Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 87 C 10671--James B. Zagel, Judge.
Coffey, Flaum, and Easterbrook, Circuit Judges.
For a quarter century, the Village of Mundelein, Illinois, has displayed a nativity scene on the lawn of its village hall during the Christmas season, together with lights on the evergreens and a wreath and banner over the main door. In 1987 it added a Christmas tree with lights and, after questions had been raised about the propriety of displaying a creche on public property, many other symbols of the season--a Santa Claus and sleigh, carolers, snowmen, carriage lights, wreaths, and two soldiers in the shape of nutcrackers. The Village declined to move the ensemble to a public park located some blocks from city hall. This suit followed, and the district court held that the display violates the Establishment Clause of the first amendment, made applicable to the states by the fourteenth.
Two cases dominate here. The first is Lynch v. Donnelly, 465 U.S. 668, 79 L. Ed. 2d 604, 104 S. Ct. 1355 (1984), which holds that the Constitution does not forbid a display of a creche, together with other holiday symbols, in a park adjoining the city hall, even though the city is closely associated in the public mind with the display. (The city owned the display, which the mayor opened each year; the same sound system piped carols into the park and the grounds of city hall.) The second is American Jewish Congress v. City of Chicago, 827 F.2d 120 (7th Cir. 1987), which holds that the Constitution does forbid a city to display a creche as the centerpiece of a display located inside city hall. We concluded that the display of an isolated religious symbol at the center of government unavoidably demonstrated the city's support for that religion, in violation of the Establishment Clause.
We must decide how best to characterize a creche that is part of a display--and inevitably will be seen in the context of an ensemble of seasonal symbols--located on the grounds of city hall. The district court could "find no principled distinction between the Mundelein display and the unconstitutional display in Chicago's City Hall." City of Chicago concluded that characterization is a question of law, 827 F.2d at 123 (majority opinion), 129-30 (dissenting opinion), so we owe no deference to the district court's resolution. Although drawing lines in cases of this kind is difficult and troubling, and although this case is far from clear, on balance the Mundelein display comes closer to the one allowed in Lynch than to the one prohibited in City of Chicago.
Mundelein, like Pawtucket, Rhode Island (the municipality in Lynch), has placed the creche in the context of other seasonal symbols, showing support for the holiday season rather than for the religious aspect alone. In City of Chicago, by contrast, "the nativity scene was self-contained, rather than one element of a larger display." 827 F.2d at 125. The display in Mundelein is outdoors, just as in Pawtucket. The display in Pawtucket was "like those to be found in hundreds of towns or cities across the nation--often on public grounds". Lynch, 465 U.S. at 671. Although the record does not permit us to decide whether the grounds of the village hall in Mundelein are a public forum, the presence of the display in a place open to the elements makes the context closer to that of the park in Pawtucket than to that of the center of Chicago's city hall. Cf. United States v. Grace, 461 U.S. 171, 75 L. Ed. 2d 736, 103 S. Ct. 1702 (1983) (the sidewalks around the Supreme Court's building are public forums; a statute distinguishing between the sidewalks on the Court's side of the street and the sidewalks on the other side of the street is unconstitutional). Doubtless the display in Mundelein leads viewers to focus on the village hall more than the display in Pawtucket did; the display in Mundelein is in the shadow of the building, which serves as backdrop; the display in Pawtucket was 300 feet away, diminishing the effect of the building. The point of Lynch, however, is that the context--the context of the ensemble, and more important the context of the secular holiday the government observes--is the controlling consideration. Details that would be important to interior decorators do not spell the difference between constitutionality and unconstitutionality. This display was outdoors, and passers-by will see a grouping of symbols, most of which are secular. That, we believe, puts our case on the Lynch side of the line.
The parties and the district court have cited to us many cases, such as Citizens v. City of Denver, 526 F. Supp. 1310 (D. Colo. 1981), affirmed mem., No. 82-1022 (10th Cir. May 14, 1984), American Civil Liberties Union v. City of Birmingham, 791 F.2d 1561 (6th Cir. 1986), and American Civil Liberties Union v. County of Allegheny, 842 F.2d 655 (3d Cir.), cert. granted, 488 U.S. 816, 109 S. Ct. 53, 102 L. Ed. 2d 32 (1988), that address the question whether particular displays, in particular settings, offend the Establishment Clause. There are so many variations that discussion would not illuminate--though the appearance of ever-finer lines in the cases, coupled with never-ending small variations in the displays of thousands of municipalities--,leads us to hope that the Supreme Court will decide County of Allegheny in a way that diminishes the role of architectural judgment in constitutional law. The precedent in this court is City of Chicago, and that case, together with Lynch, leads us to hold that Mundelein may maintain the display as it has been assembled since 1987.
COFFEY, Circuit Judge, concurring.
I join the court's opinion in this matter. The court aptly notes its "hope that the Supreme Court will decide County of Allegheny in a way which diminishes the role of architectural judgment in constitutional law." Opinion at 4. I write separately to underscore my desire for the Supreme Court to resolve Allegheny in a manner which will substitute the true and accurate historical and policy concerns underlying this Clause for the probing examination of legal minutiae which has crept in as the courts have been confronted with baseless Establishment Clause challenges, particularly in cases involving holiday displays utilizing religious themes, such as Christian creches and Jewish menorahs.
Alter the Supreme Court decided Lynch v. Donnelly, 465 U.S. 668, 79 L. Ed. 2d 604, 104 S. Ct. 1355 (1984), it would have seemed logical to have thought that the Establishment Clause questions concerning holiday displays incorporating religious themes had been put to rest. In Lynch Chief Justice Burger, writing for the Court, observed that: "There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789." 465 U.S. at 1360. Examples of this historical acknowledgment were cited which included Executive Orders recognizing religiously grounded national holidays, the presence of religiously oriented work in publicly supported art galleries, and the printing on our currency of the national motto "In God We Trust." Id. at 675-677. To the examples cited by the Court, one could add the oaths taken by officeholders and witnesses in judicial proceedings, each of which recognize the existence of a deity, and the prayers of soldiers in combat or members of athletic teams prior to athletic contests in a public facility. The Court concluded its recitation of the historical examples of government recognition of religion, which included acknowledgment of religions other than Christianity, by stating:
"One cannot look at even this brief resume [of historical examples] without finding that our history is pervaded by expressions of religious beliefs. . . . Equally pervasive is the evidence of accommodation of all faiths and all forms of religious expression and hostility toward none. Through this accommodation, as Justice Douglas observed, governmental action has 'follow[ed] the best of our traditions' and 'respect[ed] the ...