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04/10/70 Reverend Thomas B. Allen v. Walter Hickel

April 10, 1970




Tamm, Leventhal and Robb, Circuit Judges.




On December 15, 1969, the President, following a tradition established in 1923 by President Harding, threw a switch lighting the National Christmas Tree. The tree was located in the Ellipse (an elliptically shaped park across the street from the White House). Nearby were 57 other lighted and decorated Christmas trees representing the 50 states and seven of the territories of the United States. Also present were reindeer, a burning Yule log, and the center of the controversy before us: an illuminated life-size creche, or Nativity scene, depicting the birth of Christ attended by his mother Mary, St. Joseph, shepherds, animals, and the three Magi. The National Christmas tree and all the rest of these items, together with singing, instrumental concerts, and other seasonal observances, formed the 1969 presentation of the annual Christmas Pageant of Peace. The Pageant is an event co-sponsored by the National Park Service and a non-profit corporation called Christmas Pageant of Peace, Inc. A prime purpose of the Pageant is to proclaim the message of "peace on earth to men of good will."

The plaintiffs, now appellants, in this case are an Episcopalian minister, a Catholic priest, a rabbi, the president of the American Ethical Union, and an officer of the National Humanist Association. Plaintiffs' complaint objected to the inclusion of the creche in the Pageant of Peace celebration as a violation of the Establishment and Free Exercise clauses of the First Amendment to the Constitution. They sought an injunction in the District Court against construction and maintenance of the creche on federal park land. On September 30, 1969, the District Court, after hearing oral argument, granted appellees' motion to dismiss on the ground that appellants lacked standing, and alternatively granted appellees' motion for summary judgment, denied appellants' motion for preliminary injunction, and dismissed the action. On December 12, 1969, this court, without opinion, denied appellants' motion for injunction pending the outcome of this litigation.

Two substantial issues are presented by appellants' suit: whether or not they have standing to sue for the relief they have requested; and whether or not the construction and maintenance of the creche on federal park lands violates the Establishment and Free Exercise clauses. I. Standing

Appellants assert that they have standing to sue because of their status as taxpayers, citing Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968). Flast states the standard for taxpayer standing in the following way:

In ruling on standing, it is both appropriate and necessary to look to the substantive issues for another purpose, namely, to determine whether there is a logical nexus between the status asserted and the claims sought to be adjudicated. . . .

The nexus demanded of federal taxpayers has two aspects to it. First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. . . . Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged.

Uncontradicted affidavits for the appellees state that no Government funds are expended in the construction, maintenance, disassembly, or storage of the creche. Appellants argue, however, that the general funds which support the Christmas Pageant of Peace must be considered as expended partially for the creche. They argue, in effect, that this court should retrospectively allocate among the Christmas trees, the Yule log, the reindeer, and the creche those funds which were spent for extra police personnel, debris collection, and other services. We need not reach a determination of that argument in the present case, however, since we conclude that plaintiffs have standing to raise the creche issue in the federal courts apart from the expenditures of public funds entailed.

The Supreme Court has recently made clear that standing to present claims founded on the Constitution, or Federal statutes, may stem from non-economic values as well as economic values. See Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 830, 25 L. Ed. 2d 184 (March 3, 1970), citing Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 616 (2d Cir. 1965); Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 335-340, 359 F.2d 994, 1001-1006 (1968). The Court made it particularly clear that there is a readiness to find standing conferred by non-economic values in order to consider issues concerning the Establishment Clause and the Free Exercise Clause. *fn1

In the present case we conclude that the issues under the Free Exercise and Establishment Clauses are presented by plaintiffs who have standing, who present an injury, in the impairment of non-economic values, giving them a "personal stake in the outcome of the controversy," *fn2 as contrasted with mere airing of "generalized grievances about the conduct of the government." *fn3 An aspect of the case that underscores the standing of the plaintiffs is their allegation that the defendants are proposing to devote Government park property to uses inconsistent with the Free Exercise and Establishment Clauses. Park lands are dedicated to public use and enjoyment. *fn4

Plaintiffs are all residents of the metropolitan area of the District of Columbia served by park lands in the District. And in a broader sense the Ellipse park serves all citizens of the nation who come to the Nation's Capital not merely to present grievances but also, and indeed more typically, to visit its sites and monuments as one means of maintaining and strengthening their ties with the nation's values and heritage. Citizens may sue to enjoin a government holding land in trust as a park from impermissibly diverting the use so as to destroy their beneficial interests as park uses. *fn5 They likewise have standing to complain when the park lands are impermissibly devoted to uses that contravene the Establishment Clause.

Since a claim under the Establishment Clause does not require a showing that plaintiffs' religious freedom is infringed, a claim that park land which plaintiff has a beneficial right be maintained for public purposes is being devoted to the use of an established religion is sufficient personal involvement to provide standing. School District of ...

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