Separation of Church & State Committee v. City of Eugene of Lane County

93 F.3d 617, 96 Daily Journal DAR 10127, 96 Cal. Daily Op. Serv. 6187, 1996 U.S. App. LEXIS 20990

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 20, 1996
• Docket: No. 93-35094
• Status: Published

Opinions

Per Curiam Opinion; Concurrence by Judge O’SCANNLAIN.

PER CURIAM.

In this second of two similar cases,¹ we must decide whether the City of Eugene, Oregon violates the Establishment Clause of the United States Constitution by its ownership and display of a fifty-one foot concrete Latin cross in a public park on Skinner’s Butte.

I

The City of Eugene (“City”) maintains a public park on and around Skinner’s Butte, a hill cresting immediately north of the City’s downtown business district. The land was donated to the City and has been maintained as a public park for many years. From the late 1930s to 1964, private individuals erected a succession of wooden crosses in the park, one replacing another as they deteriorated. In 1964, private individuals erected the cross at issue in this litigation. It is a fifty-one foot concrete Latin cross with neon inset tubing, and it is located at the crest of Skinner’s Butte. The parties who erected the cross did not seek the City’s permission to do so beforehand; however, they subsequently applied for and received from the City a building permit and an electrical permit.

Since 1970, the City has illuminated the cross for seven days during the Christmas season, five days during the Thanksgiving season, and on Memorial Day, Independence Day, and Veteran’s Day.

The cross has been the subject of litigation since the time it was erected. In 1969, the Oregon Supreme Court held that the cross violated both the federal and the Oregon Constitutions because it was erected with a religious purpose and created the inference of official endorsement of Christianity. Lowe v. City of Eugene, 254 Or. 518, 463 P.2d 360, 362-63 (1969), cert. denied, 397 U.S. 1042, 90 S.Ct. 1366, 25 L.Ed.2d 654, reh’g denied, 398 U.S. 944, 90 S.Ct. 1838, 26 L.Ed.2d 283 (1970). Soon after, the City held a charter amendment election, and on May 26, 1970, the voters, by a wide margin, approved an amendment to the City Charter designating the cross a war memorial. Pursuant to that amendment, the cross was deeded to the City as a gift, and a bronze plaque was placed at the foot of the cross dedicating it as a memorial to war veterans. The Eugene City Charter provides that the “concrete cross on the south slope of the butte shall remain at that location and in that form as property of the city and is hereby dedicated as a memorial to the veterans of all wars in which the United States has participated.”

After the election, the parties who erected the cross brought suit to have Lowe set aside. The Oregon Supreme Court did so on the basis of the “changed circumstances” that had occurred since Lowe was decided and held that the cross no longer violated the state and federal constitutions. Eugene Sand and Gravel, Inc. v. City of Eugene, 276 Or. 1007, 558 P.2d 838, 345 (1976), cert. denied, 434 U.S. 876, 98 S.Ct. 226, 54 L.Ed.2d 155 (1977).

In this ease, Separation of Church and State Committee (“Separation”),² brought suit in the United States District Court for the District of Oregon seeking injunctive and declaratory relief under 42 U.S.C. § 1983, alleging a violation of the Establishment Clause of the United States Constitution.³ The parties filed cross-motions for summary judgment, and the district court granted the City’s motion. The district court held that the cross has a secular purpose, does not advance religion, and does not foster an excessive entanglement with religion. See Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111-12, 29 L.Ed.2d 745 (1971).

II

The fifty-one foot Latin cross located in a public park on Skinner’s Butte clearly represents governmental endorsement of Christianity. The maintenance of the cross in a public park by the City of Eugene may reasonably be perceived as providing official approval of one religious faith over others.

The Supreme Court has focused Establishment Clause analysis on whether governmental practice has the effect of endorsing religion. Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 592, 109 S.Ct. 3086, 3100, 106 L.Ed.2d 472 (1989). As Justice Blackmun observed for the Court in Allegheny:

Whatever else the Establishment Clause may mean (and we have held it to mean no official preference even for religion over nonreligion, see, e.g., Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 109 S.Ct. 890, 103 L.Ed.2d 1 (1989)), it certainly means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions). “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 1683, 72 L.Ed.2d 33 (1982).

Id. at 605, 109 S.Ct. at 3107.

In the present case, the City urges that the cross is no longer a religious symbol but a war memorial. This argument, however, fails to withstand Establishment Clause analysis. In Grand Rapids School District v. Ball, 473 U.S. 373, 390, 105 S.Ct. 3216, 3226, 87 L.Ed.2d 267 (1985), the Supreme Court stated:

It follows that an important concern of the effects test is whether the symbolic union of church and state effected by the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices.

Id. (emphasis added). Furthermore, as Justice O’Connor observed in her concurring opinion in Lynch v. Donnelly, 465 U.S. 668, 687, 104 S.Ct. 1355, 1366-67, 79 L.Ed.2d 604 (1984), the “éffect” prong of the Lemon test “asks whether, irrespective of government’s actual purpose, the practice ... in fact conveys a message of endorsement or disapproval.” Id. at 690, 104 S.Ct. at 1368 (O’Connor, J., concurring); see also Wallace v. Jaffree, 472 U.S. 38, 56 n. 42, 105 S.Ct. 2479, 2489-90 n. 42, 86 L.Ed.2d 29 (1985) (quoting Lynch, 465 U.S. at 690, 104 S.Ct. at 1368 (O’Connor, J., concurring)).

There is no question that the Latin cross is a symbol of Christianity, and that its placement on public land by the City of Eugene violates the Establishment Clause. Because the cross may reasonably be perceived as governmental endorsement of Christianity, the City of Eugene has imper-missibly breached the First Amendment’s “wall of separation” between church and state.⁴

REVERSED and REMANDED.⁵

1 . By separate published opinion filed today, we also decide the constitutionality, under the No Preference Clause of the California Constitution, of a 103-foot concrete and steel Latin cross owned and displayed by the City and County of San Francisco on Mount Davidson Park. Carpenter v. City and County of San Francisco, 93 F.3d 627 (9th Cir.1996).

2 . As a threshold matter, we note that Separation is composed of local citizens who have standing to bring this challenge because they alleged that the cross prevented them from freely using the area on and around Skinner’s Butte. See Ellis v. City of La Mesa, 990 F.2d 1518, 1523 (9th Cir.1993), cert. denied,-U.S.-, 114 S.Ct. 2707, 129 L.Ed.2d 834 (1994).

3 . The First Amendment provides that "Congress shall make no law respecting an establishment of religion....” U.S. Const, amend. I. Appellants' challenge is based upon the federal Constitution, not the Oregon Constitution; consequently, we have no reason to address Oregon constitutional issues.

4 . The idea of strict separation between church and state existed well before Thomas Jefferson wrote his famous January 2, 1802 letter to the Danbury Baptist Association in which he states that the "act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' ... buil[t] a wall of separation between church and state.” Leonard A. Levy, Jefferson and Civil Liberties 7-8 (1963). See also Everson v. Board of Education, 330 U.S. 1, 8-16, 67 S.Ct. 504, 507-12, 91 L.Ed. 711 (1947); Reynolds v. U.S., 98 U.S. 145, 163-164, 25 L.Ed. 244 (1878). In fact, in 1785, six years before the adoption of the Bill of Rights, Jefferson and his close friend, James Madison, led the fight in the Virginia legislature against a state tax for support of Virginia’s established religion. Everson, 330 U.S. at 11-12, 67 S.Ct. at 509-10. Not only was the tax bill defeated, but the Virginia assembly passed the Act for Establishing Religious Freedom, which was drafted by Jefferson and pushed through the legislature by Madison. Id. at 12, 67 S.Ct. at 510 (citing 12 Hening, Statutes of Virginia (1923) 84). See also Levy, supra, at 7.

Thus, the Supreme Court has "recognized that the provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute.” Everson, 330 U.S. at 13, 67 S.Ct. at 510 (citations omitted). Further, Professor Leonard W. Levy, who has written extensively about Thomas Jefferson and the Establishment Clause, has observed: "The significance of the [Virginia] statute is not just that it broadened freedom of worship or of opinion in matters of religion but that it separated church and state in the context of protecting religious liberty.” Leonard W. Levy, The Establishment Clause 68-69 (2d ed. rev. 1994).

5 . The concurring opinion of Judge O’Scannlain conclusorily criticizes our legal analysis, yet, curiously, his opinion tracks with our analysis and reliance on the endorsement test of Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 592, 109 S.Ct. 3086, 3100, 106 L.Ed.2d 472 (1989). Discussion of the views of the various Justices on the Lemon test is better resolved by that Court and serves no purpose here than to otherwise confuse a simple, straightforward issue.

Furthermore, we think the parties should take heed that this court cannot render advisory opinions on constitutional issues. To suggest there are various remedies to resolve a constitutional violation is best left to the parties, and if need be, further litigation. This court should not and cannot render constitutional approval on any future proposed suggested relief.