HOLIDAY DISPLAYS: IS YOUR MUNICIPALITY VIOLATING THE ESTABLISHMENT CLAUSE?

By BETH ANNE JANICKI, Staff Attorney, Illinois Municipal League

On May 28, 1991 the United States Court of Appeals, Seventh Circuit, entered its decision in the case of Doe v. Small, et. al., 934 F2d 743 (7th Cir. 1991). This case involved a challenge to a display of 16 paintings depicting the life of Jesus Christ during the Christmas season in a public park located in the City of Ottawa. The plaintiffs claimed that this display violated the Establishment Clause of the First Amendment which reads: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. . ." (U.S. Const. Amend 1.) This clause applies to the states through the Fourteenth Amendment. The Seventh Circuit, in affirming the decision of the District Court, concluded that the display of these paintings was a violation of the Establishment Clause as that clause forbids governmental endorsement of religion.

To fully understand this case, one must be aware of the particular facts involved. In 1956, the Ottawa Retail Merchant's Association commissioned the painting of 16 large paintings of Jesus'life to be displayed in Washington Park ("Park"), a city park. The paintings were 8 feet by 8 feet and were displayed in a "V" shape on the Park's west side. In discussing the content of the paintings, the Seventh Circuit stated: ". . . out of the sixteen paintings in the display, only three have anything to do with Christmas, while the final seven tell the story of Jesus' death and resurrection, commemorated by Christians during Lent and Easter. The middle six paintings depict other important events and miracles in the life of Jesus, none of which relates specifically to either Christmas, Lent or Easter." Id. at 748. The paintings were displayed from 1956 through 1969, but during the 1970s the City did not erect the paintings because of public criticism. In 1980, the Ottawa Jaycees became "caretakers" of the paintings. The City provided some of the labor necessary to erect the paintings. In 1986, an Ottawa resident protested this display. Responding to this, the Ottawa City Council passed a Resolution stating: "After due consideration and reflection upon the complaint raised concerning the pictures in Washington Park, that this Council endorse the activities of the Ottawa Jaycees in maintaining, erecting, dismantling, and storing said pictures and incorporating them in the overall Christmas display that annually graces the downtown area of the City." Id. p. 749. (Citing City Council Resolution, Dec. 2, 1986, Plaintiff's App. 33.)

The Jaycees were also granted permission by the City Council to erect permanent structural support for all the paintings. The same resident who protested the display in 1986 filed suit against the City in 1988. The City Council then voted to prevent the Jaycees from erecting the paintings in the Park, but this was later rescinded and that same season, the paintings were erected again. This time, however, the City added other Christmas decorations such as a tree, a snowman, and various other ornaments. The Jaycees posted a disclaimer next to their display stating that it had been erected by a private organization with no use of public funds.

In reaching the conclusion that this was a violation of the establishment Clause, the Seventh Circuit applied the three prong test first anunciated in Lemon v. Kurfzman, 403 US 602, 612, 91 S. Ct. 2105, 2111, 29 L Ed. 2d745 (1971), quoting Walzu. Tax Commn, 397 US 664,668,90 S.Ct. 1409,1411,25 L Ed. 2d 697 (1970) and later adopted in County of Allegheny v. ACLU, 492 US 573,109 S.Ct. 3086,106 L Ed. 2d 604 (1984). Doe at 753. This test provides:

"[A] statute or practice which touches upon religion, if it is to be permissible under the Establishment Clause, [1] must have a secular purpose; [2] must neither advance nor inhibit religion in its principal or primary effect; and [3] must not foster an excessive entanglement with religion." Doe at 757, citing Lemon, 403 US at 612-613, 91 S. Ct. at 2111.

The Court dismissing all of the Jaycees arguments that the display was secular, found that the display failed the first prong on the Lemon test as the paintings are "undeniably religious" and spiritual in nature. Id. at 759. The Jaycees claimed that the City had a "policy of equal access" and that any group could participate in celebrating the Christmas season. This argument did not work in the Seventh Circuit. The Court found no evidence of such a policy and noted the city sponsorship and support of the display along with the permanent foundations in stating that: "In applying its 'policy' of equal access, the City apparently believes that some groups are more equal than others!" Id. at 761. The Court, citing the Mayor's deposition, stated that the facts supported a conclusion that the City had no policy at all. The Seventh Circuit found that the display also failed the second prong of lemon. In doing so, the Court looked to the decision in the Allegheny case and

November 1991 / Illinois Municipal Review / Page 29

examined the content and context of the display to determine if it had the effect of endorsing religion. Doe at 764. The Court found the content of the paintings to be "undeniably religious" in nature. Id. at 765. The Court found that the context of the paintings were also religious and stated ". . . not even a battalion of giant snowmen or a blizzard of snowflakes would absorb the paintings into an overall holiday display." Id. at 767. The Jaycees final argument was that the Park was a public forum and that their private religious expression should be a constitutional exercise of freedom of speech. The Court did not accept this argument and stated that the Establishment Clause also prohibits governmental support and promotion of religious communication by religious organizations and that a public forum does not give an automatic right to free expression.

It would appear from this decision that a policy of equal access to the Park would have bolstered the position of the City. Thus, it would be advisable that municipalities adopt a statement confirming a policy of equal access to public parks and facilities located within their boundaries. Such a statement would be extremely beneficial in defending against future Establishment Clause suits. The following language has been suggested by Stanley L. Morris, of Long, Morris, Myers & Rabin, P.C. and D. J. Sartorio, of Tribler & Orpett:

In recognition of its long standing policy of equal access, the Village of_________________ hereby proclaims that, subject to its police powers, all public fora within the Village shall be equally accessible to all individuals and groups for lawful purposes without discrimination on the basis of race, color, religion, national origin, sex, age or political belief.

As this language has not been challenged, its authors make no guarantee as to its effect.

Page 30 / Illinois Municipal Review / November 1991