See Appendix 2.)

For its insignia, the City has used an adaptation of Stephen F. Austin's coat of arms. The insignia is a circle with "CITY OF AUSTIN" written circumferentially across the top and "FOUNDED 1839" across the bottom. Inside the circle is a shield formed by three vertical stripes, with an inverted triangle at the top of the shield. Inside the triangle is a lamp of knowledge, representing "the educational advantages of the City." (For example, the University of Texas is located at Austin.) Atop the shield is the silhouette of the State capitol, and superimposed on the capitol is the Latin cross with crosslets on the three upper arms, surrounded by a pair of wings. (See Appendix 3.) The insignia

Page 150

is used on police cars and other city vehicles, letterhead, monthly utility bills, uniforms of city employees, including police and firefighters, on the wall of the city council chambers, and on or in many city-owned buildings, parks, and recreation centers. (See Appendix 4.)

Murray's summary judgment affidavit stated, among other things: that he lives and works in Austin, receives many items of correspondence from the City and uses its public services, including police and fire protection and water, electric, garbage, and utility services; that he has visited the chambers of the Austin City Council and the City's municipal building; that the Christian cross in the insignia is used only by the Roman Catholic denomination; that the fact that his city uses "such a religious symbol truly offends" him; that he does "not subscribe to the religion symbolized nor to the particular sect of that religion which is further symbolized"; that he personally confronts the insignia in "many locations around the City," including the monthly utility bills he receives at his home and at the Society's offices; that use of the insignia by the City is an endorsement of Christianity in general and the Roman Catholic faith in particular; that "only after research into the seal 3 and the cross did [he] become aware that the cross was part of Stephen F. Austin's coat-of-arms"; that he has "experienced police hostility in the past when police protection was needed"; that he fears that this may have been because of the City's association with Christianity and his status as a "well known atheist spokesperson"; and that he is also "distressed that some portion of [his] City tax contribution or ... utility payments goes to advertising religion."

II.

At issue is whether the insignia violates the Establishment and Free Exercise Clauses of the First Amendment, which provides in relevant part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." U.S. Const. amend. I. As noted, the cross depicted in the insignia is a Latin cross with three crosslets, which Murray states is used particularly by the Roman Catholic faith. However, the challenge is not to a particular denomination being represented. Instead, Murray relies on what he perceives as the representation of Christianity. And, he asserts that although the cross does not occupy much space in the insignia, it is a prominent part of it; that because of its color and location, as well as its being surrounded by a pair of wings, "[a]ll attention is drawn to" it.

The resolution in 1916 soliciting designs for the City's flag makes no mention of the cross or Christianity, instead solicits designs of "artistic merit" expressing "some salient characteristics of the city", and suggests as possibilities use of

[t]he natural beauty of Austin, the City of the Violet Crown, the lake and dam, the Capital of the State, the dome of the Capitol, the seal of the city, and educational center, its industries, the sentiment of its past history, the derivation of the name--from Stephen F. Austin, an expression of the ideals of Stephen F. Austin in symbolic form, the use of the coat of arms of Stephen F. Austin.

Nor is there any reference to the cross in the resolution in 1919 adopting the design. The resolution describes the emblem as a shield with a silhouette of the Capitol crowning the whole

and woven into this silhouette is the crest to the coat-of-arms of Stephen F. Austin, after whom the City of Austin was named. The entire design is a modified form of the Austin coat-of-arms. In the center ... is a golden lamp of knowledge, typifying the educational advantages of Austin....

Although the cross is included in the insignia because it was part of Stephen F. Austin's coat of arms, it is a Christian cross nonetheless. While the reason for its being in the insignia is one of the factors

Page 151

we consider, we cannot avoid reaching the First Amendment issue simply because the cross was not placed in the insignia for religious purposes. It was in the original coat of arms to denote that an ancestor had participated in a crusade. But of far more significance, anyone seeing the insignia sees a Christian cross. We cannot expect persons viewing it to have researched its origin beforehand, any more than we can expect the City to include a disclaimer with it.

A.

As a threshold issue, we must, of course, be satisfied that Murray and the Society have standing to challenge the insignia. 4 To establish standing under Article III of the United States Constitution, a litigant must demonstrate:

that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant ...

that the injury "fairly can be traced to the challenged action" and

[that the injury] "is likely to be redressed by a favorable decision."

Cramer v. Skinner, 931 F.2d 1020, 1024 (5th Cir.1991) (brackets in Cramer ) (quoting Valley Forge Christian College v. Americans for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982)), cert. denied, --- U.S. ----, 112 S.Ct. 298, 116 L.Ed.2d 242 (1991). And in so deciding, "a court should consider three prudential concerns":

1) whether the plaintiff's complaint falls within the zone of interests protected by the statute or constitutional provision at issue;

2) whether the complaint raises abstract questions amounting to generalized grievances which are more appropriately resolved by the legislative branches; and

3) whether the plaintiff is asserting his or her own legal rights and interests rather than the legal rights and interests of third parties.

Cramer, 931 F.2d at 1024-25 (citations omitted).

Murray asserts that his earlier described affidavit establishes that he and the Society have standing under general standing principles and that he has standing as a municipal citizen and taxpayer. Concerning the former, see, e.g., Foremaster v. City of St. George, 882 F.2d 1485, 1490-91 (10th Cir.1989) ("allegations of direct, personal contact [with municipal logo] suffices as non-economic injury"), cert. denied, --- U.S. ----, 110 S.Ct. 1937, 109 L.Ed.2d 300 (1990); Saladin v. City of Milledgeville, 812 F.2d 687,...

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61 practice notes
  • Hewett v. City of King, 1:12CV1179
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • July 8, 2014
    ...Establishment Clause cases.' " Suhre v. Haywood Cnty. (Suhre II), 131 F.3d 1083, 1085 (4th Cir. 1997) (quoting Murray v. City of Austin, 947 F.2d 147, 151 (5th Cir. 1991)). Indeed, because "the Establishment Clause plaintiff is not likely to suffer physical injury or pecuniary loss . . . . ......
  • Hewett v. City of King, No. 1:12CV1179.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • July 8, 2014
    ...in Establishment Clause cases.’ ” Suhre v. Haywood Cnty. (Suhre II), 131 F.3d 1083, 1085 (4th Cir.1997) (quoting Murray v. City of Austin, 947 F.2d 147, 151 (5th Cir.1991)). Indeed, because “the Establishment Clause plaintiff is not likely to suffer physical injury or pecuniary loss .... [t......
  • Lambeth v. Board of Com'Rs of Davidson County, Nc, No. 1:03 CV 00592.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • May 25, 2004
    ...concept of injury for standing purposes is particularly elusive in Establishment Clause cases.'" Id. (quoting Murray v. City of Austin, 947 F.2d 147, 151 (5th Cir.1991)); see also Saladin v. City of Milledgeville, 812 F.2d 687, 691 (11th Cir.1987); ACLU of Ill. v. City of St. Charles, 794 F......
  • Hewett v. City of King, No. 1:12CV1179.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • July 8, 2014
    ...in Establishment Clause cases.’ ” Suhre v. Haywood Cnty. (Suhre II), 131 F.3d 1083, 1085 (4th Cir.1997) (quoting Murray v. City of Austin, 947 F.2d 147, 151 (5th Cir.1991)). Indeed, because “the Establishment Clause plaintiff is not likely to suffer physical injury or pecuniary loss .... [t......
  • Request a trial to view additional results
61 cases
  • Hewett v. City of King, 1:12CV1179
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • July 8, 2014
    ...Establishment Clause cases.' " Suhre v. Haywood Cnty. (Suhre II), 131 F.3d 1083, 1085 (4th Cir. 1997) (quoting Murray v. City of Austin, 947 F.2d 147, 151 (5th Cir. 1991)). Indeed, because "the Establishment Clause plaintiff is not likely to suffer physical injury or pecuniary loss . . . . ......
  • Hewett v. City of King, No. 1:12CV1179.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • July 8, 2014
    ...in Establishment Clause cases.’ ” Suhre v. Haywood Cnty. (Suhre II), 131 F.3d 1083, 1085 (4th Cir.1997) (quoting Murray v. City of Austin, 947 F.2d 147, 151 (5th Cir.1991)). Indeed, because “the Establishment Clause plaintiff is not likely to suffer physical injury or pecuniary loss .... [t......
  • Lambeth v. Board of Com'Rs of Davidson County, Nc, No. 1:03 CV 00592.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • May 25, 2004
    ...concept of injury for standing purposes is particularly elusive in Establishment Clause cases.'" Id. (quoting Murray v. City of Austin, 947 F.2d 147, 151 (5th Cir.1991)); see also Saladin v. City of Milledgeville, 812 F.2d 687, 691 (11th Cir.1987); ACLU of Ill. v. City of St. Charles, 794 F......
  • Hewett v. City of King, No. 1:12CV1179.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • July 8, 2014
    ...in Establishment Clause cases.’ ” Suhre v. Haywood Cnty. (Suhre II), 131 F.3d 1083, 1085 (4th Cir.1997) (quoting Murray v. City of Austin, 947 F.2d 147, 151 (5th Cir.1991)). Indeed, because “the Establishment Clause plaintiff is not likely to suffer physical injury or pecuniary loss .... [t......
  • Request a trial to view additional results

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