*1 518 February petition January 26,
Argued
6, reversed and remanded
April
petition
rehearing
23,
for
allowed
reconsideration
for
reargued
May
rehearing
15,
with leave to renew
denied
opinion withdrawn;
2,
decree affirmed
June
former
petition
rehearing
1,
denied Decem-
October
for
Petition for writ of certiorari
ber
1969.
appeal
denied
United States Su-
preme
April 20, petition
Court
rehearing
denied
United
Supreme
States
Court
June
1970
Respondents,
v.
LOWE
CITY OF
et
al,
et al, Defendants,
EUGENE
& GRAVEL,
INC.,
EUGENE SAND
Appellant.
James Harrang, Eugene, and Leo Pfeffer, New York, New York, argued cause for respondents. With them on the brief was Barbara B. Aldave, Eu gene. Fenerstein,
Howard M. Portland, filed brief for American Liberties Civil Union of Oregon as amicus curiae. and Hansen & Curtis, Eugene, Curtis,
Richard D. as citizens al, D. Erb et for Leslie filed a brief City Eugene curiae. as amici Justice, Before Chief McAllister, Perry, Langtry, Denecke Goodwin, Sloan, O’Connell, Justices. (Pro Tempore).
LANGTRY, J. City of overlooks the Butte The crest Skinner’s city Eugene It was donated limits. within the and is years many maintained it has been to the public park. until 1964 suc- the late 1930’s From as park, in this erected one wooden crosses were cessive they replacing deteriorated. These crosses another lighted usually at and Easter Christmas were early large and crosses was neon- seasons. One lighted. cross was moti- of the first Construction organization part, a secular at least vated, *3 pleas- handicapped people physically who received lighted looldng cross. Novem- from out at the On ure Eugene Gravel, Inc., Sand & defendant 28, 1964, ber Hamilton of defendants Eleсtric and with aid the prestressed a con- Inc., & erected Son, F. J. Oldham property. tapered feet tall the Latin cross 51 crete tubing equipped inset neon with The cross was lighting provide for cross at the and the Christmas declaratory plaintiffs in this Easter seasons. The upon judgment of this cross con- seek removal suit grounds. stitutional permission appears had that no been obtained
It city of the earlier crosses. for erection The the from city interfere with however, the crosses not, did by Eugene and maintained the erected —all were and various individuals and Commerce Chamber city. expense organizations no to the at No other 521 city permission the from the to erect was obtained challenged 2, cement cross. But on December building permit put up, after a the cross had been by Eugene permit applied for and an electricаl were appli- & and Hamilton Electric. On its Sand Gravel Eugene gave as its reason for cation & Sand Gravel appli- erecting cross word “admiration.” The the the city approval cations were referred the council they subject highly publicized and the of a became by hearing public attended an overflow which was hearing the council, crowd. At conclusion of by plaintiffs, permits. to 1 issued the vote, city taxpayers who are and and mem- voters nonreligious organiza- and bers various declaratory alleg- brought judgment suit tions, this ing Oregon §§ I, of Art. 2, 3, violation First and Fourteenth Amend- Constitution, city and ments to the H. S. Constitution. The builders the cross were named defendants. Eugene Gravel, Inc.,
The defendant Sand & all of answers, one of several affirmative which were plaintiffs’ stricken court on asserted motion, city authority its has under charter and the Oregon laws of to allow the erection and maintenance upon park property. as a the cross monument amended and answers answer, This defendant’s joined solely upon issues con- defendants, other questions stitutional involved. reported 883-page in an trial,
After an extensive thorough briefing transcript, the case, down its written trial court handed which primarily religious symbol cross is it held *4 “only secondarily a memorial of or a monument and system vitally significant in a value the life and community;” history this of our nation and that the 522 Oregon spe- city not of of do
charter and the laws cifically private person or maintain to erect allow symbol; city religions park permanent and in the city any private person no au- that or has council findings thority- to cross. These were maintain the findings in the of fact. formal City Eugene of “did court also found that the The not erection the cross.” authorize consent legal that it could court held as a conclusion de- The reaching ques- constitutional cide the without case city conclusion was that the tions. The basis this authority specific charter or statute to had no under required park. in the The decree re- allow the cross moval the cross. City Eugene appeal not from this did de- appeal Eugene did Gravel, Inc., & but Sand
cree, stayed pending determination. has been relief curiae, residents, who are voters, Eleven amici joined City Eugene, taxpayers of the the contro- appeal versy failed to from the trial when They they represent asserted that decree. have court Eugene they have filed a brief the citizens seeking of the decree. The reversal American Civil a brief has filed amicus curiae in Liberties Union position. plaintiffs’ support holding court the trial erred think "We questions could be avoided. The ra the constitutional city, was that the trial court either in tionale specific authority laws, had no state charter its symbol city park. of a erection to allow question if a constitutional can It is correct deciding a case a non-constitutional avoided Oliver, Elliott v. do so. Or 44, will courts issue is limited this rule to a (1892). But situation 1P presents case some record other and -the where
523 ground upon may judg clear which the court rest its 22 ment. at In at Or 48. the case the issue of bar, city authority sought which defendants in raise by an affirmative answer was stricken the court on plaintiffs’ solely motion. The issues were then drawn grounds pleadings, on constitutional in amended present city the record did not the issue of the au thority. questions The constitutional must be decided. questions argued
These have been briefed and depth by contending parties and amici curiae in appeal. present this The briefs more than 650 cita- authority, tions of tests, statutes. many precedents
Two of the
cited
counsel come
being
point
close to
to the factual situation and
upon
law
this
which
case must be decided. These are
(La 1952),
Morrison,
State v.
57 So2d 238
cert. den.,
April
County,
28, 1952; and Paul v. Dade
202 So2d
(Fla
1967),
App
den.,
Supreme
Ct
cert.
Florida
Supreme
Court, 207
cert
den.,
So2d
U. S.
Court,
(no opinion,
Douglas
In Morrison a Catholic order City New a statue of Orleans Mother Cabrini following inscription appeared: on which the ‘“ “St. Frances Xavier
Mother Cabrini Erected August 25,1949 By The The Order Of Alhambra ”’ During Its 23rd Biennial Convention.” placed upon public park property was This statue at city’s authority no cost to the and the to allow its challenged placement lay there was in a suit religious Protestant member sect. The statue showed her in of Mother habit, Cabrini wear- part ing charitable of her had done a cross. She appellate Louisiana in New The church work Orleans. court held: municipality questioned that a
“It cannot be may memorials permit of statues and erection they purely places, orna public whether * * of a memorial or include the idea mental at 247. ‹ 57 So2d approved appellate the trial in its court *6 finding was no federal constitu- there court’s * “* * erection question since the tional involved complained held to of cannot be of the statue here * * religion Refer- of a the establishment provisions pertinent of the made to the ence was quite which are similar those Louisiana Constitution religion of in respecting and establishment freedom judicial no- Oregon took The court Constitution. many kinds of statues and of existence tice property public and in Louisianа across monuments religions country and then character, which are held: “ against City only is that restriction ‘The ‹ As Supreme early 1874, Court of New York the then as that: held great public men, in commemoration of and of “Statues legitimate belongings of events, now considered are * * * * * give proof abundant public places *. Cities pillars columns, temples, obelisks, statues, ornamental objects public approval legitimate long of considered have been they corner, admiration, are neither to be hid in a they Tompkins Hodg- seen.” v. placed cannot be where nor 1874). (NY son, 146 2 Hun Wyck, App 329, 56 Parsons v. Van Div see effect the same To City Bernardino, (1900); of San v. 109 Cal Vale 1054 NYS 67 City Meridian, (1930); 111 Brahan v. Miss App P 689 292 (1916). 30, 71 So 170 “* * * park buildings pur- use of lands for [T]he public park to its use as a incidental poses generally are are which sustained, retains control of where ** Municipal Rhyne, Lаw 21-7. premises §
525 it cannot discriminate. That or monu- statne might incidentally religious sig- ment have some cannot nificance be held violative of the constitu- prohibitions, designed tional it unless was and used public place worship, as a shrine or for the propagation religious of a or was belief; intended religious group public to hold some other con- tempt designed and ridicule; or to cause ” antagonisms.’ strife and at 246. So2d appeal County, The in the case, second Paul v. Dade supra, closely point, which we consider to be more was decided after trial court in the case at bar judge made its decision and thus trial did not reasoning. › have the benefit its report The of that case states that from large 1966 the Chamber had Commerce erected a lights consisting cross on the side of the Dade County during courthouse the Christmas season. The county part bore no cost. practice permitting the cross to be there taxpayer. fi challenged by
was a non-Christian resident › The of the trial court was rendered in this case on *7 January County, 5, supra, by 1967. Paul v. Dade was decided the Appellate 3, 1967, Florida Court on October and certiorari was by Supreme Court, denied the United States 390 US April Appellant’s pleadings 1968. brief indicates the of Paul County brought and the trial v. Dade court’s decree therein were judge of the trial in at to the attention the case bar. fi The challenge upon was based the First Amendment to the upon Constitution, and United States Sections 5 and of the Bill Rights Florida Constitution. of the The latter of sections are: enjoyment religious 5. The free exercise and “Section of worship profession shall and for-ever be allowed in this State * ** * liberty hereby of but conscience secured shall justify prac- constrewed as to not so be licentiousness or [sic] of, with, peace or inconsistent tices safety subversive or moral society. State or given preference any shall 6. No be law church, “Sec. to worship money of and no mode shall sect or ever be taken county
The admitted that it allowed the “Latin” cross upon building and that such a Latin cross could religious symbol. be used as a But it asserted that crosses also have secular and connotations Latin cross on the courthouse had connota- a secular “yule” tion as a season decoration. in
The defendants the case at bar have made con- County. to tentions similar made Dade In those regard court in this we noted above that trial religi- “primarily at cross to case bar found the be a symbol,” “secondarily memorial of or monu- ous system vitally significant to ment valuе in the life community.” history of and this our nation With findings disagree. do not these we any treasury directly indirectly public in of or aid from the any religious church, or aid of sec- in sect or denomination institution.” tarian Constitution construed in State of the Louisiana The section supra, Morrison, is: v. right Every worship person natural has the to 4. “Section according own No law the dictates his conscience. God religion, respecting passed an nor establishment shall be any thereof; preference nor prohibiting exercise shall the free any any against, given to, discrimination made nor ever be church, any religion, or form of faith or creed sect Constitution, I, worship.” Art. 4. LSA § Oregon plaintiffs I of the Constitution of Article sections are: to be violated claim right, shall be secure the Natural 2. All men “Section according Almighty worship dictates their own God consciences. any shall case whatever control law 3. No “Section religeous enjoyment (sic) opinions, exercise, or in- free rights of conscience. with terfere money Treasury shall be drawn from the No 5. “Section any religeous money (sic), theological institu- the benefit for tion, appropriated any payment for the shall nor (sic) Legislative house of services religeous either Assembly.”
537
County,
Paul v.
the court held:
In
Dade
applicable
we
criterion,
“The
constitutional
by
it, is
set forth
Su
divine
the United States
preme
Abington Tp.
District v.
Court
School
Schempp,
1560,
374
S.Ct.
10 L.Ed.2d
203,
U.S.
83
(1963):
844
"
*
may
as follows:
stated
purpose
primary
what are the
and the
effect of the
enactment? If either is
advancement or inhibi
religion
tion of
then the enactment exceeds the
the
the
legislative
scope
power
as circumscribed
say
Constitution. That is to
that to
withstand
strictures
the Establishment
must
Clause there
legislative purpose
primary
be a secular
and a
ef
religion.
fect that neither
Everson
nor
advances
inhibits
Ct.
Gowan v.
S.
Ct.
91
v. Board of Education,
[1101]
Maryland, supra,
L.Ed.
711,
at 1113-1114,
168
A.L.R. 1392,
366
6 L.Ed.2d
U.S.
[330
[420]
U.S.
supra;]
393.’ Id.
671,
at
Mc
S.
at
“It has also been observed that
though religious
ligious meanings
origin,
have ceased to
re
have
acquired
or have also
secular
meanings.
Abington Tp.
See
School District v.
Schempp, supra.
example,
For
dove,
star,
rings
[sic]
fish,
and three interwined
all
have
may
presently
religious sym
had,
bolism attached thereto.
have,
or
some
the On
other hand, some
acquired
meanings.
certain
have also
secular
tempo-
“The record does not indicate that this
string
lights forming
rary
a cross was
used
any
support,
religion
aid, maintain
establish
purpose
religious
promote
Its
edifices.
was not to
by anyone
participation
in the
affairs of
organizations
or sect.
“Consequently, we hold that
Sehempp
under does not
this
test,
amount
establishment of
religion
in violation of
First
a
and that
Controlled,
Amendment,
religious activity,
amount to
it does not
supported
govern-
or influenced
*9
Engel
ment as
to
in
was found
exist
370
Vitale,
v.
(1962).
421,
1261,
82 S.
The Florida court referred as rary per in the character; in the cross case at bar is physical Obviously, a however, manent in character. permanent physically such as this can structure cross County quickly put The Dade removed. cross was years. up from 1955 to a total twelve It was 1966, assuming proportions suggests which tradition, respect, permanency. In the cross this in the case at County cross courthouse bar and the Dade shar e characteristic. same ap court in the case at The trial bar failed, by oversight, parently to receive in evidence all of de through 2 Exhibits 53. These exhibits, fendants’ offered have been are we hold should in the received, which They considering them. we are indicate that record and religious symbols traditionally many other crosses and upon pub used as monuments memorials have been throughout Oregon property and the States, United lic challenge except appellate court as noted in without feeling opinion. is indicative of a This, itself, this strongly support among people a who constitutional question is no government, that there constitutional or it is so case, minimal not to in such involved many indicates that The evidence notice. merit it is a Latin whether cross people cross, some that are type, not connotations essenti carries other people such character ally it has meanings. nothing There secular in the primarily reasonably supports an inference that which evidence erecting the defendants purpose of cross
529 promote participation by anyone was to or the in, any religious advancement inhibition of, belief or organization, primary or that such was its effect. In Dickman et al v. al, School Dist. et 232 238, 62C Or (1961), 366 P2d 533 cert. den. 371 US S (1962), 41, 9 L 2d Ct ed Mr. Justice O’Connell, speaking for this said: court,
“® * * interplay A certain amount of of in- fluences exercised state and church has been permitted. examples. It is not difficult to cite * * * * ** [M]any religious practices and functioning gov- connotations found are in the both ernment, state and federal.” *10 doWe not believe that and the erection maintenance question religious activity of the cross in amounts to a applicable provisions Oregon which violates the of the or the Constitution First and Fourteenth Amendments to the United States Constitution. City Eugene
The official action of the of in issu ing building lighting permits the and for the cross days widely a few after it was a erected, after publicized hearing, public and well attended consti city permission tuted formal for it to remain city. permit appears there at no cost to a Such to be limited in that it is in nature. revocable 10 Mc Municipal Corporations (1966). § Quillin, 183, 28.53 study opinion conclusions of follow a The this assignments of error, answers, extensive evidence, arguments. Although not all them have been they in this not over- mentioned have been looked. decree of trial court is The reversed ease remanded for a decree be entered consistent opinion. with this specially concurring.
DENECKE, J., majority I that the consti- concur decision tutional must be decided and I further concur issue majority in the decision neither the Constitution Oregon nor the States Cоnstitution the United requires that the I I be removed. believe base cross my upon slightly reasoning decision different than majority. that used arising problem
I consider under one Amendment, “establishment clause” the First rather than I Therefore, under the “free exercise” clause. city pose would the issue: Does the foster the estab- religion by permitting pri- lishment of the Christian persons city park vate light erect a cross a and to during
the cross the Christmas and Easter sea- my opinion son? In it does not. Maryland,
In Niemotko v.
US
71 S Ct
(1951),
statutes and *11 pre from mits be obtained local officials as a public places, requisite grounds the of to use on requirement prior license constituted a that a re speech, press religion, on freedom of straint narrowly in drawn, the absence and, reasonable for the officials to follow, and definite standards *” 340 at must US 271. be.invalid. city given had not found that' thé Niemotko The Court City disagreed permit Council disliked or because a n with re Witnesses’ The conviction was views. rejected argument, expressly versed. The Court - city power “that state and officials should have the religious groups, from such, exclude the use the public parks.” 272. 340 US at
Fowler v.
Island,
Rhode
345 US
S Ct
(1953), similarly
Both of these decisions concern free exercise portion they accept hоwever, of the First Amendment; question proposition city without that a not does violate the establishment clause First Amend- by permitting religious groups ment religious to hold public parks. validly in permit services If a can groups religious parks, why to hold it services can validly permit religious persons symbol, not a erect park? a ain cross, prohibits
The Establishment or Clause the state, any aiding appearing subdivision, from either general religion aid religion. cause of one religion appearance fostering prohibited is to be fostering religion: as much as the actual Both have a effect. coercive
Accepting proposition permitting public park appears ain nor services neither fosters my religion, to foster the establishment of issuing permit a revocable for the erection and the lighting public park occasional crоss also to, appear does foster or not foster establishment , religion. *12 permission appears Whether the state action city religion question degree. to If the foster a a given religious groxip permit to had a a revocable build city park, appearance a cathedral in aid to the the my strong religion opinion, so as to re- would, of; quire permission that in aid a decision such was the religion it that, therefore, was establishment Eugene permission the invalid. I do not believe to erect category. this into cross falls dissenting. GOODWIN, J., majority, As I the understand the maintenance Eugene (a) religious city park is not a cross in a activity, activity, religious city’s (b), if it is a participation it is so fall insubstantial as to within law does not notice trifles. the rule join majority would to and thus Much as I like disunity concerning locally expression of this an avoid “procross” сonfrontation between acrimonious compels record me toward a factions, “anticross” different conclusion. lighted during display of the cross Christian concurrently religious activity, is at least
festivals accept argu- to somewhat labored if one were even proponents cross that the true mo- ment display has been secular, i.e., for the commer- tive religious holidays. exploitation Indeed, cial litigation “procross” in this has been faction embar- innocently friends. witnesses its Several rassed jeopardized references at the the defense coun- wanting hearing their reasons for to cil display keep silent witness the cross their popular reflected the Their statements senti- faith. place, ample proof, and furnished at the time ment purpose the chief needed, that the dis- if were play religious. was doubt, record, There is no from the mayor popular responding and council were prevent very response demand. It was to this kind of *13 majority pressure, to that the establishment however, clause the First Amendment was written into Abington our federal constitution. School Dist. v. Schempp, 2d 374 10 L Ed US 83 S Ct 844 (1963).
Turning
given
to our
constitution,
state
and
the ma
jority’s acknowledgment
display
that the cross
is that
religious symbol,
of a
is further reason to re
there
city
right
buke the
council.
has no
Government
more
place public park
disposal
majority
at
popular religious display
for a
than it would
have,
response
lighted
put
to a referendum
cross
vote,
city
steeple.
point
separation
on
hall
The whole
pluralistic society
keep
of church and state in a
is to
majority
using
power
from
its
coercive
obtain
governmental
against
aid for or
sectarian
observances. See Dickman et al v. School Dist. 62C
(1961),
al,
et
232
238, 246-247,
Or
Finally, I do not believe the difficult constitutional question one is that can be evaded trivialization. large occupy The cross does not of land, tract but permanent conspicuous. it it is Whether so in- city city’s participa- tended council or not, the display placed officially tion in has visibly support gov- sought record who those sponsorship religious display. ernment their foregoing judg- I reasons, For would affirm below. ment entered join JJ., this dis- O’Connell,
McAllister senting opinion. REHEARING
ON *14 Wheatley, Eugene, Jaqua William John E. G. rehearing. argued appellant on On the the cause for rehearing Wheatley, opposing was G. brief William Eugene. Eugene, Aldave, and Leo New Pfeffer,
Barbara B. argued respondents for York, New cause York, rehearing. petition rehearing With them on the for Harrang, Eugene. and brief was B. James Warren and Richard D. Cameron, Seattle, Wash., Eugene, Hansen, Curtis and & filed Strickland, Curtis City brief for Leslie D. Erb et citizens al, of the Eugene, as amici curiae. Justice,
Before Chief Perry, McAllister, Sloan, O’Connell, Goodayin, Denecke and Holman, Justices.
GOODWIN, J. declaratory court, trial in a suit for relief, City Eugene ordered the and the other named de- public hilltop park fendants to remove from a neon- lighted concrete cross some feet tall which, Avhen major lit, part was visible for several miles over a Eugene. appeal, On this court reversed the trial again, court’s decree. The matter before us petition rehearing. on a upon argument,
In a brief oral counsel chal- *15 lenged propriety granting both of the of the re- hearing and the submission of the cause ato court justice participated that contained a who had not n original decision. January original appeal ar- was 1969, On 6, gued consisting of Chief Perry a court Justice before and Justices Sloan, O’Connell, Good- McAllister, Langtry. In the absence of Jus- Denecke win, regular court, member of the Justice tice Holman, tempore duly sitting pro Langtry was as a Justice assigned pursuant to 2.052. to this court OES original down its
The court handed February reversing the trial court. Justices 26, 1969, Langtry voted re- for Denecke Sloan, Perry, and Good- versal. Justices McAllister, O’Connell Eugene, City 518, Lowe v. 254 Or win dissented. (1969). P2d 117 rehearing. plaintiffs petition filed a On
The regular weekly April the court in its confer- 1969, regular petition. jus- Four of the ence considered participated original had tices who decision granting petition. regular The other two favored opposed granting justices and Justice Langtry regular justices petition. Since four who had original participated decision voted for a re- unnecessary hearing, it was to decide whether Jus- Langtry or neither of tice Holman Justice them or petition. petition The should vote on the both them granted. was rehearing was set for 1969. June
The On argued regular was before the seven cause date the Supreme being justices none then Court, ab- disqualified. court was thus convened sent or practice according followed to the when.a case is re- justice regular disqualified. argued no in banc and appointed Langtry had been to serve for Justice ninety judicial days day beginning first in Janu- expired ary, term had his before June 2, 1969.
53V rehearing cause on to the seven submission of the The including justices, regular was cor Justice Holman, rect. question justice pai- who did not whether a
The original ticipate in an decision is barred from subse- potentially quent is consideration of case trouble- any jurisdiction rehearings. which allows some than are numerous reasons other that of dis- There justice particular qualification for a be absent from argument. particular a if the reason for the Moreover, original temporary, likely it is absence was justice duty absent will be available for when the argued rehearing. case is on precedent lines of in the
Two United States deal this with situation. jurisdictions regularly justice some
In
elected
participate
orig
for
does not
reason,
an
who,
participate
any subsequent
decision does
inal
not
considerations of that case. The reasons for the rule
out in
Products
are set
Gas
v. Rankin,
Co.
63 Mont
(1922);
P 993,
207
In the court as it California, is constituted on the day argued rehearing case Supreme on is the purpose questions for the Court vote argued. regularly justice present A elected who is duty disqualified argument pаr not hears ticipates Metropolitan in the vote. See Water Dist. (1942). 19 Adams, 463, v. Cal 2d 122 P2d Accord, 257 Corp., v. Essaness Theatres App Glasser 346 Ill (1952); Mason, 293 Battle v. NE2d 89-100, 104 1955). (Okla 333-334 P2d are eases those the better reasoned We believe that rule. which follow California rehearing has was invented and institution of is beneficial to the administration survived because it permits any party justice. to file a This court *17 rehearing days following petition for within 20 the opinion announcing publication a decision. our Oregon Supreme Rule 47. Court by carefully
Every petition the considered court. is may up any given the court be made seven date On justices may who who not be the same seven consti- day, week, court the the or the month before. tuted the change may composition in the court’s be the This many e.g., retirement, illness, result of factors: elec- votes The court nonetheless and mаkes decisions tion. justices. not as a collection individual court, as a initially upon rehearing, parties the Both lawfully right to a the a decision constituted have right They par do have a to a decision a not court. judges. judge group In at the case no bar, ticular beyond yet placed power the of this has been decree modify recall, the cause is reverse; still court rehearing expired, pending. time for has Until party a is in whose favor decision rendered has right preclude decision in the that would vested no ordinary and vacation in the course its re-examination Metropolitan judicial Water administration. Dist. 2d at 475. Adams, Cal v. argument 2, on June heard court, 1969,
When rehearing, present duty, Holman was for Justice on right disqualified, and had both the and the not was duty merits of on the the.case. vote (1) regardless hold,
We therefore: justices qualified votе, number of available petition rehearing properly this case for was granted by majority lawfully of a constituted vote (2) when the case came on in due course for court; argument rehearing lawfully heard
on it was before constituted court. majority of the court before which the case argued opinion
was on June is of 2, 1969, the decree of the trial should be court affirmed for the substantially dissenting reasons forth in set opinion February handed down on The for 26/1969. majority February mer down handed on accordingly withdrawn. The decree entered party below is affirmed. Neither shall have costs in this court. dissenting.
DENECKE, J., part majority I opinion ap- concur in that proving granting petition rehearing procedure rehearing. Upon the constitutional *18 my however, I issue, dissent for the reasons stated in specially concurring opinion filed with our former decision. joins J., in this dissеnt.
Perry, C. ON PETITION FOR REHEARING *19 Q-. Wheatley, Jaqua, Wheatley William & Eugene, Olympia, Gardner, and Warren Cameron, Washington, petition. for the
GOODWIN, J. declaratory judgment In an action for a determin- ing constitutionality City of the issuance Eugene building permits for the erection of a cross city-park property, on the circuit court for Lane County requiring entered a decree removal of the appeal argued An January cross. to this court was February on 1969; 26, 1969, this court reversed judges dissenting. petition remanded, with three A for rehearing, April 22, filed 1969, was allowed, and the argued rehearing was cause June 1969. On Oc- judges dissenting, court, this with 1, 1969, tober two majority opinion its withdrew earlier and affirmed adopting previous the trial court substance the as the dissent court. petition rehearing, parties new
In a who *20 original prevailed opinion in the listed a number have objections rehearing. grant- of In to the on decision ing rehearing withdrawing majority first the the February opinion of this court did not write 26, 1969, dealing by opinion point point with the various new arguments which had- been discussed in the earlier dissenting opinions.. Perhaps majority and this econ- petitioners. omy has misled the It cannot be of words litigation fairly that this has suf- asserted, however, stage inadequate or from debate want of fered at petition new the asserts Nonetheless, deliberation. “newly material matter” should discovered arguments legal that hew are relevant considered, disposition proper of the case and should be the argument. oral in a third heard challenges disposition petition our of this case The alleged grounds: principal an mistake as to three misreading alleged of the federal cases facts, an the the First Amendment construed to the have which Constitution, ‹ alleged and an misread States United Oregon §§ Art ing Constitution, I, 2, 3, 5,4, of the and 6. pеtition record, to the factual the as is not
First, only govern petition asserts that the The well taken. support the of erection of the cross act mental building parties the issuance of was elec private wiring permits. This assertion overlooks the trical private also turned over to important fact that public city-maintained land in which parties concrete so that it would last, imbedded was cross ‹ United Constitution, Amendment 1: States respecting law an “Congress make no shall establishment thereof; prohibiting abridg the free exercise or religion, or of press; right 'speech, or Of the ing people of -the the freedom petition assemble, and to peaceably to Government n " grievances.”- a redress “forever.” one defendants Other testified, factual in the are charges inaccuracy record. equally unsupported in the Turning argument urged another peti tion, proponents reopen seek display case for the introducing evidence purpose Butte in park Eugene Skinner’s “War public atop Park” fit site Memorial and therefore is a for a cross reasons which mili lighted regardless might against tate such a on other display types public lands buildings. petitioners’ argument seems *21 to that because park the was dedicated to a secular it must be assumed that a purpose secular principally city’s motivated the in purpose the participation dis of the cross. This play argument was made in the trial, and all the evidence original the petitioners now seek to have reconsidered was in the record which we when examined the case was first before us. The the trial court decided that secular purpose the dedication had no relevance рark to the city council’s then under action review. We agree.
The war-memorial argument was never passed the city council. The upon city’s action in this ease taken, was and defended the trial during below, pri as an action taken the in marily city response to of the power majority the of the political townspeople. trial, argued the that city At the the city council in to aid the business tended some community, of whose a desire expressed members to the display cross in to enhance the commercial order exploitation of the holidays: Christian Christmas principal Easter. evidence tended to city’s support The this theory. At the time, shows, record the same majority community in viewed apparently the dis people it because reinforced approval with their play religi- religions preference. These views also had been ons government. brought upon city bear opinion majority in A this court was of the and remains of the now, October, allegedly purposes the erection of commercial behind argument, like the war-memorial were, the cross developed largely afterthoughts which were and em- response litigation. to this bellished principal purpose which motivated to the desires of a was its desire to conform council community, majority who con- citizens scientiously preferred their believed preferential public display symbol was entitled to majority simply wished it so. Such a because majority religious pressure response is, course, guarantees rights specific exactly the state what designed prevent. constitutions were federal hilltop question private property, were If the supporters petitioners their would be con- stitutionally to erect their cross under entitled First clause of the Amendment. How- free-exereise govern- public, custodian and its is a land ever, This is the decisive factor. subdivision. mental apart perm cannot be set for the land Public essentially religious symbol display of an when anent *22 government sponsorship. display The em connotes publicly publicly ployment owned maintained of display highly visible of property character necessarily permits in this case an in cross of the general religious of the endorsement of official ference symbol. Accordingly, per underlie which beliefs may those beliefs share feel not do who sons stigmatized officially or are deemed beliefs own their appearance awarded the worthy of those than less government can foster While edu- city’s endorsement.
545
history
contributions of re-
in the
and cultural
cation
generally,
protect
ligions
and can act to
the individ-
personal expressions
right to his own
ual’s
government
placing
opinion,
has no business
its
property
disposal
private
power, prestige,
at the
or
oppose
persons
groups
aid or
re-
either to
ligion. Epperson
Arkansas,
97,
v.
393 US
89 S Ct
Abington
(1968);
Dist. v.
“If there is constitutional high petty, it is that no constellation, can official, prescribe politics, shall what be orthodox in religion or other matters nationalism, to confess word or citizens act or for their faith ” * * * therein easily distinguished present is situation from cemetery private persons public in which are al- designate small whether crosses shall lowed graves of their relatives. In placed over case cemetery, presence public individual preference. clearly individual a matter of It cross *23 judicially graves can be noted that of non-Christians usually are not marked with Christian crosses. religiously persons Monuments to motivated who distinguishable become type famous are also from the display of found in the case at bar. Statutes of noted religious persons generally recognized are as tributes religions to the individuals rather than to the they Religion part which labored. is, after all, a history. Consequently, public a monument to a famous preacher recognized by American or to a saint a perhaps permissible, public church would whereas a depicting religious monument a biblical character or symbol sponsor religion would tend to rather than person. large to honor a famous In the ease at bar, lighted primarily during Latin cross which is season and Easter week is Christmas much more a religious person. testimonial to a faith than to a Those argue symbol who the cross is a mere secular years history. ignore 2,000 majority Religious freedom and rule must live side majority, pure side. The no matter how in- its right system government has no under our tentions, gain political preferred place exert its muscle to testimony its beliefs. for its majority Lastly, petition asserts that adopting expressed this court in substance views February dissenting opinion filed on in the Oregon petition Constitution. The has misread “newly points discovered thе obvious out, matter,” Oregon spe- contains no Constitution fact duplicating language the so-called Establishment cific Amendment to the the First United States Clause Constitution. petition available in cites evidence Oregoii’s constitutional debates that
records'
54? Rights Bill of the Indiana State Constitution was Oregon Rights. Bill of In as a model for the used *24 an establishment, contains or diana’s constitution clause. › Oregon’s Rights preference” Bill of “credal draftsmen did not For some our reason, does not. carry preference credal clause into our the Indiana unexplained might This omission have constitution. significance if this court had rested its constitutional any degree upon opinion in In 1, 1969, October fully diana It did not. The court was Constitution. language Oregon aware of the Constitution. discussing principle sep In the constitutional of engaged aration church and this court was not statе, of word-matching in between other constitutions and the Oregon specific Constitution. While neither a “estab preference” ap clause nor a “credal lishment” clause pears in our state it is obvious constitution, that the permit founders this state did not intend of any religion. sponsor particular state to When the Oregon provided draftsmen of the Constitution religion, they prohibited of the free exercise also any public support preferred religious funds to use of 5. fi Oregon § Art Constitution, I, institution. argue, Oregon however, that the
Petitioners Con- expression limiting proscription in its stitution, to a “money” against spending public insti- › Constitution, I, Art 4: Indiana § any preference given, law, creed, shall be “No re- worship; ligious society, or mode of and no man shall be com- any place erect, support, pelled attend, worship, or any against ministry, his consent.” to maintain fi Oregon Constitution, Art I, 5: § money Treasury shall drawn from the “No be for the any religeous theological (sic), institution, benefit nor any money appropriated payment for the shall (sic) religeous Legislative in either house of the services Assembly. —” by implication approved turning pub- over
tutions, interpretation lic land to them. This mechanistic the state constitution is unwarranted. differ- While personal property ences real between course significance legal variety in a these contexts, have constitutional in a re- differences have no substance ligious context. let stand our state- content to are, therefore,
We opinion, grounded which ment the October part upon state on the merits in this case decision concepts. as federal constitutional We did not as well rely language upon which is not our con- intend to language that is in thе other hand, stitution. On shows that the founders of this state constitution posi- intend to retreat from the federal state did not separation rather in- state, of church and but tion on *25 emphasize their own in their own words tended to separation. the doctrine of commitment Every made either side in this case contention majority fully of this and a court examined, has been gov- best interests of both that the convinced remains by maintaining religion are served strict ernment and majority’s power political separation between preferred religious majority’s foster its desire religious belief which the emblem of a is not It faith. objectionable and federal constitu- under the state government hand enlistment it is the tions; which offends the con- emblem erect stitutions. rehearing petition is denied. dissenting. J.,
DENECKE, ground upon Ias dissented from the same I dissent rehearing. after made the decision joins this dissent. J., Perry, C.