County, Illinois. The courthouse is a three-story red brick
building, and houses the offices of the State's Attorney,
County Clerk, County Treasurer and Sheriff, and courtrooms for
the Fourth Judicial Circuit Court of Illinois. The courthouse
also serves as the meeting place of the Montgomery County
Board, as a polling place and place of voter registration, and
other government functions. The courthouse is the seat of
county government for Montgomery County.
Displayed over the entrance of the courthouse is a permanent
metal sign ("the sign") bearing the message "THE WORLD NEEDS
GOD." The sign is at least ten feet long and approximately one
and one-half feet high with lettering approximately one foot
high. While the courthouse has several entrances, the sign is
displayed over the main, most prominent entrance. The sign has
been displayed over this entrance since 1936.
Plaintiffs Doe and Roe claim that they are residents of
Montgomery County, Illinois. Both object to Montgomery County's
sponsorship of the religious message on the sign and wish to
avoid the sign. However, both claim that to participate fully
as citizens of the County, they must enter the Courthouse.
For example, Plaintiff Doe alleges that in the past, she has
both chosen and been compelled to participate in criminal
and/or civil cases before the Fourth Judicial Circuit Court of
Illinois which has offices and courtrooms in the Montgomery
County Courthouse. She also states that she may either choose
or be compelled to participate in Circuit Court proceedings in
the future. Similarly, Plaintiff Doe alleges that she is
subject to being called for jury duty for trials held at the
courthouse, and that she must enter the courthouse in order to
visit the offices of the Montgomery County State's Attorney,
County Clerk, County Treasurer and Sheriff, and to attend
public meetings of the County Board. In order to participate in
any of these Montgomery County functions, Plaintiff Doe alleges
that she must come into direct, unwelcome contact with the
Like Plaintiff Doe, Plaintiff Roe states that he has in the
past and may in the future be legally compelled to enter the
courthouse. He claims that he has been called for jury duty for
trials in the courthouse in the past and that he is presently
subject to being called for jury duty in the future. Moreover,
Plaintiff Roe alleges that he has registered to vote at the
courthouse, and has obtained absentee ballots at the
courthouse. Like Plaintiff Doe, Plaintiff Roe states that he
must enter the courthouse to visit the offices of the
Montgomery County State's Attorney, County Clerk, County
Treasurer and Sheriff, and to attend public meetings of the
Plaintiff Stein alleges that he is a licensed Illinois
attorney who resides in Cook County, Illinois. He also objects
to the display of the sign on the courthouse and will not
represent clients whose cases would be heard in the Montgomery
County Courthouse. In addition, he states that he may in the
future have occasion to visit the offices of other government
officials in the courthouse and will be deterred from doing so
because of the presence of the sign on the courthouse.
The Plaintiffs pray that this Court enter a declaratory
judgment that Defendant violated the Establishment Clause of
the First Amendment by displaying the sign at the Montgomery
County Courthouse. Plaintiffs also seek an order that the sign
be removed and that the Montgomery County be enjoined against
raising signs in the future. In addition, Plaintiffs seek
attorneys' fees and costs.
I. Legal Standard
The sole issue before this Court is whether the Plaintiffs
have standing to challenge the constitutionality of the sign on
display in the Montgomery County Courthouse. "An analysis of a
litigant's standing to bring an action in federal court focuses
not on the claim itself, but on the party who is bringing the
challenge." Freedom From Religion Foundation, Inc. v. Zielke,
845 F.2d 1463, 1467 (7th Cir. 1988) (citation omitted).
"Standing is a threshold question in every federal case because
if the litigants do not have standing to raise their claims the
court is without authority to consider the merits of the
action." Id. (citations omitted).
A court is constrained, in determining a party's standing to
assert a particular claim,
to "`accept as true all material allegations of the complaint,
and [to] construe the complaint in favor of the complaining
party.'" Gladstone, Realtors v. Village of Bellwood,
441 U.S. 91, 100, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979) (quoting
Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45
L.Ed.2d 343 (1975)). Also to be considered in the standing
analysis, along with the allegations made in the complaint, are
such other facts and circumstances as may be evident from the
record. Id., 441 U.S. at 110 n. 22, 99 S.Ct. at 1613 n. 22.
A. Law of the United States Supreme Court
To demonstrate standing, Plaintiffs must allege an actual or
threatened personal injury, fairly traceable to the Defendant's
unlawful conduct and likely to be redressed by a favorable
decision of this Court. Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc.,
454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982).
Standing under the Establishment Clause may be predicated on a
non-economic injury. Id. at 486, 102 S.Ct. at 766. When
alleging a non-economic injury as in the case at bar,
Plaintiffs must be "directly affected by the laws and practices
against which their complaints are directed." Id. at 486 n. 22,
102 S.Ct. at 766 n. 22 (quoting School District of Abington
Township v. Schempp, 374 U.S. 203, 224 n. 9, 83 S.Ct. 1560,
1572 n. 9, 10 L.Ed.2d 844 (1963)).
In Valley Forge, the petitioners claimed that the
government's conveyance of property to a Christian college
violated the Establishment Clause. The petitioners were
residents of Maryland and Virginia who learned of the transfer
through news releases. None alleged that they would use the
property located in Pennsylvania, but they contended that the
transfer deprived them of the fair use of their tax dollars.
The Court found that they lacked standing because they
"fail[ed] to identify any personal injury suffered by them as a
consequence of the alleged constitutional error, other than the
psychological consequences presumably produced by the
observation of conduct with which one disagrees." Id., 454 U.S.
at 485, 102 S.Ct. at 765 (Emphasis ours).
Moreover, Valley Forge limited the scope of language in
Schempp*fn1 and Association of Data Processing Service Org.,
Inc. v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 830, 25 L.Ed.2d
184 (1970). Respondents in Valley Forge argued that Schempp
stood for the proposition that standing existed where a person
had a "spiritual stake" in the outcome of the case. Valley
Forge, 454 U.S. at 486 n. 22, 102 S.Ct. at 766 n. 22. The
respondents' argument was based on language in Camp: "[a]
person or family may have a spiritual stake in First Amendment
values sufficient to give standing to raise issues concerning
the Establishment Clause and the Free Exercise Clause. Abington
School Dist. v. Schempp, 374 U.S. 203, 83 S.Ct. 1560." Valley
Forge held that the plaintiffs in Schempp had standing, not
because their complaint rested on the establishment clause
(e.g. a "spiritual stake" as in Schempp), but "because
impressionable schoolchildren were subjected to unwelcome
religious exercises or were forced to assume special
burdens to avoid them." Valley Forge, 454 U.S. at 486 n. 22,
102 S.Ct. at 766 n. 22. (Emphasis ours).
B. Law of the Seventh Circuit
The Seventh Circuit has yet to extend standing for plaintiffs
subjected to "unwelcome religious exercises" articulated in
Valley Forge. Harris v. City of Zion, Lake County, Ill.,
927 F.2d 1401, 1404-06 (7th Cir. 1991). Instead, the Seventh
Circuit emphasized Valley Forge's limitation that a plaintiff
has standing only where she has assumed "special burdens."*fn2
the Seventh Circuit, a plaintiff has standing only where she
alleges that a government entity's action offends her and that
she has altered her behavior as a consequence of it.
Harris, 927 F.2d at 1405 (use of city seal on automobile tax
stickers and garbage bags which plaintiffs were required to use
and plaintiffs' altering their travel routes to avoid viewing
seal painted on city water tower sufficient to confer
standing); Freedom From Religion v. Zielke, 845 F.2d 1463 (7th
Cir. 1988) (residents had no standing to challenge Ten
Commandments display in city park because they did not allege a
change in behavior or usual walking or driving routes around
the park); American Civil Liberties Union v. City of St.
Charles, 794 F.2d 265 (7th Cir.), cert. denied, 479 U.S. 961,
107 S.Ct. 458, 93 L.Ed.2d 403 (1986) (mere fact that display of
lighted cross on public property offends plaintiff could not
confer standing; he must allege that he altered his behavior to
avoid the cross); Gonzales v. North Township of Lake County,
Ind., 4 F.3d 1412, 1416 (7th Cir. 1993) (standing found were
plaintiff avoided area of the park where crucifix was located).
C. Application of law
In our case, the Court finds that Plaintiffs have not pled or
otherwise indicated that they have been forced to assume any
special burden or altered their behavior because of the sign.
With respect to Plaintiffs Doe and Roe, although they both
express a wish to avoid the sign, neither have altered their
behavior because of the sign. Any psychological harm that
results from witnessing the sign is not sufficient to confer
standing. Valley Forge, 454 U.S. at 485-86, 102 S.Ct. at
765-66, City of St. Charles, 794 F.2d at 268.
Similarly, though Plaintiff Stein alleges that he presently
will not represent clients whose cases would be heard in the
Montgomery County Courthouse, there is no indication that he
has actually turned down any client because of the sign. He
must allege an injury that is "distinct and palpable,"
Warth, 422 U.S. at 501, 95 S.Ct. at 2206, and not "abstract,"
"conjectural," or "hypothetical." Allen v. Wright,
468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984) (quoting
Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660,
1664-65, 75 L.Ed.2d 675 (1983)). The hypothetical loss of a
potential client, or the loss of a potential practice in
Montgomery County is not sufficient to confer standing.
The Court also finds that Plaintiffs' alternative arguments
are also without merit. First, Plaintiffs Doe and Roe contend
that they have been involuntarily subjected to the alleged
religious message of the sign. This is because either Plaintiff
may be compelled to jury duty at the courthouse which would
force them into unwelcome contact with the sign.
This argument was squarely rejected in Harris. In Harris,
plaintiffs were offended by the municipalities requirement that
they display an objectionable city tax seal on the windshield
of their automobile. The plaintiffs also objected to the city's
requirement that they dispose of their household refuse in
garbage sacks that also displayed the seal. Harris, 927 F.2d at
1407. To avoid contact with the city's seal, one plaintiff also
alleged that he avoided the particular route that brought him
within visual contact with the water tower which exhibited the
offensive city logo.
The Seventh Circuit found that Plaintiffs had standing.
However, the court noted that "the fact that the plaintiffs may
be offended by the seals of Rolling Meadows and Zion does not
confer standing. It is the willingness of the plaintiffs to
incur a tangible, albeit small cost that validates the
existence of genuine distress and warrants the invocation of
federal jurisdiction." Id. at 1406 (citing St. Charles, 794
F.2d at 268) (emphasis ours). In other words, the fact that
plaintiffs were involuntarily compelled (probably by city
ordinance) to place the offensive city tax stickers on their
automobile, or to use the offensive trash bags with the city's
logo in view was insufficient to incur standing. The Harris
plaintiffs only had standing because they deviated from their
normal transportation routes (and thus assumed a tangible
burden) to avoid contacting the offensive seal.
This interpretation of Harris is confirmed by Zielke which
denied standing to a plaintiff who was offended by a park
display but did not alter his behavior because of the display.
Zielke, 845 F.2d at 1466-68.
In sum, as in Harris, our Plaintiffs may be compelled to view
the County "seal" (whether it is on a courthouse or trash
bags). They will not have standing unless they assume some
burden to avoid contacting the alleged offensive sign.
Second, Plaintiffs argue that although Plaintiffs Doe and Roe
are not legally compelled to vote or otherwise participate in
government, Montgomery County allegedly effectively conditioned
the exercise of voting and other civic rights on Plaintiffs'
unwelcome contact with the sign. Plaintiffs support this claim
with a scant two paragraph analysis and citation to cases which
prohibit state sponsored school prayer. See e.g., Schempp, 374
U.S. at 224, 83 S.Ct. at 1572.
The Court's research finds no precedent to support
Plaintiffs' argument. Moreover, as in Harris, the Seventh
Circuit tacitly approved the condition of some privileges (e.g.
an automobile sticker for parking within the city or trash
collection) on the contact with an unwelcome city seal.
Lastly, the Court's reasoning is not disturbed by any alleged
geographic proximity of Plaintiffs Roe and Doe to the
courthouse sign. The Seventh Circuit twice alluded to the
possibility that the close proximity of a plaintiff to the
offensive object may constitute standing: "[m]aybe it ought to
make a difference if (as here) a plaintiff is complaining about
the unlawful establishment of a religion by the city, town, or
state in which he lives, rather than about such an
establishment elsewhere"; . . . St. Charles, 794 F.2d at 268
(Posner, J.); "[a]lthough in some circumstances proximity to
the offending conduct may suffice to confer standing, Grams
[plaintiff] failed to prove her proximity to the allegedly
unconstitutional display." Zielke, 845 F.2d at 1469 (Flaum,
J.). However, at this time, the Seventh Circuit has not
articulated any precedent or criteria for standing based on
geographic proximity. Therefore, the Court does not find that
Plaintiffs have standing based upon any alleged geographic
proximity to the courthouse sign.
Ergo, because this Court finds that Plaintiffs have not
demonstrated or alleged facts that they have standing to
contest the constitutionality of the sign on the Montgomery
County Courthouse, the Court will DISMISS THIS LAWSUIT WITH
COSTS.*fn3 All pending motions are denied as moot.