ACLU NJ v. Schundler , 168 F.3d 92 ( 1999 )

Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit
2-17-1999
ACLU NJ v. Schundler
Precedential or Non-Precedential:
Docket 98-5021
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Filed February 16, 1999
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 98-5021
_______________
AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, on
behalf of its members, ROBERT LANDER, ADAM JACOBS,
JOEL SOLOW and ANN SORREL
v.
BRET SCHUNDLER, in his official capacity as Mayor of the
City of Jersey City, New Jersey; THE CITY COUNCIL OF
JERSEY CITY, NEW JERSEY; CITY OF JERSEY CITY,
NEW JERSEY,
Appellants
_______________
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. No. 95-cv-00206)
(District Judge: Honorable Dickinson R. Debevoise)
_______________
Argued: August 6, 1998
Before: NYGAARD, ALITO, and RENDELL,
Circuit Judges
(Opinion Filed: February 16, 1999)
KEVIN J. HASSON (ARGUED)
ERIC W. TREENE
The Becket Fund for Religious Liberty
2000 Pennsylvania Ave., N.W.
Suite 3580
Washington, D.C. 20006
Counsel for Appellants
NATHAN LEWIN
RICHARD W. GARNETT (ARGUED)
MILLER, CASSIDY, LARROCA &
LEWIN
2555 M Street, N.W.
Washington, D.C. 20037
Counsel for Chabad of Pittsburgh as
Amicus Curiae in Support of
Defendants-Appellants
RONALD K. CHEN (ARGUED)
RUTGERS CONSTITUTIONAL
LITIGATION CLINIC
Rutgers Law School
15 Washington St.
Newark, NJ 07102
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
ALITO, Circuit Judge:
This appeal concerns the constitutionality of two Jersey
City "holiday" displays. The first, which featured a menorah
and a Christmas tree, was annually placed in front of City
2
Hall for several decades. In 1995, the District Court
permanently enjoined the City from continuing the practice
of erecting this or any substantially similar display, see ACLU
of N.J. v. Schundler, 931 F.Supp. 1180 (D.N.J. 1995), and a
prior panel of our court affirmed that decision. ACLU of N.J.
v. Schundler, 104 F.3d 1435, 1444-50 (1997). Jersey City
subsequently moved for relief from that order under Rule 60
(b)(5) of the Federal Rules of Civil Procedure, contending that
the Supreme Court's intervening decision in Agostini v.
Felton, 521 U.S. 203, 117 S. Ct. 1997 (1997), had
undermined the panel's reasoning. The District Court denied
this motion, and we now affirm that decision.
Jersey City also challenges the District Court's most recent
decision regarding a modified holiday display that the City
put up after the original display was enjoined. The modified
display contained not only a creche, a menorah, and
Christmas tree, but also large plastic figures of Santa Claus
and Frosty the Snowman, a red sled, and Kwanzaa symbols
on the tree. In addition, the display contained two signs
stating that the display was one of a series of displays put up
by the City throughout the year to celebrate its residents'
cultural and ethnic diversity. We find this modified display
to be indistinguishable in any constitutionally significant
respect from the displays upheld by the Supreme Court in
Lynch v. Donnelly, 465 U.S. 668 (1984), and County of
Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989)
(hereinafter "Allegheny County"), and we therefore hold that
Jersey City's modified display is likewise constitutional.
I.
From at least 1965 until 1995, the City of Jersey City
commemorated the winter holiday season by displaying a
creche and a menorah on city property in front of City Hall.
The creche and menorah were owned, maintained, and stored
by the City. The creche, which was displayed during the
period preceding and following Christmas, included a manger
that measured 11' 9" by 7' by 4' 4". It also included figures
of Mary, Joseph, the Baby Jesus, and the Three Wise Men;
3
these varied in height from 12" to 27". Surrounded by a post-
rail fence, the creche was placed on the right side of City
Hall. The menorah, measuring 19' by 14', was displayed
during Chanukah on the left side of City Hall. (Also on the
left-side of the lawn was a 13' Christmas tree, but this
apparently escaped the District Court's attention.1) Because
the date of Chanukah generally falls near that of Christmas,
the creche and menorah were usually displayed
simultaneously, but in 1994, when the plaintiffs commenced
this suit, Chanukah began unusually early, on November 28,
and therefore the menorah was taken down shortly before the
creche went up.2
When Jersey City erected its traditional display in 1994,
the American Civil Liberties Union sent the City a letter
asking it to discontinue its practice of displaying religious
symbols on public property. In response, the City placed a
sign adjacent to the display stating: "Through this display
and others throughout the year, the City of Jersey City is
pleased to celebrate the diverse cultural and ethnic heritages
of its peoples." Jersey City maintains that the sign's
reference to other events refers to, among other things, the
City's annual commemoration of Ramadan, the annual Grand
Phagwah Parade held to celebrate the Hindu New Year, and
a wide variety of cultural events related to the many diverse
ethnic groups in the City.
On December 21, 1994, the ACLU and other plaintiffs filed
a complaint in state court against the City, the mayor, and
the city council (hereinafter collectively "the City"),
challenging the City's display under the federal and state
constitutions.3 In January 1995, the City removed the action
to the District Court, and on November 28, 1995, the District
___________________________________________________________
1. See 104 F.3d at 1438 n.1.
2. According to the City, such an anomaly will not recur until 2014.
3. Neither side has argued in this appeal that the state constitution
imposes tighter restrictions than the federal Constitution. Therefore,
for purposes of this litigation we treat the two bodies of law
as coextensive. See ACLU of N.J. v. Schundler, 104 F.3d at 1446 n.11.
4
Court granted the plaintiffs' motion for summary judgment
and held that the City's display violated the Establishment
Clause of the federal Constitution, as well as a parallel state
constitutional provision. The District Court permanently
enjoined the City from erecting its traditional display or any
substantially similar scene or display at the front entrance of
City Hall or on other property that the City owned,
maintained, or controlled.
The City announced that it would appeal the decision, but
in the meantime, on December 13, 1995, it erected a modified
display that included, in addition to the elements in the
previous display, a 4' tall plastic figure of Santa Claus, a 3'
10" tall plastic figure of Frosty the Snowman, a 4' tall sled,
Kwanzaa symbols on the tree, and two signs, each
approximately 2' by 3', stating: "Through this display and
others throughout the year, the City of Jersey City is pleased
to celebrate the diverse cultural and ethnic heritages of its
peoples." See Appendix A (display on left side of City Hall);
Appendix B (display on right side of City Hall); Appendix C
(map of display).
The plaintiffs then moved to have the City held in contempt
of the District Court's injunction, and they also sought a
preliminary injunction against the modified display. On
December 18, the District Court denied these requests,
concluding that the addition of the secular symbols rendered
the modified display constitutionally unobjectionable. Ruling
quickly, the District Court did not analyze the modified
display at length but wrote:
I conclude that by making these additions defendants
have sufficiently demystified the [holy], they have
sufficiently desanctified sacred symbols, and they have
sufficiently deconsecrated the sacred to escape the
confines of the injunctive order in this case.
On appeal, a panel of our court affirmed the District
Court's decision regarding the original display. 104 F.3d at
1444-50. The panel noted the religious significance of the
creche and the menorah, as well as the City's annual
5
expenditure of some public funds to erect and maintain the
display. Id. at 1445. The panel concluded that "the [original]
display cannot be viewed as anything but a constitutionally
impermissible dual endorsement of Christianity and
Judaism." 104 F.3d at 1446.
The panel cited three reasons for rejecting the City's
argument that the display was not an endorsement of
Christianity and Judaism but part of the City's year-long
celebration of its people's many different religious and ethnic
backgrounds. 104 F.3d at 1446-50. The panel concluded (a)
that government endorsement of many different religions
violated the Establishment Clause, id. at 1447, (b) that a
reasonable observer, viewing the holiday display, would not
be aware of the City's other religious and cultural
celebrations at other times of the year, id. at 1447-49, and (c)
that the City's policy of celebrating many different religions
was a quintessential example of government entanglement
with religion. Id. at 1449-50. In reaching the latter
conclusion regarding entanglement, the prior panel relied
chiefly on Aguilar v. Felton, 473 U.S. 402 (1985). See 104
F.3d at 1449-50.
Turning to the modified display, the panel held that the
District Court's analysis was incorrect. 104 F.3d at 1450-52.
The panel found no basis in Supreme Court cases for what
it termed the District Court's "`demystification' approach,"
and the panel noted that the parties agreed that this
approach was "flawed." Id. at 1450-51 & nn. 17-18. The
panel "conclude[d] that the district court erred in determining
that the constitutionality of the modified display depended on
whether the presence of Frosty and Santa `demystified' the
creche and the menorah." Id. at 1451 (footnote omitted). The
panel therefore remanded the case for the District Court to
analyze the modified display pursuant to the proper
standards. Id. at 1452. But while remanding the question
of the constitutionality of the modified display for
reconsideration by the District Court, the panel also spent
several paragraphs expressing in dicta a skeptical view about
the constitutionality of the modified display. Id. at 1451-52.
6
On remand, the plaintiffs moved for summary judgment
and a permanent injunction barring the modified display.
The defendants cross-moved for summary judgment and also
filed a motion under Fed. R. Civ. P. 60(b)(5) for relief from the
District Court's earlier injunction on the ground that the
Supreme Court's decision in Agostini, which overruled
Aguilar, had undermined the panel's reasoning. Specifically,
the defendants pointed to the panel's reliance on the concept
of "entanglement" and the Supreme Court's decision in
Agostini that entanglement should no longer to be considered
an independent test but should be viewed along with other
factors as "an aspect of the inquiry into . . . effect." 117 S. Ct.
at 2015.
Reversing its prior position, the District Court granted
summary judgment for the plaintiffs and held that the
modified display violated the Constitution. The Court wrote
that the panel's "discussion of the context of the display after
the addition of Frosty the Snowman, Santa and a red sled
leaves little doubt that it would conclude on the basis of the
facts in the record before it that even after these additions the
display communicates the City's endorsement of Christianity
and Judaism in violation of the Establishment Clause." The
District Court also denied the defendants' motion for Rule
60(b)(5) relief, and the defendants then took this appeal.
II.
We first consider the City's challenge to the denial of its
Rule 60(b)(5) motion. Under that rule, a court may relieve a
party from a final judgment or order when "it is no longer
equitable that the judgment should have prospective
application." Fed. R. Civ. P. 60(b)(5). A party can show that
a judgment should no longer have prospective application if
it can demonstrate "a significant change in either factual
conditions or the law." Rufo v. Inmantes of Suffolk County
Jail, 502 U.S. 367, 384 (1992).
In Agostini, the Supreme Court modified the Establishment
Clause test articulated in Lemon v. Kurtzman, 403 U.S. 602,
612-13 (1971), which asked (1) whether a challenged
7
government practice had a secular purpose, (2) whether its
principal or primary effect advanced or inhibited religion, and
(3) whether it created an excessive entanglement of the
government with religion. See ACLU of N.J. v. Black Horse
Pike Reg'l Bd. of Educ., 84 F.3d 1471, 1483 (3d Cir. 1996).
The Agostini Court stated that Lemon's entanglement prong
is best understood and treated "as an aspect of the inquiry
into a statute's effect." Agostini, 117 S. Ct. at 2015. While
this statement merges the entanglement prong with the effect
prong, it does not mean that considerations of excessive
entanglement have been entirely deleted from Establishment
Clause analysis; in Agostini, the Court analyzed the factors
regarding entanglement at length. See id. at 2015-16.
Rather, the statement appears to mean that entanglement,
standing alone, will not render an action unconstitutional if
the action does not have the overall effect of advancing,
endorsing, or disapproving of religion. See id.
Since entanglement analysis is still part of the
Establishment Clause inquiry, the mere fact that the prongs
have been merged is insufficient to undermine the prior
panel's decision regarding the original Jersey City display.
The City and amicus curiae Chabad of Pittsburgh point out,
however, that the prior panel's entanglement analysis relied
on two rationales that the Supreme Court rejected in
Agostini. First, the prior panel stated that the City's display
policy would foster excessive interactions between municipal
officials and local religious leaders in implementing the
policy.4 104 F.3d at 1449-50. Second, the prior panel
reasoned that the City's displays would "produce political
divisiveness." Id. at 1450. The Agostini Court addressed
___________________________________________________________
4. The panel asked: "Should a rabbi and a priest be consulted when
erecting the menorah and the creche? Should a ceremony accompany
the erection of these religious symbols? Should the City employ
a Muslim cleric during the Ramadan Observance month to avoid
offending a theological protocol of Islam?" 104 F.3d at 1449(footnote omitted). Compare Greater Pittsburgh ACLU v. Allegheny
County, 842 F.2d 655, 662 (3d Cir. 1988) ("mere placement and
storage [of religious display] will involve little entanglement"),
aff'd in part and rev'd in part, 492 U.S. 573 (1989).
8
these same two factors in considering the constitutionality of
New York City's "Title I" program,5 under which public school
teachers are sent into parochial schools to provide remedial
education to disadvantaged children, and the Court held that
these two factors "are insufficient by themselves to create an
`excessive' entanglement" under its "current understanding
of the Establishment Clause." 117 S. Ct. at 2015.
While we are inclined to agree with the City and amicus
curiae Chabad of Pittsburgh that the prior panel's
entanglement analysis is no longer valid in the wake of
Agostini, it does not follow that Rule 60(b)(5) relief was
required. Before discussing entanglement at all, the prior
panel concluded that Jersey City's original display violated
the Establishment Clause because it "communicate[d] [an]
endorsement of Christianity and Judaism . . . ." 104 F.3d at
1446. If this conclusion is accepted, the original display is
unconstitutional irrespective of the presence or absence of
excessive entanglement. Accordingly, we agree with the
District Court that Rule 60(b)(5) relief was not required.
III.
We therefore turn to the question of the modified display.
As noted, the District Court, after initially upholding this
display, reached the opposite conclusion on remand. Not
unreasonably, the District Court interpreted certain
statements in the prior panel opinion to mean that the panel
viewed the modified display as constitutionally dubious. We
conclude, however, that the statements on which the District
Court relied were merely dicta, that the prior panel did not
render a decision regarding the constitutionality of the
modified display, and that we are therefore obligated to
analyze that question in accordance with our own best
independent judgment.6
___________________________________________________________
5. Title I of the Elementary and Secondary Education Act of 1965, 79
Stat. 27 (1965), as modified, 20 U.S.C. S 6301 et seq. (1994).
6. Our court strives to maintain a consistent body of circuit
jurisprudence. Thus, "[i]t is the tradition of this court that the
holding of a panel in a reported opinion is binding on subsequent
panels" and that "no subsequent panel overrules the holding in a
published opinion of a previous panel." Internal Operating
Procedure 9.1 (emphasis added). Dicta in prior opinions, however,
are not treated similarly. On the contrary, we have repeatedly
held that dicta are not binding. See, e.g., McGurl v. Trucking
Employees, 124 F.3d 471, 484 (3d Cir. 1997); United States v.
Bennett, 100 F.3d 1105, 1110 (3d Cir. 1996); Bradley v.
Pittsburgh Bd. of Educ., 913 F.2d 1064, 1071 (3d Cir. 1990).
Our tradition of treating prior panel decisions as binding
is closely tied to the rules and procedures regarding rehearing
en banc. Rehearing en banc provides the opportunity for
the full court to correct a panel decision to which the
9
As previously noted, when the modified display was first
challenged in the District Court, that Court was required to
rule on an expedited basis, and the Court was therefore
unable to provide a lengthy, detailed explanation of its
conclusion that the display satisfied Establishment Clause
standards. Instead, the District Court summarily stated that
by adding additional objects to the original display, the City
had, in the Court's view, "sufficiently demystified the [holy],
. . . sufficiently desanctified sacred symbols, and . . .
sufficiently deconsecrated the sacred." As both sides
recognized in the prior appeal and as the panel held, see 104
F.3d at 1451 & n.18, this analysis did not comport with
Lynch or Allegheny County and finds no support in
Establishment Clause jurisprudence. Demystification,
desanctification, and deconsecration suggest a process of
profanation, something that the Establishment Clause
neither demands nor tolerates. See, e.g., Lemon, 403 U.S. at
612 (government conduct violates Establishment Clause if its
primary effect is to advance or inhibit religion).
___________________________________________________________
court is unwilling to be bound. But the standards for rehearing
en banc look to the panel's decision, not to the panel's dicta.
See Fed. R. App. P. 35 (emphasis added) (rehearing in banc may
be ordered by a court of appeals "to secure or maintain uniformity
of its decisions . . . ."). LAR 35.1 (emphasis added) (if rehearing
is sought based on an asserted conflict with prior circuit precedent,
counsel must certify, "based on a reasoned and studied professional
judgment, the panel decision is contrary to decisions of the United
States Court of Appeals for the Third Circuit . . . and that
consideration by the full court is necessary to secure and maintain
uniformity of decisions in this court."). Thus, panel dicta are
generally not tested by the availability of en banc review, and
they are accordingly not entitled to the same binding authority
that our court has traditionally given to panel decisions.
10
Emphasizing the insufficiency of the District Court's
"demystification" analysis, the prior panel "conclude[d] that
the district court erred in determining that the
constitutionality of the modified display depended on whether
the presence of Frosty and Santa `demystified' the creche and
the menorah." 104 F.3d at 1451. The panel therefore
vacated the District Court's modified injunction order and
remanded the case "so that the district court [could] consider,
consistent with the standards set forth in [its] opinion,
whether the modified display was constitutional." Id. at
1452. Since no facts were in dispute, the prior panel itself
certainly could have ruled on the constitutionality of the
modified display. Moreover, since the relevant facts are
relatively simple and were set out in full detail in the panel's
opinion, see id. at 1437-38, the prior panel was in just as
good a position as the District Court to decide that question
in the first instance. Yet the prior panel chose not to take
that course, instead remanding for the District Court to make
that decision. In light of this remand, it is apparent that the
prior panel did not foreclose us from ruling on the
constitutionality of the modified display in accordance with
our own best independent judgment. We entirely agree with
Judge McKee's summary of the majority holding. In
concurrence, Judge McKee wrote:
I think my colleagues' analysis of Lynch and Allegheny
establishes that the first display is inconsistent with the
prohibitions of Lemon and properly remands to determine
the legality of the second display.
104 F.3d at 1453 (emphasis added).
We thus reject the plaintiffs' suggestion that the prior panel
"formally remanded the issue of the Modified Display to the
district court" but "in effect already answered the question it
ostensibly remanded." Appellees' Br. at 6, 8 (emphasis
added). There is no such thing as an ostensible remand, and
that is not what the prior panel purported to do. The prior
panel in fact remanded the question of the constitutionality
of the modified display, thus leaving the question open and
11
requiring us to decide that question for ourselves.
For these reasons, the dissent's chastisements about
"evad[ing] the reasoning of [the] prior panel" (Dissent at 42)
are mistaken. We have scrupulously followed what is
"binding" upon us: the prior panel's "holding" (see IOP 9.1),
i.e., that the original display was unconstitutional and the
District Court, in judging the second display, employed
incorrect standards. As for the prior panel's comments about
the modified display, the dissent itself acknowledges that
these were expressed "in dictum" (Dissent at 42), but the
dissent would apparently have us follow these non-binding
statements rather than Supreme Court precedent, viz., Lynch
and Allegheny County. This we cannot do.
IV.
The Supreme Court has handed down two decisions
concerning the constitutionality of municipal holiday
displays, and therefore it is to these decisions that we must
primarily look for guidance in evaluating Jersey City's
modified display.
A. In Lynch v. Donnelly, 465 U.S. 668 (1984), the Court
upheld the constitutionality of a holiday display erected by
the City of Pawtucket, Rhode Island. "[S]ituated in a park
owned by a nonprofit organization and located in the heart of
the shopping district," the display was characterized by the
Court as "essentially like those to be found in hundreds of
towns or cities across the Nation -- often on public grounds
-- during the Christmas season." Id. at 671. The display
consisted of "many of the figures and decorations
traditionally associated with Christmas, including, among
other things, a Santa Claus house, reindeer pulling Santa's
sleigh, candy-striped poles, a Christmas tree, carolers, cutout
figures representing such characters as a clown, an elephant,
and a teddy bear, hundreds of colored lights, a large banner
that reads `SEASONS GREETINGS,' and [a] creche." Id. All
components of the display were owned by the City. Id. The
City had purchased the creche some years earlier for $1365,
and the City incurred a small annual expense in erecting,
12
lighting, and dismantling the creche. Id.Writing for the Court, Chief Justice Burger analyzed the
inclusion of the creche in the Pawtucket display under the
Lemon test and thus inquired whether the inclusion of the
creche had a secular purpose, whether its principal or
primary purpose was to advance or inhibit religion, and
whether it created an excessive entanglement of government
with religion. See 465 U.S. at 679. The Court held that the
Pawtucket display had a secular purpose, explaining:
The city . . . has principally taken note of a significant
historical religious event long celebrated in the Western
World. The creche in the display depicts the historical
origins of the traditional event long recognized as a
National Holiday. . . . The display is sponsored by the
City to celebrate the Holiday and to depict the origins of
that Holiday. These are legitimate secular purposes.
Id. at 680-81 (footnote omitted).
The Court likewise held that the inclusion of the creche did
not have the principal or primary effect of advancing religion.
465 U.S. at 681-83. Noting that prior Establishment Clause
cases had upheld various forms of aid to students attending
church-related schools and colleges, tax exemptions for
church property, Sunday Closing laws, "release time"
programs, and legislative prayers, the Court was "unable to
discern a greater aid to religion deriving from inclusion of the
creche than from these benefits and endorsements previously
held not violative of the Establishment Clause." Id. at 682.
The Court concluded that if the inclusion of the creche
provided some "benefit to one faith or religion or to all
religions," the effect was "indirect, remote and incidental." Id.
at 683.
Finally, the Court held that there was no impermissible
entanglement. 465 U.S. at 683-85. The Court saw no
"administrative entanglement" and observed that there was
"no evidence of contact with church authorities concerning
the content or design of the exhibit." Id. at 684. The Court
13
also noted that the cost of including the creche was small.
Nor did the Court see a basis for finding an excessive
entanglement due to political divisiveness. Id. at 684-85.
The Court rejected the idea that political divisiveness alone
could "serve to invalidate otherwise permissible conduct." Id.
at 684. Observing that the inclusion of the creche had
produced no marked dissension prior to the lawsuit then
before it, the Court pointedly wrote that "[a] litigant cannot,
by the very act of commencing a lawsuit . . . create the
appearance of divisiveness and then exploit it as evidence of
entanglement." Id. at 684-85.7
Justice O'Connor, who joined the opinion of the Court and
cast the critical fifth vote in favor of the constitutionality of
the Pawtucket display, wrote a concurring opinion "to suggest
a clarification of . . . Establishment Clause doctrine." Id. at
687 (O'Connor, J., concurring). She pointed out, however,
that she viewed the Court's opinion as "consistent with" her
analysis. Id.Justice O'Connor wrote that government "can run afoul of
[the Establishment Clause] in two principal ways": by means
of an "excessive entanglement with religious institutions" and
by "government endorsement or disapproval of religion." 465
U.S. at 687-88. In the Pawtucket case, Justice O'Connor
found "no institutional entanglement," and she stated that
"political divisiveness along religious lines should not be an
independent test of constitutionality." Id. at 689. "The
central issue in [the] case," she stated, was "whether
Pawtucket ha[d] endorsed Christianity by its display of the
creche." Id. at 690. "To answer that question," she
continued, it was necessary to "examine both what Pawtucket
intended to communicate in displaying the creche and what
message the city's display actually conveyed." Id. She found
that "Pawtucket did not intend to convey any message of
endorsement of Christianity or disapproval of non-Christian
religions." Id. at 691. She explained:
___________________________________________________________
7. See ACLU of N.J. v. Black Horse Pike Reg'l Bd. of Educ., 84 F.3d
1471, 1486 (3d Cir. 1996) (general summary of Lynch).
14
The evident purpose of including the creche in the
larger display was not promotion of the religious
content of the creche but celebration of the public
holiday through its traditional symbols. Celebration
of public holidays, which have cultural significance
even if they also have religious aspects, is a
legitimate secular purpose.
Id.Justice O'Connor also concluded that Pawtucket's display
of the creche did not "communicate a message that the
government intend[ed] to endorse the Christian beliefs
represented by the creche." Id. at 692. She wrote:
Although the religious and indeed sectarian significance
of the creche . . . is not neutralized by the setting, the
overall holiday setting changes what viewers may fairly
understand to be the purpose of the display -- as a
typical museum setting, though not neutralizing the
religious content of a religious painting, negates any
message of endorsement of that content. The display
celebrates a public holiday, and no one contends that
declaration of that holiday is understood to be an
endorsement of religion. The holiday itself has very
strong secular components and traditions. Government
celebration of the holiday, which is extremely common,
generally is not understood to endorse the religious
content of the holiday, just as government celebration of
Thanksgiving is not so understood. The creche is a
traditional symbol of the holiday that is very commonly
displayed along with purely secular symbols, as it was in
Pawtucket.
Id.
Four Justices -- Justices Brennan, Marshall, Blackmun,
and Stevens -- dissented, concluding that the Pawtucket
display did not have a secular purpose, 465 U.S. at 698-701(Brennan, J., dissenting), had the primary effect of placing
"the government's imprimatur of approval on the particular
15
religious beliefs exemplified by the creche," id. at 701, and
"pose[d] a significant threat of fostering `excessive
entanglement.'" Id. at 702.
B. The Supreme Court's second decision concerning
holiday displays came five years later in County of Allegheny
v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989), aff'g in part
and rev'g in part, Greater Pittsburgh ACLU v. Allegheny
County, 842 F.2d 655 (3d Cir. 1988). At issue were two
displays on public property in downtown Pittsburgh. The
first was situated on the Grand Staircase of the Allegheny
County Courthouse, a spot described as the "most public"
and "most beautiful" part of that building. 492 U.S. at 579.
This display consisted of a creche, a banner proclaiming
"Gloria in Excelsis Deo!" ("Glory to God in the highest!"), some
poinsettias, a "small" decorated evergreen, and a plaque
stating that the display had been donated by the Holy Name
Society, a Roman Catholic group. Id. at 580. "No figures of
Santa Claus or other decorations appeared on the Grand
Staircase." Id. at 580-81. (A picture of this display appears
at 492 U.S. at 622, Appendix A.)
Five Justices -- the four Lynch dissenters plus Justice
O'Connor -- held that this display violated the Establishment
Clause. Writing for the Court with respect to this issue, see
492 U.S. at 588-92, Justice Blackmun took pains to
distinguish the Allegheny County Courthouse display from
the display upheld in Lynch. "[U]nlike in Lynch," he wrote,
"nothing in the context of the display detracts from the
creche's religious message." Id. at 598. He noted that the
creche stood "alone" as "the single element of the display on
the Grand Staircase" and that "[t]he presence of Santas or
other Christmas decorations elsewhere" in the courthouse
"fail[ed] to negate the endorsement effect of the creche." Id.at 598-99 & n. 48. Justice Blackmun rejected the suggestion
that the "floral decoration surrounding the creche" could "be
viewed as somehow equivalent to the secular symbols in the
overall Lynch display." Id. at 599. He concluded:
In sum, Lynch teaches that government may celebrate
16
Christmas in some manner and form, but not in a way
that endorses Christian doctrine. Here, Allegheny
County has transgressed this line. It has chosen to
celebrate Christmas in a way that has the effect of
endorsing a patently Christian message: Glory to God for
the birth of Jesus Christ. Under Lynch, and the rest of
our cases, nothing more is required to demonstrate a
violation of the Establishment Clause. The display of the
creche in this context, therefore, must be permanently
enjoined.
Id. at 601-02.
In a separate concurrence, Justice O'Connor similarly
distinguished Lynch, stating that "[i]n contrast to the creche
in Lynch, which was displayed in a private park in the city's
commercial district as part of a broader display of traditional
secular symbols of the holiday season, this creche st[ood]
alone in the county courthouse" and had the
"unconstitutional effect of conveying a government
endorsement of Christianity." 492 U.S. at 627 (O'Connor, J.,
concurring). Three of the Lynch dissenters -- Brennan,
Marshall and Stevens -- were of the view that the display of
religious symbols on government property necessarily sends
a messsage favoring religion. 492 U.S. at 637-46 (Brennan,
J., concurring in part and dissenting in part); id. at 646-55(Stevens, J., concurring in part and dissenting in part). In an
opinion by Justice Kennedy, four Justices dissented and
would have upheld the courthouse display. 492 U.S. at 655-79.
A splintered majority of the Court reached a different
conclusion concerning the second display at issue in
Allegheny County, which was located in front of the City-
County Building. (A picture of this display appears at 492
U.S. at 622, Appendix B.) The City's portion of this building
houses its "principal offices, including the mayor's," 492 U.S.
at 581, and is thus the functional equivalent of a city hall.
This second display included three elements: a decorated 45-
foot Christmas tree; an 18-foot menorah that was owned by
17
Chabad, a Jewish group, but was stored, erected, and
removed each year by the City; and a sign stating: "During
this holiday season, the city of Pittsburgh salutes liberty. Let
these festive lights remind us that we are keepers of the flame
of liberty and our legacy of freedom." Id. at 582, 587.
Six Justices concluded that this display was constitutional,
but they set out their views in three separate opinions. First,
four Justices approved Justice Kennedy's opinion, which
concluded that both Pittsburgh displays satisfied the
Establishment Clause. Justice Kennedy concluded that
these displays did not violate the Establishment Clause
because they were noncoercive and did not give direct benefit
to religion in such a degree that they established or tended to
establish religion. 492 U.S. at 659, 663-667 (opinion of
Kennedy, J.). He noted that it is indisputable that
government may participate in celebrating holidays with
religious origins, and he added that requiring government to
refrain from any use of religious symbols in connection with
these celebrations would convey a message of hostility to
religion. He wrote:
If government is to participate in its citizens' celebration
of a holiday that contains both a secular and religious
component, enforced recognition of only the secular
aspect would signify the callous indifference toward
religious faith that our cases and traditions do not
require . . . .
Id. at 664.
Second, Justice Blackmun addressed the City-County
Building display in Part VI of his opinion, which was not
endorsed by any other member of the Court. 492 U.S. at
613-21 (opinion of Blackmun, J.). Justice Blackmun
concluded that this display represented a celebration by the
city of "both Christmas and Chanukah as secular holidays."
Id. at 615. He interpreted the display to mean that "both
Christmas and Chanukah are part of the same winter-holiday
season, which has attained a secular status in our society."
Id. at 616. He noted that the tallest object in the display, the
18
tree, is a secular symbol, and while he recognized that the
menorah is a religious symbol, he suggested that it did not in
context convey a religious message because of the proximity
of the larger tree and the fact that, in his view, there was no
comparable secular symbol of Chanukah that the City could
have used. Id. at 616-18. He was fortified in this view by the
mayor's sign, which saluted liberty and drew "upon the
theme of light . . . common to both Chanukah and Christmas
as winter festivals . . . ." Id. at 619.
Third, Justice O'Connor concluded in a separate
concurrence that the "combined holiday display of a
Chanukah menorah, a Christmas tree, and a sign saluting
liberty d[id] not have the effect of conveying an endorsement
of religion." Id. at 632. She agreed with Justice Blackmun
that the Christmas tree is a secular symbol, but she felt that
Justice Blackmun's analysis "obscure[d] the religious nature
of the menorah and the holiday of Chanukah." Id. at 633.
She viewed "the relevant question for Establishment Clause
purposes" as "whether the city of Pittsburgh's display of the
menorah, the religious symbol of a religious holiday, next to
a Christmas tree and a sign saluting liberty sen[t] a message
of government endorsement of Judaism or whether it sen[t]
a message of pluralism and freedom to choose one's own
beliefs." Id. at 634. She opined that the latter, secular
message was the one that the display conveyed:
By accompanying its display of a Christmas tree -- a
secular symbol of the Christmas holiday season -- with
a salute to liberty, and by adding a religious symbol from
a Jewish holiday celebrated at roughly the same time of
year, . . . the city did not endorse Judaism or religion in
general, but rather conveyed a message of pluralism and
freedom of belief during the holiday season.
Id. at 635 (O'Connor, J., concurring).
Justice O'Connor rejected the suggestion that the display
conveyed "a message that endorses religion over nonreligion,"
observing that "[a] reasonable observer would . . . appreciate
that the combined display [was] an effort to acknowledge the
19
cultural diversity of our country and to convey tolerance of
different choices in matters of religious belief or nonbelief by
recognizing that the winter holiday season is celebrated in
diverse ways by our citizens." Id. at 635-36.9
Because of the splintered majority in Allegheny County with
respect to the constitutionality of the display in front of the
City-County Building, we must employ the standard set out
in Marks v. United States, 430 U.S. 188 (1977), in order to
identify the Court's holding. Specifically, we must examine
the positions taken by the Justices needed to form a majority
and follow the opinion that supports the majority position on
the narrowest grounds. See Katz v. Aetna Cas. & Sur. Co.,
972 F.2d 53, 58 (3d Cir. 1992); Planned Parenthood of
Southeastern Pennsylvania v. Casey, 947 F.2d 682, 693-94
(3d Cir. 1991), aff'd in part and rev'd in part, 505 U.S. 833(1992).
In the case of Allegheny County, Justice O'Connor's opinion
sets out the position that we must follow. In order to be
sustained, a display would have to satisfy, at a minimum, the
standards set out in Justice Kennedy's opinion, which was
approved by three other Justices, as well as the standards set
out in Justice O'Connor's opinion. Although Justice
Blackmun also voted to sustain the display at the City-
County Building, his position seemingly imposes more
formidable standards, and a display would not have to meet
those standards in order to survive. Accordingly, in
considering how the modified Jersey City display now before
us fares under Allegheny County, we will focus on Justice
O'Connor's opinion. Before doing that, however, we will first
test the modified Jersey City display against the teachings of
Lynch.
___________________________________________________________
8. See Black Horse Pike, 84 F.3d at 1486-87 (general summary of
Allegheny County).
9. The three dissenters -- Brennan, Marshall and Stevens -- held the
same view of the scene in front of City Hall as they did of the creche
on the great staircase. 492 U.S. at 637-46 (Brennan, J., concurring
in part and dissenting in part); id. at 646-55 (Stevens, J., concurring
in part and dissenting in part).
20
V.
The display that the Supreme Court sustained in Lynch
resembles the modified Jersey City display in several
important respects. Both included one or more religious
symbols owned by the city (in Lynch, a creche; in Jersey City,
a creche and a menorah), as well as a variety of secular ones.
Both included one or more secular signs or banners (in
Lynch, a banner proclaiming "SEASONS GREETINGS"; in
Jersey City, two signs that read: "Through this display and
others throughout the year, the City of Jersey City is pleased
to celebrate the diverse cultural and ethnic heritages of its
peoples."). Accordingly, Lynch appears to support the
constitutionality of the modified Jersey City display unless
some constitutionally significant distinction can be shown.
One potentially important difference is that the display in
Pawtucket was located on private property in the center of
the city's business district, whereas the Jersey City display
was situated in front of City Hall on public land. In Lynch,
neither the opinion of the Court nor Justice O'Connor's
concurrence seemed to attribute constitutional significance
to this fact. (The opinion of the Court noted the fact in
passing at the beginning of the opinion, 465 U.S. at 671, and
Justice O'Connor did not mention this fact at all.) However,
Justice O'Connor's opinion in Allegheny seemed to place
greater emphasis on this aspect of the Pawtucket display,
492 U.S. at 623, 626 (O'Connor, J., concurring), and
therefore we will discuss this potentially significant
distinction in connection with our discussion of Allegheny
County.
With the possible exception of this factor, however, we see
no reasonable basis for distinguishing the modified Jersey
City display from the display upheld in Lynch. The plaintiffs
and our dissenting colleague suggest that the cases can be
distinguished on the ground that in the modified Jersey City
display "Santa Claus and Frosty the Snowman clearly do not
constitute separate focal points or centers of attention
coequal with the Menorah and the Nativity Scene," Appellees'
21
Br. at 14, but we see no basis for this distinction.
Appendices A and B to this opinion, which depict the
modified displays on both sides of City Hall in Jersey City,
speak for themselves. In the modified display on the right,
the sleigh is just as much a focal point as the figures in the
nativity scene. And in the modified display on the left, the
tree is just as much a focal point as the menorah.10
The dissent attempts to distinguish the modified Jersey
City display from the display in Lynch on the ground that
"the Jersey City display had more and larger sectarian
symbols combined with fewer secular symbols." Dissent at
35. What the record shows, however, is the following.
With respect to the size of the religious symbols in the two
displays, the nativity-scene figures in the Jersey City display,
which ranged from 12 inches to 27 inches in height, were not
larger than those in the Lynch display, which ranged in
height from five inches to five feet. 465 U.S. at 671. Nor
were there more figures in the Jersey City nativity scene than
in the Pawtucket scene, which contained figures of "the
Infant Jesus, Mary and Joseph, angels, shepherds, kings,
and animals." 465 U.S. at 671. Thus, the dissent's point
boils down to this: the Jersey City display differed from the
Lynch display in that it included a large menorah and a
smaller number of secular symbols. But any suggestion that
these factors are dispositive for Establishment Clause
purposes is belied by the Supreme Court's holding in
Allegheny County that the display of a large menorah and one
secular symbol, a Christmas tree, in front of the City-County
Building in Pittsburgh was constitutional.
It is interesting that the plaintiffs deride some of the very
distinctions that the dissent finds so significant. See
___________________________________________________________
10. The plaintiffs' reference to "separate focal points" was derived
from Justice Blackmun's discussion of the display of the creche on
the Grand Staircase of the county courthouse in Allegheny County.
Writing for the Court in this portion of his opinion, Justice Blackmun
contrasted this display, in which the creche "st[ood] alone" as "the
single element of the display on the Grand Staircase," with the
Pawtucket display, in which each of the secular figures "had its
own focal point." 492 U.S. at 598.
22
Appellees' Br. at 15 (the court should not "engage in the
fruitless exercise of determining, figuratively, `how many
candy canes offset one Jesus?' . . . . There is simply no
common currency or rate of exchange by which religious and
secular symbols can be traded and offset."). Instead, the
plaintiffs stress the District Court's observation on remand
that Jersey City's addition of the secular symbols was "a ploy
designed to permit continued display of the religious
symbols." The suggestion seems to be that, even if Jersey
City could have properly erected the modified display in the
first place, the City's initial display, which was held to violate
the Establishment Clause, showed that the city officials were
motivated by a desire to evade constitutional requirements
and that this motivation required invalidation of the modified
display. Asked during oral argument whether this meant
that Jersey City might be precluded from erecting a display
identical to one that would be permissible in other nearby
cities, counsel for the plaintiffs insisted that Jersey City's
"prior history" would have to be taken into account, at least
until the time came when it could be considered to be
"purged" of the "prior constitutional taint." Oral Arg. Tr. at
27.
We reject this argument. The mere fact that Jersey City's
first display was held to violate the Establishment Clause is
plainly insufficient to show that the second display lacked "a
secular legislative purpose," see Lemon, 403 U.S. at 612-13,
or that it was "intend[ed] to convey a message of endorsement
or disapproval of religion." Lynch, 465 (O'Connor, J.,
concurring). As our prior discussion of Lynch and Allegheny
County illustrates, the Supreme Court's decisions regarding
holiday displays have been marked by fine line-drawing, and
therefore it is not easy to determine whether particular
displays satisfy the Court's standards. Under these
circumstances, the mere fact that city officials miscalculate
and approve a display that is found by the federal courts to
23
cross over the line is hardly proof of the officials' bad faith.11
Although the original Jersey City display was ultimately
struck down, no Supreme Court or Third Circuit precedent
clearly established that it was unconstitutional until the prior
panel handed down its decision, and therefore the city
officials' decision to continue to erect that display, which had
been put up for decades, can hardly be viewed as evidence of
an intent to flout the Establishment Clause.12
We now consider how the modified Jersey City display fares
under the holding of the Supreme Court in Allegheny County.
The Court's decision striking down the display of the creche
on the Grand Staircase of the Allegheny County Courthouse
does not cast doubt on the constitutionality of the modified
Jersey City display. As noted earlier, the display on the
Grand Staircase consisted of a creche with a religious
proclamation ("Gloria in Excelsis Deo") surrounded by a floral
decoration that "serve[d] only to draw one's attention" to the
creche. 492 U.S. at 598-99. The display contained no
secular symbols, and the display did not communicate to a
reasonable observer the sort of secular message that is
needed to pass Establishment Clause scrutiny, e.g.,
acknowledgment of "the cultural diversity of our country" and
support for "tolerance of different choices in matters of
religious belief or nonbelief by recognizing that the winter
holiday season is celebrated in diverse ways by our citizens."
Allegheny County, 492 U.S. at 636 (O'Connor, J., concurring).
The modified Jersey City display expressly conveyed this very
message by means of its sign and implicitly conveyed the
___________________________________________________________
11. If reaching the erroneous conclusion that a particular display is
constitutional is regarded as proof of an intent to flout the
Establishment Clause, are Allegheny County dissenters implicated by
virtue of their views?
12. The plaintiffs' position is also contrary to the Supreme Court's
treatment of the two displays at issue in Allegheny County. If the
plaintiffs' view were correct, the erection of the unconstitutional
display on the Grand Staircase of the County Courthouse should have
militated in favor of also striking down the display in front of the
City-County Building, but a majority of the Supreme Court sustained
that display, and not one Justice took the position that the
officials' miscalculation regarding the Grand Staircase tainted
the decision concerning the City-County Building.
24
same message through its diverse nonverbal elements. Thus,
the unconstitutional display on the Grand Staircase of the
Allegheny County Courthouse is readily distinguishable from
the modified Jersey City display.
On the other hand, there are instructive parallels between
the constitutionally permissible display in front of the City-
County Building and the modified Jersey City display.
(Indeed, the photograph of the City-County Building display,
see 492 U.S. at 622, and the display on the left-side of
Jersey City's City Hall (see Appendix A of this opinion) are
virtually identical except for the presence of Santa in the
latter display). First, both displays contained both secular
and religious symbolism. It is true that the City-County
Building display included fewer religious symbols (a menorah
only) than the modified Jersey City display (both a menorah
on the left side of City Hall and a creche on the right), but the
City-County Building display also included fewer secular
symbols, and in both cases the balance seems to have been
roughly the same. Moreover, Justice O'Connor's opinion in
Allegheny County refutes any suggestion that the display of
a menorah is inherently less likely to create Establishment
Clause problems than is the display of a creche. Eschewing
the suggestion that Chanukah is "a `secular' holiday" or that
"the menorah has a `secular dimension,"' she pointedly wrote
that "the menorah is the central religious symbol and ritual
object of [a] religious holiday." 492 U.S. at 633-34. She
similarly rejected the idea that, because "it would be
implausible for the city to endorse a faith adhered to by a
minority of the citizenry," inclusion of a menorah in a holiday
display is less likely than a Christian religious symbol to
convey a message of government endorsement of religion. Id.
at 634. She wrote that "[a] menorah standing alone at city
hall may well send such a message to nonadherents, just as
in this case the creche standing alone at the Allegheny
County Courthouse sends a message of governmental
endorsement of Christianity . . . ." Id.Second, the strong similarity between the location of the
City-County Building display (on public land in front of what
25
is in essence Pittsburgh's City Hall) and the location of the
Jersey City display (on public land in front of City Hall) is
particularly important in light of our earlier conclusion that
the only basis on which the Pawtucket display upheld in
Lynch might potentially be distinguished from the modified
Jersey City display was that the former display was located
on private land in the city's business district. The portion of
Justice O'Connor's separate opinion in Allegheny County
relating to the display on the Grand Staircase suggested that
this distinction had some significance.13 But when Justice
O'Connor turned to the display in front of the City-County
Building -- a location indistinguishable for present purposes
from the site of the Jersey City display -- she held that the
display was constitutional. (The other factors that Justice
O'Connor stressed in this portion of her Allegheny County
opinion -- the tree and the sign -- also have close parallels
here). This persuades us that the location of the Jersey City
display on public property in front of City Hall does not in
itself provide a valid basis for holding the display to be
unconstitutional.
Moreover, although this factor is not necessary to our
decision, we are convinced that, in evaluating the message
conveyed by the modified Jersey City display to a reasonable
observer, the general scope of Jersey City's practice regarding
diverse cultural displays and celebrations should be
considered. In our en banc decision in ACLU of N.J. v. Black
Horse Pike Reg'l Bd. of Ed., 84 F.3d 1471 (3d Cir. 1996), we
held that, in determining whether a government practice
endorses religion, " `the "history and ubiquity" of a practice is
relevant because it provides part of the context in which a
reasonable observer evaluates whether a challenged
governmental practice conveys a message of endorsement of
___________________________________________________________
13. Justice O'Connor noted that the creche in Lynch had been "displayed
in a private park in the city's commercial district," and she opined
that "[t]he display of religious symbols in public areas of core
government buildings runs a special risk of `mak[ing] religion
relevant, in reality or public perception, to status in the political
community.'" 492 U.S. at 626 (O'Connor, J., concurring (quoting Lynch,
465 U.S. at 692 (O'Connor, J., concurring)).
26
religion.' " Id. at 1486 (quoting Allegheny County, 492 U.S.
at 630 (O'Connor, J., concurring)); see also Capitol Square
Review and Advisory Bd. v. Pinette, 115 S.Ct. 2440, 2455
(1995) (O'Connor, J., concurring) ("the reasonable observer in
the endorsement inquiry must be deemed aware of the
history and context of the community and forum in which the
religious display appears"; "the knowledge attributed to the
reasonable observer [cannot] be limited to the information
gleaned simply from viewing the challenged display"). To the
extent that the prior panel opinion, see 104 F.3d at 1448-49,
conflicted with our prior en banc decision in Black Horse
Pike, the prior en banc decision must of course take
precedence.
In sum, we are unable to perceive any meaningful
constitutional distinction between the display at issue here
and those that the Supreme Court upheld in Lynch and
Allegheny County. Reasonably viewed, none of these displays
conveyed a message of government endorsement of
Christianity, Judaism, or of religion in general but instead
"sent a message of pluralism and freedom to choose one's
own beliefs." Allegheny County, 492 U.S. at 633 (O'Connor,
J., concurring). If we follow Lynch and Allegheny County, we
have no alternative but to reverse the permanent injunction
insofar as it enjoins Jersey City from erecting the modified
display "or any substantially similar scene or display in the
vicinity of the entrance to the City of Jersey City's City Hall."
Indeed, even if we were persuaded that the modified display
itself was unconstitutional, we could not possibly approve an
injunction against "any substantially similar scene or
display." Both the Pawtucket display and the display in front
of the City-County Building in Pittsburgh were, at the least,
"substantially similar" to the modified Jersey City display,
and consequently the District Court's injunction has the
obviously improper effect of enjoining displays that are
identical to ones that have passed the Supreme Court's
scrutiny.
The dissent's attempt to distinguish the modified Jersey
City display from the display upheld in Allegheny Court is
27
unpersuasive. The dissent first observes that in Allegheny
County the 45' tall Christmas tree "dwarfed the 18' tall
menorah." Dissent at 36. The reader can compare the
photograph of the display sustained in Allegheny County (see
492 U.S. at 622) with Appendix A to this opinion (the left side
of the Jersey City display) and make an independent
judgment as to whether the two scenes are constitutionally
distinguishable. In our view, they are not. The two
menorahs are comparable in height (18' tall in Allegheny, 19'
tall in Jersey City), and although the tree in Pittsburgh
appears larger than that in Jersey City, it is difficult to
believe that this difference in height is dispositive.
The dissent next observes that "a display's location informs
the constitutional analysis" (Dissent at 36), but the dissent
obscures the fact that the display upheld in Allegheny County
and the Jersey City display were located in comparable spots:
on public land in front of the building that housed the
principal offices of the municipal government.
The dissent notes that "Jersey City used public funds to
own, erect, and maintain the creche and the menorah."
Dissent at 37. But in Allegheny County, the menorah was
also "stored, erected, and removed each year by the city."
492 U.S. at 587 (opinion of Blackmun, J.). And in Lynch, the
city owned, erected, and dismantled the creche. 468 U.S. at
671.
Finally, the dissent argues that, whereas "a display
containing only a menorah and a Christmas tree" may be
constitutional, "when a creche and a menorah are displayed
together, `the menorah's religious significance is
emphasized.' " Dissent at 37 (quoting Schundler I, 104 F.3d
at 1446). This statement overlooks the fact that the creche
and menorah were displayed on opposite sides of the City
Hall Plaza Park. See Appendix C. More important, since
Lynch teaches that display of a creche is not per se
unconstitutional, and Allegheny County teaches that the
same is true of a menorah, it is hard to accept the
proposition that the Establishment Clause is violated when
28
these two symbols are displayed together as part of a holiday
display that includes secular symbols and is dedicated to the
celebration of a municipality's cultural diversity.
VI.
Before concluding, we find it necessary to explain why we
do not agree with some of the prior panel's dicta regarding
the modified display. Our central point of disagreement
concerns the prior panel's suggestion that any inclusion of a
creche -- but not a menorah -- in a display in front of a
prominent government building, such as a city hall, is
incompatible with the Establishment Clause. The prior panel
observed:
Government display of a creche [unlike a menorah]
cannot convey a meaning separate from the very act it is
meant to portray. A creche depicts the Birth of Christ,
the event that lies at the foundation of Christianity. In
Allegheny County, the Court determined that displays
containing a creche as a primary focal point, which are
situated at the seat of government, are constitutionally
impermissible as they convey a message of government
endorsement. This is consistent with Lynch, in which
the Court permitted a creche that was part of a display
in a private park depicting a "winter wonderland" scene
because, in context, there were no external indicia of
government endorsement.
104 F.3d at 1451.
We respectfully submit, in part for reasons that we have
already discussed, that this dicta misinterprets both Lynch
and Allegheny County. First, the distinction that is drawn
between a creche and a menorah necessarily rests on the
mistaken view that these two symbols differ critically with
respect to the nature or degree of the religious message that
they convey. As we have explained, however, Justice
O'Connor flatly rejected this suggestion in her pivotal
Allegheny County opinion. See 492 U.S. at 633-34 (opinion
29
of O'Connor, J.). Once it is recognized that a creche and a
menorah should be regarded as equivalent religious symbols
for the purpose of analyzing holiday displays, the similarity
between the constitutionally permissible display in front of
the City-County Building in Pittsburgh and the modified
display in front of Jersey City's City Hall becomes apparent.
Second, we cannot agree with the prior panel's suggestion
that in Lynch "the Court permitted a creche that was part of
a display in a private park depicting a `winter wonderland'
scene because, in context, there were no external indicia of
government endorsement." 104 F.3d at 1451 (emphasis
added). As we have noted, in Allegheny County, Justice
O'Connor, as well as Justice Blackmun, seems to have
attributed some significance to the fact that the display in
Lynch was situated on private property in the center of
Pawtucket's commercial district, but to go further, as the
prior panel did, and say that the Pawtucket display bore "no
external indicia of government endorsement" is not correct.
In Lynch, every Justice, whether in the majority or the
dissent, agreed that by means of its holiday display the city
of Pawtucket was endorsing some message. The Justices
differed in their interpretation of the message that the display
conveyed, but they all understood that the message was
linked to the City -- as the lower court opinions in that case
made abundantly clear:
[I]t is difficult to suggest that anyone could have failed to
receive a message of government sponsorship after
observing Santa Claus ride the city fire engine to the
park to join with the mayor of Pawtucket in inaugurating
the holiday season by turning on the lights of the city-
owned display. See Donnelly v. Lynch, 525 F. Supp.
1150, 1156 (RI 1981). Indeed, the District Court in
Lynch found that `people might reasonably mistake the
Park for public property,' and rejected as `frivolous' the
suggestion that the display was not directly associated
with the city. Id., at 1176, and n. 35.
Allegheny County, 492 U.S. at 666-67 (opinion of Kennedy,
30
J.). Once these two points are recognized -- that the
menorah and the creche must be viewed for present purposes
as equivalent religious symbols and that the display in Lynch
indisputably involved the conveyance of a government
message -- the foundation of the prior panel's dicta is
undermined.
VII.
For these reasons, we affirm the decision of the District
Court insofar as it denied the defendants' motion under Rule
60(b)(5) for relief from the Court's previous judgment.
However, we reverse the District Court's order insofar as it
disposed of the parties' cross-motions for summary judgment
with respect to the modified display and insofar as it enjoined
the defendants from erecting that or any substantially similar
display. We remand the case to the District Court with
instructions to grant summary judgment in favor of the
defendants.
31
NYGAARD, Circuit Judge. Dissenting.
I have two reasons for dissenting. First, I dissent because
I believe that the argument urged upon us by appellant
undermines our earlier decision in this case. Following
Schundler I, addressing the original display, I still conclude
that the addition of a few small token secular objects is not
enough to constitutionally legitimate the modified display.
Although appellant strives mightily to explain what we did
not hold in Schundler I, I believe it more important to
determine what we did hold. We explicitly held that the
display at issue here, minus Frosty, Santa, the sleigh, and
the Kwanzaa symbols, was unconstitutional because it had
the effect of communicating an endorsement of particular
religions. So, I submit that the real question now is whether
simply adding Kwanzaa symbols to the tree and placing
Frosty (a secular symbol of Christmas), Santa (a once-
religious symbol -- St. Nicholas -- now quite secularized),
and a sleigh in the display sufficiently changed the display's
context so as to negate the message that was conveyed by the
original display, which we held unconstitutional.
The second, albeit weaker, reason why I dissent is that
although the majority cites the applicable Supreme Court
case law to reach its conclusion that this display is
constitutional, parsing the same law and applying it to these
facts leads me to the opposite conclusion. There is, I readily
acknowledge, much confusion and plenty of room for
jurisprudential disagreement in this area. No bright lines of
demarcation have been drawn between religious
"establishment" and simple display, and perhaps none of us
is capable of accurately drawing such a line given the state of
the case-law. I am afraid that the shifting majorities and
fact-specific opinions of the Supreme Court in Lynch and
Allegheny County provide only a precarious analytical
framework for both the public and we inferior federal courts
to apply in determining the exact location of the line of
demarcation.
The Supreme Court's two major recent excursions into this
32
area have resulted in fractured majorities and no clear
statement of the law. Nonetheless, it seems to me that the
Court has directed us to evaluate religious symbols in the
context of the entire display. As we noted in Schundler I, "the
Supreme Court, in its myriad of approaches in the display
cases, has repeatedly emphasized the importance of
examining the context of the display at issue to determine
whether it has the effect of endorsing religion." Schundler I,
104 F.3d at 1451. We reaffirmed the significance of context
when we examined Allegheny County and Lynch "to illustrate
`the importance of the context of a challenged practice' in
conducting an Establishment Clause analysis." Id. (quoting
ACLU v. Black Horse Pike Reg'l Bd. of Educ., 84 F.3d 1471,
1484 (3d Cir. 1996) (en banc)). Following the Supreme
Court's decisions in Lynch and Allegheny County, I conclude
that Jersey City's modified display resulted in an
unconstitutional establishment of religion.
A. Lynch
First, our display is unlike the display that the Supreme
Court allowed in Lynch. The majority sees "no reasonable
basis," other than the different locations of the displays, "for
distinguishing the modified Jersey City display from the
display upheld in Lynch." Majority Opinion at 21. I believe
that this analysis of the display fails to adequately credit the
different contexts of the two displays. When looked at in its
context, I believe that the constitutional display in Lynch is
distinguishable. The display approved by the Court in Lynch
included, in addition to a creche (the only religious symbol),
a Santa Claus house with a live Santa distributing
candy; reindeer pulling Santa's sleigh; a live 40-foot
Christmas tree strung with lights; statues of carolers in
old-fashioned dress; candy-striped poles; a "talking"
wishing well; a large banner proclaiming "SEASONS
GREETINGS"; a miniature "village" with several houses
and a church; and various "cut-out" figures, including
those of a clown, a dancing elephant, a robot, and a
teddy bear.
33
Allegheny County, 492 U.S. at 596, 109 S. Ct. at 3102(opinion of Blackmun, J.). The Court in Allegheny County
noted that the Lynch display was composed of a series of
figures and objects, each group of which had its own focal
point. See id. at 598, 109 S. Ct. at 3104 (opinion of the
Court). The various objects each had a separate "visual story
to tell." Id., 109 S. Ct. at 3104.
Contrasting the Lynch display, with its "superabundance
of secular symbols [which] dilute[d] the message of the
creche," Amancio v. Town of Somerset, No. Civ.A.
98CV12810RGS, 1998 WL 846865, *3 (D. Mass. Nov. 23,
1998) (finding display consisting of a creche, holiday lights,
a wreath, a Christmas tree, and a plastic Santa Claus
unconstitutional), with the Jersey City display reveals a
different context. Here, rather than a "superabundance" of
secular objects, only a handful of nonsectarian objects were
placed in the display, none of which, other than the
Christmas tree, could have reasonably been considered a
separate focal point. I would not underestimate the essential
importance to the Supreme Court majority of the numerous
secular objects surrounding the creche in Lynch. As the
Second Circuit Court of Appeals noted,
After Allegheny and Lynch, therefore, not every
city-owned-and/or-displayed creche violates the
Establishment Clause. Lynch squarely upheld a city's
erection of a creche that it owned as part of its
Christmas display in a park owned by a nonprofit
organization. A key factor leading to that conclusion,
especially in light of the later Allegheny decision, was
that the creche was only a small part of an otherwise
secular display.
Elewski v. City of Syracuse, 123 F.3d 51, 54 (2d Cir. 1997)
(upholding a holiday display of a creche in light of the
context) (emphasis added) (citations omitted), cert. denied,
118 S. Ct. 1186 (1998). Although I disagree with the Elewski
opinion in light of Lynch, nonetheless even if we apply its
reasoning to the Jersey City display, the creche and menorah
34
were certainly not "small parts" of an otherwise secular
display. The only reasonable interpretation, as we noted in
Schundler I, is that Frosty and Santa composed a small
secular part of an otherwise sectarian display, not the other
way around.
Rather than the seasonal, "winter wonderland" scene in
Lynch, Jersey City erected a display that a reasonable
observer would interpret as having three symbolic focal
points: the creche, the menorah, and the Christmas tree.1
The same three focal points that were found to result in an
unconstitutional endorsement of religion by this Court in
Schundler I.2 Indeed, the modified display perhaps provides
a more substantial example of endorsement than the original
display because the characters of the creche were removed
from their isolated, sheltered position in the manger to a
more prominent position beside it. See Schundler I, 104 F.3d
at 1439. Compared to the display in Lynch, the Jersey City
display had more and larger sectarian symbols combined
with fewer secular symbols. This created a different context
___________________________________________________________
1. Appellant argues that because the tree was comparable in size to the
menorah, it created a separate focal point. This argument is irrelevant
in light of our holding in Schundler I. In that case, we expressly
held that the presence of the Christmas tree did not make the display
constitutional. In Schundler I, we determined that the Christmas tree
had a secular effect, and the mere addition of Kwanzaa ornaments to
the tree certainly does little to enhance the already secular effect.
In addition, applying a sort of Blackmun yardstick test, appellant
appears to argue that the 4' tall Santa and the 3'10" tall Frosty
created separate focal points that operated to neutralize the
sectarian message conveyed by the 14' tall menorah and the over
45' square, 7' tall manger with a separate nativity scene. The
snowman was located to the back left of the manger, approximately
35 feet away from the manger. See App. 48. Santa Claus, on the
other hand, was located across the walkway, situated between
the 13' tall tree and the 14' tall menorah. These token figures
simply did not substantially detract from the unconstitutional
sectarian message conveyed by the original display. See
Schundler I, 104 F.3d at 1452.
2. We also placed a great deal of emphasis on the location of the
display on the front steps of City Hall in Schundler I. I will
follow the majority's lead and discuss this aspect of the case
when dealing with Allegheny County.
35
and resulted in a different message, one of government
endorsement of religion.
B. Allegheny County
Nor do I think that Allegheny County supports the
conclusion that the Jersey City display was constitutional.
It can be argued that, when looking at the secular and
sectarian elements, the balance seems to have been "roughly"
the same in the Jersey City display and the Allegheny County
display located on the front steps of the City-County
Building. I think that statement underestimates the
importance of the context of the display by eliding the
difference in the size and location of the various elements. In
Allegheny County, the 45' tall Christmas tree was "clearly the
predominant element in the city's display" on the steps of the
City-County Building. Allegheny County, 492 U.S. at 617,
109 S. Ct. at 3113 (opinion of Blackmun, J.). The tree
dwarfed the 18' tall menorah, which was placed to the side of
the tree's central position beneath the middle archway in
front of the building. See id. This clearly contrasts the
Allegheny County display with the Jersey City display in
which, on both sides of the display, the "predominant"
element was sectarian.
Although not determinative, a display's location informs the
constitutional analysis. As Justice O'Connor stated in
Allegheny County, "[t]he display of religious symbols in public
areas of core government buildings runs a special risk of
`mak[ing] religion relevant, in reality or in public perception,
to status in the political community.' " 492 U.S. at 626, 109
S. Ct. at 3119 (O'Connor, J., concurring) (alteration in
original) (quoting Lynch, 465 U.S. at 692, 104 S. Ct. at 1369(O'Connor, J., concurring)). When dealing with the original
display in the exact same location in Schundler I, we stated,
When a government chooses to speak by erecting a
creche on government property, the principles at the core
of the Establishment Clause are clearly implicated. By
erecting the creche itself, on city property, a city sends
a stronger message of endorsement of religion than when
36
it merely provides a forum for private religious speech.
In the former context, the government is effectively
conveying the message that "we celebrate the holiday
season by recognizing the birth of Christ."
Schundler I, 104 F.3d at 1445 (citation omitted). What is
clear then is that when a display containing religious
elements is located in front of the main city government
building, we should recognize that the possibility of sending
a message of religious endorsement to the reasonable
observer is augmented.3
We must not overlook an important basis of our decision in
Schundler I: In finding the display unconstitutional, we relied
on the fact that Jersey City used public funds to own, erect,
and maintain the creche and the menorah. Although not a
deciding factor, we noted that "by using taxpayer dollars to
fund a display containing religious symbols, Jersey City has
increased the risk that the display's religious message will be
attributed to the city and its taxpayers." Id. at 1445-46; see
also Elewski, 123 F.3d at 57 (Cabranes, J., dissenting)
(noting that government sponsorship is "a relevant and
important factor"). The modified display here is subject to
the same infirmity.
In Allegheny County, the Court allowed a display
containing only a menorah and a Christmas tree. We,
however, have found that when a creche and a menorah are
displayed together, "the menorah's religious significance is
emphasized." Schundler I, 104 F.3d at 1446. In Allegheny
County, Justice O'Connor found that, even though the
religious message of the menorah was not entirely
neutralized, any message of government endorsement was
___________________________________________________________
3. Justice O'Connor approved the display in Allegheny County that was
situated on the steps of a government building. Since she allowed that
display, it can be argued that the location of the Jersey City display
does not in itself provide a valid basis for holding the display to be
unconstitutional. Although I agree that this factor alone does not
justify finding a display to be unconstitutional, it is certainly an
aspect that should be taken into account when determining the message
conveyed by the display.
37
negated by the presence of the much larger Christmas tree.
See Allegheny County , 492 U.S. at 635, 109 S. Ct. at 3123(O'Connor, J, concurring). In Jersey City, however, the
religious aspect of the menorah was underscored by the rest
of the display.4 In this case, the menorah is more reasonably
viewed in light of the presence of the creche, not the tree. In
Allegheny County, the menorah outside the City-County
Building was privately owned and its religious message was
not accentuated by the additional presence of a creche
representing the stable wherein Jesus was born. These facts
distinguish the Allegheny County display from this one.
To support its argument that no sectarian message was
delivered, appellant points to the two signs proclaiming that
the display was part of a year-round celebration of diversity.
The value of the signs should be considered in light of, and
is wholly negated by, the fact that the original display we held
unconstitutional contained the same sign. Furthermore, the
sign clearly states that Jersey City is supporting the display,
removing any doubt from the reasonable observer's mind
concerning whether the display was private speech or
government speech. Although informative, the mere presence
of signs stating that the display was part of a celebration of
ethnic and cultural differences does little to negate the
impact of the sectarian message.5
___________________________________________________________
4. It can be argued that Justice O'Connor's opinion in Allegheny County
seems to rebut Justice Blackmun's argument in the same case that a
menorah is an inherently less religious symbol than a creche. I
am not sure I agree with that because when a reasonable observer
sees a menorah what would she or he think of except the miracle
of the oil, or of the holy candelabrum in the Jewish Temple, and
of the Jewish Festival of Lights. Moreover, although the religious
impact of a menorah standing alone was debatable, at least by the
members of the Supreme Court, we have found that the combination
of a menorah with a creche communicates a clearly sectarian
message. See Schundler I, 104 F.3d at 1446.
5. As Justice Blackmun stated, "The simultaneous endorsement of
Christianity and Judaism is no less constitutionally infirm than the
endorsement of Christianity alone." Allegheny County, 492 U.S. at 615,
109 S. Ct. at 3112 (opinion of Blackmun, J.)
38
Appellant argues that Schundler I incorrectly determined
that a reasonable observer would not be aware of Jersey
City's other celebrations throughout the year. Assuming
arguendo that the earlier panel was incorrect, looking at the
history of this display and others in Jersey City does little to
save the modified display from its message. I am not exactly
sure what a reasonable observer would think. I doubt,
however, that he or she would question long why the creche
and menorah were on the City Hall lawn before concluding
that it was to celebrate Christmas and Hanukkah. I also
think that the reasonable observer, looking at the modified
display, would be aware of the various ethnic and cultural
celebrations throughout the year. In addition, the
reasonable observer would likely know that no other religious
celebrations occurred in front of City Hall. The reasonable
observer would see that the display is larger than any other
display in front of City Hall. The reasonable observer would
realize that the display was in place longer than any other
display, secular or sectarian, that occupied the very visible
space in front of City Hall.6 Finally, the reasonable observer
would likely remember that for approximately thirty years,
Jersey City had erected a virtually identical display that we
found endorsed religion in violation of the First Amendment
of the United States Constitution.
___________________________________________________________
6. From my examination of the record, the only evidence of other
displays erected by Jersey City in front of City Hall comes from
the deposition of the mayor, Bret Schundler.
Q. Apart from the menorah and the nativity scene, can you recall
any other displays erected on the city's initiative that have
been erected in front of City Hall?
A. I'm sure there have been.
Q. Do you have any specific recollections of any examples, as
we sit here today?
A. We have had memorial week out there, we have flags out there,
as you know, which is right in front of City Hall, celebrating
every group under the sun.
App. 160.
39
After thirty years of religious promotion by Jersey City in
front of City Hall, the reasonable observer would likely see
the addition of the secular figures, which "lacked the physical
sturdiness and careful positioning of the religious symbols,"
Dist. Ct. at 10, as we saw them in our previous opinion --
"token additions" which do little to "secularize" the "conveyed
. . . message of government endorsement of religion."
Schundler I, 104 F.3d at 1452 & n.19 (noting the "artful[ ]"
argument of the ACLU that the reasonable observer would no
doubt characterize the additional figures as "attempts at
evasion of constitutional prohibitions through superficial
secular tokenism"); see also Dist. Ct. at 10 (finding that the
addition of the secular symbols was "a ploy designed to
permit continued display of the religious symbols"); ACLU v.
City of Florissant, 17 F. Supp. 2d 1068, 1075-76 (E.D. Mo.
1998) (finding, on similar facts, that adding secular figures to
a previously sectarian display did not "negate or muffle the
earlier message of endorsement"). I am aware of no Supreme
Court holding that allows the government to make a religious
pronouncement at Christmas and Hanukkah as long as it
has made a sufficient number of secular pronouncements at
other times of the year. Although Jersey City certainly has
separate ethnic and cultural celebrations, this does not
obscure the fact that for several weeks of every year, the city
government erected a display that communicated a religious
message. The Supreme Court's interpretation of the First
Amendment simply does not allow the government to do that.
C. Lack of Supreme Court Standard
This case, after four years of litigation, underscores what
I stated earlier about the problems with the standards and
analyses provided by the Supreme Court in this area. In the
course of this litigation, we have twice been asked to evaluate
the constitutionality of two virtually identical displays. We
have come to two directly opposite conclusions. What has
resulted is an intra-circuit split in the truest sense of the
phrase.
40
The inconsistent results in this Court can be directly
attributed to the insufficient and inconsistent guidance given
to the inferior federal courts - or, perhaps as I earlier mused,
the behavior at issue here is incapable of being guided. In
both Lynch and Allegheny County, the Supreme Court could
not agree on the correct analysis, much less the correct
application of a standard to the facts. After Capitol Square
Review & Advisory Board v. Pinnette, 515 U.S. 753, 115 S.
Ct. 2440 (1995), it now appears that a majority of the
Supreme Court has at least accepted that government-
sponsored religious speech should be evaluated under the
endorsement test. Until the Supreme Court decides a case in
which a majority opinion of the Court utilizes a clear test to
analyze a religious display, we are left with fact-specific
inquiries that focus on the size, shape, and inferential
message delivered by displays with religious elements, leaving
almost any display that has a religious symbol in it open to
challenge and any such display that has secular elements, no
matter how trivial, open to judicial approval.
Unfortunately, Justice Kennedy's prediction in Allegheny
County has come true. "[A] jurisprudence of minutiae" relying
on "little more than intuition and a tape measure" has
resulted from the unclear analyses contained in the various
opinions of the Supreme Court. Allegheny County, 492 U.S.
at 674-76, 104 S. Ct. at 1359-60 (Kennedy, J., concurring in
the judgment in part and dissenting in part).
D. Lack of Consistency
Were the foregoing the only reason for my disagreement, I
may not have written a dissent; or if so, it would may well
have suffered the same end as most others I write. However,
there is another aspect of this case -- the fact that we have
already addressed the display at issue here, and that, in my
opinion, the majority's opinion slices our earlier holding too
thinly. As I noted earlier, in light of the holding in Schundler
I, the only question for us today is whether the additions of
Santa, Frosty, a sleigh, and some Kwanzaa ribbons
rehabilitate a display that we held to be an unconstitutional
41
endorsement of religion. The majority, however, goes beyond
this issue to question the central holding and reasoning
underlying an earlier opinion of this Court--a close reading
of the majority's holding reveals that the decision does not
only rely on the presence of the figures or the Kwanzaa
ribbons. Therefore, the majority would effectively overrule
one of our own opinions: a task reserved for the en banc
Court. Although this event would be cause for alarm in any
case, my dismay is heightened here where the second opinion
emanates from the exact litigation as the first. In this
instance, the concern for the consistency of the law and the
legitimacy our jurisprudence is intensified. Of course the law
of religious displays is characterized by intensive fact analysis
and questionable line drawing, and it is possible to disagree
with our prior holding and analysis; however, to protect the
integrity of our jurisprudence, I cannot condone the
appearance of one panel overruling another.
We have the duty not only to review cases and point out
error, but also to provide guidance. We cannot ask others to
respect the integrity of our decisions when we ourselves do
not; but instead evade the reasoning of a prior panel in the
same case. This case is unique in that we have already
expressed our views on the precise issue and nearly identical
facts that are the subject of this appeal. We stated, albeit in
dictum, when addressing the exact display at issue here, that
[t]he token additions of the secular symbols do little to
alter the "context" or the focal points of the City's
display. We reiterate that Jersey City's display of the
creche at the seat of City government power
impermissibly conveyed a message of government
endorsement of religion. And, in our view, the City's
addition of Santa, Frosty, and a red sled did little to
secularize that message.
Schundler I, 104 F.3d at 1451. Although dictum, the
language fulfills our responsibility to instruct and guide the
District Court.
42
On remand, the District Court scrupulously followed our
instructions and reasoning and determined that the modified
display violated the Establishment Clause. The District
Judge made this determination, even though he may not
have agreed with it, because he felt duty-bound, in an area
of law fraught with uncertainty, to follow what he perceived
to be the instructions we had given him. Now, reexamining
the same display almost two years after Schundler I, this
Court finds that the addition of the figures of Santa and
Frosty, who was lashed to a tree next to the sleigh, do in fact
neutralize the unconstitutional message of endorsement that
had been conveyed by Jersey City for three decades and
reverses itself concerning the appropriateness of our earlier
instructions. This constitutional about-face in the same case
troubles me greatly, strikes to the core of the legitimacy of
our jurisprudence, and exposes us to well-earned criticism
for inconsistency and for giving insufficient respect to an
earlier instruction by the Court.
E. Conclusion
I conclude that the message of this display remains the
same as that of the original display. On one side, the
menorah and the Christmas tree tower over the Santa Claus.
On the other side, a manger, representing the site where
Jesus was born, dominates the scene. Next to the manger,
a cart and a nativity scene reflect the action that myth says
surrounded the birth of Jesus. Off to the side is the sleigh,
and the snowman is placed behind and to the side of the
scene. The dominant element of each side of the display is a
religious symbol. Looking at the display as a whole, rather
than focusing on only those elements that were also present
in the constitutional displays in Lynch or Allegheny County,
it seems to me that the dominant message of the display is
an endorsement of religion.
By underestimating the importance of the size, location,
and number of the secular elements of the display, we have
now essentially given governments free reign to design their
religious displays in as sectarian a manner as possible. In
43
addition, if the government should happen to cross the line
and convey an unconstitutional message, it needs merely to
add one or two more token secular figures and try again. I do
not think this is the proper message to deliver.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
44
Appendix A
45
Appendix B
46
Appendix C
47