west side of the fire station, facing the Fox River,
illuminated snowflakes are attached to the building. A large
green illuminated wreath is mounted on the west face of the
fire station's hose drying tower.
To the northwest of the fire station is the public safety
building. This structure is also decorated with multicolored
lights along its roof line. On the west side of the building
and on the shore of the Fox River, a large twenty foot
simulated Christmas tree is created with strings of green
lights and is topped with a white lighted star.
There is one other decoration that appears in the municipal
complex area. It is the reason for this litigation. At issue
here is the string of lights attached to a communications
tower on the roof of the fire station's hose drying building.
The communications tower is a 35-foot, three-legged,
triangular metal structure anchored in concrete on the roof of
the two story hose drying tower of the St. Charles fire
station. The metal communications tower is used as a
television antenna and has an aenometer mounted on it for the
purpose of measuring wind speed and direction. The tower also
anchors a radio scanning antenna used by the St. Charles
police and fire department for mobile communication. Attached
to the metal tower, slightly above its midpoint, is a crossbar
which runs perpendicular to the tower and parallel to the
ground. This crossbar was originally installed in 1965 and was
later reinforced in 1969. It served as a ground plane radio
antenna from its installation until the mid 1970's. The
crossbar no longer serves any function other than as
additional bracing for the metal tower. The cross bar as
reinforced is about eighteen feet in width and consists of two
"U" shaped pieces of 3/4" conduit which have their open ends
attached to the tower.
On or about the 1969 Christmas holiday season, the volunteer
firemen decided to incorporate the communications tower and
the crossbar into the City's annual lighting program. At that
time, the volunteer firemen installed white lights on the
tower and crossbar, configuring the lights in such a way as to
create the appearance of a latin cross.
For nearly 15 years the City's annual lighting program went
unchallenged. Last year, after the propriety of the City
spending public funds to light the cross was questioned by
some citizens of St. Charles, a separate meter was installed
to monitor the electrical costs associated with the
illuminated cross. A private citizen donated the money to pay
the $23.65 in electrical costs resulting from the cross being
illuminated during the holiday season from Thanksgiving 1984
to January 2, 1985. There are no other expenses associated
with the cross because volunteer firemen maintain the lights
on their own time and at their own expense.
This year, 1985, plaintiffs challenge through this lawsuit
the constitutionality of the illuminated cross formation being
displayed on City property, despite the private maintenance
and funding of the cross. The plaintiffs object to no other
aspect of the St. Charles holiday lighting display other than
the illuminated cross on the fire station's communications
The legal issue presented by this case requires the Court to
draw what the United States Supreme Court has called the
"blurred, indistinct, and variable barrier" between that which
is allowed and that which is prohibited by the Establishment
Clause of the First Amendment to the United States
Constitution. Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct.
2105, 2112, 29 L.Ed.2d 745 (1971). In accordance with the
Supreme Court's approach in Lynch v. Donnelly, 465 U.S. 668,
104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), this Court looks to the
Lemon three-prong test for guidance on this sensitive and
delicate line-drawing task.
The Lemon analysis poses three inquiries: (1) does the
challenged governmental conduct have a secular purpose; (2) is
the principal or primary effect of the challenged governmental
conduct to advance or inhibit religion; and (3) does the
challenged governmental conduct foster an excessive
entanglement of government with religion. Lemon, 403 U.S. at
612-13, 91 S.Ct. at 2111.
A negative answer to the first question or a positive answer
to either the second or third questions requires the
determination that the challenged governmental conduct does
not pass constitutional muster.
The Court believes that the conduct challenged here, even
when considered as only one part of a municipal Christmas
holiday lighting display, fails to pass constitutional muster.
A. Secular Purpose.
In order to withstand Establishment-Clause scrutiny,
governmental conduct must be motivated at least in part by
secular concerns. Chief Justice Burger, writing for the
majority in Lynch, noted that governmental activity has been
struck down as unconstitutional under this prong of the Lemon
test only when the activity "was motivated wholly by religious
considerations." Lynch, supra, 104 S.Ct. at 1362. In Lynch the
majority of the Supreme Court decided that the governmental
purposes underlying the display of a creche depicting the birth
of Jesus Christ — celebration of the public holiday of
Christmas and depiction of the historical origins of the public
holiday — were sufficiently secular to satisfy the first Lemon
requirement. As Justice O'Connor explained in her concurring
The evident purpose of including the creche in
the larger display was not promotion of the
religious content of the creche but celebration
of the public holiday through its traditional
symbols. Celebration of public holidays, which
have cultural significance even if they also have
religious aspects, is a legitimate secular
Lynch, supra, 104 S.Ct. at 1368.
The "purpose" inquiry is complicated in this case by the
fact that the challenged symbol in St. Charles' holiday
display is a latin cross, which is "distinctively religious"
and "universally regarded as a symbol of Christianity."
Lynch, supra, 104 S.Ct. at 1370 (Brennan, J., dissenting);
American Civil Liberties Union v. Rabun County Chamber of
Commerce, 698 F.2d 1098, 1110 (11th Cir. 1983). The City of St.
Charles certainly intended the illuminated cross to be a part
of its celebration of the Christmas holiday: the lighted cross
was only one element of the City's much larger and award
winning annual Christmas display of lights. If Lynch stands for
the proposition that a celebratory purpose, no matter how
religiously thematic the symbols displayed may be, suffices to
pass the first Lemon test, then St. Charles' actions would not
be constitutionally infirm under that test.
This Court hesitates, however, to read Lynch so broadly. As
an initial matter, Justice Brennan in dissent specifically
noted that the majority's opinion implicitly left open
questions concerning the constitutionality of the display on
public property of "distinctively religious symbols such as a
cross." Lynch, supra, 104 S.Ct. at 1370 (Brennan, J.,
dissenting). Justice O'Connor's concurrence, moreover, stressed
the traditional, as opposed to religious, nature of the creche
at issue in Lynch. Because of the creche's traditional
association with the Christmas holiday, Justice O'Connor was
able to conclude that Pawtucket's "evident purpose" in
including the creche in its annual Christmas display was
celebration, and specifically not "promotion of the religious
content" of the symbol.
Such a conclusion is not as easily reached here. Unlike the
creche, a cross on a building, even during the Christmas
season, does not ordinarily conjure up in a viewer's mind the
historical antecedents of the Christmas holiday. Indeed, many
Christian church buildings display the latin cross to indicate
that the building is in fact a church. For this reason, among
others, a cross on a building has come to have religious
meaning in our society separate from any religious holiday.
Fred T.L. Norris, Mayor of the City of St. Charles,
testified that he considers a cross to be one of the
traditional symbols of the Christmas holiday season. Even
assuming that Mayor Norris' perception is shared by the
general populace, the Court would find it difficult to take
the next step,
taken by Justice O'Connor, and conclude that the "evident
purpose" in St. Charles' inclusion of a cross in its Christmas
display was not to promote its religious message.
The Court believes, however, that it need not resolve this
initial difficult question since the City's conduct fails to
comply with Lemon's second requirement — that the primary
"effect" of governmental conduct be religion-neutral.
B. Principal or Primary Effect.
The second prong of the Lemon analysis, as articulated by
Justice O'Connor, considers whether "a government practice
[has] the effect of communicating a message of government
endorsement or disapproval of religion." Lynch, supra, 104
S.Ct. at 1368. Governmental endorsement, the Justice explained,
sends a message to nonadherents that they are
outsiders, not full members of the political
community, and an accompanying message to
adherents that they are insiders, favored members
of the political community.
Id. at 1366. Whether or not governmental activity conveys such
an endorsement is "a legal question to be answered on the basis
of judicial interpretation of social facts." Lynch, 104 S.Ct.
at 1369 (O'Connor, J., concurring).
The Court is convinced that the primary effect of including
an illuminated cross in the City's annual Christmas display
was to place the government's imprimatur on the particular
religious beliefs associated with the latin cross. "Those who
believe in the message" of the cross "receive the unique and
exclusive benefit of public recognition and approval of their
views." Lynch, 104 S.Ct. at 1373 (Brennan, J., dissenting).
The Court also believes that, unlike a creche displayed in
the midst of, among other things, a Santa Claus house, clown,
elephant and teddy bear, the apparent governmental endorsement
of Christianity is not "negate[d]" by the overall holiday
display of lights in St. Charles. Lynch, supra, 104 S.Ct. at
1369 (O'Connor, J., concurring). Unlike a creche, a cross is
not commonly found displayed in the midst of purely secular
symbols of the Christmas holiday. And unlike a creche which is
traditionally displayed only at Christmas time, a cross is
displayed year-round on buildings associated with the Christian
religion (e.g., churches and parochial schools) for the purpose
of conveying the message that the building is associated with
the Christian religion.
In short, the City of St. Charles cannot be allowed to
illuminate the cross-shaped tower on top of a municipal
building because such an action has the effect of conveying an
association with or tacit approval of Christianity at the
expense of any other religion, agnosticism or atheism. The
approval and benefit conveyed by the thirty-five by eighteen
foot illuminated cross beaming over the rooftops of St.
Charles is more than "indirect, remote [or] incidental. . . ."
Lynch, supra, 104 S.Ct. at 1364.*fn3 A preliminary injunction
C. Excessive Entanglement.
Having found a constitutional violation, the Court will not
engage in a lengthy discussion of the third prong of
Lemon, the excessive-entanglement test. The Court will note,
however, that plaintiffs' argument that the record-keeping done
City of St. Charles to ensure that private funds were used to
maintain the lighting hardly seems to constitute the "ongoing,
day-to-day interaction between church and state" prohibited by
the Constitution. Lynch, supra, 104 S.Ct. at 1364. Whatever
involvement St. Charles might have had with the display of the
cross, it fell far short of Pawtucket's purchase, erection and
illumination of the creche approved of in Lynch. See also
McCreary v. Stone, 739 F.2d 716, 725 (2d Cir. 1994), aff'd by
an equally divided Court, ___ U.S. ___, 105 S.Ct. 1859, 85
L.Ed.2d 63 (1985).
The first guaranty of the Bill of Rights to the United
States Constitution is freedom from any "law respecting an
establishment of religion, or prohibiting the free exercise
thereof. . . ." It is a foundation of our country that
religion be an individual and voluntary exercise. When a
governmental body adorns a public building with a religious
symbol so universally identified as a symbol of one religion
as is the illuminated cross on the St. Charles fire station,
it exceeds the boundaries of neutral accommodation of
religion. The Establishment Clause prohibits such conduct.
As well meaning as the city fathers of St. Charles may be in
their holiday lighting display, the illuminated cross on the
fire station tower has the effect of unconstitutionally
embracing Christianity beyond the allowable limits of the
IT IS THEREFORE ORDERED for the reasons stated herein that
the City of St. Charles is enjoined from illuminating the
configuration of lights forming the shape of a cross on the
communications tower attached to the roof of the St. Charles
fire station pending a final adjudication of this action. Due
to the extraordinary circumstances of this case, including the
public-interest nature of plaintiffs' position, the Court in
its discretion deems that the proper security to be posted by
plaintiffs is the nominal amount of $1.00 to effectuate this