Smith v. County of Albemarle, Va.
| Decision Date | 28 March 1990 |
| Docket Number | No. 88-2973,88-2973 |
| Citation | 895 F.2d 953 |
| Parties | William S. SMITH; Paula Kettlewell; Wayne B. Aranson; James J. Baker; Daniel S. Alexander; Douglas W. Kanney; James W. Pence; B. Eliot Singer; Jean M. Quigley; Cynthia K. Davis, Plaintiffs-Appellees, and James F. McDonald, Plaintiff, v. COUNTY OF ALBEMARLE, VIRGINIA, Defendant-Appellant, Northside Baptist Church; Living Hope Chapel; Maranatha Christian Fellowship; Providence Foundation; Reverend William Templeton; Reverend Richard A. Whittaker; Reverend Greg R. Davis; Reverend Russell Stroup; Lois G. Stroup; Reverend Lewis D. Templeman; Reverend Ralph S. Carter; Reverend Mark A. Beliles; Stephen K. McDowell; Norman T. Brinkman; Georgia C. Brinkman; Bill Kincaid; Anne Kincaid; Ronald J. Gilbert; Ann S. Gilbert; Thomas W. Gilliam; Diane Gilliam; Michael A. Coffey; Debra B. Coffey; Richard H. Rubenoff; Lynn Rubenoff; Sheila Richardson; Reverend John Manzano; Reverend Curtis L. Gibson; Eileen D. Gibson; Susie S.K. Waldron; Elizabeth Parrott; Mark L. Marhoefer, Amici Curiae, and Timothy Lindstrom; Joseph Henley; Edward H. Bain, Jr.; Patricia Cooke; Richard Bowie; Peter Way, Defendants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
George R. St. John (St. John, Bowling & Lawrence, Charlottesville, Va., on brief), for defendant-appellant.
James Jeffrey Knicely (Graber, Knicely & Cotorceanu, Charlottesville, Va., Roy W. Ferguson, Jr., Wharton, Aldhizer & Weaver, Harrisonburg, Va., John W. Whitehead, The Rutherford Institute, Charlottesville, Va., on brief), for amici curiae.
Dexter Brock Green, for plaintiffs-appellees.
Before MURNAGHAN and SPROUSE, Circuit Judges, and BLATT, Chief District Judge for the District of South Carolina, sitting by designation.
Here we approach one of the most entangled areas with which courts must be concerned under the First Amendment to the United States Constitution. That document provides in pertinent part:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech....
U.S. Const.Amend. I. The clause requires us to make decisions as to the application of "establishment of religion," "free exercise [of religion]," and "the freedom of speech" as those terms apply to a situation involving the erection of a nativity scene on the front lawn of the Albemarle County Office Building in Charlottesville, Virginia.
The plaintiffs, six Christian or Unitarian ministers, a Jewish Rabbi, and three private individuals of various religious backgrounds, are residents of Albemarle County, Virginia. They sued the Board of Supervisors and the County of Albemarle under 42 U.S.C. Sec. 1983 for declaratory and injunctive relief, alleging that the Board of Supervisors violated the plaintiffs' Establishment Clause rights by permitting the local chapter of the Jaycees to erect a creche on the front lawn of the County Office Building. Judge Michael, of the United States District Court for the Western District of Virginia, granted summary judgment for the plaintiffs, 699 F.Supp. 549 (1988), and the County now appeals.
Initially we must address an assertion, first raised on appeal, that the plaintiffs lack standing. 1 While that contention might otherwise be regarded as coming too late, it presents a question of jurisdiction vel non and thus must be considered.
The County has advanced, by supplemental brief, a claim that the plaintiffs, who are taxpayers and residents of Albemarle County, absent actual economic injury, have no standing to bring an Establishment Clause claim against the County. Recent authority, however, contradicts such an assertion. See Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (); Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (); Allegheny County v. ACLU, --- U.S. ----, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (). See also L. Tribe, American Constitutional Law Sec. 3-16, at 118-19 (2d ed. 1988) ("Interests sufficient to raise questions under the establishment clause of the first amendment may be asserted not only by criminal defendants and by taxpayers, but by all who can show a direct and concrete impact upon themselves from the action questioned."). The standing of plaintiffs is, therefore, established and we turn, then, to the claim regarding the establishment of religion.
All pertinent facts have been stipulated by agreement of the parties. Immediately prior to December 2, 1987, the Charlottesville-Albemarle Jaycees asked the Albemarle County Board of Supervisors for permission to place a nativity scene on the front lawn of the Albemarle County Office Building. At their meeting of December 2, 1987, the Board of Supervisors, by a vote of four to two, allowed the display of the nativity scene. The front lawn of the County Office Building is a grassy expanse located at one of the busiest intersections in Charlottesville. The County Office Building itself is a large brick building with a designation as the "Albemarle County Office Building" prominently displayed on the front of the building clearly above and behind the location of the creche. The American and Virginia flags flank the front of the building and are also in the general line of vision when viewing the creche. The creche consisted of large figures, easily visible, and illuminated at night. The creche was erected on December 6, 1987, and remained until January 10, 1988. No other seasonal symbols accompanied the display. The creche had no secular content. The erection and maintenance of the creche involved no expenditure of County funds. Immediately after the creche had been erected, an 18 inch by 6 inch sign reading "Sponsored by Charlottesville Jaycees" was placed next to the creche. After suit protesting establishment of religion was filed on December 14, 1987, a larger and more specific disclaimer sign was placed next to the creche. 2
The site has been the location of the County Office Building only since 1981. However, since that time, the lawn has been used sporadically for occasional activities: a beauty pageant, a billboard for the United Way, two Easter "sunrise" services, several assorted weddings, municipal band concerts, and a civil rights demonstration.
Despite the fact that the building is the office building for Albemarle County, it is located in downtown Charlottesville. It is a highly visible location. Indeed, the president of the Jaycees testified that he sought to erect the creche in that location because of the site's visibility. He insisted, however, that the choice of that property was not motivated by the lawn's location in front of the County Office Building.
In deciding how the particulars of the situation fit with earlier legal tests for determining violations of the Establishment Clause, the district court took particular note of the following aspects of the display. First, the creche consisted of large figures, readily visible, and brightly lit at night. Second, the creche was displayed for a five-week period. Finally, and most significantly, the creche was displayed in the context of a government site. That is, one could not readily view the creche without also viewing the trappings and identifying marks of the state. This visual association was, in the district court's view, unmistakable and impossible to sever.
Subsequent to the district court disposition of the case, the Supreme Court, in County of Allegheny v. ACLU, --- U.S. ----, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), clarified the involved and delicate Establishment Clause balancing act required when evaluating a religious display in a public context. The district court's present opinion could have been written with Allegheny County before it. Judge Michael employed the same analysis and evaluated the same factors endorsed by the Supreme Court in Allegheny County to reach a result fully comporting with the Supreme Court's recent pronouncement.
A brief review of Allegheny County's rationale demonstrates the correctness of Judge Michael's reasoning. From the collection of opinions in Allegheny County, central adjudicative principles must be distilled. A majority of the Supreme Court found the display of a creche, in circumstances very similar to those at bar, unconstitutional, and the display of a Menorah, with significant associated secular aspects not present here, constitutional.
The Court continued to base its Establishment Clause calculus on the three "tests" of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971)--"a statute or practice which touches upon religion, if it is to be permissible under the Establishment Clause, must have a secular purpose; it must neither advance nor inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion." Allegheny County, 109 S.Ct. at 3100 (citing Lemon, 403 U.S. at 612-13, 91 S.Ct. at 2111). Focusing on the second Lemon prong, primary effect (the only portion of the district court's reasoning contested in both Allegheny County and the case at bar), the Court continued to emphasize that the Establishment Clause is violated when a given governmental practice has the appearance or effect of endorsing religion. In such circumstances, adopting the views expressed by Justice O'Connor in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (concurring), a finding of "endorsement" is predicated on a review of the nature and context of the contested object, "what viewers may fairly...
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