Gilfillan v. City of Philadelphia

637 F.2d 924
Court of Appeals for the Third Circuit·Decided December 30, 1980·No. No. 79-2786·Published·Cited by 41 cases

Opinions

OPINION OF THE COURT

ROSENN, Circuit Judge.

On October 3, 1979, more than a million people came together at Philadelphia, Pennsylvania to hear Pope John Paul II offer Mass and deliver a sermon at the City’s Logan Circle. The liturgical service, the largest event during the Pope’s two-day visit to Philadelphia, generated an unprecedented outpouring of warmth and good will felt throughout the City for months following. No one disputes that the historic visit of the Pope had a lasting and beneficial effect on the people of Philadelphia. It also favorably enhanced the image of the City. This case, however, requires us to decide a narrow question of the constitutionality of the expenditure by the City of Philadelphia of more than $200,000 to construct a special platform and to provide other extraordinary assistance for the papal ceremonies at Logan Circle. Without reflecting in any way on the brilliant success of the Pope’s visit to Philadelphia, what we must examine in this case is whether certain governmental actions by the City were permissible under the Establishment Clause of the first amendment of the Constitution.

I.

In September of 1979, Pope John Paul II, the temporal leader of the Roman Catholic Church, announced that he would undertake a “pastoral mission” to the United States and that his trip would include a stop in Philadelphia. City officials then began a series of meetings with the leaders of the Archdiocese of Philadelphia in preparation for the Pope’s visit. Out of these meetings grew plans for a Mass at Logan Circle. In áccordance with those plans, and with the approval of the Archdiocese, the City designed and built, over Swann Fountain in Logan Circle, a large platform to be used as the dais from which the Pope would celebrate Mass and distribute Holy Eucharist, a sacrament of the Roman Catholic Church, and bring his message to Philadelphia.

This challenge came shortly after the City announced its construction plans. Plaintiffs Susan Jane B. Gilfillan and Reverend Mary Anne Forehand, taxpayers of the City of Philadelphia, brought suit to enjoin the City from expending funds to build the platform for the Pope, alleging a violation of the first amendment’s Establishment Clause.1 With the approval of the district court, the parties stipulated to an order under which construction was allowed to proceed, but the Archdiocese agreed to reimburse the City for the cost of the platform and related construction should there be a final judgment that the City could not constitutionally pay for the items.

The finished platform was an impressive creation that significantly helped beautify the Mass offered by the Pope. Paid for entirely by the City, the platform was cylindrical in shape, 28V2 feet high and 144 feet in diameter. Fifty-seven steps, 60 feet wide, extended 110 feet from the platform to the street. On the platform was a 16-step, four-sided pyramid, 45 feet on a side and 14 feet high. On this pyramid was another small, 5-step pyramid upon which was placed a throne used by the Pope. The platform was painted white; the top of the large pyramid and portions of the steps [928] were carpeted in red. In one corner of the large pyramid stood a white, 36-foot high cross. See photograph reproduced at 480 F.Supp. 1161, 1170 (E.D.Pa.1979). The City encircled the platform with nearly $50,000 worth of shrubbery and yellow chrysanthemums. The City also rented 20,000 chairs for seating of selected guests; it supplied a sound system, part rented and part purchased at a cost of more than $50,000; and it constructed a nearby, separate platform for a 360-voice choir.

On the afternoon of October 3,1979, Pope John Paul II led a procession from the Cathedral of Saints Peter and Paul to the Logan Circle platform. There he began a service that lasted more than two hours, during which he delivered a homily and personally distributed Communion to 150 worshipers. With him on the platform were a large number of clergy, but no city officials. The 20,000 seats nearest the platform, the chairs rented by the City, were available only to ticket holders, and tickets could be obtained only through the Archdiocese. The platform, illuminated for six days prior to the service, was left in place over Swann Fountain for more than one week after the service, but it was used for no other purpose.

After the Pope’s visit had ended, the City and those contesting the City’s expenditures presented their arguments before Judge Raymond Broderick of the United States District Court for the Eastern District of Pennsylvania. The plaintiffs opposed only a few items. Not challenged was the City’s construction of a platform at the airport, a platform used by city as well as religious officials in welcoming the Pope to Philadelphia. Not challenged was the City’s deployment of police along the parade route and at all events attended by the Pope. Not challenged was the Pope’s use of public areas such as Logan Circle for his religious activities. Rather, plaintiffs contested only the City’s payment for the construction of the platform in Logan Circle, a platform used exclusively for a religious service, and a few other extraordinary expenditures, all a kind never offered to other organizations, religious or non-religious. Specifically, these additional expenditures were for renting of the chairs and a sound system, the planting of shrubbery and flowers, and the building of the smaller platform for the choir. The plaintiffs argued that such assistance cannot be offered without violating the Establishment Clause of the first amendment of the Constitution.

On November 9, 1979, Judge Broderick, in a scholarly and well reasoned opinion, held that the expenditures were unconstitutional and ordered the reimbursement. 480 F.Supp. 1161 (E.D.Pa.1979). The amount to be reimbursed totalled $204,569 and included the cost of materials and labor, less the value of reusable items. See id. at 1170-71.2 The City appealed.3 We affirm.

II.

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