Jon G. Murray and Society of Separationists, Inc. v. City of Austin, Texas and Travis County, Texas

Cambra, F.2d v. States United fraud Cir.1991). Applying the (9th 333(b) is a violation for a

guideline § Guidelines, rather of the application

direct them, leaves departure from than REHEARING SUGGESTION FOR 0N objection. for Arlen without basis BANC sen that his Arlen also contends high when disproportionately was

tence by oth received compared to the sentences CLARK, Judge, Chief Before dis coconspirators. The er, more-culpable KING, GARZA, POLITZ, REYNALDO G. months, Arlen to 12 sentenced trict court HIGGINBOTHAM, JOLLY, GARWOOD, guideline month the 10-16 well within DUHÉ, SMITH, DAVIS, JONES, WIENER guide attack his own range. Arlen cannot GARZA, Judges.* Circuit M. and EMILIO upon sen range sentence based line coconspirators. United tences of his BY THE COURT: Pierce, v. States CONSIDERATION, ON FURTHER Cir.1990). deny- September panel’s order judgment of district Accordingly, the rehearing en banc ing rehearing and court judges in majority A withdrawn. in favor of having voted active service AFFIRMED. banc, rehearing en IT IS OR- granting a reheard this cause shall be DERED that argument. court en banc without oral briefing schedule specify a The Clerk will supplemental filing of briefs. for the III, DERDEN, Guy George

Plaintiff-Appellant, Society of MURRAY Jon G. v. Inc., Separationists, Plaintiffs- Attorney McNEEL Sammie Sheriff Appellants, Mississippi, General — State Defendants-Appellees. AUSTIN, Travis TEXAS and OF CITY 90-1230. No. Texas, County, Defendants- Appeals, Appellees, Court United States Fifth Circuit. 90-8561. No. 31, 1991.

Oct. Appeals, Court States United Fifth Circuit. Snow, Butler, Bobo, Joyner Leslie Jackson, Cannada, O’Mara, & Stevens 4, 1991. Nov. Miss, plaintiff-appel- (court appointed), for 3, 1991. Rehearing Dec. Denied lant. Gen., Pierce, Atty. Sp. Asst. R. Charlene Gen., and White, Atty. Asst. L. Marvin Miss., Gen., Jackson, Moore, Atty.

Mike

defendants-appellees.

* participate this decision. recused, did therefore Judge Barksdale is Austin, Tex., person after whom the Vinson, plain- for W. John original family Austin coat of named. tiffs-appellants. three cross-crosslets arms was a crest with Atty., Aus- Naranjo, L. Asst. Co. Orlinda wreath, supporting a Latin cross and a tin, Tex., defendants-appellees. (A wings. Latin cross is the two between religion; the its three symbol of Christian arm, than the lower upper arms are shorter cross; esp: is “a small one while a crosslet SMITH, GOLDBERG, Before bearing”. a used as heraldic Websters BARKSDALE, Judges. Circuit 308-09, Collegiate Dictionary illustra- New (9th 1989). ed. A cross- tions and 18 BARKSDALE, Judge: Circuit “heraldry: a cross crosslet is defined as grounded issue Today, we address an end of each arm”. with a crossbar near the Country which our part of the bedrock on Dictionary 541 Websters New International religion. of The issue stands —freedom (3d 1986).) in the coat ed. The Latin cross a springs from the inclusion of Christian signified progenitor had of arms that Austin, City of insignia in the of the crusade; wings participated in a and the way into the Texas. The cross found (also represented St. Austin known St. it of the coat of insignia because was Augustine), Archbishop Canterbury. the of City is person for whom the arms of 1.) (See Stephen F. mod- Appendix Austin Austin, named, the “father of Stephen F. by original replacing ified the coat of arms Texas”. with a deer’s head the three cross-crosslets Separa- Murray Society and the of Jon pio- symbolize that he was an American member, tionists, sued the which he is a of changed He the Latin cross neer. also others, claiming insig- that the City, among atop crest into a form of cross-crosslet: and Free the Establishment nia violates only Latin cross crosslets on with First Amendment of the Exercise Clauses (See 2.) Appendix upper three arms. (as by Amend- incorporated the Fourteenth cross, among City ment), insignia, For its has used an because contains there are no symbols. Agreeing adaptation Stephen F. Austin’s coat of other of fact, parties disputed of material insignia issues is a circle with “CITY arms. The summary judgment. filed cross-motions for circumferentially AUSTIN” written OF summary judg- granted court The district 1839” top and “FOUNDED across City sponte imposed ment for the and sua Inside the circle is across the bottom. Murray and the against Rule sanctions stripes, vertical shield formed three (W.D.Tex.1990).1 F.Supp. Society. 744 triangle top at the of the an inverted with judgment, summary AFFIRM the but We triangle lamp shield. Inside sanctions.2 the award of VACATE knowledge, representing “the educational (For City.” example, advantages of the

I. located at Aus- University of Texas is tin.) Atop the shield is the silhouette sought City Council the Austin superimposed on the capitol, and the State municipal flag and designs for a proposed with crosslets on capítol is the Latin cross design incorporated, chose a arms, pair by a upper three surrounded modifications, family coat of arms some 3.) insignia (See Appendix Austin, wings. “father of Texas” Stephen F. F.Supp. Appellants do not raise insignia at 776. also claimed that the violat- 1. Plaintiffs Rights appeal. Texas Bill of I, of the Constitu- ed the Texas tion, them respec- and which article sections 6 worship pro- tively provide for freedom It is more than well- Fed.R.Civ.P. 56. 2. See purposes. Af- appropriations for sectarian hibit summary judg- review of a established that our claims, disposing the district ter of the federal City E.g., South plenary. Fields v. ment is claims on the these state law court dismissed Cir.1991). Houston, 922 F.2d pendent they frivolous and bases that were 1367).- (now "supplemental"; U.S.C. § see 28 city religion, prohibiting police cars and other ve- of the free exercise is used on thereof_” Const, letterhead, bills, hicles, monthly utility uni- amend. I. As noted, including police depicted the cross is a city employees, forms of crosslets, Latin cross city with three which firefighters, on wall Murray chambers, particularly by states is used many city- on or in council However, Roman Catholic faith. the chal- buildings, parks, and recreation cen- owned lenge particular (See Appendix 4.) not to a denomination ters. being represented. Instead, Murray relies Murray’s summary judgment affidavit perceives representation on what he as the stated, among things: that he lives other And, Christianity. he asserts that al- Austin, many items and works receives though occupy the cross does not much correspondence from the and uses space insignia, prominent part in the it is a services, including police public and fire its it; location, of that because of its color and water, electric, garbage, protection as being by pair well as its surrounded of services; utility that he has visited the wings, attention is to” drawn it. “[a]ll City chambers of the Austin Council and soliciting The resolution in designs City’s municipal building; that the City’s flag for the makes no mention of the insignia only Christian cross is used Christianity, cross or instead solicits de- denomination; by the Roman Catholic that signs of “artistic merit” expressing “some city the fact that his uses “such a salient city”, sug- characteristics of the him; symbol truly offends” that he does gests possibilities as use of religion symbolized “not to the subscribe Austin, beauty City natural of [t]he particular nor of to the sect that Crown, dam, of the Violet the lake and symbolized”; per- which is further that he Capital State, the dome of the insignia sonally “many confronts the lo- Capitol, city, the seal of the and edu- City,” including cations around the center, industries, cational its the senti- monthly utility he bills receives his home past history, ment of its the derivation of offices; Society’s and at the that use of the Austin, Stephen the name—from F. insignia by City an endorsement of expression Stephen of the ideals of F. Christianity general and the Roman form, symbolic Austin in the use of the particular; “only that Catholic faith af- coat of Stephen arms of F. Austin. ter research into seal3 and the did that the Nor is there become aware cross was reference to the cross in [he] coat-of-arms”; part Stephen adopting design. of F. Austin’s the resolution in 1919 “experienced police hostility The resolution that he has describes the emblem as a past Capitol shield with a silhouette of the police protection when was need- ed”; crowning the whole may that he fears that this have been City’s because of the association with and woven into this silhouette is the Christianity and status his as “well Stephen crest to the coat-of-arms of F. spokesperson”; known atheist and that he Austin, City after whom the of Austin portion is also some “distressed that design was named. The entire is a mod- City utility tax contribution or ... ified form of the [his] Austin coat-of-arms. In payments goes advertising religion.” golden lamp the center ... is a of knowl-

edge, typifying the educational advan- II. tages of Austin.... insignia

At Although issue is whether the violates the cross is included insignia Free Stephen Establishment Exercise because it was F. Amendment, arms, Clauses of the First which Austin’s coat of it is a Christian provides part: “Congress in relevant shall cross nonetheless. While the reason for its make respecting being insignia no law an establishment in the one the factors parties insignia 3. use the terms seal and a star. however, interchangeably; the seal Austin is rights interests legal reaching rather than consider, cannot avoid we

we parties. of third simply because issue Amendment First insignia for in the placed cross was Cramer, (citations 931 F.2d 1024-25 original It purposes. was omitted). had ancestor that an to denote coat of arms Murray asserts his earlier described But of far more in a crusade. participated he and the establishes that Socie affidavit seeing the anyone significance, general standing standing ty have under expect cannot cross. We sees Christian standing and that he has principles researched viewing it to have persons taxpayer. municipal citizen and Concern can beforehand, any than we more origin former, see, e.g., Foremaster v. ing the a disclaimer City to include expect the City George, F.2d 1490-91 St. it. direct, Cir.1989) (“allegations per (10th municipal logo] suffices sonal contact [with A. — denied, injury”), cert. as non-economic must, issue, As a threshold U.S. —, 109 L.Ed.2d 300 Murray and the course, satisfied Milledgeville, Saladin (1990); ins challenge the standing to Society have Cir.1987) (re 692-93 Arti standing under ignia.4 To establish correspondence proclama and ceipt city of Constitution, a States cle of the United III bearing challenged seal sufficient to tion litigant must demonstrate: compare City Harris v. standing); confer ^[1] some that he actual or threatened personally has injury as a suffered (use of Zion, of city 927 F.2d seal on automobile 1401, 1405 (7th tax stickers Cir.1991) of illegal conduct putatively bags plaintiffs which were garbage of the result and altering plaintiffs’ to use and required the defendant ... Cramer ^{[3] [2]} dressed [that v. challenged by a Skinner, injury favorable injury] “is action” 931 “fairly can be traced decision.” likely to and 1020, 1024 re their painted confer (U.S. July Aug. travel routes 19, 1991) (No. petitions standing), on 19, 1991) (No. city water to avoid 91-299). tower sufficient 91-141) for viewing cert. and filed, (U.S. seal to Cramer) Cir.1991) (brackets (quot injury concept of for Although “the College v. Forge ing Valley Christian elusive particularly standing purposes Separation Church Americans cases,” Saladin, for 812 Clause Establishment 472, 102 752, Inc., 464, State, 454 U.S. omitted), Murray (citation has F.2d at 691 cert. de (1982)), 758, L.Ed.2d 700 70 standing. confer injury to alleged sufficient — 298, nied, —, 116 112 S.Ct. U.S. weight considerable ruling, we attach so “a (1991). deciding, in so 242 And L.Ed.2d standing has not been the fact that con prudential consider three court should cases, in similar Supreme in the Court issue cerns”: 668, Donnelly, U.S. Lynch v. such complaint falls 1) plaintiff’s (1984) whether (plain 1355, 79 L.Ed.2d 104 S.Ct. protected zone of interests within Civil Liberties Un the American tiffs were provision at or constitutional the statute community residents ion and issue; displayed in issue was creche which the complaint raises abstract members 2) were also private park, who whether v. Allegheny generalized County amounting ACLU) questions Union, 492 U.S. appropriately Liberties are more Civil grievances which American branches; (1989) 3086, legislative 573, by 106 L.Ed.2d 109 S.Ct. resolved resi and several the ACLU (plaintiffs were asserting his 3) plaintiff is whether creche and where a community dents of interests legal rights and her own However, argument, when both argu- after merits. sponte at oral this issue sua raised 4. We standing, City time, contested City stand- filed briefs on contested sides At that ment. request- ing apparently time—but for the first it. — standing rule on the we assume ed that belief, displayed County religious punish expression menorah were City-Coun religious doctrines it just outside the believes to be Courthouse false, respectively). Compare impose special Val disabilities on the ty Building College v. Americans religious ley Forge Christian basis of views or sta- tus, Separation Church and power or lend its the other to one or United for 485-87, State, 464, Inc., 454 U.S. 102 S.Ct. side in controversies over au- 765-67, (1982) (where dogma. 752, thority or 70 L.Ed.2d 700 challenged conduct plaintiffs learned of Div., Dep’t Employment Human Re- did not in or through the media and live Smith, 872, -, sources v. 494 U.S. state, alleged offending the Court near the 1595, 1599, (1990) 108 L.Ed.2d 876 5.Ct. standing taxpayer for federal held no omitted). (emphasis and citations None of grievance “psychological nor conse implicated. Murray fails these concerns quence presumably produced by observa or restric- to articulate a sufficient burden disa tion of conduct with which one imposed the free exercise of his tion And, Murray grees”).5 because has (or beliefs) non-religious or to offer Society, of standing, which he is a authority support of his “subtle Warth v. Sel member, standing. also has argument.6 coercion” 511, 515, 2197, din, 490, 95 S.Ct. agree We with the district court (1975); Harris Murray’s 45 L.Ed.2d cry claim is a “far from cases Zion, 927 F.2d 1405. dealing ac- with actual interference ... or compulsion” presented tual which have via- B. F.Supp. ble Free Exercise claims. dispose of the Free Exercise quickly We 775; see, e.g., ley Maynard, Woo v. issues. Clause and sanctions (1977) 51 L.Ed.2d 752 (invalidating compelled display of “Live 1. Wisconsin plate); Free or Die” on license exercise claim is based on Yoder, 205, The free 1526, v. 406 U.S. 92 S.Ct. 32 “[tjhere that is at least Murray’s (1972) assertions (invalidating requir- L.Ed.2d 15 law Plaintiffs to adhere attendance); subtle coercion for the West ing compulsory school majoritarian symbolized by faith the Virginia Board Education v. to the State Barnette, 624, 1178, seal” and that Austin residents 319 U.S. 63 S.Ct. 87 support municipal (1943) to an official (invalidating compulsory are “forced L.Ed. 1628 However, bearing salute). argument the cross.” this flag seal His is without mer- beyond purview contention reaches it. well

of the Free Exercise Clause. 2. means, religion

The free exercise first foremost, right Equally unavailing City’s to believe and is the at sua profess tempt justify doctrine one to the sanctions. whatever sponte imposing Thus, the First Amendment ob- them under desires. Fed.R.Civ.P. 11, viously “governmental regu- judge Murray the district excludes all stated that present any sup as such.” The failed lation of beliefs had to evidence compel government may port entanglement not affirmation of his excessive and free Accordingly, Symbols, Perceptions, need not address his alterna Doctrinal 5. we Illusions: standing, upon being Neutrality tive assertion of based his Establishment and the “No Endorse- See, Test, 268, (1987) (not- e.g., Forge, municipal taxpayer. Valley ment" Mich.L.Rev. 86 300 482-83, 764-65; ing Clause, generally S.Ct. at that under the Free Exercise 454 U.S. at Dore Educ., 429, 434, plaintiff must show a "substantial” or mus v. Board And, 394, 397, (1952). "severe” burden on the exercise of his or her L.Ed. 475 al religion, suggesting though Murray alleges injury but that under the "endorse- to con sufficient test, challenge infra, may standing insignia ment” all that be re- fer to as viola- discussed Clause, quired arguably is an assertion that one "feels like an tive of the Establishment he ”). standing lacks assert Free claim. ‘outsider’ his Exercise Murray allege signifi fails to a substantial or Indeed, Murray cant burden on the exercise of his (nonreligion). 6. concedes that he could find Smith, argument. support See II.B.l no case law to his infra Security exercise discretion its brief for the ing oral not been thoritatively tant and Supreme Court [not] Rule that though we tion, or reversal faith conclude claim City stated Rule Cir.1988) Murray’s argument for warranted is not “well sanctions.8 to this claims.7 11 sanctions which argument addressed Servs., Inc., consequential standard. that City agree decided his (en banc). issue and cited claims provides [and] devoted contentions We review grounded existing law or issues before by this Moreover, by existing law.” Mur- ... under Thomas are extension, the district for sanctions one nature_” are of presented “have unavailing, [cjourt or au in fact United States do paragraph in no v. not court, the imposition an authority abuse modifica- U.S. at request Capital violate impor court good if a Al- vances nor mary tal lative tablishment Clause ter under test. must entanglement with tions line barrier stroke or more be stances erects a due objective, Establishment practice omitted) effect purpose; In order to those process can Murray between 612-13, it, foster of a “blurred, depending on all inhibits straight and (1) not to write a statute.” must be one that barred phrase or statute or other “must have a secular asserts violation (emphasis particular ... 91 S.Ct. at 2111-12 ‘an excessive Clause “was permissible pass constitutional religion.’ religion; pursuant indistinct, ^[2] by the Clause defined test. The Clause unwavering than relationship.” added). principal ” Lemon, ... relationships and variable the circum- government governmen in a the Lemon neither ad [and state an the Es On can no single (3) legis mus (cita pri ap it] least, solely part two of are, protect- Murray relies very peal, ray’s claims conceding test, prong, argument” provision the “effects” “good by the faith ed inappropriate especially for this sensitive did not have in Rule using insignia Rule and that its They purpose do not fail area. See infra. entangle excessive does not involve use ll’s standards.9 religion. government and ment between C. in 1971. More recent decided Lemon was Chambers, cases, such as Marsh is whether The critical issue 77 L.Ed.2d 1019 chal- U.S. Clause Establishment can withstand (1984) most recent (1983), and the Lynch with most Establishment Clause lenge. As Allegheny County pronouncement, cases, task.” “is a delicate our review clarify, if explain or 623, (1989), attempts to are at 109 Allegheny, 492 U.S. County of than, approach Lemon. J., concurring in not find a better (O’Connor, at 3117 S.Ct. in for Court See, opinion the exceeding- e.g., The judgment). part and 679, at 1362: at 104 in 465 U.S. S.Ct. applied Lynch, flexibility that must be great ly 465 Lynch, in line-drawing process is well-stated we have such review In the (cita- 678-79, at 1361-62 S.Ct. to whether inquire 104 found it useful U.S. often omitted): has a sec- challenged or tions law conduct principal or purpose, whether case, line- ular inquiry calls for In each or inhibit effect is to advance primary fixed, rule can be per se drawing; no exces- and whether it creates religion, like The Clause framed. Establishment government with entanglement of precise, sive is not a Clauses the Due Process But, Lemon, we have supra. religion. legal capable in a code provision detailed unwillingness emphasized our repeatedly purpose The ready application. anee, imposition offering support no for entanglement made but claim was The excessive 7. context). this three-part from Lemon v. in test Kurtz of sanctions under 2105, 602, man, 745 S.Ct. 29 L.Ed.2d 91 403 appeal. (1971). See not raised on This is claim 9.Moreover, argue City although not does infra. imposi- affirming the bases for alternative sanctions, carefully reviewed we have tion of Thomas, only F.2d at 866 cited 8. The and find none. the record of review (providing appropriate standard general guid- and other for Rule sanctions dissenting in in judgment or crite any single test to confined further need not discuss part). We See, Til e.g., area. in sensitive this rion County Al- in differing views advanced 672, Richardson, 677-678 403 U.S. v. ton say that there is no it to Suffice legheny. 2095-96, 29 L.Ed.2d S.Ct. 790] [91 Per- easily applicable test. readily and one Edu (1971); Public [Committee for sensitivity of this haps, because of Ny Liberty Religious v.] cation And, may area, should be. this is as it [756,] 773 S.Ct. quist, 413 U.S. [93 including as discussed Lynch, well be that (1973)]. two L.Ed.2d 948 is below, guidance that provides all the apply the cases, did not even the Court However, this case. at least for necessary, not, example, for We did “test.” Lemon below, this wish as further discussed analysis relevant in consider sharply divided Court by the belied Marsh_ use Lemon Nor did find Accordingly, for County Allegheny. Valente, U.S. 228 ful Larson attempt case, only must we not (1982), L.Ed.2d 33] [102 Lemon, Lynch, look to apply but we must evidence of there was substantial where as well. Marsh, County Allegheny against particular discrimination overt prong asks wheth- “effects” The Lemon church. primary effect insignia’s principal or er the does, it religion; if it advances or inhibits Indepen See, Creek e.g., v. Clear Jones But, Amendment. one of violates First Dist., dent School Lemon, applying espe- the difficulties (Lemon apply Cir.1991) proper test to was non-statutory as is cially in a context determining constitutionality when here, knowing proper scope present allowing student resolution district school primary effect”. “principal reach of or or nonsectarian, nonp- present volunteers exclusively on the If we inclusion focus prayers), petition graduation roselytizing practice, religious symbol, display, or cert, 20,1991) (No. (U.S. 91- Aug. filed, for symbolism— every use of then J., 310); Jones, (Garwood, 930 F.2d plain wording prayer fail. —would test, (agreeing that concurring) Lemon require Amendment does of the First hurdle”, challenged policy’s highest “the this; Supreme Court. For does the nor met, declining to whether but decide was example, Lynch, as discussed rigid might be or less restrictive test “some 676-77, at 1360-61: applied”). properly more by public supported Art reve- galleries display paintings nues judgment Lynch resulted centuries, predominantly 15th and 16th opinion by concurring Justice from the religious faith. The Na- inspired one O’Connor, in which she stated “[f]o Gallery Washington, maintained tional entanglement and on institutional cusing support, example, with Government disapproval of on endorsement masterpieces with reli- long has exhibited analytical test as the Lemon an clarifies notably Sup- gious messages, the Last 689, 104 465 U.S. at S.Ct. device.” depicting Birth of per, paintings and added). Supreme Court was (emphasis Christ, Crucifixion, and the Resurrec- fractured, divided, indeed far more tion, explicit among many others with the en County Allegheny, which messages. themes and Christian by employed some of test dorsement arguments very in which oral chamber Justices, by a test es rivaled coercion was heard is on this case were decorated government poused by four: “Non-coercive permanent and seasonal— a notable —not the realm of accom within flexible action the Ten symbol religion: Moses with acknowledgment of ex passive or modation Commandments. symbols not the Estab isting does violate direct, addition, well as much more as religion it unless benefits lishment Clause religious ac- government use of permanent, way more direct and substantial more belief, is if not knowledgment, accepted that are our na than practices printed e.g., “In God We Trust” allowed: 662-63, Currency; opening at 109 court heritage.” tional 492 U.S. States on United J., save the United States concurring in with “God (Kennedy, sessions S.Ct. 3137-38 at

155 tending prayer opportu- to that “the court”; pledge of show honorable this exploited proselytize E.g., nity to or ad- prayers. legislative allegiance; [was] one, other, 674-78, any disparage any or to at vance 104 S.Ct. 465 U.S. at Lynch, 794-95, Indepen faith or belief.” 463 U.S. at 1359-62; Creek v. Clear Jones In at 3337-38. The stated: 421. S.Ct. Court Dist., F.2d at dent School rejected fo has deed, Supreme alone, Standing Court patterns historical can- compo cusing exclusively on justify contemporary not violations of E.g., Lynch, challenged action. nent of a guarantees, constitutional there is but 1362. 678, at at 104 S.Ct. simply pat- 465 U.S. far more here than historical context, In this terns. historical evi- only ask if the if need Conversely, we light only dence sheds not on what the whole, principal has the insignia, as a City’s draftsmen intended the Establishment advancing inhibiting or primary effect of or mean, they also on how Clause but Taken as must be no. religion, the answer thought applied prac- that Clause to the whole, principal or insignia has the by Congress— the First tice authorized identifying city activity effect of primary their actions reveal their intent. promoting Austin’s property and But, history. appellants 790, role and unique Id. at 103 S.Ct. at 3335. The Court by “weight the use of a Christian on the to be accorded to contend that elaborated represents citing Comm’n, a more history”, in its v. Tax Walz approved ac- challenge than the 90 S.Ct. L.Ed.2d compelling above, (1970): nonsectari- such as described tivities minimum, (even though, at a prayer obviously correct that no one ac- “It is religion preference for implicates prayer protected right in quires a vested or vio- including the fact that nonreligion), use, by long over lation of the Constitution seasonal; Con- permanent, opposed span when that of time covers our even contention, “[hjowever pre- and indeed sistent with entire national existence constitutionality practice history may affect the it. Yet an unbroken ... dates religion by something lightly cast aside.” references to be nonsectarian history legitimate cannot government, Marsh, at 463 U.S. at S.Ct. govern- that demonstrate practices Walz, at 90 S.Ct. at (quoting particular sect or allegiance to a ment’s 1416). practice’s history Because of the at Allegheny, 492 U.S. County creed.” any of an intent the want of evidence 602, 109 S.Ct. at 3105. one, or to proselytize “to or advance other, belief,” disparage any faith find that Austin’s Simply put, do not we legislative that the Marsh Court concluded preference insignia demonstrates real threat” of an prayer presented “no the extent that the Estab- Christianity. To 794-95, religion. at Id. establishment prevents preferences for Clause lishment 3337-38; see also id. another, pre- religion it likewise one over at 3336. nonreli- preferences for over vents (a Admittedly, lack the kind of evidence symbol) gion. The créche Christian Yet present in Marsh. (a symbol) original intent Jewish Lynch, the menorah important sim- some legislative pray- this case does share County Allegheny, long-standing with Marsh: Marsh, refer- ilarities and the above-discussed er in history, absolutely no evidence unique government to God have been ences advance, any or proselytize, transgress an intent not to the Establishment held no threat of an establishment preference religion, and any perceived We view Clause. 465 U.S. religion. Lynch, As stated more of insignia of the to be even by use that 686, “Any notion 104 S.Ct. at 1366: cases. at than in the above-referenced remote danger of pose[s] a real symbol[] [this] Marsh, upheld the Nebras- In the Court is far- state church of a establishment opening each Legislature’s practice of ka fetched indeed.” by state-employed prayer a a session with up- the Court Allegheny, practice’s County In on both the clergyman, based of during display a menorah held the of any of evidence unique history and the lack Id. symbolism placed depends upon It outside the its context.” holiday season. was test, ‘history building, next to a Christmas “Under the endorsement City-County tree, by sign ubiquity’ practice a entitled and of a accompanied is relevant ... and provides part found the because it Liberty.” The Court of the context “Salute to promot- “the effect of which a reasonable display did not have observer evaluates challenged governmental prac- in its whether a ing endorsing religious beliefs” setting.” conveys message 492 U.S. at tice a of “particular physical of endorsement contrast, County religion.” Allegheny, By a 109 S.Ct. at 3115. 492 U.S. of (O’Connor, J., held that the contem- at 109 S.Ct. at 3120 closely divided Court display County concurring judgment). a creche in the and in the poraneous of impermissible ef- did have an Courthouse light In guiding Supreme of the Court Id.10 The Court was influenced fect. law, giving special case consideration by anything to de- heavily the absence of County to the endorsement test used in of religious message from the creche’s tract Allegheny, we decline to that hold time placement in the “main” and “most and its municipality incorporates a religious sym- a Id. at building.” part of the beautiful seal, insignia, logo bol within its or —re- 109 S.Ct. at 3093. gardless history, purpose, of the or con- text —the Establishment Clause is violated. displays analyzed The effect of the was inappropriate To do so is the difficult under the earlier referenced endorsement area of analysis Establishment Clause do- urged by in her con- test Justice O’Connor nuances, by minated subtle and it accords in Lynch. Specifically, currence too little deference to both our nation’s display a effect of use of [t]he [or religious heritage and cultural practic- religious symbolism] depends upon the Supreme guidance. es and the Court’s message government’s practice that holding that Austin’s does not vio- question communicates: is “what Amendment, late the recognize First may fairly viewers understand two of our sister circuits have found purpose display.” inquiry, That establishment clause violations when mu- necessity, upon turns the context nicipal religious symbolism. seals included object appears.... the contested which split We do not a view this as with our Every government practice must be Instead, evidence, circuit. it is further judged unique in its circumstances Lynch, example, discussed in for that such religion. determine whether it [endorses] cases must be decided on their facts. County Allegheny, at cases, In the most recent of the two County Alle- (brackets S.Ct. decided after County Allegheny, gheny ) (citations omitted). To be con- Seventh challenges Circuit addressed to the challenged govern- sidered is whether “the Rolling seals for the cities of Zion and sufficiently likely mental action is to be Zion, Meadows, Illinois. Harris v. perceived by controlling adherents of the (7th Cir.1991), petitions 927 F.2d 1401 endorsement, denominations as an (U.S. July 19, 1991) (No. 91-141) filed, cert. disapproval, the nonadherents as a of their (U.S. 19, 1991) (No. Aug. 91-299). Id. at individual choices.” depicted Zion’s seal containing a shield a School District (quoting 109 S.Ct. at 3103 cross, dove, crown, Rapids Ball, 373, 390, scepter, and a Grand 3216, 3226, (1985)). top pro banner across the of the shield 87 L.Ed.2d 267 claiming County Id. Reigns”. (ap greatly differing views in “God pendix seal). Allegheny notwithstanding, appears containing Rolling Meadows’ government’s religious symbol- one-story “the use of contained a cross in front of a tower, ism if it building, is unconstitutional has the effect a water industrial two beliefs, 1403-04, Id. endorsing religious buildings, and the ef- leaf. seal). government’s (appendix containing fect of the use of The Seventh J., 655, Kennedy, joined by (Kennedy, 10. Justice Chief Justice at 109 S.Ct. at 3134 concur- Rehnquist, and Justices White and ring dissenting part). Scalia would and in upheld display have the of the creche. 492 U.S. the approximately half was the The cross that the context recognized Circuit it, seal, making example, for length of the crucial, nevertheless but displays was appearing tall when one foot approximately by not be saved seals could that the found n. I.11 Id. at 779 & county vehicles. on concluded symbols and that secular other the of either when no record There was imagery simply religious “sectarian the purpose or its in seal adopted the county municipal Id. at seals.” place on no [had] that it so, was evidence doing there but 1402. 1925, again in intermittently in used was dispense any com- may with quickly We 1973, county the in when and and the for Zion insignia parison between by placing it seal expanded the use only sectarian contained Zion’s Austin. vehicles, documents, stationery, motor express adopted for an was symbols and at 779. uniforms. Id. and officers’ sheriff’s purpose. Id. 1403-04. There at the that concluded The Tenth Circuit those distinctions between are also obvious context, by its not neutralized cross was ex- Austin. For Rolling Meadows and visual only “the cross the was because placement of the cross ample, the and size by is the seal surrounded element on [and] arguably con- Rolling Meadows’ in the seal fairly may be motto rays light.... The being a veys message of its “Christian a the religion the regarded promoting as fact, indus- one-story, community”. In the Indeed, religion that represents. cross the building depicted behind trial-appearing the as instrument be embraced seems to depiction of a is a church cross that seal ” at 782. ‘conquers.’ Id. county which the pro- being was constructed when as decision stated, view our do not As we adopted 1960. 927 F.2d posed seal was distin- Several conflicting with Friedman. seal). containing (appendix at seal are Friedman guishing factors as the tower The cross is as tall water importantly: apparent, most readily it. at building than the Id. taller behind symbols within undisputed secular lack of seal). containing (appendix court which phrase seal; accompanying the seal images on concluded that “[t]he Conquer”; We This “With translates snapshots of the commu- not neutral [were] use expanded relatively county’s recent charged nity; they [were] [but rather] county com- seal; least one that at at This endorse- endorsement.” Id. 1412. cross time that the at that knew missioner 1413. to fail. Id. at ment the seal caused Church the Catholic role of represented However, read Harris to hold do not Id. of the Southwest. in the settlement of a cross a seal would use 779. cause the same result. Id. Friedman is the reference interest Of case, prior to In the rendered second in his concurrence Kennedy by Justice Tenth Circuit County Allegheny, Allegheny: County dissent Clause chal addressed Establishment an direct tax not a need But coercion lenge municipal to a seal Friedman Symbolic test oath. a religion or aid of Bernalillo, County Board Comm’rs of of reli- or accommodation recognition banc), Cir.1985)(en cert. may violate [Establish- faith gious denied, I case. extreme in an Clause ment] Friedman, (1986). the seal In L.Ed.2d 978 Clause example, that the not, for doubt “Con Esta Spanish motto contained the permanent permit city to a forbids Conquer” or (“With This We Vencemos” on the Latin cross large of a erection Overcome”) over Latin This We “With This is because city hall. roof of rays of cross, highlighted by per edging speech about government it, have majority mountains light. above would suspect, se year- standing on eight sheep an obtrusive plain, with such because but containing place display would (appendix Id. plain. round obvious weight behind seal). sheep represented government’s Whether partic- on behalf of a sheep- proselytize effort county’s or the symbol Christian v. Board religion. Cf. Friedman ular disputed. Id. at 779. raising industry was only 12%. .4%-. displacement area of occupies contrast, in Austin’s the cross 11. County, III. Bernalillo County Comm’rs of 1985)(en banc) (Latin (CA10 F.2d 777 reasons, foregoing For the we VACATE county seal); sanctions, American cross on official AFFIRM imposition respects. in all other Georgia v. Ra Liberties Union Civil Commerce, County bun Chamber of APPENDIX 1983) (CA11 (cross Inc., F.2d 1098 park); Eugene, public Lowe v. erected (1969) 518, 463 P.2d 360

254 Or.

(same).... (footnote 109 S.Ct.

omitted). But, say, our needless to case is contrary, To an extreme one.

not chal-

considering the Establishment Clause insignia, recog-

lenge to Austin’s we must originally for the cross

nize the reason arms;

being in the coat of that Austin did improper purpose adopting

not have an use; long unchallenged insignia; its effect; non-proselytizing its con-

its

text, not endorse it does meaningful

true or sense of the word “en-

dorsement”; requiring displays insignia, argu-

remove all

ably neutrality, but instead hos- evinces

tility, religion. sum, insignia passes

In that the we hold muster,

constitutional whether under Lem on, principal primary or because effect APPENDIX 2 is not one that either advances inhibits religion, Supreme or under the Court’s pronouncements, including

more recent

Marsh, Lynch, County Allegheny. holding, obviously so we cannot fashion bright apply line test to future chal

lenges government depiction use or Instead,

religious symbols. must, as we only

we decide the case before us. And in so, considered,

doing have and bal

anced, totality unique of its facts and oft-quoted In the

circumstances. words of Goldberg, “the

Justice measure of constitu adjudication ability is the willing

tional distinguish

ness to between real threat and Abington

mere shadow.” Dist. School 203, 308, Township Schempp, 1560, 1616, (1963) 10 L.Ed.2d 844 J., concurring).

(Goldberg, Today, we shadow, cre

glimpse only that mere one sustaining,

ated indeed ever-increas

ing, brilliance of the First Amendment.

APPENDIX APPENDIX page original dup.-rnd Austin City of Texas, Congress, Republic

Founded Municipal 1088,Austin, 512/499-2000 Colorado, Telephone Texas 78767 Eighth Building, P.O.Box GOLDBERG, Judge, dissenting: justifiably arbitrary and in- criticized the Circuit line-drawing required consistent sometimes say cases make bad law—this They hard by Allegheny and other cases. Austin has case. The is a hard Nonetheless, it be a mistake to would protest for the better existed without suppose that all lines drawn this area are alleges that Aus- century. No one arbitrary equally or that confusion is of its poised to a church tin is establish day order of the whenever Establish- intentionally injecting reli- that it is own or contrary, arises. ment Clause issue On city life. But the mainstream of gion into emerged. areas of stable consensus have from glean glaring no harm that some can example, judicial approval For has been a cross on the inclusion of Christian and time- consistent for such secularized appearance its there city’s insignia makes money practices coining of worn spec- blinding on the constitutional no less phrase “In God We Trust” and the with no The threat that lurks is trophotometer. legislative judicial and sessions opening of insignia presents as The Austin shadow. prayer or other invocations of the Clause danger a to the Establishment real Although argue that these Deity. some in Allegheny, creche in the seals as did the even with recent practices incompatible are Friedman, in and the crosses and Harris jurisprudence, Establishment Clause Mendelson, I Charles, and Rabun. St. quite remained margin approval of has respectfully dissent. wide. judicial disap Equally constant has been I. government use of Christian proval of reading Establishment Clause Anyone and, religious im independently, of crosses non-purposeful, on precedent cases —the municipal seals. No agery any sort on of support reli government symbolic government federal court has sustained by struck gion help be but —cannot any in or form of a cross context use in area. The reigns that confusion a mu symbolism appearing on of case, recent Supreme Court’s leading has Supreme Court itself nicipal seal. menorahs, creches, and other decision on govern disapproved in dicta the repeatedly Allg displays, County Christmastime crosses, of least display of and at mental Chap Pittsburgh heny v. ACLU Greater apparent ap expressed have three Justices 106 ter, 109 S.Ct. cases, circuit which proval of one of the (1989), confusing matrix is a L.Ed.2d seal a cross within the violated held that minority opinions Allegheny, composed largely of the Establishment Clause. See J., (O’Connor, joined by at 3120 results and focus S.Ct. contradictory reach Stevens, JJ., concurring in and Brennan design physical and the minutiae of scenic (citing judgment) Friedman part in the Supreme arrangement. generally See Bernalil County v. Board Commrs. Cases, 103 Harv.L.Rev. Leading Court — Cir.1985)). 781 F.2d 777 County, lo (1989). Forthright commenta 228-39 (Justice and the seal jurists Kennedy and in the cross The decisions tors on two observa- mind) been founded have cases have Judge Easterbrook come judgment); id. ring part repeatedly have em- First, courts tions. J., by Marshall and (Brennan, joined is and remains a that the phasized Stevens, JJ., concurring and dissent- symbol indeed, a religiously-charged — gov- religion generally, against but one “prohibition This symbol ing part). elaborate, opinions pre- As the religion sect. particular endorsement ernmental Christianity’s an emblem conveying the cross is from ... government clude^] an emotion- history, possessing origins and reli- particular or a message that Second, great dimension. power of al preferred.” or Id. gious is favored belief municipal that a recognized have courts citations, and (internal quotations, at 3101 government literally puts the quite seal omitted; original). emphasis brackets and, by it touches imprimatur on whatever “pro- Likewise, government may not in its de- it includes implication, whatever key religion; word mote” “[w]hether trademark, definitively as a sign. As ‘endorsement,’ ‘promotion,’ ‘favoritism’ or municipal its identi- encapsulates city’s seal principle remains the same.” essential inescapably, authority; history, and ty, Ball, Id.; 473 U.S. at also see approval exudes endorsement sym- (inquiry is “whether the S.Ct. by represented municipal life aspects of by and state effected union of church bolic elements. governmental action is suf- challenged have been the observations These two ficiently likely perceived adherents authority unswerving lines of for two basis controlling as an en- denominations apparent disapproval resulting in the dorsement, by the nonadherents as challenged crosses or abandonment of their individual disapproval, lines have These twice municipal seals. Den, choices.”); Larkin Grendel’s one, present like the intersected cases 505, 511-12, 125-26, govern object is a challenged which the (1982)(disapproving a statute L.Ed.2d 297 containing a cross. both ment seal symbolic ben- “provide[d] significant roundly cases, Appeal have the Courts of some”). religion in minds of to efit challenged seals and en condemned Furthermore, government the fact that Zion, City v. joined their use. Harris religion may promote not intend to does Cir.1991); (7th Friedman v. F.2d 1401 927 legitimize government’s embracement County Commrs. Bernalillo Board Cir.1985), religious activity; the constitutional of a cert. County, 781 F.2d 777 government denied, complete even when 476 U.S. 106 S.Ct. 90 evil (1986). position a merely “appear[s] L.Ed.2d 978 to take belief,” Allegheny, questions of II. added), (emphasis or when at 3101 109 S.Ct. imposed by Among requirements relevant, reality in or religion it “makes[s] “principal is that Establishment Clause political to status in the perception, public government a primary effect action] J., (O’Connor, [of community.” Id. at 3119 advances nor inhi- one that must be neither concurring in part in and concurring Kurtzman, religion.” v. 403 bits Lemon added); (emphasis see also Har- judgment) 2105, 2111, 602, 612, S.Ct. 29 91 U.S. (similar, citing ris, Fried- 927 F.2d at 1415 omitted). (citation (1971) 745 L.Ed.2d 781). man, is true “irre- F.2d at This 781 posited first Jus- Adopting approach purpose.” government’s actual spective of O’Connor, has “re- Supreme Court tice 668, 690, 104 Donnelly, 465 U.S. Lynch v. re- perhaps transformed —this fined”—or (1984) 1355, 1368, 604 79 L.Ed.2d S.Ct. princi- a non-endorsement quirement into short, gov- J., concurring). In a (O’Connor, “prohibits ple: the Establishment Clause impermissible if it practice is ernmental posi- appearing to take government from of en- purpose or effect has “either or from questions belief tion on religion.” Allegheny, 109 S.Ct. dorsing religion relevant in making adherence to added; quotations internal (emphasis 3100 standing politi- in the way person’s omitted). community.” Allegheny, 109 S.Ct. at cal inquiry endorsement conduct the Courts (O’Connor, J., 3101;. 3119 also id. at see “reasonable ob- JJ., standpoint of a Stevens, from the concur- by Brennan joined and

165 tory at 3115 aim of sex Allegheny, statute). 109 S.Ct. discrimination server.” See J.), (O’Connor, J., joined Yet, (Blackmun, by insisting that the objec- test be an Stevens, JJ., concurring in by Brennan tive one—a “reasonable nonadherent” (Brennan, judgment), and in the part inquiry test—the endorsement retains the JJ., J., Stevens, joined by Marshall and ability perceptions to discount the of hy- concurring part dissenting part); persensitive plaintiff. Supreme Leading see also Court — By including a Latin cross in insignia, Cases, 103 Harv.L.Rev. at 234 n. 44. The conveyed of Austin has to the particu- is one who is reasonable observer nonadherent, reasonable albeit unintention- larly message sensitive to the that the chal- ally, that it endorses the Christian faith. A lenged symbol may convey those who do scrutiny fact-intensive of the nature of the not adhere to associated with challenged symbol and the context in which symbol. Kennedy As Justice summa- appears proves point. this Alleghe- See test, rized the endorsement “the touchstone 3103; Harris, ny, 109 S.Ct. 927 F.2d at of an Clause violation is Establishment 11; 1412 & n. 103 Harv.L.Rev. at 230. whether nonadherents would be made to by government recogni- feel like ‘outsiders’ A. religion.”

tion or accommodation of Alle- J., gheny, (Kennedy, S.Ct. paradigmatically The cross is the Chris- C.J., joined by Rehnquist, and White and symbol tian principal and unmistak- —“the Scalia, JJ., concurring judgment in the symbol Christianity practiced able id., part dissenting part); see also Harris, country today,” 927 F.2d at J., (O’Connor, joined by 109 S.Ct. at 3119 Charles, (citing St. F.2d at 267 Stevens, JJ., concurring Brennan (Posner, J.)) recognizably emblematic —as concurring judgment) year of that history creed’s two-thousand (“[T]he captures endorsement test the es- flag years as the is of our “two hundred sential command of the Establishment Goguen, nationhood.” Smith v. government cannot endorse the Clause ... 566, 603, 1242, 1262, 39 L.Ed.2d religious practices citi- and beliefs of some (1974) (Rehnquist, J., dissenting); see sending message zens without a clear Johnson, also Texas they nonadherents that are outsiders or 2533, 2548, 2552, 105 L.Ed.2d 342 political less than full com- members J., (1989)(Rehnquist, dissenting) (flag burn- munity.”). case). ing symbolizes singular It event in inquiry That the endorsement stresses faith, origin the of the Christian the Cruci- viewpoint scarcely the nonadherents’ is sur- Christ, surely fixion and Resurrection of as prising. prohibition The first amendment Glory, stripes, sym- as Old with it's thirteen against respecting an establish- “law[s] founding of bolizes the our nation. religion” clearly ment of the mi- benefits Supreme Court has described the Christian nority, religions might not oth- those whose cross in terms that leave no doubt as to its government erwise receive endorsement. power: Indeed, Religion the Clauses would have Symbolism primitive is a but effective purpose interpreted principally if little way conveying The use of an of ideas. standpoint majorities already from the flag symbolize sys- some emblem or to well-protected by political process. Ma- tem, idea, institution, personality, or is a adherents, joritarian construing govern- cut from mind to mind. Causes short religious purpose, ment action devoid of nations, political parties, lodges and and may perceive message the endorsement groups loy- seek to knit the ecclesiastical minority stinging that receives flag or alty followings of their to a ban- clarity. Only through sensitivity to ner, design. The State an- color nonadherent can we effect the constitution- rank, function, authority nounces Religion values inherent in the al Clauses. maces, through crowns and uniforms and 872, Brady, 924 F.2d 878-80 Ellison v. Cf. robes; through speaks church (9th Cir.1991) black (adopting perspective of “rea- Cross, Crucifix, the altar and sonable woman” in order to effect statu- 166 certainly does not .... The seal Symbols cans

shrine, raiment. and clerical just heritage” as memorialize their “Christian convey political ideas often State convey sought theo- of those who to symbols come rather that but extinguish religion. their ones. culture logical v. Bar Bd. Educ. Virginia Friedman, 781-82. The Sev- State 781 F.2d at West 1178, 624, 632, 63 S.Ct. nette, 319 us that enth Circuit has reminded (1943), quoted 1182, L.Ed. 1628 87 by the Klu Klux crosses burned 397, 109 Johnson, 491 U.S. Texas v. crosses; burning are Latin and the Klan (1989); 2539, L.Ed.2d 342 2533, 105 is, cross, symbol bigotry that it contin- Chapter Houston also Greater see symbol remind of Christian ues 222, Eckels, F.Supp. 234 589 v. ACLU appropriated Klan has to its that symbol[ (cross “primary (S.D.Tex.1984) ] purposes. The ... cross unmis- sinister dismissed, 755 Christianity”), appeal Christianity, takably signifies as rein- denied, Cir.), 474 U.S. (5th cert. 426 F.2d Claus, and even star deer Santa (1985); 383, L.Ed.2d 980, 88 336 106 S.Ct. wreath, do not. 1443, 1449 F.Supp. 70S Joyner, Hewitt v. Charles, 794 F.2d City v. St. ACLU symbol”), (“preeminent (C.D.Cal.1989) (7th Cir.1986). 273 reversed, F.2d judgment hard-pressed to One would be reconcile display of Cir.1991)(holding park symbol religiously-fraught a with the so depicting from statuary scenes immovable Clause, and, apparently, no Establishment Testament violated California the New planted federal case has done so. Whether provi clause establishment constitution’s mountains, broadcasting anten- up on lit on sion). nas, city sites and erected at memorial symbol as the inspirational a As towers, affixed to parks, painted on water Christians, on non- its effect may be to or, indeed, buildings, displayed government likely quite different. to be Christians seals, state-sponsored cross- municipal on re- observed with Supreme Court As the barely recognizable as es—even where is one generally, “what gard symbols fallen in wake of federal such—have inspiration is anoth- [personj’s comfort Harris, challenges. e.g., court See Barnette, jest and er’s scorn.” seal); (striking at 1414-15 down F.2d may, at the at 1183. A cross 63 S.Ct. (same); Friedman, 781-82 St. least, reminder as a dramatic very “stand[ ] Charles, (enjoining display F.2d at differences with of their [to nonbelievers] cases); building) (collecting city on of cross 465 U.S. at 708 & Lynch, faith.” Christian Cloud, St. Mendelson (Brennan, n. 14 at 1377 & n. (M.D.Fla.1989) (holding F.Supp. Indeed, J., dissenting). effect “[t]he city permanent display of cross on as on religious groups, well minority “no tower was unconstitutional: fed- water religion, is to reject may all those who display eral has ever found case are message that their views convey the by state or public Latin cross on land a recognition nor enti- public worthy of constitutional”) (col- 701, state subdivision to be 104 support.” Id. at public tled to cases); (foot- lecting J., dissenting) Jewish War Veterans (Brennan, 1374 S.Ct. at of States, v. United 695 omitted). grimly, the Tenth Cir- United States note More 3, (D.D.C.1988)(holding,that 11-15 F.Supp. the cross carries explained that cuit has as memorial to message, for it has could not be strong cross used it a with action) (collecting missing in servicemen outright symbolized oppression at times cases); v. Rabun Georgia ACLU Coun- people. It of Jewish persecution of Cir.1983) 1098, n. F.2d 1110 23 ty, 698 prob- that the cross cannot be denied ... ruling that dis- (upholding district court’s similarly threatening ably would a have park in state violated each play of connotation a Lebanese Moslem cases). test) (collecting of Lemon prong are com- Protestant. We Northern Irish (col- Charles, But 794 with St. pelled the same conclusion to draw cf. allowing crosses to be cases lecting Ameri- state of regard to the reactions Native

167 city encompasses aspects text distinct other than a three in contexts displayed Rabun, presentation: F.2d at 1110 n. 23 seal); setting, 698 the cross’s its its ar- (same). rangement in relation to other elements in setting, temporal and its “location” and Court, dicta, has Supreme Even the at Allegheny, duration. 109 S.Ct. 3103-04. on single, disapproving voice spoken with a Allegheny, 109 S.Ct. issue. See is, course, setting of this cross J.) (Blackmun, (majority opinion), 3120 3104 city insignia. Just as a cross is emblematic J., by Brennan and Ste- (O’Connor, joined too, religion, city of the Christian so vens, JJ.) apparent with (citing Friedman insignia City is emblematic of the of Aus- * (Brennan, J., joined approval), 3126 n. tin. The evidence that the Aus- establishes Stevens, JJ.) (display of cross Marshall and insignia pervasive; appears tin it on let- example bunny used as next to an Easter vehicles, terhead, bills, uniforms, utility unlikely “comport with Justice display buildings, at outdoor sites and in the cham- J., (Stevens, views”), 3132 O’Connor’s City’s representative govern- bers of the Marshall, JJ.), 3137 by Brennan and joined mark, City its ment. Wherever wants J., by Rehnquist, (Kennedy, joined C.J. insignia is the mark makes. Scalia, JJ.); Lynch, 465 U.S. White insignia, although lacking the transcendent (Bren- at 1370 & n. & n. flag, power of a cross or national is none- Marshall, Blackmun, nan, J., joined by trademark, city’s symbol theless the Stevens, JJ.), 104 S.Ct. at 1374 at 701 n. existence, roots, corporate its historical (citing approval California case n. 7 with municipal authority. Austin’s city in front of disallowing erection of cross City’s imprimatur “acts as the for official hall). correspondence, property and business.” let years ago, in a decision we Several Harris, F.2d at 1412. See procedural grounds, one of our stand on background, it surprising the removal of With this is not district courts ordered own Latin-style every challenge religious and a Star of “three crosses federal county a memorial. imagery any city insignia David” from veterans’ sort on a has Chapter Greater Houston ACLU succeeded. Whether the element (S.D.Tex.1984) Eckels, F.Supp. cross, temple, phrase, is a or a word or pur (decided grounds of both presence municipal insignia aon has been effect), dismissed, appeal pose and by its As the followed removal. Harris (5th Cir.), denied, 474 F.2d 426 cert. explained: court (1985). 88 L.Ed.2d 336 presence obvious of a Latin cross [T]he enjoined recently, Most the Seventh Circuit corporate city] ... en- on the seal [a containing barely- city seal the use of promotes particular religious dorses or Harris, 927 F.2d distinguishable cross. unambiguous expresses It faith. merits, he to reach the even 1401. Were Christianity. It choice favor of dissenter, Easterbrook, Judge panel’s a clear endorse- presents to observer the seal. Har have would “condemned]” associated ment of all those beliefs J., ris, (Easterbrook, dis F.2d at 1425 a Latin cross in violation of the Estab- (condemning seal senting grounds) on other the first amendment. lishment Clause of everyone’s though object of even “[t]he county government in Like the seat of telephone pole looks more like a attention Hall County Allegheny, or cross; its arms are too short than a Building Congress in American Jewish unambig crucify anyone.”). The cases are F.2d 120 Chicago, 827 by government displayed a cross the [v. uous: Cir.1987)], corporate seal of a munic- the symbol to emphatically sectarian a is too “plainly government con- ipality is under scrutiny. Establishment Clause survive (and is) govern- symbol a clear trol ... B. Latin power.” The cross ment ... seal, then, brings together church the appears the cross The context which suggests their in a manner that only and state matters worse. Con- this case makes acceptable by tying it to the ardently than dered a creche more even perhaps alliance displays aspects of the Christmas season. secular creche the unconstitutional 3103-04; also id. at 3112. This or American Jew- Id. see Allegheny County of effect, conspicuous might de- ameliorate secularizing The which Congress_ ish a symbol of a constitutional pre-eminent what would otherwise be the piction of conveys violation, seal a on that occur in the Austin in- faith does not particular simply incon- True, that is approval signia. insignia the does include oth- message of elements, first amendment. symbolic specifically capí- the er sistent building lamp. But these ele- tol and the Like the creche 1412. Harris, F.2d at holiday and share no ments relate to no viewer Allegheny, “[n]o invalidated meaning in the cross other common with the cross oc- reasonably think” that could representation of institutions than their on the seal a location central cupies so city. Allegheny, Under such within approval of the support “without inadequate mere coexistence is to secular- Allegheny, government.” at 3103-04. ize the cross. Id. opinion). (majority context is what element of The second message by muted Nor is the cross's meaning “arrangement,” called might be venue, insignia, in a secular presence of the elements of and effect placement (East Harris, at 1425 927 F.2d itself. See display. principles Two challenged erbrook, J., grounds) dissenting on other cases. The first emerged from recent have (“Governance that drains is not a ‘context’ surrounding a reli- objects is that neutral (dis significance religious image.”) a may the effect symbol have gious cussing presence of cross and secular ele making it more visi- symbol, “framing” the seal); Eckels, city ments on see also promi- message more and its ble by F.Supp. (message conveyed at 235 Thus, decoration sur- floral nent. “[t]he “purely religious” and is “not lost when is creche ... rounding [.Allegheny [is a] ] the churches ... with removed from [it is] only to draw serves frame ... [which] associated”). traditionally which it is message inside the to the one’s attention unlike, respect, city insignia quite to, than de- frame”; rather it “contributes museum, example, county art whose from, the endorsement tracts showplace neutral essential nature as a Id. conveyed by the creche.” negate message of endorse does tend to displayed any religious paintings ment of insignia is framed on Austin’s The cross 465 U.S. at Lynch, there. See one’s atten- serve to “draw by objects that (O’Connor,J., (de concurring) S.Ct. at 1369 frame.” Al- message inside the tion to negates scribing museum context en how (majority opin- legheny, 109 S.Ct. Joyner, message); dorsement Hewitt v. by is framed ion). literally, the cross Most (9th Cir.1991) (same). 940 F.2d wings. Equally pair of effective municipal municipal insignia, A unlike a light stripe and the arrangement of the museum, is neither intended nor under draw the lamp knowledge, which view- presentation as a neutral of diverse stood insignia’s to the cross. er’s attention images for the edification and viewer’s a similar effect. contrasting colors have amusement, any Glory than more Old emerging from the principle The second trifling display stripes serves as a analysis physical ar- Supreme Court stars. that, holiday displays, the rangement is building, lamp capítol far from meaning religious object of a nonreligious cross, actually enhance secularizing the placement of other may enhanced message. Like season, impact of its at least appropriate to the objects rejected Har- Rolling Meadows seal objects have their “own long so as such catalog of ris, insignia is no mere Austin’s “specific visual pointfs]” focal stor[ies] community”; snapshots of the at 3104. “neutral Allegheny, 109 S.Ct. to tell.” rather, images on the “are Court, Thus, the Santa Claus explained the Harris, charged endorsement.” ren- “talking wishing Lynch well” sensibly in contrasting 1412. Who could assume take on when rendered col- F.2d at feet, ors. Even at a City’s leaders have a neutral atti- distance four the the that reproduction recogniz- the remains presence capí- of the state tude towards is, for what it a tol, able Christian cross. The they that are indifferent to “the or same cannot be said for the cross on the advantages city?” of the Its educational recently disapproved by seal the Seventh superim- insignia contains a Christian cross Circuit, any which resembled—at dis- posed capítol over a silhouette of the state nothing pole a telephone so much as building placed lamp repre- a above tance— in front of a Harris, factory. 927 F.2d at universities, senting Austin’s schools and (Easterbrook, J., dissenting). I am significant the two most institutions unpersuaded by majority’s therefore City. lamp capítol epitomize The distinguish ground effort to Harris on the City’s municipal identity; glow gov- Rolling that “the arguably Meadows’ seal they ernmental endorsement with which conveys message being a of its a ‘Christian are surrounded bathes the cross as well. ” community’ insignia whereas Austin’s observer, any insig- To reasonable Austin’s purportedly majority op. does not. See at “expresses City’s approval nia of those page similarly unimpressed by 157. I am pictures life— ... its [three] occupies only fact that the cross a schools,” governance, its role in state “and insignia’s percentage small of the surface Harris, Christianity.” its 927 F.2d at 1412. majority area in its various versions. See temporal: The final element of context is (cross op. page 157 n. 11 in Austin’s government display when does the occur insignia displacement occupies a area 0.12% long? and for how In the case of the 0.4%). significance The constitutional menorah, Allegheny Christmas tree and insignia presence the cross’s the Austin contributing acceptability one factor to the geometrical cannot reduced to some be display appropriateness of the was equation. Measuring a cross in terms of holiday season—a “location” in time “displacement area” understates display’s that tended to secularize the ele- impact essentially cross’s visual since ments, holiday season to which because gives relatively linear nature of a cross it a they recognized having were tied was Though small surface area. I claim no aspects. spiritual both secular and mathematics, expertise in I modicum of also that the duration easelaw hints short suppose would that even cross mounted displays of such seasonal is to their benefit. hall, city example, occupy atop would (allud- See, Eckels, F.Supp. e.g., similarly negligible percentage of the sur- ing “temporary governmental to the cele- building. of that face area of the facade religious holiday of a bration that has ac- display find surely would But no court flavor”). quired any some secular Charles, 794 F.2d constitutional.1 See St. event, city insignia the Austin can claim the injunction (upholding preliminary factors; benefit of neither of these it is the prohibiting atop of cross a fire- display holiday permanent emblem of no and is a season). during house Christmas city’s insignia. fixture on the “passive” symbol of a The cross is not a season, have characterized holiday as some III. creche, menorah, tree. and Christmas (Kennedy, A cross need not erected on a moun- 109 S.Ct. at 3139 Allegheny, See taintop worthy judicial J., to become it re- dissenting). scruti- Nor does bear ny. Though small, prayer, legislative the cross in “In God Austin’s semblance to clearly Trust,” honorable visible even in the “God save this black- We reproduction Court,” ap- appearing and-white and other ritual invocations books, clarity may proved by Supreme law not to Court. Court’s mention seal, ratio, suppose version of the is 1 to 1. I that if we were forced to resort to a this in one case, such a ratio is far mathematical formula to resolve I would submit that I 12.5%. telling impact suggest compare height visual of the seal would more of the insignia; displacement area. cross in relation to the diameter of the than measure its conclusion such, place from no approval stems have widely recognized as non theism are reflexive instances city’s these emblem. their sectarian, largely lost have he when Judge Easterbrook agree I time, and, in cases at some over nature bright line ought to use says “we that' function of solemni least, the secular serve of consti- very area in this sensitive rules” Allegheny, 109 See public occasions. fying and “condemn jurisprudence tutional 3120-21; at Lynch, 465 U.S. at nestled religious imagery not use of 1369; v. also Jones at see 104 S.Ct. Harris, at 927 F.2d context.” a secular Creek, 421-22 930 F.2d Clear J., dissenting). (Easterbrook, Other- constitutionality of Cir.1991) (upholding in the immersed wise, judges will be and benedictions invocations nonsectarian design, our rulers graphic minutiae ceremony); graduation high school hand, scrutinizing- symbol each calipers may one at 237. Whatever Harv.L.Rev. color, gloss. proportion, acceptable reasoning, exception think of this distinguishing principled basis for noWith inscription on narrow; change the quite next, opinions will our be seal from the one Saves,” “Allah Be coinage to “Jesus our precedent and our fastidiously fact-bound Yisroel,” no ex Praised,” or “Sha’ma hopelessly abstract. Minting injunction. ception will avert first majority takes the that the I fear seignior- yields greater no a cross seal with The road step in that direction. wobbly retained its cross has age. The Christian Way. I Appian no would they will travel is years thousand religious nature for two course away from that that we steer rather insig function on serves no secular circuits path of our sister and follow (Pos Charles, 794 F.2d at nia. See St. my col- join prepared Not instead. not lost its ner, J.) (“the Latin cross has respect- I perilous journey, leagues on their exception is sim identity”). The ' Christian fully dissent. ply inapplicable.2 any per- majority Although the “view[s] by use of preference

ceived display than” the more remote even legis- or the invocation of holiday symbols (re- op. page majority prayer,

lative Marsh), Allegheny, and ferring Lynch, facet America, identify a secular majority fails to STATES UNITED Displayed is none. Plaintiff-Appellee, There to the cross. city’s insig- of a in the context prominently message of nia, unmistakable conveys an MUNOZ-ROMO, Francisco Javier sectarian —endorsement. religious—indeed Defendant-Appellant.

No. 89-2345. IV. Appeals, States Court United dangerous A little accommodation is a Fifth Circuit. thing may floodwaters not be far be- —the 5, 1991. Nov. hind. cannot discount this case as im- We 3, 1991. Rehearing Dec. Denied nothing plicating more than a trivial dis- so, doing play, because we establish a

precarious precedent in the First Amend- Religious symbols,

ment forum. when Chambers, distinguished narrowly by Marsh v. 2. been and construed (1983), upon 77 L.Ed.2d heavi- confronting factually relied those courts even similar ly by majority, saving grace. is no It must See, e.g., cases. North Carolina Civil Liberties very opinion be read for what it is: a narrow Legal Constangy, Union Foundation v. singular legislative prayer issue of (4th Cir.1991) injunction (upholding "unique history.” Any context of its effort to against prohibiting judge open- state him from beyond particular extend Marsh of that facts ing proceedings prayer). his courtroom with a reach, surprisingly, case is a and not Marsh has

Case Details

Case Name: Jon G. Murray and Society of Separationists, Inc. v. City of Austin, Texas and Travis County, Texas

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Dec 3, 1991

Citation: 947 F.2d 147

Docket Number: 90-8561

Court Abbreviation: 5th Cir.