Okrand v. City of Los Angeles

• Citation: 254 Cal.Rptr. 913,207 Cal.App.3d 566
• Decision Date: 26 January 1989
• Docket Number: No. B026035,B026035
• Court: California Court of Appeals Court of Appeals
• Parties: Fred OKRAND, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent; Friends of Lubavitch, Inc., Intervenor and Respondent. Civ.

Page 913

254 Cal.Rptr. 913

207 Cal.App.3d 566

Fred OKRAND, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent;

Friends of Lubavitch, Inc., Intervenor and Respondent.

Civ. No. B026035.

Court of Appeal, Second District, Division 5, California.

Jan. 26, 1989.

Review Denied May 18, 1989.

[207 Cal.App.3d 568] ACLU Foundation of Southern California, Carol A. Sobel, Gary Williams,

Mark D. Rosenbaum and Paul L. Hoffman, Los Angeles, for plaintiff and appellant

James K. Hahn, City Atty., Pedro B. Echeverria, Asst. City Atty., and Marcia Haber Kamine, Deputy City Atty., for defendant and respondent.

Alschuler, Grossman & Pines, Marshall B. Grossman, Burt Pines, Jeffrey G. Kichaven, Los Angeles, and Daniel B. Spitzer, Santa Monica, for intervenor and respondent.

BOREN, Associate Justice.

Does the City of Los Angeles violate the establishment of religion clause of the United States and California constitutions when it permits display of an unlit menorah located near a decorated Christmas tree in the rotunda of its city hall? We conclude that the display in this case does not offend constitutional principles and affirm the trial court's order awarding judgment to the City.

FACTS

The facts are not disputed. On December 5, 1985, respondent "Chabad" (more formally known as Friends of Lubavitch, Inc.), an orthodox Jewish organization, obtained permission from respondent City of Los Angeles ¹ to display an unlit menorah known as the Katowitz Menorah in the Los Angeles city hall rotunda during Chanukah of that year. ²

The following day, December 6, 1985, in the superior court, appellant ³ sued respondents for injunctive and declaratory relief, asking that respondents be restrained from displaying the menorah. That same day the superior court issued a temporary restraining order prohibiting the display of a lighted menorah in the rotunda. Ultimately, the court held that the display of the unlit Katowitz Menorah was constitutional, granted respondents' motion for summary judgment, and dismissed the matter. This appeal followed.

The Katowitz Menorah was crafted by an early 19th Century Italian artist named Rosso. His work was presented to the Jewish congregation of the Great Synagogue of Katowitz in Poland. At the center of the menorah stands a double eagle that was a symbol of the Hapsburg Empire. This menorah remained with the Katowitz Synagogue until World War II. It was rescued from the Nazi Holocaust and is now owned by Chabad.

For several years the City of Los Angeles has used the rotunda of its city hall, in conjunction with the adjacent corridor to the City Hall Annex Building, to house various displays and exhibits of a historical, cultural and artistic nature. These exhibitions have included such diverse subjects as the Olympics, the Space Shuttle program, housing, health care, the motion picture industry, major charities such as United Way and March of Dimes, earthquakes and consumer rights. Some of the exhibits have also portrayed the history, heritage, and art of such ethnic and minority groups as African-Americans, senior citizens, Asian-Americans, Japanese-Americans, suffragettes and Central American refugees. In June 1985, one exhibit displayed art and handicrafts from Los Angeles. That same month also saw a presentation entitled the "U.S.C. Art Show of Renaissance Art and Modern Art." This exhibition included a portrait of "Madonna and During each Christmas holiday season, the rotunda has traditionally displayed a Christmas tree decorated with ornaments presented by various ethnic and cultural groups. In 1983, the Christmas tree was decorated with "Kawanza" Christmas ornaments, carved wooden icons from South Africa. For Christmas of 1984, the German Consulate presented the ornaments, among which were angels, madonnas and figurines of St. Nicholas. The Christmas tree for 1985 was donated by the Canadian Consulate and decorated with ornaments furnished by various city employee associations.

                Child."   Other art exhibits have been devoted to Ecuadorian, Hungarian and Jordanian [207 Cal.App.3d 570] history and culture.  The Mayor's Office sponsored "The Ann (sic ) Frank Exhibit" in summer 1986, featuring photographs and Jewish memorabilia from the Nazi Holocaust
                

During Chanukah of 1983 and 1984, which overlapped the Christmas holiday season, the Katowitz Menorah was displayed in the rotunda along with the decorated Christmas tree. In each of those two years, the display was accompanied by a Chanukah ceremony in which the candles on the menorah were lit. For 1985, the city prohibited the ceremonial lighting of candles on the menorah. ⁴ The menorah displayed in the rotunda was accompanied by a sign describing the history of the Katowitz Menorah. ⁵ December 1986 once more saw the Christmas tree and season's display along with a presentation depicting Hungarian art and history and a reception for the "Jordanian Art and Cultural Festival." Again, the Katowitz Menorah was displayed in the rotunda. It is the constitutionality of the display of the unlit Katowitz Menorah which is the subject of this appeal.

DISCUSSION

Appellant contends that the trial court erred by denying injunctive and declaratory relief because the display of the menorah violates the establishment clauses of both the federal and state constitutions. He advances two bases for his contention: (1) the city hall is not a location in which the city can constitutionally display a menorah; (2) the city's display of the menorah is unconstitutional because the city does not display with the menorah other wholly secular objects to neutralize the menorah's religious character.

Appellant relies principally on three federal circuit court of appeals decisions. The first two of these decisions, American Jewish Congress v. City of Chicago (7th Cir.1987) 827 F.2d 120, and American Civil Liberties U. v. City of Birmingham (6th Cir.1986) 791 F.2d 1561, do not involve a menorah and are thus distinguishable. As to the third, American Civil Liberties Union v. Allegheny County (3d Cir.1988) 842 F.2d 655, the United States Supreme Court has granted certiorari. (--- U.S. ----, 109 S.Ct. 53, 102 L.Ed.2d 32 (1988).) In Allegheny County, the court found that the county's display of both a creche inside the main entrance of its courthouse and a menorah on the steps of another government building violated the establishment clause.

While decisions of lower and intermediate federal courts are entitled to great weight, they are merely persuasive and not "The First Amendment of the United States Constitution decrees, 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....' [p] The Amendment is made applicable to the states through the Fourteenth Amendment (Abington School Dist. v. Schempp (1963) 374 U.S. 203, 215 [83 S.Ct. 1560, 1567, 10 L.Ed.2d 844, 854] ). [p] California's Constitution, however, in provisions not dependent upon the federal Constitution (Cal. Const., art. I, §§ 4, 24,) expresses the same sentiments: 'Free exercise and enjoyment of religion without discrimination or preference are guaranteed.... The Legislature shall make no law respecting an establishment of religion.' (Cal. Const., art. I, § 4.) [p] But California's constitutional provisions are more comprehensive than those of the federal Constitution (Fox v. City of Los Angeles (1978) 22 Cal.3d 792, 796 [150 Cal.Rptr. 867, 587 P.2d 663] )...." (Bennett v. Livermore Unified School Dist. (1987) 193 Cal.App.3d 1012, 1016, 238 Cal.Rptr. 819.)

                binding on state courts.  (Rohr Aircraft Corp. v. County of San Diego (1959) 51 Cal.2d 759, 764, 336 P.2d 521;  9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 780, p. 751.)   Thus, we are not bound by any of the three cases cited.  Moreover, we find that the facts in this case demonstrate no governmental action which tends to "establish" religion as defined by either the Supreme Court of the United States or the Supreme Court of California
                

California cases addressing this subject matter are few. And frequently an analysis under either the state or the federal constitution produces no different results. (See Perumal v. Saddleback Valley Unified School Dist. (1988) 198 Cal.App.3d 64, 71-75, 243 Cal.Rptr. 545.) Thus, when California courts examine the constitutionality of an action based on independent state grounds, they may "also consult principles of federal cases as they seem compelling guides to uncharted state grounds." (Feminist Women's Health Center, Inc. v. Philibosian (1984) 157 Cal.App.3d 1076, 1086, 203 Cal.Rptr. 918.)

I

With respect to the federal constitution, the decision of the United States Supreme Court in Lynch v. Donnelly (1984) 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 is controlling and places the present controversy into perspective. In Lynch, the City of Pawtucket, Rhode Island, erected a Christmas display "as part of its observance of the Christmas holiday season." (Lynch v. Donnelly, supra, at p. 671, 104 S.Ct. at p. 1358.) This display included traditional decorations and figures associated with Christmas including a Santa Claus house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, carolers, cut-out figures such as a clown, an elephant and a teddy bear, hundreds of colored lights, a large banner which read "SEASONS GREETINGS," and the creche which was at the heart of the controversy in Lynch. All components of the display were owned by the city although it was placed in a park owned by a nonprofit organization and located in the heart of the Pawtucket shopping district. The creche was a traditional nativity scene which included figures of the Infant Jesus, Mary and Joseph, angels, shepherds, kings and animals. (Ibid.)

In holding that the City of Pawtucket had not violated the establishment clause of the First Amendment by including a creche in its annual Christmas display, the court observed: "No significant segment of...