*1 No. 30830. Dec. [L.A. 1978.] FOX,
S. DOROTHY METZGER Plaintiff and Respondent, CITY OF al., LOS ANGELES et Defendants and Appellants.
Counsel J. Pines, Bonaventura and Ronald
Burt Thomas C. City Attorney, Allen, Einboden, and Mark C. Assistant Deputy City Attorneys, for Defendants and Attorney, Appellants.
Strumwasser & Leichter and Alexandra Leichter for Plaintiff and Respondent. Okrand, Jakes,
Fred Jill Mark D. Rosenbaum and . Terry Smerling Amici Curiae on behalf of Plaintiff Respondent.
Opinion
NEWMAN, J.With church-state relations California regard declaration of “Free exercise and rights first, proclaims enjoyment *3 second, without discrimination are preference guaranteed”; third, there shall “no law ah establishment respecting religion”; Constitution not on those guaranteed “Rights dependent Const., I, the United States Constitution.” (Cal. art. §§ guaranteed by Yet for 30 Los officials have authorized the illumina- years tion on the hall aof cross—at first to honor the Christmas huge also, and 1970s, then the to honor Easter both holidays during Sundays, Latin and Eastern Orthodox.
aIn the suit trial court issued a taxpayer’s injunction preliminary the We Defendants affirm. We with the trial against city. appeal. agree court that the should be from a enjoined “[displaying lighted, cross on the Los Hall means single-barred Angeles City by any whatsoever, to, but not limited selective including, displaying through illumination of or the of window blinds.” lamps arrangement
I After into evidence declarations, certain the admitting pleadings trial court found as evidence, follows: “The Court is satisfied from the matters common of which it and does take including knowledge may notice, the cross a judicial is single-barred symbol particularly to the Christian and that while of other citizens pertinent religion, or no celebrate Christmas as a secular religions religion may holiday, they all, do not if at use of the cross in such customarily, symbol celebrations. It carries different connotations from the quite symbols the Christmas tree addition, and Santa In Claus. on the cross lighted Hall is visible for directions, miles in and can be and City many many viewed who do not see it in the context of by persons driving freeways other Christmas decorations and who in such participate celebrations at all. . . .
“While some of the resolutions Council contain adopted by City recitals, such as that included in the resolution of March self-serving 1973, that the of the cross is a predicated upon being it[s] toward all mankind on an spirit peace good fellowship basis, inter-faith evidence, other matters of common including knowledge of which the Court notice, can and does take makes it clear that judicial which The letters and one. the real reports upon purpose have been Council’s resolutions adopted, particularly the eastern orthodox to commemorate cross illuminating practice faith, to demands from members of Easter in response convince Court nature of purpose symbol displayed, one, some resolution is protestations notwithstanding the contrary.”
II
in the United States Constitution
church-state
Regarding
proscriptions
observed,
Court of
for the 10th Circuit has
in a case
allowing
Appeals
monolith
which
were inscribed:
symbols
*4
lighted
“[T]he
Court has treated the Establishment and Free Exercise Clauses
Supreme
factual
of views.”
under various
situations
diversity
perplexing
29,
Lake
F.2d
1973)
v. Salt
Cir.
475
(Anderson
(10th
City Corporation
That observation
of views set forth more recently
pertains
panoply
714,
v.
Wolman Walters
Applying
to the Los
were
that
or other
illuminations
comparable
arguably
displays
Gravel, Inc.,
&
Sand
hilltop
cross. (See
supra [cross
Eugene
Angeles
P.2d 789
(Okla. 1972)
v. Oklahoma
[cross
City
Meyer
park];
magazine Liberty page (Sept.-Oct. ‘[T]he the establishment the First Amendment’s bar against one view how majority ” be Also see Court on Church-State should interpreted.’ Hastey, High religion Waffles (id., 1977) 7. Questions Nov.-Dec. page III Constitution, Constitution, The California like United States Rather, all does not an establishment laws merely proscribe religion. an establishment of are forbidden. (Italics added.) religion” “respecting The California Constitution also that shall be guarantees freely exercised “without discrimination or Preference enjoyed preference.” thus there is forbidden even when is no discrimination. current of the United States Constitution interpretations comprehensive. here? Certain there members of the Eastern Orthodox
Was preference so. The trial court observed: community apparently thought “[T]he wisdom of the fathers founding proscribing governmental entangle- ment is illustrated Council found itself when difficulty it called to was its attention certain Christian celebrated groups Easter on date other different from What would it do in denominations. illumination demands for various other response symbols days observance?” On December date (the this lawsuit was the director of filed), *5 Easters, bureau declared that “at buildings city’s public past Hall has been in a manner the cross building lighted evidencing symbol used Seal the Easter charitable Yet in 1973 no Easter Seal campaign.” was mentioned in the council’s motion. It campaign city authorizing of “an illuminated cross to Eastern Orthodox commemorate spoke only Easter.” 17, 1970, director,
On that same on April public buildings commenting a 1957 council statement discussion of at policy proscribed religion noted that the Orthodox for an meetings city-owned buildings, request Easter cross “does to conflict with of said appear spirit policy,” with not “the letter.” though
Relevant are these words from a communica- ironically poignant 9, 1972, tion “We council: wish to our April city express family’s sincerest for the shown the Orthodox appreciation acknowledgement cross, faith on the by having Christianity, displayed four hall sides the eve our Easter. building city
“As we drove from Glendale to at services Saint midnight Sophia Greek Orthodox Cathedral we via Pasadena viewed the freeway, who have We Orthodox faithful also emotion. Cross join many deep We are similar sentiments. truly grateful.” all board whereon hall is an immense bulletin not symbols be it be otherwise Would
faiths could thumbtacked or displayed. David, Bethlehem, a Star of Star allow only say, justifiable, Salt dealt with in Anderson v. monolith the court Star and Crescent? The Ten “the Commandments Lake City Corporation, displayed God, Star of the All certain other Seeing Eye symbols representing or and Christ David, Hebraic the Order letters alphabet, Eagles, there, can so far as a reader now F.2d Not included (475 peace.” wheel, Universalist, tell, crosses, the Buddhist were Coptic, Scientology fire, swastika, Jain vase of torii, Confucian Zoroastrian Shinto yang-yin, chalice. or Unitarian flaming each there no
In the California Constitution requirement cross, To illuminate the Latin always represented. however, when of other does seem recognition preferential comparable v. Selma Union School Evans religious symbols High impracticable. declared re the 1121], Dist. 193 Cal. P. 31 A.L.R. James, Bible of “If the Douai version and these other books King [the Talmud, Koran, teachings already Confucius] no will added thereto in we have to assume that not be library, right they can the future.” Librarians offset a for preference, quite easily potential but a hall is much less tractable than are shelves a school tower library. *6 “a of of stressed 30-year backdrop attorney significance and as disinterest within a
near total and metropolis religiously passivity as He that we treat as Los . .” diverse . urged Angeles. philosophically con- “if the custom the conclusion that really challenged inescapable and of sects benefit members various ferred measurable religion, upon aid and a desire for would have either faiths recognition expressed equal or, alternative, to the their practice prejudicial objection lodge endorsement.” sovereign in of “disinterest”
We do find this record evidence not in persuasive and reasons Los Indeed there troubling why Angeles. may complex are to seek residents who have chosen not non-Christian “equal alternative, or, and aid their recognition lodge objection.” 798
IV that official action as to the cross city attorney constituted argued no more than in the secular of the Christmas “participation aspects Easter Yet he works committee holidays.” quoted public reports, adopted council in 1971 as follows: “It reading part that noted a further approval predicated upon being display toward all mankind spirit peace good fellowship basis, an interfaith toward the eastern nations particularly Europe.” that Action effects the a Latin not cross does constitute “interfaith” A to “eastern nations in recognition. gesture Europe” hardly demonstrates an interfaith concern “all mankind.” Eisen- Compare and Illicit Motive: Theories Constitution- berg, Disproportionate Impact al 163 (1977) N.Y.U.L.Rev. have (“Some Adjudication legislators well, learned' their lessons becoming quite sophisticáted drafting Note, that doés not smack sectarian see legislation purposes.”); An Laws in the United States: Unconstitutional Anachro- Sunday Closing nism Suffolk L.Rev. (“Despite opinions Court, a number of state courts have declared unconstitutional Supreme laws that certain businesses or merchandise where Sunday closing exempt such unrelated classifications clearly objective promoting of rest.”). day
Allen v. (D.C.Cir. Hickel 1970) F.2d is cited for the rule that “The Government content, but it may objects depict spiritual its such content.” (Id., promote give stamp approval spiritual We cannot conclude here that city, particularly to Easter did not . . . such content.” Easter holidays, “promote spiritual bunnies, differ Easter crosses from as Christmas crosses differ from just Christmas trees and Santa Claus. 18, 1975, stated,
On December council “Your adopted report Committee has considered this and feels advice upon use of the cross is Attorney’s representative symbolic season and as not a Christmas such is service.” Mere *7 the is means, cross not a no service. should clearly By though, we infer that it action an of establishment respecting religion. Governments must commit “a themselves to of position neutrality” “the whenever between man and is affected. (See relationship religion” Dist. 203, School v. 374 U.S. 226 L.Ed.2d (1963) Abington Schempp [10
799
the
to
beliefs
means
honor
859,
To be neutral
844,
Tobriner, Mosk, J., and concurred. BIRD, C. J. of I write I concur the judgment majority. separately the me reasons that both the California and express persuade United States the of from Constitutions Los City Angeles prohibit the a on the of to one face unique very displaying religion the of all the building housing representatives people.1
I 4 Constitution, I, Two sections the article of California section and XVI, 5, I, 4 of article section must be consulted. Article section the of State of Constitution the California “Free provides pertinent part: and of exercise without discrimination or preference enjoyment The substance of this of freedom has guaranteed.” guarantee State framed our Constitution since 1849.2 Those who its appeared Rather, were hostile to understood language hardly religion. they long so individuals free to on belief as “the remain choose of matters only and of the state never . . . devoted the power authority [are] a from of granting preliminary 1This case comes before court today appeal a below, Los from lighted restraining City “[displaying injunction single-barred It that an . . . .” has been recognized appellate cross on . . Hall. City long finds an if it abuse court will reverse the discretion of a granting preliminary injunction 806, 512, (1970) 1Cal.3d court. v. Atlantic Sav. & Loan Assn. trial (Weingand 650, (1968) 106]; v. Katz 68 Cal.2d 464 P.2d Continental Co. Cal.Rptr. Baking [83 889]; San Assn. v. City 439 P.2d Francisco Police Cal.Rptr. Officers 755].)The San test on Francisco County review Cal.App.3d Cal.Rptr. “(a) balances whether or not will result to defendant greater two factors: injury (b) than refusal . . . from its injunction from whether granting plaintiff preliminary there is a will reasonable probability plaintiff ultimately prevail Francisco, (San Police Assn. San Francisco litigation.” City County Officers Proc., 1022; at limited nature of Considering § see also Code Civ. I review Justice Newman agree my colleague appellate that an abuse preliminary injunctions, has established as a matter of law. discretion trial court not been remand this case trial on the merits. may yet importance Upon proceed issue, me to review well as convince judicial economy, considerations novelty which upon Constitutions the state and federal length some provisions rests her to the cross on Hall. objection respondent Convention, I, read, article section at the 1849 Constitutional 2As adopted *8 800 of sect or denomination.” v. Board (Gordon
advancement any particular Education 464, 78 (1947) 472-473 P.2d 488].) Cal.App.2d of
In detailed and
to the 1849
comprehensive
language,
delegates
Convention committed this
to
state
the fundamental
policy
neutrality
in matters of
Their
to us was a
where
is a
religion.
legacy
society
religion
of faith,
matter
terms,
law.
I,
its
what
§ mandates
“By
express
[art.
4]
is the
of the
exercise and
perpetual
guaranty
‘[f]ree
enjoyment’
what
it
is ‘discrimination’
‘or
in
religion;
prohibits
against,
preference’
of,
favor
one
as
to another.” (Mandel v.
opposed
(1976)
Hodges
596,
54
617
As the
244].)
Cal.App.3d
Cal.Rptr.
attorney general’s
noted,
office has
“It would be
difficult
a more
imagine
sweeping
statement of the
in
field
principle
governmental
impartiality
316,
(25
court
This
has
religion.”
(1955).)
Ops.Cal.Atty.Gen.
recog
nized that
“favors,
action
either
fosters
establishes
governmental
[or]
. .”
.
or which “in
or
any religion
any way, directly
indirectly,
infringe[s]
the free exercise
of the
of this state”
upon
violates
rights
people
I,
strictures of article
section 4.
Educational Facilities
(California
Authority
593,
Priest
Cal.3d
Const., IX, art. 8.)§ XVI, at the The most extensive debate 1879 convention article section regarding amend it to the state concerned whether to from declare article nothing prevented aid An amendment so to affiliated orders. orphanages granting 1272-1273.)But was the convention. eventually adopted by providing (Proceedings, pp. debate made clear that worried that a was greatly being delegates loophole sects, which themselves with through by affiliating opened could merely orphanages, for state qualify support: “Mr. Stuart: I ask the if for aid to will not gentleman [exception open orphanages] for others? treasury all, “Mr. Not at sir. It does extend further than to This is Wilson: any orphans]. [aid I the extent am this floor amendment. as much do not look just any gentleman upon opposed It and state. But I this as State aid to a church. union of church upon for the orphans.” XVI, aid amendment section 5 allow state to article explicit necessary thus shared conviction that testifies to church-sponsored delegates’ orphanages article’s ban on state aid to was otherwise total. first noted that “the was intended insure the provision separation *10 church and state and to and financial guarantee authority, power, of resources the never devoted shall be to the advancement government or of or sectarian at (Id., 604.) support religious purposes. p. [Citation.]” XVI, The court 5 that article section forbids all of forms emphasized aid to whether that aid be in the of form governmental religion, tangible in XVI, cash or the form of Article section intangible prestige power. involvement, 5 form, “bans official direct, whatever its has the which any immediate, and substantial effect of (Id., promoting religious purposes.” 605, at fn. 12.)5 p. the XVI, court out that under article section
Finally, carefully pointed 5, “the fact that a statute has some identifiable secular will not objective immunize it further from to ascertain whether it also” analysis directly Thiis, advances at v. (Id., 604.) substantially religion. p. Frohliger 63 Richardson 217 P. court 497], the refused (1923) CalApp. [218 allow Mission, the restoration of San even public financing Diego the court that as well historical interests though acknowledged religious were served Los v. by project. Similarly, County 221 154 (1963) 387], the court Hollinger Cal.App.2d Cal.Rptr. for a film aof disapproved public financing religious parade depicting the life Jesus Christ. The court that the film had acknowledged secular attractions in order to purpose publicizing county promote Nevertheless, tourism. court denied that “a governmental body may funds collected the exercise of its in a fashion expend taxing powers that so beliefs some of the directly supports purposes of our Most (Id., segments many pluralistic society.” recently, in Johnson v. Beach Union Sch. Dist. 68 (1977) Huntington High the court 43], refusal of a school Cal.App.3d Cal.Rptr. upheld district to student Bible club to conduct its permit study voluntary on the school the school The court noted at meetings campus during day. 16 that the club to school page “permitting operate implicates campus behind the dissemination of authority prestige religious dogma.” Priest, 593, itself, 5In Educational Facilities 12 Cal.3d Authority California state act court of a with the constitutionality creating public authority upheld power bonds finance to issue new facilities. The court noted that no private help colleges state funds was the act since were expenditure required participating colleges bond and to bear all issues all The court also was of repay operating expenses. that that benefits accrued to were remote any and incidental to the opinion truly education. It was that all primary purpose benefiting significant private colleges, nonsectarian, were sectarian aid. Our case today eligible distinguishable funds and in that the benefits public expended, to one and one being go directly religion. often its view office has also expressed attorney general’s funds to aid XVI, the use article section any public “prohibits 105, . . . (37 or sectarian Ops.Cal.Atty.Gen. purpose of a funds cannot used production support [tax also, version see Gospel]; Ops.Cal.Atty.Gen. dramatized not lease vacant classrooms institutions 276 (1977) [sectarian but see 43 education]; schools to conduct Ops.Cal.Atty. public 62 (1964).) Gen. I, XVI, section 4 and article section makes
This review of article *11 of own state Constitution is committed to the clear that our principle of church and state. The constitutional reinforcing separation mutually have make this state one in which different provisions helped persons beliefs live in mutual tolerance and With might together respect. religious mind, I in the of the dictates California background proceed apply the Constitution to facts the below. undisputed presented hearing
II 1975, the For 30 council Los authorized city Angeles years prior of a Latin cross on tower of Christmas City display single-barred The record that the council has authorized a similar Hall. discloses city and Eastern Orthodox Easter on Easter past years. display when we consider what is of this unconstitutionality practice crystallizes that the where and when. There is no trial court question being displayed that “the cross is a correct when it found was symbol single-barred This to the Christian symbol religion.” religious pertinent particularly on three of the Hall was upon City customarily displayed felt most of the cross is when the meaning deeply. holidays spiritual which Moreover, lit on the face of the cross was city building the clearest of terms. indicated government’s sponsorship of one so When religious meaning religion’s openly promotes and the that the benefit by disadvantage reaped holidays, do share who other is obvious. Those suffered religions persons of outsiders their own the status those relegated holidays can take who do observe those those holidays government; persons of their belief official sanction given seeing symbol pleasure status. special but fact at Los crucial issue is city government simple the central As has identified of one religion. itself it our is unmistakable constitutional those of
judges, other duty protect faiths or no faith from coercion toward that attaches to conformity official endorsement of every any religion, particularly majority Our ancestors would ask less o'f us. religion. nothing Having experienced themselves, intolerance understood that faith flourishes they more from the dictates of the freely sanctuary protected majority. of the Latin cross invades “The City-sponsored display sanctuary. owned . . . for a visible employment publicly property highly character . cross . . an inference of necessarily permits official endorsement . . . which beliefs underlie that v. (Lowe Ore. P.2d (1969) symbol.” Eugene circumstances, & 363], Sand decree set aside due to Eugene changed Gravel, Inc. 276 Ore. P.2d City Eugene 349].)
This court’s cannot be affected judgment by appellant’s suggestion effect A cross is trivial. preferential city’s display cross on the hall of this state’s towering largest metropolis hardly “ to be As overlooked. James Madison warned: to take sight proper ‘[I]t *12 alarm at the first on our liberties. . . . Who not see does that experiment the same which can establish in exclusion of all authority Christianity, other establish the ease same sect of Religions, may any particular Christians, in exclusion of all other Sects?” v. Vitale (Engel 601, 611, U.S. L.Ed.2d 82 S.Ct. 1285], A.L.R.2d Madison, Memorial and Remonstrance Assess- quoting Against Religious ments.)
The that no was to since the argues city preference given any religion, of the cross was the secular one of purpose displaying wholly promoting mankind.” toward all the Whatever “peace good fellowship city’s an has subjective purpose, impermissible objectively religious preference the resulted. Had delivered its the words city by message simply lighting Hall, “Peace on Earth” on no constitutional would have City questions Instead, been raised. the chose to deliver its “secular” city message vehicle. The medium was Once the cross through religious message. Hall, blazed from the of stories some individuals obtained the City top of satisfaction their faith was had Others knowing officially approved. faith their that beliefs did not share had received knowing they pursue official blessing. that the cross was on Christmas for 30 city emphasizes displayed However, 1975 without far from
years prior complaint. indicating such silence acceptance, may bespeak hesitancy forward to about minorities come given recognition complain Moreover, cannot the concrete this court overlook majority religion. of this to us state’s guarantees respondent. presented complaint dissenter, exist to the lone Constitution exist to just they protect protect It that others in cannot us freedom sway majority. As the Court have not submitted similar Appeal years complaints. past does not in itself insulate below of custom noted “mere longevity from constitutional scrutiny.” practice have authorized officials
It is customarily display noteworthy city However, officials have not these same at their own initiative. of the cross themselves to taken it symbols holidays recognize similarly upon I, act of violation article is a clear This other preference religions. section 4.6 of the Eastern Orthodox faith of a member
After repeated requests an illuminated authorized the council display about Eastern Orthodox Easter. The defends cross on or display How are non-Christian as a “inter-faith recognition.” religions gesture on a cross on Hall two different dates City “recognized” Christian sects observe Easter? on which various Hall involves the sectarian
Since City one of Los religion’s spiritual significance promoting has Constitution been I, article section 4 of California holidays, freedom We must never every violated. forget person *13 its with one associates is whenever threatened government power small, but the The threat seem tradition. today may religious particular in breach is large. principle XVI, 5. has violated the article section
Similarly, provisions be “the and financial can no doubt There power, authority, stand behind illuminated Christian resources” city government Priest, 12 Facilities v. cross. Educational Authority supra, (California is floors of Cal.3d A sectarian on the City top placed (dis. 817) Justice his dissent at colleague Richardson 6My suggests opn., post, has both received and similar no is worked until the city rejected “preference of their But surely preference from for religions symbols. other applications” did have to for mere that some results from the fact religions apply already to the notion that the object of their the majority rightly recognition holidays. Moreover^ if this for Even were not messages. turn Hall into vast billboard City religious city may it raises “establishment clause” be a serious questions found to preference religion, These III of this and discussed part under the state federal Constitutions. questions opinion. 806
Hall beliefs for which the Latin cross public expense stands are alliance with the name resources promoted through good housed in Hall. government City actions cannot found to be free direct, from city’s entirely “any immediate, and substantial effect of (Ibid.) The advancing religion.” aof cross Hall is as religious impact superimposed City certainly direct and substantial as the a film of a financing impact Los v. religious parade (County Hollinger, supra, 154) or the restoration of the Mission of San Cal.App.2d financing Richardson, v. Further Diego (Frohliger 217). supra, Cal.App. more, of a cross on Hall [governmental] “implicates behind the dissemination of authority prestige just religious dogma” as much of a Bible on school meeting study group grounds the school’s (Johnson implicates authority prestige. Huntington Dist., Beach Union Sch. 16.) To refuse to High Cal.App.3d find direct benefit to of the Latin cross is religion city’s display either to in a overrule, fiction of or to engage legal startling proportions silentio, a sub XVI, consistent line of cases article section 5. interpreting Those who that the amount of funds argue taxpayer light expended the cross is so notice, minimal7 as to be beneath this court’s overlook two First, XVI, considerations. article section admits of no de important minimis No . . . shall ever . . . exception. language explicit: “city whatever, from fund to or in aid of pay public any grant anything any sect . . . .” XVI, article section Secondly, prohibitions would come into even if no funds were The ban on aid play expended. form.
Our Constitution does not tolerate the intimate involvement of a of various sects of one and this promoting religious symbol religion, court must be faithful to that mandate.
III *14 rests its decision on state constitutional Although majority solely I of am on Christian grounds, persuaded holidays Latin Los Hall violates the establishment clause of cross on Angeles City to First Amendment the United States Constitution as well.8 of of for lighting director the bureau cost 7According public buildings, $103. was to be cross for Christmas 1975 2, I, (fn. ante), 8As indicated above article section 4 of the California Constitution an contains establishment clause identical that virtually of the First Amendment. In my
807 “ of The the First understood that ‘the framers of Amendment rights are, nature, will little bear in their of conscience delicacy, peculiar ”9 of hand . . . To assure touch gentlest governmental free from individuals are intrusion matters governmental religion, our the first sentence of federal Bill of declares absolutely Rights make no law an establishment of or shall “Congress respecting religion, the free exercise thereof.” prohibiting . . . “not of the First Amendment prohibits simply language church; an all it laws respecting establishing forb[ids]
enactments]
v.
italics.) (McGowan
establishment
Maryland
religion.” (Original
408,
420,
393,
81 S.Ct.
This
1101].)
442
L.Ed.2d
366 U.S.
(1961)
[6
testifies
the conviction
the founders
sweeping prohibition
in an
fouled
the stale
cannot
thrive
long
atmosphere
religious diversity
when faith
arrived at
air
itself flourishes
freely.
orthodoxy. Religion
when
Government
it avoids involvement
in the religious
prospers
nations,
that have
civil war to
brought
quarrels
many
past
present.
These
the twin
the First
As
served
Amendment.
policies
stated,
.
Court has
“Government.
. must be neutral matters
Supreme
doctrine,
It
not
hostile
religious theory,
may
any
practice.
foster,
aid,
and it
or
or to
religion
advocacy
no-religion;
or
one
another . . . .”
promote
religious theory against
(Epperson
228, 234,
97,
393 U.S.
L.Ed.2d
89 S.Ct.
Arkansas
103-104
(1968)
[21
266];
1,
v. Board
330
15
L.Ed.
accord Everson
Education
U.S.
(1947)
[91
711, 723,
504,
343
67 S.Ct.
168 A.L.R.
Zorach v.
1392];
(1952)
Clauson
954,
306,
962,
U.S.
L.Ed.
In Wolman v. Walter 433 U.S. (1977) L.Ed.2d S.Ct. the United States Court 2593], reaffirmed the Supreme “tripartite test” we has which must whether apply determining government involved itself in “In order to matters impermissibly religion: pass muster, must have a have a a statute secular must legislative purpose, effect nor that neither advances inhibits religion, principal primary must excessive not foster an entanglement religion.” tripartite test, difficult of line of consistent though application, brings together (See Court cases. Lemon v. Kurtzman 403 U.S. (1971) Supreme view, Amendment, we need not decide cross violates the First since whether the state establishment has force. today greater clause 844, 863, Dist. v. 374 U.S. L.Ed.2d School 9Abington Schempp Brennan, J., Md. (conc. S.Ct. Daniel Carroll of opn. quoting Representative 1560] 15, 1789, I the 1st the debate Bill of Rights Cong., Aug. during upon proposed 730). Annals of Cong.
808
745, 755-756,
612-613
L.Ed.2d
91 S.Ct. 2105]; Walz v. Tax Commis
[29
664,
sion
397
(1970)
697, 704-705,
U.S.
674
L.Ed.2d
The trial found that the of the cross on judge Hall failed display test since it had an tripartite and impermissible religious purpose effect, and the I excessively matters.10 entangled religious agree.
It is that the on the Los Hall beyond tower dispute display Angeles City aof so content as the Latin cross has a symbol replete spiritual substantial con, and on the who impact, pro religious feelings many view it.11 As the United States Court has Supreme emphasized, “[w]hen and financial is behind power, prestige support government placed belief, the indirect coercive particular religious pressure upon religious minorities to conform to the prevailing officially approved religion Vitale, v. 421, 601, U.S. L.Ed.2d plain.” (Engel 608].) [8 10However, this court need not presently judge city’s purpose displaying cross. to a 1970 memorandum from the director of the According bureau of public buildings, a cross Christmas Easter was “not in tribute but lighting more in a spirit peace good toward all Easter, fellowship mankind.” the works committee of the Upon approving of the cross display city Eastern Orthodox during public council noted in 1971 that its was approval “predicated upon display being further inter-faith these spirit peace good toward all on an fellowship mankind basis, toward the particularly Eastern nations in that Europe.” city argues is, course, must be declarations at face value. It true accepted courts hesitate to the motives of other branches of question But government. contrast to the “[i]n rule that general motive or legislative not a relevant purpose inquiry determining , of a statute . . . our cases constitutionality under the Clauses have Religion uniformly 618, held such an (McDaniel . . . .” (1978) inquiry necessary U.S. fn. 9 Paty 593, 607, Brennan, L.Ed.2d (conc. 98 S.Ct. J.).) Were it opn. 1333] necessary case, to reach the trial in this question substantial exist for purpose grounds affirming that the “real” judge’s finding awas one. The purpose sectarian connotations of the cross The fact beyond dispute. chose to the cross on three Christian holidays strongly those sectarian suggests connotations were and intended recognized officials. by city 11In Committee 783-784, Public Education v. 413 U.S. Nyquist footnote 948, 969, 2955], L.Ed.2d 93 S.Ct. Court warned Supreme against applying effect” test in a “principal primary that would way require “metaphysical judgments” between effects. “Our cases “primary” “secondary” do not the notion simply support a law found that State’s to have a effect to some ‘primary’ end under the promote legitimate is immune from further police power examination to ascertain whether it also has (Ibid.) the direct and immediate effect of advancing court then referred to religion.” cases, its laws in clear that upholding Sunday closing previous such laws “were making was, first, not because their effect upheld, day interest in universal promote legitimate interests; instead, . of rest. . and assist only secondarily flowed approval *16 lit Hall the cross was on and dramatic which The City way particular creation This was to contributed its substantial religious impact. Santas, reindeer, and trees. scene, aof “secular” Christmas replete Hall for several an cross stories This was isolated stretching atop distance, from a stood without The visible tower. religious symbol, The the cross a traditional church. like qualification explanation, atop those, such as no to cushion the made significant feelings attempt were offended the use of their tax funds to who respondent, display of a whose beliefs did not share. they Further, be secular nature of the Christmas whatever said no more be for Easter. Easter is same cannot Sunday argued holiday, the extent that than other To a this state any Sunday. legal holiday do not share in the observe the non-Christians day, they typically display Indeed, content of the cross central of the Latin cross. spiritual a of Easter is matter common to knowledge. significance spiritual with one The identification tradi- governmental appearance than at tion is thus even Easter Christmas.12 greater The of the has a cross on Eastern Orthodox Easter substantial display as well. The to on decision cross that religious impact holiday after a such a was taken member Orthodox religion requested in 1971. text of that in the record of the request, reprinted below, clear the trial court makes motivation abundantly writer; “It come . . will fall on Civic has attention . night my . . . will for members of Center Tenth cross welcome Easter April giant Catholic faith whereas some two hundred the Protestant Roman faith . . . will be their members of Eastern Orthodox thousand chanting Orthodox Easter is 18th as traditional ‘Christ Risen’ Sunday April celebrated.” a remote and incidental effect . . . that had only
from the finding laws] [such effect” therefore institutions.” secular advantageous phrase “primary It be Court would more describes the test the itself Supreme applies. only roughly remote, effect state action indirect and non-secular say “any accurate [of must] 840, omitted.) (Tribe, Law italics Official acts incidental.” American Constitutional or inhibiting must be free from “substantial religious impact” advancing religion. 65, Leventhal, (conc. (Allen (D.C.Cir. 1973) J.).) Morton 495 F.2d v. opn. the Governor’s state has held unconstitutional in this previously 12The Court Appeal and allowing noon to on Good p.m. Friday order state offices from closing executive On March (Mandel v. Cal.App.3d state time off. Hodges, employees paid federal court Court also stayed judgment the United States Supreme New to lower its State of flags have allowed the- Hampshire that would appeals U.S. 938 (1978) 435 (Brown Thompson in commemoration of Good Friday. half-mast L.Ed.2d 98 S.Ct. 1515.] *17 it too late to this in council the Though proved grant request authorized the the cross on Easter Orthodox in 1972. display beginning The council did the its authorization that event was by preface stating “a further of the toward only symbol spirit peace good fellowship basis, all on mankind an inter-faith toward the eastern particularly However, declaration, nations in characterized the trial Europe.” court as cannot alter the fact that council “self-serving,” henceforth was in a sectarian on a engaged symbol displaying holy day no secular effect of the having independent significance. only city’s action towas bestowed various branches of equalize recognition upon such an extension to another Clearly, Christianity. recognition Christian sect reinforces the conclusion Los City Angeles was one furthering particular religion. contends that federal Court decision in Allen
Appellant Appeals Morton, of a creche since the F.2d supra, display governs scene from the across White House was found not nativity Ellipse to However, violate in and of itself the First Amendment. the reasoning of the in cross, court Allen advances the that the view displayed of Los does have a substantial City Angeles, religious impact. an for an
In earlier court remanded the case Allen proceeding, had to creche determine whether the evidentiary hearing display (D.C.Cir. substantial v. Hickel (Allen 1970) impact. religious F.2d The court declared “we cannot ... the record 950.) say before us . . that it is . conclusive the visual beyond dispute impact of the creche does not entail substantial Nor can we religious impact. say . . . that it créche and other impossible present holiday symbols in a manner to obviate or at least minimize offense designed sensibilities citizens who offended .... an Perhaps appropriate rather than a mere in accompanying plaque, explanation pamphlets circulation, lesser serve ... of Government might allay impression (Id., belief. . . .” 949-950.) sponsorship pp. remand,
On the district court held that the créche did display involve substantial While the district court on religious impact. reversing the Circuit Court of The court “entanglement” grounds, Appeals agreed. noted in its first had explanatory plaques, suggested opinion, been in court also noted that “the creche should not be put place. considered isolation but as an of’ a whose integral part pageant was to show how American celebrate Christmas. purpose people Morton, F.2d (A llen v. chose of Los
However, case the City present case Hall.13 The Allen on the stories the isolated Latin cross top and surround that, inherent absent the plaques qualifications suggests have alone does secular symbols, ing Therefore, belief. substantial inhibiting advancing impact this court’s decision. case the Allen supports *18 more administrative and difficulties
The by anything political spawned in the affairs of than minimal involvement religion governmental first in the “excessive test. considered entanglement” “Entanglement” Kurtzman, Lemon as a doctrinal v. emerged requirement separate 745, 757-760, 602, 616-620, L.Ed.2d 403 U.S. 622-624 761-762]. supra, [29 aid education which Court scrutinized to programs Supreme their states to the use to which funds were monitor put required aid found schools. The of state to state surveillance religious tying was. if the state became involved under the First Amendment impermissible and secular the schools whose monitoring programs religious were had no functions court concluded government inseparable. of church-related the decisions business intruding everyday policy institutions. court noted the
More for our the Lemon dangers importantly purposes, to aid to division lines in such regard political along (Id., at education 622-624 L.Ed.2d 761-762].) pp. pp. programs. [29 The annual debate on to increase as appropriations, pressure support costs each threatened to turn differences grow year, religion into This was central issues. establishment political precise danger clause was meant to Harlan As Justice wrote in Walz originally prevent. Commission, 697, v. 664, Tax 716], U.S. L.Ed.2d supra, [25 establishment clause “that kind and precludes degree government that, us, life as to lead involvement teaches to histoiy apt a (See strife strain frequently system political breaking point.” 756, also Committee Public 413 U.S. Education Nyquist, supra, for L.Ed.2d .. where the issue is the deeply underlying 977] [“. one for emotional of Church-State the potential seriously relationships, no divisive needs elaboration.”].)14 political consequences a church-like Hall lends certain 13Itis a City cross on troubling high display of a cross on which the I see inway display can no appearance building. presently as it comes to When spiritually Hall could so to be constitutional. as City arranged cross, surrounding laden a court’s on plaques as the Allen emphasis symbols suffice. when the state division 14The court has been most find likely potential political It was prospect a quality. involvement with self-perpetuating takes The United States Court has never ruled on the Supreme “entangle- ment” of a problems presented by display religious symbol.15 However, Kurtzman, with found in Lemon v. “entanglement” 403 U.S. 622-624 L.Ed.2d 761-762], the of Los City has itself to successive for—and successive opened up requests debates over—the on its Hall. This religious symbols has started. The of the cross on process Easter already triggered from a member of the Eastern Orthodox faith that “the request same consideration be extended to members of Eastern Since Orthodoxy.” refusal of that would have request exposed charges favoritism, members council were placed compromising motivated position Where will granting religiously request. end? It does not take to see that process this situation is foresight fraught divisiveness. As the out, dangers political majority opinion points *19 once the tower Hall is calendar, converted into a marked City giant cross, such as the Latin the David, Jewish Star symbols the star, Moslem wheel, crescent and the Buddhist and the Hare Kirshna “Om,” for and one or another will have become passions against of the once neutral within part parcel experience travelling sight Hall. City
Moreover, the
Council of Los
has no business
City
Angeles
deliberating
on such
as what
of other
are
to the
symbols
questions
religions
equivalent
cross
what
of other
to Christmas
holidays
religions
equivalent
and Easter. These are
whose answers the First Amendment
questions
reserves to the
The fact that the
council
respective religions.
city
have to
tells
answer
us that excessive
at
hand.
already
entanglement
The trial
was
court
correct when it found that “the wisdom of the
fathers in
is illustrated
founding
governmental
proscribing
entanglement
the
the
in
council faces
city
responding
difficulties]”
requests
on
displays
symbols
religious holidays.
annual,
Kurtzman,
acrimonious
debates that troubled the court in Lemon v.
appropriation
761-762],
contrast,
supra, By found pp. the tax to all permanent granted issue in Walz v. Tax acceptable exemption religions, Commission, 397 U.S. L.Ed.2d supra, was exemption 704-705]. and did not necessitate state sects. categorical monitoring benefiting 15The federal Court of did find raised Appeals “entanglement” problems of federal officials on executive committee the “Christmas membership Pageant Morton, Leventhal, (Allen (conc. J.).) Peace.” v. 495 F.2d Those opn. were officials whether removal of the creche from the put position deciding would be out Christ of Christmas.” Court of pageant this state has also found equivalent “taking Appeal “entanglement” difficulties Governor’s order presented by (Mandel state offices between noon and 3 closing on Good p.m. Friday. Hodges, supra, 596, 614-615.) 54 Cal.App.3d
IV Hall of a sectarian on Los Since Angeles City faith, it of one involves that promotion particular States violates the California and United Constitutions. both Religious sworn to of our cherished As freedom is one most heritages. judges constitution, we no more solemn than to have preserve duty uphold children ancestors it for us. This for our as our preserved heritage just intrusion, we do can large by guarding every governmental against small, or the inner of conscience. into sanctum
Tobriner, J., concurred. RICHARDSON, J. dissent. In my 30-year I respectfully opinion, blinds, of Los the window arranging practice windows, of hall tower the form of a cross illuminating Eve, Christmas and Easter neither the United Christmas violates night States the California nor Constitution.
Plaintiff sued as “private attorney general,” initially complaining Eve, to occur was on a Christmas single night, namely, *20 24, 1975, but attached to refer to December documents the complaint 25, 1975, of the December as a council on 24 and approval event.” “special
The of the are that the . charging precise allegations complaint Constitution, I, “Article “resolution” offends section of the California which ‘Free and without exercise of enjoyment religion provides part, discrimination or .... The shall preference guaranteed Legislature make of no law an establishment ....’” respecting continues, “Said also the establishment resolution violates complaint [s/c] clauses' of the First Amendment of the United States Constitution.” of the In addition to fees she her prayer complaint revealing. attorney’s seeks to restrain the and board its of works “from city public lighting on bar cross or Hall or other or single City any building municipal structure in the of Los City Angeles, commencing immediately; alternative, Los be should ordered to City City light of Hall when demand is any symbol any religion expressed by Plaintiff, member of such of her any religion.” judged by prayer content, the suit be would and complaint, quite presumably dismissed, She if the demand. illuminates any city symbol upon neither that such nor, demand has ever
alleges been made having made, been that it has ever been denied.
The case was submitted on the and declarations, seven those pleadings and of her and those made on behalf plaintiff of the attorney, defendant record, of its five The factual city by employees. gleaned declarations, from the thin. Plaintiff’s declara- exclusively exceedingly tions, be summarized. She largely conclusionaiy, may alleged “Resolution and the actual cross on Hall is in lighting City violation constitutional under the First Amendment my rights Constitution, alia, United reads, States which inter shall make ‘Congress no law an as establishment well violation respecting religion,’ under California Constitution Article 4.” She § further my rights resolution, averred that the and the “also affects city’s lighting, rights my as a since the funds used to called for taxpayer, provide lighting said resolution would be derived from Tax Dollars.”
Defendant countered with declarations of officials which stated Eve, for the cross on Christmas Christmas purpose tribute, Easter was “not in but more in a night spirit toward all mankind.” The reason for the peace good fellowship hours to Eastern Orthodox Easter was as display during evening prior a “further all toward spirit peace good fellowship basis, mankind on an inter-faith toward the eastern nations in particularly Europe.”
Defendant’s declarations further reveal that the supporting arranging more; window blinds has continued for 30 years display’s estimated $103; annual cost for 1975 was of time period involved the illumination at Christmas was the 12 during evening hours of Decémber and at Easter of each total year, *21 hours; 36 more Orthodox Christians approximately recently group had similar illumination on the eve of Orthodox Easter and this requested was no other had ever made similar granted; religious groups any but funds, two charitable the heart and seal Easter requests organizations, had and had been of their granted requested respective symbols drives, action; charitable that is not in this during practice challenged there was no evidence that the had ever denied similar any requests there was no that evidence in the 30 anyone; years any practice or had been or particular impact, special general, experienced, member of the or or any public any particular group, religious otherwise, offended, misled, distracted, had been or disturbed
815 nor had such or display, person, group organization complained the practice. factual constitutional
Against background majority’s argument be examined. The of views” majority, citing “panoply expressed various of the United States Court both opinions Supreme interpreting the establishment and the free exercise clauses of the First Amendment Constitution, of the United States elects to its place holding upon I, identical of the California Constitution (art. substantially provisions Given the between the state and 4).§ federal similarity language the same should (Accord standards Mandel v. provisions, general apply. 596, 616 (1976) (127 244].) Hodges Cal.App.3d Cal.Rptr. clause,
In its most recent
of the establishment
Wolman
application
714,
433 U.S.
2593],
Walter
L.Ed.2d
97 S.Ct.
members
[53
court,
while
various
high
expressing
opinions regarding
them,
ultimate result of the case before
no
expressed
disagreement
whatever as to the
standards: “The mode of
for
applicable
analysis
Establishment Clause
is defined
test that has
questions
three-part
muster,
from the
In
Court’s decisions.
order to
a statute
emerged
pass
must have a secular
must have a
legislative purpose,
principal
primary
effect
neither advances nor inhibits
and must not foster an
religion,
excessive
See Roemer v.
government entanglement
religion.
Mary-
736,
179,
land Public Works Bd. 426 U.S.
L.Ed.2d
2337];
96 S.Ct.
[49
756,
Committee
Public Education v.
413 U.S.
772-773
Nyquist,
[37
948,
Kurtzman,
2955,
L.Ed.2d
602,
S.Ct.
2965-2966]; Lemon v.
403 U.S.
L.Ed.2d
91 S.Ct.
(433 U.S. at
(1971).”
2111]
724-725,
235-236
L.Ed.2d at
foregoing tripartite determining clause, action founders on establishment particular governmental I these measures to the action in the case before us. apply analytical city’s
1. Secular Purpose council committee and its works prior reports public were to reveal stated symbolize general holiday purposes season, in a toward all mankind on good fellowship “spirit peace an interfaith basis . . . .” The was coincident with installation trees, ornaments in of colored Christmas and other public strings lights, *22 me Under these circumstances it seems to readily buildings. apparent the and twofold in nature: (1) was secular general probably purpose warmth, and will a of good promote general spirit good fellowship, peace, what has become a traditional characterized during period, holiday by of and cards and secular exchange gifts greeting general festivity, an (2) attractive and decoration for the provide relatively inexpensive hall tower to exterior of city bright accompany lighting adjacent While of some the intended buildings. nearby tranquility, harmony, will, have been the rancor good very unfortunately, may dissipated and rhetoric I record, of find in the factual present litigation, nothing inor notice, circumstances which we take judicial which us at from face value the intended prevents accepting purposes officials. there is before us which expressed by Certainly, nothing indicates, even council had an undisclosed indirectly, secret, or a or advance purpose conspiratorial plan promote particular We can assume that it acted in faith over religion. fairly complete good many years.
As the the courts other states have majority acknowledges, approved A (Ante, cited.) cross issue. cases displays comparable case, recent the term “secular helpful understanding purpose,” the erection of a involves on cross permanent large public property Gravel, aas memorial to war veterans. & Sand Inc. Oregon (Eugene P.2d Ore. 1007 court 338].) Eugene Eugene reasoned, that a Latin cross is it has “Conceding large religious symbol, been held that in uniformly determining validity display either a or a cross scene on nativity public controlling property, is not whether a or cross scene is but question nativity religious symbol, Thus, whether of its or secular. purpose is satisfied requirement ‘purpose’ by displays nativity [secular] scenes on in connection with the Christmas season as public property Indeed, secular and other crosses pageant. permanent displays festival monuments on have been held valid public property uniformly . . . even when in connection with a secular or event.” displayed festival added, 346, italics (P. omitted.) fns.
I believe that the sound, even when foregoing analysis Eugene fortiori, ato A it seems to me to the applied permanent display. applicable decorative of a cross an to commemorate temporary, important Christmas, season. definition has obvious holiday by veiy characteristics, become, but it has an by general important acceptance, secular as It is festival well. law an official state recognized holiday. Code, life, In (Gov. §§ terms business and community Christmas has some too secular overtones. developed strong, say strong, We from when we barren depart important precedent reject, *23 action. us, officials for their the reasons which local before gave transcript Court 14 Cal.3d (1975) v. (City Superior Fairfield (Veta) Court 375]; 537 P.2d State Superior Cal.Rptr. of California Moreover, we 497, 524 P.2d 237, 258 1281].) 12 Cal.3d Cal.Rptr. which is within the we a local civic err when practice seriously interrupt vested in local discretion area of judgment political appropriate officials. public
2. or Primary Principal Effect was the or from its secular principal primary Apart purpose, effect inhibits one which either or cross holiday promotes display not.
religion? Undoubtedly had whatever before us to show that There is any nothing display bad, effect, or indifferent. or good, temporary permanent, for or Its stirred no visible culturally, theologi- against. impact, passions or was undisclosed. 30-year practice cally, socially, philosophically, or has either by any unchallenged by general public, passed or otherwise. Far from individuals or generating groups, either seems to have been received controversy, public season, with favor in the or general passive spirit holiday the Court of indifference or This fact majority apathy. prompted herein, observe, “The is conclusion properly, inescapable Appeal quite benefit that if the custom conferred measurable challenged really upon members of various sects and faiths would either have religion, expressed alternative, aid, their a desire for or in lodged equal recognition . . . . endorsement objection practice prejudicial sovereign remote and conferred that custom are so benefits [Wjhatever Amendment threat to the First inconsequential any posed at best.” hypothetical
The record discloses that two sought display organizations treatment. were both similar granted equal symbolic expressions. They Fund and the cross These were the heart Heart symbol Seal It is difficult to conclude the Easter any preference Society. similar until the has both received
worked applications rejected from someone. no discloses record before us self-evident that the
It seems to me almost less much action or effect” of anybody, city’s primary “principal as either effect which promoting may fairly interpreted *24 818 The evidence is With the
inhibiting religion. entirely contrary. of the Court of I would have that if the majority Appeal, thought practice had the or effect of either one or principal primaiy promoting others, it would have been reasonable to have in the inhibiting expected course 30 of some manifestation of that fact years surfacing or from someone. If we what complaints, objections petitions, inquire, does the record as disclose or which the principal primary effect of the cross had on millions display people largest metropolitan area in California over a of 30 the answer is a period years, thundering silence. The record before us fails to demonstrate that the totally display either or inhibited in the Los encouraged any particular religion area or else. anywhere
3. Excessive Government
with
Entanglement
Religion
at
said,
issue herein cannot be
to foster an
reasonably,
“excessive
The United States
entanglement by government
religion.”
Court in Committee
Public Education v.
Supreme
Nyquist
U.S. 756
L.Ed.2d
As noted the of the cross involved an previously lighted display $103 estimated While the record not reflect the does expense annually. size of the annual of Los I believe it fair to conclude that budget Angeles, $103 the ratio of to the sink from minimal to infinitesimal. budget may No claim is made that interfered with practice any governmental This fact activities. this case from operations clearly distinguishes Mandel v. in which state Hodges, supra, Cal.App.3d releasing for three hours on Good an was held to be unconstitu- employees Friday tional for it resulted in the virtual of certain state offices practice closing cost, statewide, $818,000 office hours at a during approximately per hour. but in the involved terms
Not temporal aspects funding This herein was minimal. is not well, as action city’s of a such was fixed cross installation Eugene. permitted permanent *25 entire we concerned with Of the 365 year, days benefit, 4 does not hours of case represent evening days. constitutional Los significance. advantage gain preference, with nor itself has neither religion,” “excessively entangled or others which would injury” plaintiff any “irreparable upon imposed warrant intervention. injunctive however, case, I believe the immediate issues of the present
Beyond an which much too has constricted analysis majority adopted between the and state narrow describing proper relationship I that the While insistence state must religion. agree majority’s 798), assume a I that I not confess do (ante, “position neutrality” what is “to neutral means understand meant surely phrase minorities,” I the beliefs of the silent as well as the vocal for do honor those are. In we must know what “beliefs” “honor” my opinion and the of the as well as the both beliefs unbeliefs majority respect however, More chooses to minorities. majority importantly, ignore has of law which the issue substantial “neutrality.” body developed accurate, A more much more current constitutionally acceptable, is one vis-a-vis government religion description posture Kurland, The (See or “benevolent” “accommodating” neutrality. Court, Education, Reli and the Amendment’s First Supreme Compulsory 213, Note, 237; West Va. Clauses 75 L.Rev. Constitutional (1973) gion 320, and the 20 Exercises Public Schools Ark.L.Rev. (1967) Law-Religious Note, The VII’s 325; the 1972 Amendment Title Constitutionality of 538, 551; 73 Mich.L.Rev. (1975) Organizations Exemption Religious 306, see also Justice in Zorach v. Clauson 343 U.S. 313 (1952) Douglas [96 954, 961-962, L.Ed. S.Ct. v. Tax 679]; 72 Chief Justice Walz Burger, U.S. 664 S.Ct. (1970) 1409].) Commission L.Ed.2d [25 In Roemer v. Public U.S. Works Bd. 745-746 Maryland 179, 186-188, L.Ed.2d 2337], 96 S.Ct. Justice Blackmun recently added, described state’s but neutrality position “scrupulous,” state, to church and that “a hermetic an two is referring separation it has never Court in Delaware impossibility required.” Supreme clause, of the establishment described the considering application princi- in this manner: “The Establishment cases United decided ple States Court indicate that is the safe harbor in which neutrality Supreme avoid First Amendment violations: neutral ‘accommodation’ while and ‘advancement’ of
religion
permitted
‘promotion’
[citations]
are not.
Delaware (Del.
religion
(Keegan
University
[Citations.]”
14, 16,
den.,
A.2d
cert.
On
the “neutral”
should
principle,
government
approach
detached,
be understood as a
and benevolent
accommodating, accepting
lest “strict”
be construed as
Justice
posture
neutrality
hostility.
Douglas
in Zorach
that the state should “accom
amplified
concept
insisting
modate”
and “To hold that it
not would be to find in the
religion,
Constitution a
show a callous indiffer
requirement
government
*26
ence to
That would be
those who believe in
religious groups.
preferring
no
over those who do believe . . . . But we find no constitutional
religion
which makes it
for
to be hostile to
requirement
necessary
government
and to throw its
efforts to widen the effective
religion
weight against
scope
of
(Zorach,
influence.”
In while “neutrality,” government may advance, influence, or can and or it should religion sponsor accommodate and need be to it. neither hostile nor religion inhospitable law,
The as so reduces itself questions analysis, frequently Commission, The United States Court in Walz v. Tax Supreme degree. “We be U.S. matter this must also sure that way: put supra, result—the effect—is not an excessive end government entanglement with The test one . . . the is questions religion. inescapably degree excessive, whether it one whether involvement is continuing an for official and surveillance impermissi- calling continuing leading 704-705], ble 674-675 L.Ed.2d pp. degree entanglement.” (Pp. italics The United States Court of District Columbia added.) Appeals, Circuit, echoed the in Allen v. Hickel (D.C.Cir. 1970) same principle “The the state and F.2d religion: discussing relationship The Government be stated thus: rule may depict fairly may applicable its content, but it give stamp may promote objects spiritual courts is to strike content.... to such duty spiritual approval one, The area is a sensitive balance. involving questions the proper all, but at there is not whether any religious question degree. effect 948-949, italics is substantial.” whether that (Pp. rather effect, present, if a sensible rule. This is added.) a conclusion that the before us that the record I not believe do supports or that its is substantial involvement in government degree became of Los “excessively entangled” practice which reminds us of Chief Justice Burger principle religion. “Short of at those invoked proscribed expressly point,
fairly of a acts there is room productive joints play governmental (Walz, at L.Ed.2d . . . .” 397 U.S. benevolent p. neutrality us, the circumstances of the In the matter before 702], italics added.) involved, and extreme small brevity display, expense rarity very well as with traditional and festive secular as its concurrence on those of *27 record of an adverse the absence of any impact holidays, or on of no faiths at all other faiths those during very combination, me conclude of the all lead extended practice, period excessive, but was minimal action was not actually government for falls within “room indeed. very easily practice question room for mutual to local There is also government. play” permitted area, In neither the federal nor state and tolerance. charity total Constitution sterility. requires has been should council reply requests question put—how has
for of other other issue displays symbols by groups? Significantly, However, the not arisen in 30 and it is not before us now. more years is, direct In should not council favorably? response why respond so, it would be some of doing reasonably, recognizing, advocating, A and beliefs of of its citizens. held impulses strongly many deepest sense, reason, and controlled of common public entity by principles area, in this mindful of the wise should have some fairplay leeway always that “we must be ever on our lest admonition Justice Brandéis guard further we erect our into To legal principles.” plaintiif’s prejudices that is stream that “The breach of trickling warning neutrality today is, if is a all too torrent” the answer there soon become raging The rhetoric leak here it is slow in constitutional exceedingly developing. is not matched the record.
The rich of our national life contains tapestiy many interweaving which threads of one of the oldest and faith of t]ie strongest our The fabric contains and diverse strands of people. multiple profes- sion, belief The influence of on the American practice. is, once, historic, consciousness at and beneficent. Were we to pervasive, effect a constitutional total and misguided attempt, grounds, insulation of from all influence and complete government we would have no We would, commenced small symbolism, undertaking. cite but few random the reference to the veiy delete examples, Deity in the Preamble to Constitution, our California erase the likeness of from our remove the George Washington prayer stamps, postage Biblical Creator from the face the current state description strike the “In We Trust” God from all of directory, telephone expression our sandblast the term “Anno Domini” from currency, very cornerstone written, which these public building opinions and muffle the “God save the United States this Honorable prayer, Court” which convenes the court to which our judgment may appealed. should,
We more focus on the constitutional claim profitably, precise us, us, measure, if before record before light degree, so, do of defendant’s involvement If we fairly any, religion. no that her “free basis will contention plaintiff’s objectively, appear has been or that “The exercise and enjoyment religion” impaired, made law an establishment religion.” Legislature any] respecting [has her constitutional Plaintiff has no interference with alleged significant and we should so. rights say
The raised attorney general by plaintiff’s primary inquiry private can involvement attack is whether the religion government’s degree I do not find it so in be or “excessive.” said to be “substantial” reasonably the case before us.
I would reverse judgment. J., CLARK, I concur Justice Dissenting. opinion prepared by Richardson the substantive issues the court respecting presented court, case. While neither of us voted to before the it this matter bring must be statement, now dealt with. find it additional I By necessary comment on failure either a to state definitive majority opinion’s aor rationale. holding our decisions. reasons for
We are charged stating constitutionally VI, I Const., art. Not am unable to discern (Cal. § majority’s only than reasons, I fear random discourse will confuse rather but also its court, bench and bar in an area where four members of this guide Court, for rule (Cal. voted to Rules grant hearing having petition felt definition needed. 29(b)), apparently recites, I into Part without
The is divided four parts. majority opinion comment, conclusions of trial court large “findings”—in part comprising law. and free II Court has treated the establishment
represented, may though display prohibited the records show the has never a for a city rejected competing request Part III that if further in fact there is a lack display. implies general interest in or in other there challenging display displays, requesting that the of a handful who felt a 1The to urge expression persons majority appear than the is to be more in the balance weighed heavily from display religious impact of the three million inhabitants remaining city. evident display by acceptance not have been sufficient to invoke constitutional preference proscrip- tions. There assurance, is no however, that on remand the would city if it made a Nor do prevail advise what proper showing. majority would be needed to make such a Just where the line tois showing. drawn between and permissible remains as obscure impermissible display as now darkened cross. city’s
Part IV with the argues contention was no more city’s display than a secular in Christmas and Easter participation holidays, generally shared all residents of the city. Conceding city may constitutionally content,2 objects denounces the depict instant spiritual opinion content. No is made to “promoting” spiritual attempt between and distinguish displaying promoting. opinion suggests have if their city might resolutions engaged only displaying only a secular had been enacted in But, proclaiming faith. purpose good itself in the seats, councilmen’s our court placing conclude the appears resolutions were fraudulent and thus the council’s actual was to purpose surreptitiously impermissibly promote religion. We are is further confused its statement. concluding opinion
told the must be deemed to have because it did not promoted religion heard honor the beliefs of never from.3 do persons Surely majority not the council should initiate a to ascertain suggest program hearings these beliefs to the when—according particularly majority—the phantom are disinclined to out on the protestors speak subject.
I do not our should be written in a (cf. suggest opinions particular style Witkin, Manual on Court ch. (1977 V). ed.) Appellate Opinions Style matter to each of us. But the bench and bar entitled highly personal know from our not that a written judgment appeal opinions reversed, either affirmed or but also the reasons therefor. being majority’s “A conclusion in which the on the issue is stated is holding legal clearly desirable, . . . it is an of the highly reasoning important part it discussion: states the rules of law that the decision lead to governing Unit, 2In Protestants & Other Amer. (D.D.C. Ch. & St. v. 1967) O’Brien Sep. 712, the F.Supp. Madonna and Child on a issued at postage stamp a more Christmas—surely having significant preferential connotation than lighting cross—was held temporary offend the federal constitutional (Id., proscription establishment of against religion. is, course, 3It unrealistic to as the presume, that in a majority urge, of three million the failure of but a persons, few to make their views persons known during is due thirty-year period “complex reasons which have troubling” might intimidated them from out. speaking *30 Court Manual on (Witkin, . . . and also serves as Appellate precedents.” V, does the ch. Not majority opinion Opinions, or other- case fail to state its reasons or instant conclusions—clearly what must be wise—but it also fails to advise litigant parties “for further established or refuted on remand proceedings” appropriate as have been ordered by majority. sum, fails to reveal removal
In majority’s opinion truth, In it is is constitutionally required only offending symbol required. decree from five by today’s judges. Part notes Supreme . “with exercise clauses of the federal Constitution diversity ‘perplexing ” views,’ of such California simply noting guaranty rights is not on the federal Constitution. Constitution dependent opinion concedes that other courts have approved displays arguably comparable cross, be to the Los but then adds that some of these cases But No distinguishable. go principle distinguishable undistinguished. of law is stated. Part III states the California Constitution exercise guarantees without discrimination or more preference—a comprehensive than in the federal Constitution. In to establish prohibition seeking a cross constituted that “members of preference, majority speculate the Eastern Orthodox there had been a community apparently thought” conflict, hall official there be a and an preference, thought might Orthodox was of the cross on the hall.1 family grateful the California Constitution does not majority acknowledge require “that each be in a religion always represented” public display materials, . . . does but then to “illuminate Latin cross opine seem preferential.” so, Does III hold there If it is an unconstitutional part preference? made All we are No to define implication only. attempt preference. told is that the does not be Constitution every religion always require but that even cross