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DOE v. SMALL

December 4, 1989

JANE DOE, Plaintiff,
v.
GEORGE D. SMALL, et al., Defendants; OTTAWA JAYCEES, Intervenor Defendants



The opinion of the court was delivered by: SHADUR

 MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 Jane Doe *fn1" brings this action under 42 U.S.C. ยง 1983 ("Section 1983"), seeking declaratory and injunctive relief against the City of Ottawa, Illinois, *fn2" its Mayor George Small and certain City Council members (collectively "City Defendants"). Plaintiff challenges the display in a City park of 16 paintings depicting scenes from the life of Jesus Christ. Claiming responsibility for erecting, dismantling and storing the paintings, the Ottawa Jaycees ("Jaycees") intervened as an additional defendant. Plaintiff, City Defendants and Jaycees have all filed motions for summary judgment under Fed.R.Civ.P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, this Court grants plaintiff's motion and denies defendants' motions.

 Facts3

 Washington Park (the "Park") is owned by City and located on the northern edge of Ottawa's business district near the center of town. It is bordered on the north by Lafayette Street, on the south by Jackson Street, on the east by Columbus Street and on the west by LaSalle Street, one of the main arteries connecting the Ottawa business district with Interstate 80 north of town. Like most small parks, it is essentially an open city block covered with grass and a few trees. Although no buildings owned or used by City are visible from the Park, the Illinois Appellate Court for the Third District is directly across the street from the Park at the corner of Lafayette and Columbus Streets, and City Hall is three blocks away.

 Around Christmastime in most years since 1956, a visitor to Ottawa traveling on LaSalle Street along the west side of the Park would pass 16 paintings depicting events throughout the life of Jesus Christ. Arranged in two lines forming a wide-angle "V," the paintings span much of the length of the Park's west side. *fn4" Each painting is 8 feet 8 inches tall and is clearly visible from LaSalle Street both day and night. *fn5"

 As a group, the paintings tell the story of Jesus' life as related in the four gospels of the New Testament -- Matthew, Mark, Luke and John. Three paintings depict the events directly surrounding the birth of Jesus: the newborn Jesus, Mary and Joseph in the manger (Luke 2:7 *fn6" ), God's announcement to the shepherds in the field of the birth of Jesus (Luke 2:8-20) and the Star of Bethlehem guiding the three wise men bearing gifts of gold, frankincense and myrrh to the birthplace (Matthew 2:1-12). Other biblical events depicted include the flight of Mary, Joseph and the baby Jesus into Egypt (Matthew 2:13-15), the baptism of Jesus by John the Baptist (Matthew 3:13-17; Mark 1:9-11; Luke 3:21-22; John 1:31-34), Jesus selecting two of his disciples (Matthew 4:18-22; Mark 1:16-20; Luke 5:1-11; John 1:35-42), Jesus miraculously stilling a storm (Matthew 8:18, 23-27; Mark 4:37-41; Luke 8:22-25), Jesus miraculously feeding 5,000 people on five loaves and two fish (Matthew 14:13-21; Mark 6:30-44; Luke 9:10-17; John 6:1-13), Jesus miraculously resurrecting Lazarus from the dead (John 11:38-44) and Jesus preaching (see Matthew 5:1-7:29 -- Sermon on the Mount). Finally, seven paintings depict the story of Jesus' death -- the "Passion Narrative": Jesus triumphantly entering Jerusalem on Palm Sunday *fn7" (Matthew 21:1-9; Mark 11:1-10; Luke 19:28-38), the Last Supper (Matthew 26:17-29; Mark 14:12-25; Luke 22:7-20; 1 Corinthians 11:23-27), Jesus praying in the Garden of Gethsemane (Matthew 26:36-46; Mark 14:32-42; Luke 22:40-46), Jesus being tried before Pilate and convicted of heresy and treason (Matthew 27:11-26; Mark 15:1-15; Luke 23:2-25; John 18:28-19:16), Jesus crucified (Matthew 27:27-54; Mark 15:16-41; Luke 23:11-49; John 19:16-37) and the resurrected Jesus *fn8" revealing himself to two of his followers on the road to Emmaus (Luke 24:13-35). There is considerable dispute over how long the paintings have been on display in recent years. n9 City Defendants claim to have no knowledge as to the dates or duration of the display for any year. Jaycees, on the other hand, have submitted these "approximate" dates of erection and dismantling: n10 Erected Dismantled Year (Approximate Date) (Approximate Date) 1988 November 27, 1988 No later than January 1, 1989 1987 November 29, 1987 January 24-30, 1988 1986 November 15, 1986 Commenced January 1987 and ended February 21, 1987 n11 1985 December 1, 1985 February 2, 1986 1984 December 2, 1984 February 10, 1985 1983 December 3, 1983 March 4, 1984 1982 December 4, 1982 January 19 or 21, 1983 1981 December 5, 1981 January 10, 1982 1980 December 8, 1980 January 14, 1981

 Plaintiff rejects as implausible that explanation for the length of time the paintings remained on display, citing local climatological data for the 1983-84 through 1988-89 Christmas seasons -- data that plaintiff argues disproves any suggestion that ground freezing explains the late-removal years. In addition, plaintiff directly refutes the 1988 removal date offered by Jaycees with "John Doe's" affidavit (P.Ex. 29) that he viewed the paintings on display in the Park as late as February 15, 1988. *fn12"

 For the reason stated in n. 10, this Court has no hard evidence on the relevant dates in the years for which Jaycees offer their inadmissible approximations -- except for 1988, as to which John Doe's sworn eyewitness recollection of the February 15 date is admissible evidence sought to be countered by an inference from the affidavit of Jaycees' Treasurer Tom Cawley. On the other hand, it is unnecessary to determine with precision the dates on which the paintings were actually removed or when the weather would permit removal. Even if Jaycees' proffered dates are assumed accurate, in every year since 1980 the paintings were displayed beyond (and in virtually every year, well beyond) any reasonable definition of the "Christmas season." *fn13" In addition, even if the claimed removal dates are assumed to reflect the first day in each year on which the ground thawed enough to allow removal of the paintings, defendants have failed to explain why no other action was taken to control the duration of the display, such as removing the paintings from their pipe legs or simply covering them up with a tarpaulin.

 None of the parties claims to know who actually owns the paintings. In 1956 the Ottawa Retail Merchants' Association, in reaction to the increasing commercialism of the holiday, commissioned and first erected the paintings to "put Christ back into Christmas." Someone made sure the paintings were erected, taken down and stored every Christmas season from 1957 to 1969 and from 1980 to 1988. City Defendants admit City did so from 1963 to 1967, and Jaycees admit to having done so since 1980. In response to plaintiff's interrogatories, Jaycees say they "may" have erected the paintings from 1957 to 1962 and again in 1968 and 1969.

 According to newspaper reports offered by plaintiff, City provided some of the labor necessary to erect the display during the 1980s. In 1986, in order to stop deterioration of the metal sleeves in which the paintings had been installed and to widen the angle of the display so "they could be more easily viewed by persons driving down LaSalle Street," City gave permission to Jaycees to install 32 permanent concrete foundations with holes to accommodate the pipes that form the legs on which the paintings stand. City Engineer William Krauss and then City Commissioner of Public Improvement George Small (now, in his capacity as Mayor, one of the City Defendants) met with Jaycees to discuss the construction of the foundations. Now the foundations remain covered year-round when the paintings are not on display.

 Since the current lawsuit was first filed, both City and Jaycees have attempted to blunt the effects of the display by disclaiming City responsibility and diluting the religious message of the display. In 1988 Jaycees placed a sign next to the display reading: "THIS DISPLAY HAS BEEN ERECTED AND MAINTAINED SOLELY BY THE OTTAWA JAYCEES, A PRIVATE ORGANIZATION, WITHOUT THE USE OF PUBLIC FUNDS." Measuring 20 -1/2 inches by 21 -1/4 inches and utilizing lettering 1 -1/16 inches high, that disclaimer is visible but not legible from across LaSalle Street. In addition, in the 1988 holiday season City began installing in the Park a 15-foot-tall lighted snowman and also began stringing lights, bows, snowflakes and giant candles on the trees in the Park and around town, a display dubbed "The Festival of Lights." City Defendants argue that those, along with other decorations in and around Ottawa (including a Santa Claus house that apparently alternates between the Park and the firehouse), provide alternative focal points for the viewer's attention and make the overall display secular.

 Applicability of Section 1983

 Under Section 1983 a plaintiff has a remedy for any deprivation of rights, privileges or immunities secured by the Constitution or laws of the United States. Here plaintiff grounds her action on an asserted violation of the First Amendment's Establishment Clause ("Congress shall make no law respecting an establishment of religion"), which Everson v. Board of Education, 330 U.S. 1, 91 L. Ed. 711, 67 S. Ct. 504 (1947) confirmed as applicable to the States by virtue of the Fourteenth Amendment. Plaintiff's standing to bring this action derives from her uncontroverted testimony that while she normally enjoys using Washington Park, she avoids using the park when the paintings are on display. ACLU v. City of St. Charles, 794 F.2d 265, 267-69 (7th Cir. 1986) held that a plaintiff's similar alteration in routine to avoid viewing a lighted cross on a fire station conferred standing on the plaintiff under Section 1983.

 Establishment Clause

 Both sides in the current dispute ask this Court to perform the always difficult task of distilling from precedent a bright-line rule of law to govern this case, a task made more difficult by the unsettled nature of the law in this area. Establishment Clause precedents provide less and less clear guidance to trial courts as the higher-court consensus on fundamental principles has become less and less common, with a corresponding proliferation of concurring and dissenting opinions. Any trial court must perforce exercise great care as it enters the thicket in search of a consistent set of principles to inform its Establishment Clause analysis.

 Undoubtedly the first place to look for guidance (and, with its five separate opinions, a good view of just how full of thorns the thicket can be) is this year's County of Allegheny v. ACLU, 492 U.S. 573, 106 L. Ed. 2d 472, 109 S. Ct. 3086 (1989), in which the Court looked at two displays of religious symbols on downtown Pittsburgh public property and held that one violated the Establishment Clause while the other did not. In reaching that result Allegheny reconfirmed the tripartite litmus test of Lemon v. Kurtzman, 403 U.S. 602, 612-13, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971) as to when a government practice violates the Establishment Clause. For a statute or government practice to pass that test (id., citations omitted):

 
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, . . .; finally, the statute must not foster "an excessive government entanglement with religion."

 If the challenged display violates any one of those criteria, the display is unconstitutional ( Stone v. Graham, 449 U.S. 39, 40-41, 66 L. Ed. 2d 199, 101 S. Ct. 192 (1980) (per curiam)). Here plaintiff urges the paintings run afoul of not just one but each of the first two prongs.

 1. Secular Purpose ?

 In calling upon this Court to find that defendants acted with an impermissible purpose to endorse religion, plaintiff points to City Council Resolution R47-86 (P.Ex. 48), passed in response to complaints by Rohrer at the same meeting where Jaycees sought and received permission to display the paintings for the 1986-87 holiday season. That resolution reads:

 
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ottawa, that after due consideration and reflection upon the complaint raised concerning the pictures in Washington Park, that this Council endorse the activities of the Ottawa Jaycees in maintaining, erecting, dismantling and storing said pictures and incorporating them in the overall Christmas display that annually graces the downtown area of the City and further thanks all the other groups, public and private, who also maintain, erect, dismantle and store other portions of the Christmas decorations which are integral to the annual Yuletide season and the spirit thereof.

 Plaintiff argues the resolution shows City's purpose in allowing the display was to "endorse" the display and therefore the display's religious message.

 Defendants assert several purported secular purposes behind City's allowing Jaycees to place the display in Washington Park. City Defendants argue their purpose was "to attempt to avoid or minimize the likelihood of litigation and to maintain the city's open forum policy" (D.R. Mem. 10). They point to the deposition of William Ferguson, the Mayor pro-tem at the time, in which he testified that City initially passed a resolution denying Jaycees' request to display the paintings for the 1988-89 Christmas season in order to avoid a suit by Rohrer. According to City Defendants' current litigation contention (D.R. Mem. 9), it was only when City learned that such a denial might open City up to suit by Jaycees for denial of Jaycees' right to freedom of expression that City reversed its earlier denial, thereby returning to its open-access policy.

 City Defendants' argument grossly mischaracterizes Ferguson's testimony, which is attached to this opinion as Appendix A. *fn15" First, to counter plaintiff's claim that the purpose behind Resolution R47-86 was to endorse the display, City Defendants offer Ferguson's testimony as "the history of the resolution" (D.R. Mem. 9). That assertion is incomprehensible in light of the fact that the subject of Ferguson's testimony -- the October 18, 1988 resolution denying Jaycees' request to display the paintings and the subsequent reversal of that decision -- took place two years after R47-86 was passed. More importantly, in response to a question by plaintiff's counsel asking him to explain the motivation behind rescinding the City's prohibition on the erection of the paintings during 1988-89, Ferguson did indeed state that "either way, we were going to have litigation" (Ferguson Dep. 123-24). But it is crystal clear from reading Ferguson's testimony that by "either way" he was not at all suggesting that he understood that Jaycees might sue for breach of their right of free speech, and nowhere did he refer to an asserted "public forum" policy. *fn16" Rather his expressed concern was that future City Councils would face the same prospect of litigation from Rohrer, because Ferguson understood Rohrer to be demanding a perpetual ban on the display. In essence, the City Council was unwilling to agree to a permanent ban on the paintings, *fn17" and it knew that agreeing to ban them in 1988 would not insulate them from further litigation by Rohrer in 1989 and beyond.

 But even if City Defendants' current argument had been supported by Ferguson's testimony (as it plainly is not), it would fail to provide a secular purpose for allowing the display. First, the asserted justification for City's allowing the display during the 1988-89 season fails to explain City's purpose in allowing the display in earlier or later years. In addition, even assuming City feared litigation by both Rohrer and Jaycees in 1988 and after, City's desire to avoid a lawsuit cannot explain why City decided to allow Jaycees to erect the display and make Rohrer sue, rather than appeasing Rohrer (and, not incidentally, satisfying the First Amendment) and making Jaycees sue. Furthermore, if the Establishment Clause were to allow City to claim that its purpose in making or endorsing a religious message is to avoid being sued by a private party attempting to force City to make or endorse that message, "any religious activity of whatever nature could be justified by public officials on the basis that the activity has beneficial secular purposes" ( DeSpain v. DeKalb County Community School District 428, 384 F.2d 836, 839 (7th Cir. 1967)).

 Jaycees suggest two other purposes behind City's action. First, they contend City merely wanted to recognize "that the Paintings epitomize Christmas in the hearts and minds of Ottawa's citizens" (J. Mem. Opp. 26), reflecting a permissible accommodation of the community's religious sentiments. While Jaycees correctly point out that our Court of Appeals in American Jewish Congress, 827 F.2d at 127 held that Chicago's erection of a nativity scene in City Hall had as a constitutionally permissible purpose the accommodation of religion by "symbolizing the 'true meaning of Christmas' for hundreds of thousands of Christian Chicagoans," the more recent -- and of course controlling -- Supreme Court decision in Allegheny, 109 S. Ct. at 3105 n. 51 (citations omitted) rejects such an application of the concept of accommodation:

 
Nor can the display of the creche be justified as an "accommodation" of religion. . . . Government efforts to accommodate religion are permissible when they remove burdens on the free exercise of religion. . . . The display of a creche in a courthouse does not remove any burden on the free exercise of Christianity. Christians remain free to display creches in their homes and churches. To be sure, prohibiting the display of a creche in the courthouse deprives Christians of the satisfaction of seeing the government adopt their religious message as their own, but this kind of government affiliation with particular religious messages is precisely what the Establishment Clause precludes. *fn18"

 Second, Jaycees argue City decided to allow the paintings as part of a larger effort by public and private parties to decorate the downtown shopping area to encourage visitors to Ottawa to increase shopping and the transaction of business. ACLU v. Rabun County Chamber of Commerce, Inc., 698 F.2d 1098, 1111 (11th Cir. 1983) (per curiam), quoting School District of Abington Township v. Schempp, 374 U.S. 203, 294, 10 L. Ed. 2d 844, 83 S. Ct. 1560 (1963) (Brennan, J., concurring), addressed and rejected precisely that contention when advanced to justify a latin cross constructed atop the local fire station, defended as a means of promoting tourism:

 
Although the promotion of tourism is a secular goal commonly pursued by states, cities and counties alike, a government may not "employ religious means to reach a secular goal unless secular means are wholly unavailing."

 And for the same reason, Gilfillan v. City of Philadelphia, 637 F.2d 924, 930 (3d Cir. 1980) rejected Philadelphia's argument that constructing a platform containing a 36-foot-tall cross for use by the Pope during his visit to the city had the secular purpose of improving public relations. This is not to say a city may never assert the promotion of tourism or shopping as a secular purpose. Rather the cases teach that no court is compelled blindly to accept such an explanation as a city's true purposes, where the same goal could have been achieved without using such obviously religious symbols as the latin cross or, as in the per curiam opinion in Stone, 449 U.S. at 41-42, the Ten Commandments.

 Here City chose to celebrate Christmas -- the event linked to the birth of Christ *fn19" -- by displaying sixteen paintings depicting the major events in Jesus' entire life. Only three of the sixteen paintings portray events directly related to Christ's birth, while the remainder graphically depict the events -- including the miracles -- that form the core of Christian belief and doctrine. Only one reasonable inference flows from City's decision to allow this blatantly religious display on public property instead of other more secular displays: City intended to promote that religious message, for no secular message may fairly be attributed to the display in its totality. As Justice Blackmun wrote in Allegheny, 109 S. Ct. at 3114:


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