Jane DOE, Plaintiff-Appellee,
v.
George D. SMALL, Mayor of the City of Ottawa, Illinois,
Barbara J. Lindquist, William C. Ferguson, Alan R. Howarter,
William N. Stevenson, Members of the City Council of the
City of Ottawa, Illinois and City of Ottawa, Illinois, a
municipal corporation, Defendants,
and
Ottawa Freedom Association, Limited, Intervening Defendant-Appellant.
No. 89-3756.
United States Court of Appeals,
Seventh Circuit.
Argued Sept. 7, 1990.
Reargued Dec. 19, 1991.
Decided May 15, 1992.
As Amended May 18, 1992.
Joseph R. Lundy, Deborah A. Golden, Schiff, Hardin & Waite; Harvey M. Grossman, Jane M. Whicher (argued), Roger Baldwin Foundation, Chicago, Ill.; Donald S. Rothschild, Rothschild & Associates, Oak Park, Ill.; and Elmer Gertz, Chicago, Ill., for plaintiff-appellee.
Joel G. Chefitz (argued) Cynthia Photos Abbott, Paul A. Haskins, Patrick J. Lamb, Katten, Muchin & Zavis, Chicago, Ill.; George C. Hupp, Jr., Hupp, Lanuti, Irion & Martin, Ottawa, Ill.; and Robert K. Skolrood, Nat. Legal Foundation, Virginia Beach, Va., for Intervenor-Appellant.
Judson H. Miner, Davis, Miner, Barnhill & Galland; and Sylvia Neil, Chicago, Ill., for American Jewish Congress, amicus curiae.
Jeffrey P. Sinesky, Steven M. Freeman, Jill L. Kahn, Richard E. Shevitz, Michael A. Sandberg, Anti-Defamation League of B'Nai B'Rith, New York City; James D. Holzhauer, Robert A. Helman, and Thomas C. Berg, Mayer, Brown & Platt, Chicago, Ill., for Anti-Defamation League of B'Nai B'Rith, amicus curiae.
Before BAUER, Chief Judge, CUMMINGS, WOOD, Jr.,* CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, and KANNE, Circuit Judges.
COFFEY, Circuit Judge.
The Ottawa Freedom Association ("OFA")1 appeals the district court's entry of summary judgment enjoining the City of Ottawa from allowing any person or group from displaying the paintings at issue in Washington Park in Ottawa, Illinois. Because this injunction is overbroad and infringes on the free speech rights of any private person desiring to display the paintings, we reverse.
I. FACTS2
A. The Paintings
In 1956 the Ottawa Retail Merchants' Association, a private organization, commissioned the painting of sixteen canvases depicting scenes from the life of Christ in an effort to "put Christ back in Christmas." These paintings were displayed in Washington Park, located in the heart of the City of Ottawa, Illinois, during the Christmas season from 1957 to 1969 and again in 1980 through 1988. Except for the years 1964 through 1967, when the City arranged for the erection of the paintings, the display has been exhibited by private parties.
The paintings were not displayed during the 1970s but were stored under an old grandstand structure and apparently forgotten. According to a 1980 Ottawa newspaper article, the City Parks Superintendent who discovered the paintings under the old grandstand stated:
" 'We've got to find a home for them, got to find an owner,' he said. 'This building will be torn down early next spring, and the city doesn't have another place big enough to store them.' "
Upon reading about the discovery of the paintings, the local chapter of the Junior Chamber of Commerce (Jaycees), a national service-oriented organization, contacted the City and volunteered to take charge of the paintings; the Jaycees were the caretakers of the paintings until they transferred their custody to the OFA shortly before the request for rehearing en banc.
When the paintings were displayed, they occupied less than one-half of the west side of Washington Park in a slightly V-shaped angle (150? ), and the vertex of the display was forty-eight feet from the street. Including the area between the paintings and the sidewalk, the paintings occupied 6.34 percent of the Park. A 20 1/2" wide by 21" high sign with letters 1 1/16"' high, clearly legible from the sidewalk but not from across the street, accompanied the paintings and stated: "THIS DISPLAY HAS BEEN ERECTED AND MAINTAINED SOLELY BY THE OTTAWA JAYCEES, A PRIVATE ORGANIZATION, WITHOUT THE USE OF PUBLIC FUNDS."3
B. The Forum
Washington Park is a quintessential public forum well removed from the seat of the City government; City Hall is some three blocks away, and no City buildings border the park. Deposition testimony from a number of Ottawa residents established that Washington Park has historically been an open public forum with free and equal access to all for lawful purposes. Space in the Park is allocated on a first-come, first-served basis, without specific permission from the City:
"Q. So if I wanted to display my pictures depicting worship of the devil tomorrow in Washington Park, I could just go in and put up those displays, is that correct?
* * * * * *
"The Witness: You can put them up, we might have to have, maybe, the engineer or someone that knows where the wiring is at so you don't get electrocuted, but yes.
* * * * * *
"Q. And other than checking the wiring in the ground, are there any other limits on installing concrete holes in the park?
"A. No.
"Q. So I could place these holes anywhere in the park without seeking City of Ottawa's permission, so long as I complied with the wiring in the ground, is that correct?
"A. Yes.
"Q. And the City Engineer would advise me as to whether or not I was complying with any requirements or concerns with respect to wiring in the ground?"A. Yes.
* * * * * *
"Q. And I could, in fact, use the Jaycee holes to display paintings depicting devil worship without seeking the permission of the City of Ottawa, is that correct?
"A. That's correct.
* * * * * *
"Q. I could do so without seeking the permission of the Ottawa Jaycees?
"A. Yes.
"Q. So long as I got there first?
"A. Yes."
Deposition of City Council Member William C. Ferguson at 44, 86-88.
Unrestricted public access to Washington Park dates back some 133 years to 1858 when Abraham Lincoln and Stephen Douglas used the Park for one of their famous debates. In 1988, President Bush likewise chose Washington Park as a forum for a speech and rally during his presidential campaign. According to City records, the Park has been the site of a broad array of private activities in recent years, including religious activities:
1982
June 19, 1982 Residents Against Polluted Environment sponsored "Earth Day"
Aug. 2, 1984 Tora! Tora! held a concert for world peace
1983
Oct. 29, 1983 Open air meeting sponsored by the Congregation of the New Life Ministry, Inc.
1984
June 28, 1984 Special Church Service
July, 1984 Religious Concert
Aug., 1984 Concert for World Peace
Aug., 1984 Cut a Thon by Cosmetologists
1985
Jan., 1985 Illinois Valley Citizens for Life Prayer Vigil
May, 1985 Concert in Washington Park
June, 1985 United Methodist Church Services
July, 1985 University Women Book Sale
July, 1985 Grade School Band Social and Concert
Oct., 1985 United Way Lunch
1986
June, 1986 Camp Fire Girls Ceremony
June, 1986 Art League Display
June, 1986 Pastor Reed Church Service
July, 1986 Arts & Crafts Show--Art League
July, 1986 A.A.U.W. Book Sale
July, 1986 Decatur Park Concert
Aug., 1986 Grade School Band Concert
Aug., 1986 Flea Market
Aug., 1986 A.A.U. Book Sale
Sept., 1986 Ottawa Lioness Club Flea Market
Sept., 1986 Nam Vets POW/MIA National Recognition Ceremony
1987
May, 1987 Ottawa Retail Council Flea Market
May, 1987 Amazing Grace Fellowship Meeting and Concert
July, 1987 New Lite Ministries Rummage Sale
July, 1987 Nam Vets--Concert
Aug., 1987 Sesquicentennial Celebration Activities
Sept., 1987 Lioness Club Flea Market
Sept., 1987 Nam Vets POW/MIA National Recognition Ceremony
Oct., 1987 All Church Concert
1988
May, 1988 Mayfest Flea Market
July, 1988 Art Show
July, 1988 Book Sale
July, 1988 Dance Show
Aug., 1988 Flea Market
Sept., 1988 Lioness Flea Market
Sept., 1988 POW/MIA National Recognition Ceremony
(Emphasis added.)
For many years the City of Ottawa, in the spirit of the season and "goodwill toward others," has combined with private parties in a joint effort to decorate the downtown area with festive holiday and Christmas decorations during the Yuletide season. As part of the City's decorations, it displayed a Santa Claus house in the Park each year during the 1960s and 1970s, but more recently the City displays the house in alternate years. Additionally, the lamp posts in the downtown area as well as those in and surrounding Washington Park are garnished with Christmas decorations. In 1988 the City added the "Festival of Lights" to the Christmas display in Washington Park. The "Festival of Lights" decorations included lights, candles, bows, artificial snowflakes and a fifteen-foot snowman. The lights were placed on the memorials in the Park as well as on tree branches, including those trees surrounding the paintings at issue in this appeal. The giant candles, bows, snowflakes and the fifteen-foot snowman all served as different focal points and were visible from in and around the Park. The Christmas display in the Park also included an evergreen Christmas tree displayed by the Salvation Army that provided its own focal point.
C. The Dispute
In November of 1986, Richard Rohrer wrote a letter to the City Council requesting that the paintings be removed from Washington Park because they "represent an unacceptable endorsement of Christianity by the city and violate the constitutional rights of all Ottawans who are not Christians." On December 2, 1986, the Ottawa City Council passed the following resolution:
"WHEREAS, for many years, the City of Ottawa has celebrated the Christmas season with many public displays of seasonal decorations throughout the community, and
"WHEREAS, the downtown area of the City has, for more than 20 years, been decorated through a coordinated effort of private and public bodies, including the County of LaSalle, City of Ottawa, Ottawa Area Chamber of Commerce, Retail Merchants Association, Ottawa Jaycees and various church and other private groups owning property in or near the downtown area, and
"WHEREAS, the decorations have consisted of ornamental lighting on the streets in downtown Ottawa; ornamental lighting, Christmas trees, lighted and festooned trees throughout the downtown area; Santa Claus house on the Courthouse lawn; ornamental lighting, and eighteen large paintings celebrating the Christmas spirit in Washington Park; nativity scenes and other seasonal decorations on private property surrounding Washington Park; ornamental lighting on the Fire and Police station and other decorations in keeping with the season, and
"WHEREAS, because of a single complaint filed with it concerning the paintings in Washington Park the City has reviewed the history of the paintings and find that they were initially commissioned by the Retail Merchants Association over 20 years ago as a portrayal of 'The Greatest Story Ever Told' in conjunction with and in commemoration of the spirit of Christmas; that the Retail Merchants Association for many years erected the pictures in Washington Park as part of the Christmas decorations for downtown Ottawa in keeping with the spirit of the season; that in recent years the pictures had been maintained, erected, dismantled and stored by the Ottawa Jaycees as their part in providing appropriate decorations for the community as part of the Christmas season, and
"WHEREAS, the City Council of the City of Ottawa finds that the decorations in downtown Ottawa which have been erected for more than the last 20 years by public and private agencies truly represent a cooperative effort by the community to provide appropriate seasonal yuletide spirit so that the people attracted by the Christmas decorations to shop and otherwise do their business in the downtown area will be benefitted by the traditional, beautiful and seasonally appropriate decorations which they have come to know and love for 2 decades. The City Council specifically finds the pictures erected by the Jaycees in Washington Park are an integral part of the seasonal decorations epitomizing Christmas in the hearts and minds of the citizens of the City.
"NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ottawa, that after due consideration and reflection upon the complaint raised concerning the pictures in Washington Park, that this council endorse the activities of the Ottawa Jaycees in maintaining, erecting, dismantling and storing said pictures and incorporating them in the overall Christmas display that annually graces the downtown area of the City and further thanks all the other groups, public and private, who also maintain, erect, dismantle and store other portions of the Christmas decorations which are integral to the annual yuletide season and the spirit thereof."
On August 11, 1988, Rohrer filed a complaint with the federal district court seeking to enjoin the display of the paintings; he modified his complaint January 11, 1989, to request that the court enjoin the exhibit unless the City placed restrictions on the frequency and duration of the display; and the complaint was once more amended on June 12, 1989, to substitute Jane Doe as plaintiff after Rohrer moved from Ottawa.
Subsequent to the filing of the suit, Mayor Small stated that the City was "going to proceed and put the pictures back in the park." Suit Filed Over Park Paintings, Ottawa Daily Times, Aug. 16, 1988. In regard to Rohrer's filing of the suit, the Mayor said:
"This is what I guess happens in a free country. If he doesn't like the paintings, then he can drive around them.... Maybe he's looking for a public reaction, but I don't want him crying when the public puts the heat on him."
Id. Several months later the City, on the recommendation of the mayor and the advice of the city attorney, changed its position in regard to the display of the paintings. At the October 18, 1988 City Council meeting, the Council voted to prohibit the display of the paintings and, as an alternative, to initiate a "Festival of Lights" as Christmas decorations for Washington Park. Shortly thereafter, the First National Bank of Ottawa offered to allow the Jaycees to display the paintings on its property located across the street from Ottawa City Hall. Upon hearing of the proposed new location for the paintings, Mayor Small stated: "It's an honor to have the pictures across the street from City Hall.... Maybe someday they'll be back in Washington Park where they belong." Paintings Get Home, Ottawa Daily Times, Oct. 21, 1988. A representative of the National Legal Foundation appeared at a special meeting of the City Council on October 28, 1988, and offered to defend the lawsuit if the City gave the Jaycees permission to proceed with displaying the paintings in Washington Park.4 At this time, the City Council voted to rescind their decision preventing the Jaycees from displaying the paintings during the 1988-1989 Christmas season. Subsequently, the Ottawa Jaycees, represented by the National Legal Foundation, intervened as defendants and took over the defense of the lawsuit.
The Jaycees moved for summary judgment on the ground that the paintings constitute private religious speech, protected under the Free Speech Clause of the First Amendment. Doe likewise filed a motion for summary judgment, arguing that the display of the paintings in a public park violated the Establishment Clause of the First Amendment because the display constituted a state establishment of religion. The district court entered summary judgment for Doe, holding that the display of the paintings in Washington Park violated the Establishment Clause. See Doe v. Small,
"[It] makes no difference to the analysis or result that Washington Park may be a public forum....
....
"... City Defendants may--and must--regulate religious speech in Washington Park, including that of Jaycees, if such speech presents the danger of a violation of the Establishment Clause."
Id. at 724. The district court found that the display of the paintings violated the Establishment Clause and permanently enjoined their display in Washington Park:
"This Court has been advised that the paintings have already been put up on display for the current season. City is therefore ordered to have the paintings removed by December 8, 1989 and to forego any future display of the paintings in the Park by any group."
Id. at 725 (footnotes omitted) (emphasis added).
II. ISSUES
The issues we address on this appeal are: 1) Whether private persons may be enjoined from engaging in religious speech in a public forum on the basis of the religious content of the speech; and 2) Whether the proper remedy was to enjoin the Jaycees' speech if the display was not purely private and therefore violated the Establishment Clause. The court is not in agreement as to whether the City violated the Establishment Clause in its conduct. Some members of the court feel that the City Council's resolution "endors[ing] the activities of the Ottawa Jaycees" in placing the paintings in the Christmas display was merely a "thank you" to the Jaycees while other members of the court believe the resolution independently or in addition to other conduct of the City to be an endorsement of the content of the paintings. We need not and will not address the issue of whether the City of Ottawa endorsed the Jaycees' religious speech because the City has not appealed.5
III. PRIVATE RELIGIOUS SPEECH IN A PUBLIC FORUM
The district court determined that the Jaycees' display of the paintings violated the Establishment Clause and ordered the City "to forego any future display of the paintings in the Park by any group." Doe v. Small,
Perry Education Association v. Perry Local Educators' Association,
"In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which 'have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.' Hague v. CIO,
Id.,
"[T]he state interest asserted here--in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution--is limited by the Free Exercise Clause and in this case by the Free Speech Clause as well. In this constitutional context, we are unable to recognize the State's interest as sufficiently 'compelling' to justify content-based discrimination against respondents' religious speech."
Id. at 276,
The district court obviously assumed that the religious content of the paintings would result in some kind of a violation of the Establishment Clause regardless of what private group displayed them in Washington Park, so it ordered the City "to forego any future display of the paintings in the Park by any group." Doe v. Small,
"[I]f a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion. 'The Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities.' "
Mergens,
Our holding that the paintings may not be excluded from Washington Park is consistent with the Supreme Court cases cited above as well as with precedent from this court. In Doe v. Village of Crestwood,
"The Park is a public forum. If the Festival, too, is open to private groups that wish to participate, and if the Crestwood Women's Club (or a church) were the sponsor of the mass, it would be difficult to find an obstacle in the Establishment Clause of the First Amendment.... A government may not close its public forums to religious practice by private parties. Widmar v. Vincent,
Id. at 1478 (citations omitted) (emphasis added). We likewise emphasized the importance of equal access for religious speech in Lubavitch Chabad House, Inc. v. City of Chicago,
"First Amendment jurisprudence certainly does mandate that if the government opens a public forum to allow some groups to erect communicative structures, it cannot deny equal access to others because of religious considerations, Widmar v. Vincent,
Id. at 347 (emphasis added). We are unpersuaded that whatever relationship the City of Ottawa may have had with the paintings in the past requires us to deviate from the equal access principles enunciated in Widmar, Mergens, Crestwood and Lubavitch.
IV. NARROWLY TAILORED REMEDY
In permanently enjoining the display of the paintings "by any group," the district court failed to consider whether the total ban was narrowly tailored to remedy the "evil" of the City's alleged endorsement of the message of the paintings.
"A statute [or remedy] is narrowly tailored if it targets and eliminates no more than the exact source of the 'evil' it seeks to remedy. City Council of Los Angeles v. Taxpayers for Vincent,
Frisby v. Schultz,
The district judge's permanent injunction prohibiting the display of the paintings implies that once the government impermissibly endorses religious speech (e.g. the paintings), that particular speech becomes poisoned and no private party may thereafter express that view.7 The court evidently believed that the alleged endorsement of the City could not be remedied without a complete ban on the display, but that is an incorrect assumption. This court has previously recognized that the government can take steps to remove indicia of endorsement of private religious speech. See Mather v. Village of Mundelein,
This court is agreed that the City should not engage in any conduct that approves or disapproves of the religious beliefs of anyone. The City must treat all who wish to engage in expressive activities within the confines of the law in Washington Park (and other public forums) equally.9 In view of the controversy engendered by the display of these paintings, we think the Ottawa City Council would be well-advised to carefully avoid any type of conduct that could be interpreted as an endorsement of the religious message of the paintings.10 If the mayor or any City Council member or official of the City wishes to express an opinion of a private party's exhibit, the person should clarify whether he or she is speaking in an individual or official capacity.
Permitting the OFA or the Jaycees to display the paintings in Washington Park complies with the concerns of the Establishment Clause as well as the Free Speech Clause. In the physical context of an exhibit on governmental property in the seat of government where "any [private] display located there fairly may be understood to express views that receive the support and endorsement of the government," County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter,
V. CONCLUSION
We hold that the district court erred in issuing an overbroad injunction mandating that the City must remove the paintings from the park and "forego any future display of the paintings in the Park by any group" because the overbroad injunction was a content-based exclusion of speech without a compelling state interest to support it. We further hold that the court erred in enjoining the display of the paintings as opposed to enjoining only the conduct of the City that allegedly violated the Establishment Clause. The judgment of the district court is REVERSED except for the holding that the City of Ottawa violated the Establishment Clause. Since the City of Ottawa has not joined in appealing that holding, we express no opinion as to whether the City violated the Establishment Clause. Should the plaintiff wish to pursue her original intent of enforcing the regulation of private speech in Washington Park, it will be necessary for her to apply to the district court for a limited injunction consistent with the language in this majority opinion. The injunction against the City is VACATED and the case is remanded to the district court pursuant to Circuit Rule 36.
CUDAHY, Circuit Judge, concurring in the judgment.
In his amended complaint of January 11, 1989, Richard J. Rohrer, the original plaintiff in this case, sought a permanent injunction prohibiting the defendants from allowing the display of the paintings so long as they did not impose limits on the frequency or duration of the display. The distinguished district judge went far beyond the relief requested and ordered the City of Ottawa to have the paintings removed and to forego any future display of the paintings. He opined that "the unmistakably religious content of the paintings as a group moots any time-and-manner restriction as a saving device." Doe v. Small,
The action of the district court was apparently rooted in the belief that the Ottawa Jaycees, a private organization, was an alter ego or agent of the City and indistinguishable from it for purposes of the Establishment Clause. See
To the extent that the district court did not rely on an assumption that the Jaycees were speaking for the City, it assumed that these paintings, posted prominently in a public park, are like a creche in the middle of a county courthouse. At 722-24 & 724 (comparing the display to the creche banned in County of Allegheny v. ACLU,
There has, of course, been a relationship between the City of Ottawa and the display of the paintings for many years. For several years in the Sixties, the City itself displayed the paintings. Later the mayor apparently sought a suitable custodian for the paintings, and various mayors said nice things about the paintings or their display and might, under some theories, be said to have "endorsed" the display. The analysis of those various mayoral comments seems to raise, inter alia, the difficult question whether a high public official's mere commendation of a religious activity or event--the sort of commendation which I would guess is routine and frequent in the daily practice of municipal government and politics--violates the Establishment Clause.
In addition, there was the resolution of the City Council "endorsing" the Jaycees' activities. This might be seen as a clear violation of the Establishment Clause, but it too must be scrutinized for purposes of determining the present perception of the paintings. The majority opinion raises and disposes of the argument that past acts of endorsement by the City may "poison" the paintings and their display. There can be a "taint" to the extent that past acts may affect present perceptions. But we must bear in mind that it is present perceptions which are relevant to the question of a present violation of the Establishment Clause and the need for present injunctive relief.
As the majority has provided, this case must be remanded to the district court for further proceedings. Such a remand is clearly required because the City of Ottawa has been found to have violated the Establishment Clause and that determination of liability has not been appealed. The plaintiff is entitled to appropriate relief against the City even though the injunction running in effect against the Jaycees and the Ottawa Freedom Association (OFA) must be dissolved.
The majority has also made several constructive suggestions for more appropriate relief: rescission of the council resolution, retraction of the mayor's statements, a larger sign posted by the City, a guarantee of equal access to the concrete foundations and a content-neutral time limit on the display. Supra at 621-22. But the majority has also decided to forego any detailed or binding discussion of these issues. I think that the district court and the parties deserve more assistance from us.
The majority's reluctance is partly due to its determination that, as an intervenor, OFA has no standing to appeal from the finding that Ottawa violated the Establishment Clause. But even if OFA may appeal "only to the extent of the interest that made it possible for [it] to intervene," 7C Charles A. Wright, & M. Kane, et al., Federal Practice and Procedure ยง 1923 at 517 (2d ed. 1986) (citing cases), some forms of relief will surely affect its interest in displaying the pictures. As I have noted, the plaintiff has asked only for time and manner restrictions on the display of the paintings. The district court allowed the Jaycees to intervene as of right precisely because this kind of relief would affect their interests. Memorandum Opinion and Order at 3,
The other reason the majority has declined to discuss appropriate remedies is that several members of this court believe that Ottawa did not, in fact, violate the Establishment Clause. They would prefer to avoid a discussion that will lend weight to a constitutional theory with which they disagree and significance to facts they find innocuous. I do not think, however, that we are at liberty to anticipate the Supreme Court's forthcoming decision in Lee v. Weisman, No. 90-1014, when the Court's decision will have no impact on future proceedings in the district court: no matter what the Court decides, Ottawa's violation of the Establishment Clause will still be res judicata, and Doe will still be entitled to relief. I apply the law that is--Justice O'Connor's endorsement test as expressed in Lynch v. Donnelly,
Settling on a constitutional doctrine does not solve every problem, however. Since OFA has no standing to challenge the existence of an Establishment Clause violation, I have no basis to identify which, if any, of the undisputed facts in this case constitute an Establishment Clause violation. But clearly one of the problems is that a large display erected on public property for long periods every year may easily appear to be endorsed by the local government, no matter what the government's intent. The City's permission to mount such a display may readily have the effect of endorsing a particular religious message and thus "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." Lynch,
It is strange that a government can violate the Establishment Clause by tolerating free speech. And there is a danger that an effects test may enable the sort of heckler's veto of which Judge Easterbrook writes so eloquently. Infra at 630. But imagine that the City of Ottawa, inhabited primarily by Christians, allowed anyone to install a loudspeaker system throughout Washington Park over which any messages could be played. If a Christian church took up this fine offer and used its loudspeakers to broadcast sermons and gospel music all day long, could we really say that a reasonable observer wandering through the park should not believe that the City somehow endorses the message? At some point, as the Supreme Court recognized in Widmar v. Vincent,
As an initial matter, the facts of this case may or may not make it an example of the sort of domination of a forum that constitutes a violation of the Establishment Clause. If the size, duration and regularity of the display do not constitute domination by themselves, the City's official expressions of approval may have contributed to an impression, at least on the behalf of some citizens, that Ottawa has purposefully given over a corner of Washington Park to Christianity. Like the majority, I do not reach these questions. But it is clear that some reasonable restrictions on the display of the pictures would help to dispel whatever effect of endorsement exists.
At oral argument, counsel for OFA conceded that Ottawa could impose reasonable, content-neutral restrictions on displays in Washington Park. Regulations on all private displays might well help to dispel any impression that Ottawa is pleased to permit OFA to expropriate public space for its purposes. In this sense, the existence of regulations may be as important as their content. As to the content, the majority has suggested that the pictures be limited to the duration of Ottawa's own Festival of Lights. This seems reasonable, so long as the pictures are thought of as a Christmas display. But only cursory knowledge of Christian theology is required to know that these paintings would be as appropriate for Easter as for Christmas. OFA's right to pronounce its religious message should not depend on the season; a content-neutral regulation should treat the paintings as blank pages on which any message may be written. No private display should ordinarily be allowed to stand for more than a month or two per year. This approach would have the added advantage of avoiding any identification that may occur when an observer sees that Ottawa's and OFA's presentations go up and come down at the same time.
The problem with a content-neutral regulation of the sort I suggest is that it may be unnecessarily overbroad. There are any number of messages that private groups could deliver in Washington Park that Ottawa might be pleased to endorse. May Ottawa not permit a permanent exhibit in Washington Park that urges its citizens to protect bald eagles? The Constitution may forbid Ottawa to turn Washington Park into an outdoor church, but surely there is no constitutional restriction on turning it into a bird sanctuary.
Although there are Free Exercise and Free Speech concerns to be weighed in the balance, I believe that a regulation on displays may constitutionally be limited to religious displays. So long as there is an ample but reasonable opportunity for religious speech to take place, I see no reason why the government may not impose restrictions applying only to religious speech in order to avoid the appearance of endorsement.
This proposition follows from traditional Free Speech principles. Content-based regulations must be "necessary to serve a compelling state interest and [ ] narrowly drawn to achieve that end." Widmar,
The case must be remanded to the district court, and that court must devise an appropriate injunction. The majority has specified that the case be returned to another district judge on remand. But it is not surprising that Judge Shadur had such a strong reaction to this case. The record indicates that the original plaintiff in this case, Richard Rohrer, was, in effect, ridden out of town on a rail for daring to complain about the City's conduct. Affidavit of Richard Rohrer (June 2, 1989). The present plaintiff has concealed her identity to avoid suffering the same treatment. Motion to Add a Plaintiff and to Proceed Anonymously (June 27, 1989). However much some citizens of Ottawa may disagree with the position that the plaintiffs have taken, however much they may think the plaintiffs annoying and overlitigious, the conduct of some of them has been deplorable. This dispute has concerned the display of paintings from the life of Jesus of Nazareth, who counseled his followers: "But if any one strikes you on the right cheek, turn to him the other also; and if anyone would sue you and take your coat, let him have your cloak as well; and if any one forces you to go one mile, go with him two miles." Matthew 5:39-41 (Revised Standard Version, 2d ed., 1971). One would think that those who support this display would be capable of more charity.
FLAUM, Circuit Judge, with whom BAUER, Chief Judge, and CUMMINGS, WOOD, Jr., and CUDAHY, Circuit Judges, join, concurring in the judgment.
I agree with the majority that the district court's injunctive remedy is overbroad, and that a remand for a more tailored remedy is appropriate. Admittedly, this case comes to us in an unusual procedural posture: the City has not appealed, yet we are asked to "remedy the remedy" imposed for its Establishment Clause violation because the Ottawa Freedom Association (OFA), whose interests are affected, has intervened on appeal. The majority, to its credit, has avoided becoming mired in this procedural thicket, limiting its analysis to those issues pertinent to the OFA. In so doing, however, I fear that it may have cut away too cleanly from this dispute's historical backdrop.
As an initial matter, I must point out my concern with the majority's references to the City's "alleged" endorsement of the paintings. See, e.g., op. at 617, 620, 621. We are not permitted to adopt this characterization; because the City did not appeal the district court's ruling that it had violated the Establishment Clause, we are required to treat the endorsement as a given, not an allegation. Although this point at first may seem incidental, it exemplifies my more fundamental disagreement with the majority's approach: While the majority reasons that it need "not address the issue of whether the City of Ottawa endorsed the Jaycees' religious speech" because the City has not appealed, op. at 617, in my view, our analysis cannot set aside the City's involvement with the display, for the finding of its history of endorsement bears on the determination of what, if any, restrictions the district court may place on the OFA's display of the paintings in Washington Park on remand.
As Justice O'Connor noted in County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter,
the "history and ubiquity" of a practice is relevant not because it creates an "artificial exception" from [the endorsement] test. On the contrary, the "history and ubiquity" of a practice is relevant because it provides part of the context in which a reasonable observer evaluates whether a challenged governmental practice conveys a message of endorsement of religion.
The dilemma facing the district court on remand, then, is how to remedy a government entity's Establishment Clause violation without unduly infringing upon the free speech rights of private parties. The school desegregation cases may be instructive in addressing the present implications of yesterday's endorsement, and in putting matters in a historical perspective. In Board of Education of Oklahoma City v. Dowell, --- U.S. ----,
As the majority correctly recognizes, a remedy "is narrowly tailored if it targets and eliminates no more than the exact source of the 'evil' it seeks to remedy." Op. at 620 (quoting City Council of Los Angeles v. Taxpayers for Vincent,
Borrowing from the approach used in the school desegregation context, the district court could benefit from considering such issues as whether the City had terminated its policy of endorsement, adopted equal access policies or taken steps to ensure equal access in practice, and eradicated, to the extent practicable, any "vestiges" of the past endorsement that might remain. Cf. Dowell,
It also is critical to recognize that the totality of past circumstances--rather than each of the City's individual acts--determines whether the previous endorsement endures to the present day. The majority notes that several members of this Court believe the City's resolution "too old to currently constitute an endorsement." Op. at 621 n. 8. That may well be the case. But what must be considered is whether all of the City's actions, in their entirety, sufficiently impact present perceptions of the display so as to warrant remedial relief.
One example of how historical context can impact a remedial result is as follows. The district court, as Judge Cudahy's concurrence recognizes, sensed some sort of "symbiotic" relation between the City and the then-private party defendant, the Jaycees, see
As one commentator has recognized, albeit in the public school context:
[I]dentifying who initiates religious speech may be relevant to determining the remedy. A sufficient remedy for noncoercive endorsement of student-initiated groups would be to enjoin further sponsorship.... But when the school creates the student organization in the first place, or coerces students to attend, the presumptive remedy would be to enjoin the sponsored organization from meeting, just as we decertify sweetheart unions with improper company sponsorship.
Douglas Laycock, Equal Access and Moments of Silence: The Equal Status of Religious Speech by Private Speakers, 81 Nw.U.L.Rev. 1, 53-54 (1986). In these cases, the line between public and private speech becomes murky, and the speech at issue is not altogether "private." Unfortunately, the majority's analysis does not permit such a possibility, even in the abstract, stating only the general rule that a difference exists "between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." Op. at 617 (quoting Board of Educ. of Westside Community Schs. v. Mergens,
Similarly, the majority cites Widmar v. Vincent,
I do not question that religious speech, as an original matter, clearly is entitled to the same degree of First Amendment protection as private speech. Nor do I dispute that "the mere presence of religious symbols in a public forum does not violate the Establishment Clause." Op. at 619 (citing Mergens,
EASTERBROOK, Circuit Judge, concurring.
The first amendment, applied here via the fourteenth, establishes several fundamental rules, including:
Rule 1: Government may not discriminate against private speech in a public forum on account of the speaker's views. The Free Exercise Clause assures speakers whose message is religious no less access to public forums than that afforded speakers whose message is secular or sacrilegious. Board of Education v. Mergens,
Rule 2: Government may not support a particular religious group or point of view. (Whether endorsement standing alone violates the Establishment Clause, or whether instead the Constitution proscribes only use of the power of government in support of religion, is before the Supreme Court in Lee v. Weisman, argued Nov. 6, 1991.)
The district court added:
Rule 3: If the government violates Rule 2, it must violate Rule 1 as a cure.
I join the court's opinion, which holds that the Constitution neither creates nor tolerates Rule 3. It cannot be that private religious speech, if ever preferred by the government in violation of Rule 2, is thereafter proscribed in violation of Rule 1--that speech the government dislikes is untouchable, while the Constitution turns off all music to the mayor's ears. The Constitution insulates private speech from the government's druthers. Neither official disfavor nor the rebound effect of official approbation can make a difference when the Constitution puts choice in private hands. A blunder by public officials cannot restrict the scope of private speech.
This necessarily entails the conclusion that religious speech may not be excluded from public forums just because passersby misunderstand the public role. See McCreary v. Stone,
Contrary views, expressed in cases such as Americans United for Separation of Church and State v. Grand Rapids, No. 90-2337 (6th Cir. Apr. 21, 1992); Smith v. County of Albemarle,
Notes
Judge Wood, Jr. assumed senior status on January 16, 1992, after the hearing of this case on December 19, 1991
This suit was initially filed against the Mayor, members of the City Council and the City of Ottawa, Illinois by one Richard Rohrer. Jane Doe was substituted for Rohrer after he lost standing by moving away from Ottawa, and the Ottawa Jaycees intervened as defendants, since their practice of displaying the paintings made them the real party in interest. The Ottawa Jaycees pursued the original appeal of the district court's judgment, but after the panel's May 28, 1991 affirmance of the district court, the Jaycees transferred the paintings to the OFA, and at this time the OFA was substituted as intervenor-defendant-appellant
Where the record is capable of supporting differing interpretations of the facts, we shall view them in the light most favorable to the appellants: "In reviewing a grant of summary judgment, we must view the record and all inferences drawn therefrom in the light most favorable to the party opposing the motion. See United States v. Diebold, Inc.,
Over the years since 1980 when the Jaycees began displaying the paintings, they occupied a space on the west side of Washington Park on an average of two months per year. In 1988, the last year the paintings were displayed, they were up for thirty-five days. The longest period of time that the paintings were exhibited was in 1986, when they were on display for three and one-half months. The Jaycees' explanation for the extended period of time that particular year was that the metal poles supporting the paintings were frozen into the metal sleeves in the ground, thus making it impossible to remove the paintings until the ground thawed. The Jaycees ensured that the problem would not reoccur by replacing the original dilapidated supports with new concrete foundations with metal sleeves for the paintings (at the Jaycees' expense) the following year. The Jaycees designed the new supports and installed them in locations approved by the City Engineer and City Commissioner of Public Improvement. According to the mayor's deposition testimony, such approval for digging in the Park is necessary to avoid interfering with utility services such as gas, electric, telephone or water
The lawsuit is being prosecuted by the American Civil Liberties Union, so it does not appear that the plaintiff or the City of Ottawa has expended their own funds in this lawsuit
Justice O'Connor's "endorsement" test, initially articulated in her concurrence in Lynch v. Donnelly,
The Court reaffirmed its holding that allowing religious organizations to have access even in a limited public forum does not violate the Establishment Clause in Mergens,
At the en banc oral argument, the ACLU attorney admitted that the Constitution prohibits viewing governmental endorsement of private speech as permanently poisoning it, but denied that the district court's injunction implied otherwise. We are unable to understand how the district court could permanently enjoin the display of the paintings "by any group" unless the court found the paintings to be eternally poisoned by the government's alleged endorsement
Several members of the court, including the author of this opinion, believe the resolution too old to currently constitute an endorsement regardless of its wording
To the extent the concrete foundations for the paintings might be viewed as an impermissible governmental endorsement of the paintings, we note that the record is void of evidence suggesting that the City would have denied permission to any other group or person to use the supports or install their own. If there were such evidence, the proper remedy would be to order the City to either allow the installation of the additional supports or remove the existing supports in order to provide for equal treatment of all protected speech. As noted above (see n. 3), the City's minor participation in determining the location of the Jaycees' supports was necessary to avoid risking interference with underground utility lines
That is not to say that it would be impermissible for the City to include religious symbols of its own in a Christmas display. See Mather,
If the City wishes to regulate speech in Washington Park, a content-neutral regulation would permit the paintings to be exhibited the same length of time as the rest of the Christmas displays, but not a time period of greater or lesser duration
The Court might have justified these restrictions by referring to the potential vulnerability of immature adolescents, but it did not. Instead, the plurality emphasized the maturity of secondary school students and their ability to distinguish government endorsement from mere accommodation of private speech. Id. at 250,
I do not think that allowing Ottawa to distinguish between religious and secular speech fosters excessive entanglement with religion. Every Establishment Clause case requires a court to make the same distinction. To avoid litigation, governments must already decide what sorts of speech implicate Establishment Clause concerns