Carol A. Elewski v. City of Syracuse Roy Bernardi, in His Official Capacity as Mayor of the City of Syracuse

123 F.3d 51, 1997 U.S. App. LEXIS 19873

• Court: Court of Appeals for the Second Circuit
• Decided: July 31, 1997
• Docket: 2061, Docket 96-7227
• Status: Published

Opinions

WINTER, Chief Judge:

Carol A. Elewski, an atheist and resident of the City of Syracuse, brought this action under 42 U.S.C. § 1983 seeking declaratory and injunctive relief against the display of a creche by the City in a downtown public park. Having denied Elewski’s application for a preliminary injunction, the district court held a consolidated hearing on the merits pursuant to Rule 65(a)(2), Fed.R.Civ.P., and entered judgment against her. We affirm.

BACKGROUND

During the 1995 winter holiday season, as in past years, the City erected and displayed a creche (or nativity scene) in Clinton Square, a public park in downtown Syracuse. The origins of the creche are unclear, perhaps because of its age. Indeed, the record does not even establish when it was first displayed, the earliest possible date being 1913. However, it is clear that the City, owns it. As displayed in Clinton Square in 1995, the creche faced Salina Street, a major downtown thoroughfare, and rested on an approximately ten-foot by eight-foot wooden platform raised about two feet above sidewalk level. Included in the creche were statues representing Jesus, Mary, and Joseph, a shepherd, a donkey, a lamb, and an angel suspended over the other figures and bearing a banner reading “Gloria in Excelsis Deo” (“Glory to God in the Highest”). At the City’s expense, the creche was illuminated at night by two forty-watt spotlights. It is erected and taken down each year by City employees using City equipment. During the past winter holiday season, three city employees performed these tasks at a cost of $396.00.

The creche is located at the foot of a fifty-five foot evergreen tree decorated with colored lights and a star at the top. The créche and the holiday evergreen tree were at the corner of Salina and Water Streets and were surrounded by sawhorse barricades with red lettering reading “SPECIAL EVENTS” and “ROY A BERNARDI, MAYOR” with “DPW” on the slats. The City pays for the transport, erection, illumination, and dismantling of the tree.

Also at its expense, the City decorates other parts of downtown Syracuse with secular symbols during the winter holiday season. Lampposts, including those on Salina and Water Streets, are adorned with greenery, wreaths, and colored lights. Another area the City decorates is Hanover Square, which is located on the other side of Water Street and in the next block approximately 200 feet from Clinton Square. The City’s decorations in Hanover Square ■ consist of twelve wire bells with artificial greenery -and lights, an evergreen tree with colored lights and a star, a snowman and a reindeer, both made up óf lights and wire.

Hanover Square is also the site of a menorah owned by Chabad Lubavitch, a private religious organization. The menorah, located approximately 300 feet from the creche, is displayed during a portion of the same period of time in which the City displays holiday decorations in the downtown area. Chabad Lubaviteh applied for (and was granted) a permit to place the menorah. A sign posted on the menorah reads:

THE LIGHTS OF THE MENORAH COMMEMORATE THE MIRACLE OF CHANUKAH — THE FREEDOM OF THE HUMAN SPIRIT.

FREEDOM FROM TYRANNY AND OPPRESSION

THE VICTORY OF LIGHT OVER DARKNESS

HAPPY CHANUKAH

CHABAD LUBAVITCH

424^0363

Chabad Lubaviteh is assisted by City workers in erecting, dismantling, and lighting the menorah. It is billed by the City for partial reimbursement of the City’s costs. Last season, that bill was for $267.68. However, the City bore some $460 of costs for providing-fire department personnel during the lighting ceremony.

Ronald Jennings, Commissioner of Parks, Recreation, and Youth Programs, testified about the decorations and a number of events such as story-telling that the City sponsors during the winter holiday season, including the display of the menorah. As-sei’ting the City’s openness to different religions, he further testified that “[i]f a request is made and is reasonable, we try to accommodate it.” As to the timing and purpose of the City’s activities, the commissioner stated that the City’s celebration began earlier than usual, on November 24, 1995 (the day after Thanksgiving) rather than the first Friday in December, in response tp requests from merchants that the downtown holiday season begin at the same time as at the suburban shopping malls. He testified that the purpose of the holiday decorations was to bring the community together to celebrate the holiday season and to promote business in the downtown area. He also testified that the various holiday decorations are determined by the City and not by any religious organization.

The only other witness who testified at the hearing was Roy A. Bernardi, Mayor of the City. The Mayor agreed with Commissioner Jennings that in addition to bringing the community together for the holidays, the purpose of the various decorations was to promote downtown business. The Mayor also stated that the business community had lobbied for the early beginning to the holiday ceremonies.

Finding that the creche was not a religious endorsement in light of its overall setting and that the various decorations had a secular purpose, the district court found no Establishment Clause violation. Elewski v. City of Syracuse, 95-CV-1830 (FJS), 1996 WL 31169 (N.D.N.Y. Jan.19, 1996).

DISCUSSION

Neither Elewski nor the City disputes that the district court’s findings of adjudicative fact are subject to reversal only if clearly erroneous, Fed.R.Civ.P. 52, and that de novo review is appropriate for conclusions of law or mixed fact and law. United States v. Moore, 968 F.2d 216, 221 (2d Cir.1992).

Establishment Clause caselaw applies a highly fact-specific test to government-sponsored creches: Would a reasonable observer of the display in its particular context perceive a message of governmental endorsement or sponsorship of religion? County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573, 593-94, 599-600, 109 S.Ct. 3086, 3100-01, 106 L.Ed.2d 472 (1989); Lynch v. Donnelly, 465 U.S. 668, 690, 693-94, 104 S.Ct. 1355, 1368, 1369-70, 79 L.Ed.2d 604 (1984) (O’Connor, J., concurring); see also Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995); Creatore v. Town of Trumbull, 68 F.3d 59, 61 (2d Cir.1995); Chabad-Lubavitch of Vermont v. City of Burlington, 936 F.2d 109, 111 (2d Cir.1991) (per curiam), cert. denied, 505 U.S. 1218, 112 S.Ct. 3026, 120 L.Ed.2d 897 (1992), Kaplan v. City of Burlington, 891 F.2d 1024, 1030 (2d Cir.1989), cert. denied, 496 U.S. 926, 110 S.Ct. 2619, 110 L.Ed.2d 640 (1990). The question of whether a reasonable viewer would per-ceiye a message of endorsement of religion from a government-sponsored creche is “in large part a legal question to be answered on the basis of judicial interpretation of social facts.” Lynch v. Donnelly, 465 U.S. 668, 694, 104 S.Ct. 1355, 1369, 79 L.Ed.2d 604 (1984) (opinion of O’Connor, J.). .

We have noted that the outcome-determinative opinions of Justices O’Connor and Souter in Capitol Square should guide us, and that “ ‘the endorsement test necessarily focuses upon the perception of a reasonable, informed observer [who] must be deemed aware of the history and context of the community and forum in which the religious display appears.’ ” Creatore, 68 F.3d at 61 (quoting Capitol Square, 515 U.S. at 773-74, 779-80, 115 S.Ct. at 2452, 2455 (O’Connor, J., concurring in part and concurring in the judgment)).

After Allegheny and Lynch, therefore, not every eity-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. Lynch, 465 U.S. at 671, 104 S.Ct. at 1358. 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. Allegheny, 492 U.S. at 598, 109 S.Ct. at 3103; Lynch, 465 U.S. at 671, 688, 104 S.Ct. at 1358, 1366.

In Allegheny, however, the Court struck down a stand-alone creche on the central staircase of a courthouse. 492 U.S. at 598-602, 109 S.Ct. at 3103-3105. The creche had been erected by a religious organization with a plaque indicating its sponsor. By contrast, in the same case, the Supreme Court upheld the display of a privately owned menorah. The menorah was stored, erected, and removed at City expense each year. Id. at 587, 109 S.Ct. at 3097 (opinion of Blaekmun, J.). It was displayed next to the City-County Building and City’s Christmas tree at the foot of which was a sign bearing the mayor’s name.¹ Id. at 581-82, 613-21, 109 S.Ct. at 3094, 3111-15 (opinion of Blaekmun, J.); id. at 632-37, 109 S.Ct. at 3121-24 (opinion of O’Connor, J.); id. at 655, 109 S.Ct. at 3133 (opinion of Kennedy, J. joined by Rehnquist, C.J., White, J., and Sealia, J.).

Although Allegheny dealt in large part with governmental favoring of private religious speech through a private creche and Lynch concerned public expression through a publicly sponsored creche, in either situation the test is whether a message of endorsement would be perceived by a reasonable observer. Capitol Square, 515 U.S. at 762-66, 115 S.Ct. at 2447-48. Thus, if a creche’s context — like the context of the creche in Lynch or that of the menorah in Allegheny— neutralizes the message of governmental endorsement, then the creche passes muster under the Establishment Clause.

Elewski argues that the creche here is an isolated display and that the menorah and secular symbols in Hanover Square are not part of the relevant context. We disagree. A reasonable observer is not one who wears blinders and is frozen in a position focusing solely on the creche. To get to either Clinton or Hanover Square, one has to use streets with lampposts decorated with artificial greenery, wreaths, and colored lights. The squares themselves are across the street from each other. A reasonable observer traveling on Salina Street would thus observe decorated lampposts, lights, decorated trees, reindeer, a snowman, and wire bells. As the traveler approached the intersection of Salina and Water Streets, the creche would be visible on the right and the menorah would become visible on the left. A photograph in the record indicates that a traveler on Water Street approaching the intersection would have both the créche/holiday tree exhibition and the menorah in view. The menorah is thus on the same street as the ereche/holiday tree but in the next block.

A reasonable observer would also know that downtown Syracuse merchants encourage the holiday display, including its earlier than usual erection in 1995, to attract shoppers to the downtown area and away from suburban malls. Finally, a reasonable observer would be aware that the City actively attempts to accommodate all groups’ reasonable requests for additional displays and events during the holiday season.

We therefore agree with' the district court that a reasonable observer would not perceive the créche as a message of endorsement of Christianity. Such an observer would perceive a celebration of the diversity of the holiday season, including traditional religious and secular symbols of that season, and that a principal purpose of that celebration was to preserve the economic viability of downtown retailers. We therefore find no impermissible effect resulting from the display of the creche in the setting described.

However, in addition to not having a .primary effect of advancing or inhibiting religion, a statute or practice must not foster an excessive entanglement with religion and must have a secular purpose. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2110-11, 29 L.Ed.2d 745 (1971). Elew-ski makes no claim of excessive entanglement. The district court found a secular purpose for the creche as part of the entire display, and this finding is not clearly erroneous. The court credited evidence of a desire to bring the community together and to promote business. The creche, by representing one of the origins of the holiday season, contributed to those goals. Elewski, 1996 WL 31169 at *7. We agree.

Turning from the general display of the creche to its funding compared with that of the menorah, Elewski contends that full funding of the creche while requiring partial reimbursement in the case of the menorah is discriminatory and should be subject to the strict scrutiny standard of Larson v. Valente, 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). Whether Elewski has standing to raise this issue is anything but clear, but we see no cognizable discrimination. The funding of the créche, while covering all costs, was less than the cost to the City of having the menorah erected and lit. The fiscal solution reached was a reasonable accommodation in a situation in which the creche was publicly owned while the menorah was erected by a private group that openly sponsored the display.

Finally, Elewski contends that the.barricades with the mayor’s name and “SPECIAL EVENTS” painted on them have the effect of endorsing the religious message of the créche. We disagree. A reasonable observer would perceive the sawhorse barricades as entirely functional and not communicative of a message .of religious endorsement.

CONCLUSION

We therefore affirm.

1 . The sign was entitled "Salute to Liberty” and read: "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.” Allegheny, 492 U.S. at 582, 109 S.Ct. at 3094.