Conrad v. City & County of Denver

724 P.2d 1309, 1986 Colo. LEXIS 614
CourtSupreme Court of Colorado
DecidedSeptember 8, 1986
DocketNo. 84SA313
StatusPublished
Cited by10 cases

This text of 724 P.2d 1309 (Conrad v. City & County of Denver) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Conrad v. City & County of Denver, 724 P.2d 1309, 1986 Colo. LEXIS 614 (Colo. 1986).

Opinions

ROVIRA, Justice.

Once again we are called upon to determine whether the nativity scene, or creche, displayed annually on the steps of the Denver City and County Building during the [1310]*1310Christmas season violates the Preference Clause of the Colorado Constitution, article II, section 4.1

On December 10, 1981, four persons2 who described themselves as tax-paying non-Christians filed a complaint in the Denver District Court alleging that the nativity scene erected by the defendant, the City and County of Denver (Denver), represents the birth of Jesus, a Christian religious figure, and that the display and its funding through tax revenues violate article II, section 4, of the Colorado Constitution. The complaint prayed for the following relief: (1) a declaratory judgment that the actions of the defendant violate article II, section 4, of the Colorado Constitution; (2) a preliminary injunction enjoining Denver from displaying the nativity scene on the steps of the City and County Building; (3) a permanent injunction prohibiting the display of the nativity scene on publicly owned property; and (4) a court order requiring Denver to sell the nativity scene at a public auction.

After the plaintiffs presented their evidence, the trial court took judicial notice that the Christian religion is the only religion symbolized by the nativity display. Denver then moved to dismiss, arguing that the plaintiffs failed to make a prima facie showing that the nativity scene violated article II, section 4, of the Colorado Constitution. The trial court granted the motion, and the plaintiffs appealed the ruling to this court.

On appeal, we vacated the order of dismissal and remanded for further proceedings. Conrad v. City and County of Denver, 656 P.2d 662 (Colo.1982) (Conrad I). In reversing the trial court, we applied the three-part test enunciated in Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971), to the evidence adduced by the plaintiffs and con-eluded that they had made a prima facie showing of a violation of the second part of the Lemon test:

We conclude that the plaintiffs have established a prima facie case that a principal or primary effect of the display is to advance the Christian religion by causing a substantial number of persons to perceive Denver to be expressing a preference for that religion contrary to Colo. Const. Art. II, § 4. Because the plaintiffs have established a prima facie case as to one of the three applicable criteria, the judgment of the district court must be reversed.

656 P.2d at 675 (footnote omitted). We also noted that upon remand the trial court could, at its discretion, allow the plaintiffs to reopen their case to present further evidence in light of the legal principles announced in the opinion. 656 P.2d at 678.

After the trial on remand in which both parties presented evidence, the trial court issued written findings of fact, conclusions of law, and judgment in which it ruled that the Denver nativity display did not violate the Colorado Constitution, article II, section 4. We affirm.

I.

On remand, the plaintiffs attempted to show the Christian nature of the nativity display, that the purpose and effect of erecting the display are to advance Christianity, and that erecting and maintaining the nativity scene result in unconstitutional political divisiveness in the Denver community. On the other hand, Denver attempted to establish that the creche, when viewed in the context of the entire Christmas holiday display, does not constitute preferential treatment within the meaning of article II, section 4, of the Colorado Constitution. Specifically, Denver’s case focused on showing that the creche is included in the [1311]*1311display for secular purposes and that the primary effect of the nativity display is neither to advance nor inhibit religion.

A brief summary of the testimony elicited from various witnesses for the plaintiffs at either the initial hearing in 1982 or on remand will be helpful to an understanding of the issues raised in this case.

A Muslim religious leader testified that the display of the nativity scene constituted idolatry and was therefore contrary to the dictates of the Koran. He disagreed with describing the display as a “historical depiction of a national legal holiday.” Instead, he characterized the display as a graven image in violation of his own religious beliefs.

A Denver rabbi, Stephen Foster, accepted as an expert in Judaism, testified that based on his contacts with the Denver Jewish community, a “substantial number” of Jews would view the display of the nativity by Denver as an establishment of religion. He further stated that he believes that the nativity scene was placed on the steps of City Hall not as a secular object but as a religious object. He did not think that the placement of the nativity scene near Santa Claus and the other secular objects detracted from its religious character. The rabbi further stated that the effect of placing the creche in the context of a public display implies that non-Christian religions are not part of the American way of life.

Phillip Giles, a Universalist, testified that Christianity was favored by the inclusion of the nativity scene in the Denver holiday display and that Universalists do not believe that the nativity scene depicts an actual historical event.

Another expert on religion, Mary Ann Surges, stated that the cessation of activities which takes place on Christmas — the closing of courtrooms, banks, and so forth — is not religious. Nor are family reunions, good will, or selfless conduct necessarily religious. But the display of the nativity scene is religious. Surges was of the opinion that some Christians would perceive the display as a governmental “validation” of Christianity.

In attempting to show that the nativity scene causes political divisiveness in the Denver community, plaintiffs entered into evidence a collection of letters to the editor, editorials, and cartoons from local newspapers, all commenting on the nativity scene — for and against. The offer led the trial court to take judicial notice of the existence of a controversy. In so doing, the court noted that the controversy is “of such common knowledge” and “nothing of recent vintage.” Plaintiffs also introduced the results of a 1980 poll conducted by a local television station concerning the nativity display and the use of tax dollars to support religious activities. Moreover, William McNichols testified that while he was mayor of Denver he had received “thousands” of letters concerning the nativity display from all levels of society. He stated the letters were both for and against the display.

Denver also offered a number of witnesses in support of its position that the nativity scene does not violate the Preference Clause. Reverend Hamilton, of the First United Methodist Church, testified that he thought the purpose of the nativity display was to recognize a historical fact, the birth of Jesus of Nazareth. He stated that the circumstances of Jesus’ birth are religious beliefs as opposed to historically verifiable beliefs.

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Cite This Page — Counsel Stack

Bluebook (online)
724 P.2d 1309, 1986 Colo. LEXIS 614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conrad-v-city-county-of-denver-colo-1986.