McCreary v. Stone

739 F.2d 716
CourtCourt of Appeals for the Second Circuit
DecidedJune 21, 1984
DocketNo. 1071, Docket 83-9052
StatusPublished
Cited by56 cases

This text of 739 F.2d 716 (McCreary v. Stone) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCreary v. Stone, 739 F.2d 716 (2d Cir. 1984).

Opinion

PIERCE, Circuit Judge:

■ This is an appeal from a judgment of the United States District Court for the Southern District of New York, Charles E. Stewart, Jr., Judge, entered on December 15, 1983, holding that it was “proper” for defendant-appellee Village of Scarsdale (“Village” or “Scarsdale”) to deny plaintiffs-appellants’ applications to display a creche .in a public park during the Christmas holiday season in order to avoid contravening the establishment clause of the first amendment. McCreary v. Stone, 575 F.Supp. 1112, 1133 (S.D.N.Y.1983). The district court’s decision was rendered prior to the Supreme Court’s decision in another creche case, Lynch v. Donnelly, — U.S. -, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). Based upon the controlling precedents of Lynch and Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (19.81), we reverse and remand.

BACKGROUND

In simplest terms, this appeal concerns applications by two groups to place a creche at Boniface Circle, a Village-owned park located in the center of the business district of Scarsdale, for a period of approximately two weeks during the Christmas holiday season. Plaintiffs-appellants in the first group, twelve in number, are mainly residents of Scarsdale. We will collectively refer to these plaintiffs and other residents who applied to display a creche in Scarsdale on December 7, 1982, as the “Citizens’ Group.” Plaintiffs-appellants in the second [718]*718group, seven in number, are either residents of Scarsdale or have a “Scarsdale, N.Y.” post office address. They are representatives of plaintiff-appellant The Scars-dale Creche Committee, which is a private unincorporated association of seven Catholic and Protestant churches; all of the churches are located in Scarsdale or have a “Scarsdale, N.Y.” post office address. Each church contributes approximately twenty-five dollars annually to The Scars-dale Creche Committee to defray the costs of maintaining and displaying one of the subject creches herein. We will collectively refer to these local residents, the churches they represent and The Scarsdale Creche Committee as the “Creche Committee” or as the “Committee.”

Scarsdale is a municipal corporation located in the County of Westchester, State of New York. Scarsdale’s governing body is known as the Board of Trustees of Scars-dale (the “Board”) and usually is elected under a political system known as the NonPartisan system, in which the Citizens Party nominates candidates for trustees and mayor. The Board governs the affairs of Scarsdale’s 17,000 religiously diverse residents.

Among the public properties under the jurisdiction, management and control of the Village and its Board are several parks and other public facilities located in Scarsdale; they include Wayside Cottage, Village Hall, the Scarsdale Public Library, Chase Road Park and Boniface Circle. There are eight “Rules and Regulations Governing Park and Recreation Facilities” that have been in effect in Scarsdale since 1979. These rules state, inter alia, that groups desiring use of parks should apply to the Superintendent of Parks, Recreation and Conservation; that groups given permission to use parks should leave them in a clean and orderly condition and will be held responsible for any damage; and that groups using park facilities may be required to obtain public liability insurance. There is no published statute, law, ordinance, rule or regulation in effect in Scarsdale that requires persons wishing to use Scarsdale’s parks or other public properties first to apply for permission from the Board, and there are no published standards upon which the Board bases its decisions to grant or deny applicants permission to use Scarsdale’s parks or other public properties. However, Village Code Section 4-1-2 states that “[n]o person shall interfere with, take or use any of the property of the Village without first obtaining the consent of the Village Manager.”

It is undisputed that throughout the years covered by this litigation, Scarsdale, acting.through its Board, usually granted requests for access to and use of its parks and public properties. Rather than issue a complete denial, on each occasion that it did not grant a specific request, the Board usually chose to approve access to and use of alternative public property. For example, in 1957, the Girl Scouts requested permission to conduct a baked goods sale at Boniface Circle. At the mayor’s suggestion, the Board passed a resolution granting permission to the Girl Scouts to use Chase Road for its sale because the Board thought this public location was safer.

It is also undisputed that the Board has granted general use of its parks and public properties for purposes such as speechmaking, demonstrating, participating in silent vigils and distributing petitions and other communications. Similarly, the Board has been aware of numerous requests to erect displays on Village-owned property. For example, the Scott Room of the Scarsdale Public Library often has been used for the purpose of exhibiting and displaying articles of an artistic, scientific, literary, civic, cultural, educational or religious nature. Books, miniature military figures, rare stamps and Hanukkah menorahs are among the articles that groups have exhibited and displayed in the library.

Moreover, it is undisputed that Scarsdale has granted access to parks and public properties to groups associated with particular religions. For example, in recent years Scarsdale was aware that Wayside Cottage was the location of religious services by Congregation M’Vakshe Derekh [719]*719and the Bahai Faith Group. The parties stipulated that the June 23, 1983, edition of the Scarsdale Inquirer reported that Congregation M’Vakshe Derekh was conducting its regular Sabbath services at Wayside Cottage. Wayside Cottage also has been used for a Catholic Mass, a Unitarian wedding ceremony, Bar Mitzvahs and religious services by the Bet Ami Conservative.Synagogue. Further, in 1956, the Board granted permission to the Reconstructionist Synagogue of Westchester to use the Cross-way Firehouse for the purpose of conducting worship services in September of that year.

Like innumerable local communities, Scarsdale celebrates several holidays during the course of any given year. The holiday that is the center of discussion herein is Christmas. Christmas and Sears-dale’s parks and public properties intersect in several ways. For many years, including 1981 and 1982, Scarsdale permitted use of several streets located in the Heathcote, Central Business (which includes Boniface Circle) and Garth Road areas of the Village by the Scarsdale Chamber of Commerce for the purpose of installing and displaying Christmas lights and ornaments. Scars-dale allowed the Chamber of Commerce to display these lights on Village-owned utility poles for approximately one month each year, commencing on or about December 1. Scarsdale also permitted the members of the Chamber of Commerce to broadcast Christmas music in these areas during the time the Christmas lights and ornaments were displayed.

Additionally, for many years, including 1981 and 1982, Scarsdale permitted use of Boniface Circle by the Chamber of Commerce for the purpose of installing and displaying Christmas ornaments for approximately one month each year, commencing on or about December 1, on two lamp posts in Boniface Circle and on the lamp posts directly surrounding Boniface Circle.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Incantalupo v. Lawrence Union Free School District No. 15
829 F. Supp. 2d 67 (E.D. New York, 2010)
Skoros v. City of New York
437 F.3d 1 (Second Circuit, 2006)
Leydon v. Town of Greenwich
777 A.2d 552 (Supreme Court of Connecticut, 2001)
Boyd v. Coughlin
914 F. Supp. 828 (N.D. New York, 1996)
Capitol Square Review & Advisory Board v. Pinette
515 U.S. 753 (Supreme Court, 1995)
Creatore v. TOWN OF TRUMBULL, CONN.
871 F. Supp. 119 (D. Connecticut, 1994)
Flamer v. City of White Plains, NY
841 F. Supp. 1365 (S.D. New York, 1993)
Chabad-Lubavitch v. Miller
5 F.3d 1383 (Eleventh Circuit, 1993)
Howard T. Kreisner v. City of San Diego
988 F.2d 883 (Ninth Circuit, 1993)
Chabad-Lubavitch Of Georgia v. Zell Miller
976 F.2d 1386 (Eleventh Circuit, 1992)
Kreisner v. City of San Diego, Cal.
788 F. Supp. 445 (S.D. California, 1991)
Doe v. Small
934 F.2d 743 (Seventh Circuit, 1991)
John Doe v. City of Clawson
915 F.2d 244 (Sixth Circuit, 1990)
Smith v. County Of Albemarle
895 F.2d 953 (Fourth Circuit, 1990)
Kaplan v. City of Burlington
891 F.2d 1024 (Second Circuit, 1989)
American Civil Liberties Union v. Wilkinson
701 F. Supp. 1296 (E.D. Kentucky, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
739 F.2d 716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccreary-v-stone-ca2-1984.