AMERICAN PLANNING ASSOCIATION Holiday Decorations, Public Property and the Law Edited Transcript November 12, 2013

Transcription

1 AMERICAN PLANNING ASSOCIATION Holiday Decorations, Public Property and the Law Edited Transcript November 12, 2013 Stuart: Good afternoon. This is Molly Stuart, editor of APA s Planning and Environmental Law. It is my pleasure to welcome you to today s audio web conference, Holiday Decorations, Public Property and the Law, brought to you by the American Institute of Certified Planners. This program is approved for 1.5 Law CM credits. The issue of holiday decorations, particularly those on public property, can be a challenging one for local officials. Strong opinions on all sides of the issue leaves little room to please all of your constituents. Add to that the highly confusing constitutional law on this subject, and we have a very thorny issue for those on the front lines of the debate about mangers and menorahs. Our speakers today will guide us through the key constitutional principles and court decisions in this complex area. We ve gathered a distinguished panel for this legal discussion. Let s meet them. John M. Baker is one of the founding attorneys with Green Espel PLLP in Minneapolis, where his specialties include constitutional law, sign law and appellate litigation. He teaches land use law at William Mitchell College of Law and is a long-serving member of APA s Amicus Committee. Baker: Good afternoon. Stuart: Thank you, John. Katherine M. Swenson is an attorney, also with the firm of Green Espel PLLP in Minneapolis, where she has argued in front of the Minnesota Court of Appeals and co-authored with John Baker a recent article discussing the Supreme Court s takings decision in Koontz v. the St. John s River Water Management District. Welcome, Katherine. Swenson: Good afternoon, everyone. Page 1

2 Stuart: Christopher C. Lund is an Associate Professor of Law at Wayne State University Law School in Detroit, where his teaching includes constitutional law and religious liberty in the United States. He is also the past chair of the Law and Religion section of the Association of American Law Schools. Welcome, Christopher. Lund: Thanks, it s a pleasure to be here. Stuart: And with that I can turn this over to today s first speaker, Katherine Swenson. Swenson: Hello, everyone. Let s get started, because we ve got a lot of interesting cases and interesting issues to talk about. I ll start by going to the next slide, please, with the Free Exercise and Establishment clauses, also known as the Religion clauses, of the Constitution. So we ll start with the text. Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. And although the text says Congress, the Religion clauses apply to both the federal government and the states. The first part of this is known as the Establishment clause, and the second part is known as the Free Exercise clause. Now the Establishment clause says that government cannot set up a religion, subsidize a religion, prefer one religion over the others or favor the idea of religion over no religion at all. The Supreme Court has never given us a definitive definition of what religion means. There are all sorts of interesting cases about whether a belief or set of beliefs amounts to religion. For example, the Third Circuit has said that Transcendental Meditation is a religion. The Ninth Circuit has said that secular humanism is not religion. And a court in Florida has said that the belief that eating cat food contributes to your well-being is not religion. In general, though, the courts are fairly liberal in deciding what constitutes a religious belief and what does not. The Free Exercise clause says the government cannot prevent individuals from exercising their religious beliefs or speaking out about religious issues, and the latter point also involves the Speech clause of the First Amendment. Taken together, these clauses require neutrality that is, Page 2

3 no government interference with religion, and no government endorsement of religion. To put it another way, the Establishment clause prevents the government from singling out religion for advantage, and the Free Exercise clause prevents the government for singling out religion for disadvantage. Now when we talk about holiday decorations, both the Establishment clause and the Free Exercise clauses are in play. When we ask if the government favors religion when it displays holiday decorations or allows them to be displayed on public property, this is an Establishment clause issue, and when we ask if the government interfered with individuals religious conduct or speech when it regulates the display of holiday decorations, this is a Free Exercise issue. And with that introduction, I will hand this off to Chris. Lund: Thanks, Kate, for that introduction. I m going to now turn to the heart of our topic, holiday displays and the law of holiday displays. And as my first slide indicates, it turns out that there are exactly three Supreme Court cases about holiday displays, and I m simply going to discuss them in this order. The first is Lynch v. Donnelly in The second is Allegheny County v. ACLU in And the third is Capitol Square v. Pinette in Now there are a slew of lower court cases. Kate, John and I will get to them later. These are the Supreme Court cases, and as you can see, the Supreme Court has not touched this subject in almost twenty years. So Lynch v. Donnelly is our first case. And it s a crèche case, the nativity scene case. It was decided in 1984, and it involves a nativity scene put up by Pawtucket, Rhode Island. And one particular fact here is really important. It ends up being dispositive. The nativity scene here is part of a much larger display. In the display are a number of things a Santa Claus and some reindeer but not just that also a clown, an elephant, a teddy bear and a bunch of other things. And although this isn t in the Supreme Court opinion, it is in the district court opinion, namely, that there was also a robot in the Pawtucket holiday display. And I think people of good will disagree about what happened 2,000 years ago in Bethlehem, but I m fairly confident there was Page 3

4 no robot at the birth of Jesus. Anyway, this display was owned by the city, but it went up in the local shopping district. It went up in a park owned by a non-profit organization. Now the Court is divided in Lynch v. Donnelly. By the narrowest of margins, by a 5-4 vote, the Court upholds the nativity scene. The Court says that it s constitutional, that cities like Pawtucket can have these kinds of nativity scenes. The plaintiffs had argued that this was an establishment of religion, that this was an establishment of Christianity. The government was advancing Christianity by having a nativity scene. Nativity scenes celebrate the birth of Jesus Christ. Jesus, as we all know, is the infant in the nativity scene. But the Court rejects that claim. The Court applies the Lemon test, a test that came out of a 1971 case of Lemon v. Kurtzman, a case about government money going to parochial religious schools. Lemon created a three-part test that you see on this slide. First, does the government action have a secular purpose? Second, does the government action have a principally secular effect? And third, does the government action cause excessive entanglement with religion. And the Court in Lynch said all three are satisfied here. This has a secular purpose celebrating a holiday and explaining the origins of the holiday, the Court said, are legitimate secular purposes. Moreover, the Court said, this has a principally secular effect. This doesn t advance religion, the Court says, or at least it doesn t advance it all that much. There is a crèche here, but it s surrounded by a number of other things Santa Claus, reindeer, a clown and, again, a robot. This doesn t look, the Court says, like the government trying to advance Christianity. And here the Court also cites a number of examples where the government advances religious messages in a kind of similar way prayer at presidential inaugurations, religious proclamations by the President at Thanksgiving, Congress chaplaincies, In God We Trust on the coin, one nation under God in the Pledge of Allegiance. This isn t worse, the Court says, than any of those things. And finally, the Court adds, this doesn t cause excessive entanglement with religion. Page 4

5 Now the four dissenters in Lynch v. Donnelly raise a number of objections. They argue that the government should not be allowed to put up these kinds of crèches. When the government celebrates the birth of Jesus Christ, it implies that the government believes that Jesus Christ was actually who Christians say he was the savior of the world and of mankind. That is a problem, the dissenters argued. Moreover, the dissenters argued, there is a separate problem with saying that this religious display is constitutionally okay because of the non-religious things accompanying it. This is kind of a weird implication of the Court s logic. The Court here upholds a nativity scene because of the Santa Claus, the reindeer, the clown and the robot. This suggests that religious displays are only acceptable when they are accompanied with enough other junk so as to hide or minimize the religious overtones. In other words, only watered-down religious displays are constitutionally acceptable. There is essentially a constitutional requirement that religious displays be desecrated before the government can set them up. So that s Lynch v. Donnelly in Let s now move to Allegheny County v. ACLU in Allegheny County involves two separate displays. They re outside two different buildings. The first is another crèche on the steps of the county courthouse. The crèche was donated by a Roman Catholic group. But this time the crèche stands alone by itself. There are no secular or non-religious symbols. This case is different that way than Lynch v. Donnelly. The second display is within the city/county building. It involves a menorah and a Christmas tree. The menorah is eighteen feet high. The Christmas tree is 45 feet high. There is also a sign with the Mayor s name and a statement about Happy Holidays. In Allegheny County, the Court issues a very fractured opinion. The first display is unconstitutional. The crèche, the nativity scene, is unconstitutional, the Court said. But the second display, the Court said, is constitutional. The menorah and the tree are constitutionally acceptable. Why the split? Well, it s complicated. The Court has nine members, and there are three votes that both displays are unconstitutional. Meanwhile, there are four votes that both displays are constitutional. Finally, there are two justices Justice O Connor and Justice Page 5

6 Blackmon in the middle. They approve of the second display, but not the first, and they re the ones responsible, I guess, for this weird line drawn. Now in Lynch v. Donnelly, the Court applied the Lemon test. In Allegheny County, this changes just a little bit. The Court kind of modifies the Lemon test, and it turns it into now what we call the Endorsement test. The key question, the Court said, is whether the government has endorsed religion or not. And the Court says that under this test, the crèche here is unconstitutional. The context is different, the Court says. This is a bare nativity scene. There is no Santa, no candy cane, no teddy bear, no clown, no elephant, no robot. But under this test, the Court said, the display consisting of the menorah, the Christmas tree and the sign are constitutional. That display doesn t seem like an endorsement of religion, despite the Menorah. The context is different. The tree, the Court says, is mostly a secular symbol. No one really thinks of a Christmas tree as an identifiably Christian object. The tree is big and in the center. The Mayor s message about having a happy holiday is a secular message as well. There is a lot of lights that don t seem to carry any religious message either. On the whole, the Court says, this display just doesn t seem like an endorsement of religion. The four conservatives on the Court point out the difficulties that these two decisions will create for the lower courts. The line-drawing problems here, they say, are a mess. Justice Kennedy s dissent says that this case creates a jurisprudence of minutiae that leaves lower courts with little more than intuition and a tape measure to decide whether displays are constitutional or not. Those are pretty harsh words, but that doesn t mean he s wrong. The difficult thing is that these two cases only give us three data points. Lynch v. Donnelly upheld the crèche within a diverse display. Allegheny County struck down a bare crèche. Allegheny County upheld a menorah, tree and secular sign together. Those two cases thus give us three data points, but it s not really clear where the line is, not really clear what is constitutional and what is unconstitutional. And that will be a theme that we pick up again when we get to the lower court cases. Page 6

7 Now this brings us to the last of our three Supreme Court cases, Capitol Square Review and Advisory Board v. Pinette. Pinette is different from the other two cases. Lynch and Allegheny County address the limits on the government s ability to put up holiday displays. Those limits arise because of the limits on the government promoting religion in general, limits that Kate talked about just a little while ago. As Kate talked about, the Establishment clause bars the government from speaking religiously, from addressing disputed theological questions, from embracing religious propositions. But at the same time, the Free Speech and Free Exercise clauses entitle people to speak religiously. This has meant that the government can t treat private religious speech worse than private non-religious speech, and that principle brings us to the Court s decision in Pinette. We re in the City of Columbus, Ohio. Columbus has a publicly-owned plaza near its statehouse. The grounds of the plaza are open for people to meet or to put up displays. In fact, getting the right to put up an unattended display is relatively easy. You just have to fill out an application form and meet some very light criteria, mostly to the effect that if you wanted an unattended display, your display had to be safe and sanitary and couldn t affect anyone else s display. The basic point is that all unattended displays are generally permitted. And during the holiday season of 1993, a number of groups put up displays. Jewish groups put up menorahs. Other groups put up other kinds of religious displays. The United Way put up a thermometer that measured donations. But then the Ku Klux Klan applied for permission to put up a cross, and its application was denied. Interestingly, it wasn t denied on grounds that the Klan was racist. It was denied on grounds that the Klan was religious and that the Klan wanted to put up a religious object, namely, a cross. Ohio feared that letting the Klan put up a cross might violate the Establishment clause. Perhaps Ohio was thinking of the case we just did, Allegheny County v ACLU, and how the crèche that stood alone in that case had been struck down. Yet in any event, the Supreme Court here in Pinette held that the Ku Klux Klan had a constitutional right to put up their cross. This is a public forum, the Supreme Court said. This is Page 7

8 a place that the government has set aside and invited private groups to come in and speak. They speak in person, but they also speak by putting up unattended displays. And if Ohio is going to have a public forum, if it s going to allow groups to put up unattended displays in that forum, it can t pick and choose. It has to allow everyone. It has to allow the Ku Klux Klan. It can t discriminate against the Klan because of the content or viewpoint of their message. It can t discriminate against religious messages because that would be discrimination on the basis of viewpoint. And this case is decided by a wide margin. Lynch and Allegheny were both 5-4, but Capitol Square v. Pinette was 7-2. Ohio had argued that this plaza was really close to the Ohio Statehouse. Ohio worried that some might misperceive the Klan s cross as being the government s cross. But the Supreme Court rejected that argument. The Court said that Ohio can t censor the Ku Klux Klan because some people might erroneously attribute the message to the State of Ohio. This wasn t Ohio s message, the Court says, it was the Ku Klux Klan, and it could not be constitutionally censored. So that concludes this part of the program. We now turn to Kate, who will discuss some very interesting lower court cases that have arisen after Lynch, Allegheny County and Pinette. Swenson: Thank you, Chris. As we re going to see, the lower courts all have the same pieces of information that we have from those three Supreme Court cases, and they apply them in surprising situations and in surprising ways. We ll start with the case of Satawa v. Macomb County Road Commission. This is a recent case from the Sixth Circuit in And as with all of these cases, the particular facts are very important, so I m going to go into a little detail about the display. In 1945, a set of statues depicting the birth of Christ were donated to St. Anne Parish in the Village of Warren, Michigan. Joseph Satawa and Frank Krause built a crèche to display the statues. With the village s permission, they placed the crèche and the statues on the public Page 8

9 median at an intersection. They did this every year until Joseph Satawa s son and his son-in-law later continued the practice. The crèche is nine and a half feet tall, eight feet wide and eight feet deep. It has front and back windows and is illuminated at night. It has a sign that says A Blessed Christmas St. Anne Parish and a plaque that says In memory of Joseph and Rose Satawa. Eventually, in about 1995, they stopped asking for permission to set up the crèche after a police officer told them it was not necessary any longer because everyone was already familiar with the display. In addition to the crèche, there are other displays on the median, which is about sixty feet wide. There are several pieces of old farm equipment and wagons, which were installed by a citizen s group, and on a section of median further north is a gazebo and a courtyard with a historical marker. In 2008, the county received a request that the crèche be removed to private property because it violated the Establishment clause. After the holiday season, John Satawa, the son of Joseph Satawa, applied for a permit to display the crèche the following holiday season. Satawa offered to pay all electrical costs to illuminate the display. He offered to buy insurance and he offered to post a disclaimer that the crèche is a private display. The county denied his application because of the nativity scene s religious message. Satawa filed a lawsuit. So the court decided first that the road median is a traditional public forum, like Chris talked about earlier. It s comparable to a public park. The residents of the village use it for a variety of expressive purposes. It has park benches. It s accessible by sidewalk. It might not be the typical park, but it is a place where people have long been able to gather, sit and communicate, even though it separates traffic on a busy street. The court did not buy the county s argument that traffic safety played any part in the denial of the permit, especially because the letter that denied the application mentioned only the religious content of the display Page 9

10 and did not mention any safety concerns. And also, the record of the village s government meeting focused on the religious message of the display. So what we have in the Satawa case is a privately-sponsored crèche displayed on government property, but had been open to the public for speech, and someone who followed the permit application process. The court said that it would have been okay under the Establishment clause for the government to grant the permit that is, the government would not have been endorsing religion. But the government did violate Satawa s Free Exercise rights when they denied the permit. The bottom line here is that private individuals are allowed to express religious views in a traditional public forum. Our next case is Chabad of Mid-Hudson Valley v. the City of Poughkeepsie, New York, and this was in The display at issue here is a privately-owned eighteen foot tall menorah on public property. In addition, municipal funds, labor and equipment were used to transport, setup, light and dismantle the menorah. So there is a lot going on here in terms of the history of this display. From 1986 to 1990, the City of Poughkeepsie displayed the menorah on the grounds of City Hall, along with a Christmas tree and a crèche. The menorah was relocated a few times over the years, eventually, in about 1996, ending up on a public sidewalk in front of a commercial building in area known as the Civic Center Plaza. In 2005, the city acquired a vacant lot near the building where the menorah was displayed. Each year thereafter, the city put up a Christmas tree in the lot, and at some point, the city planted a live Christmas tree. And since the 1990s, there is also an event called The Celebration of Light that has taken place in the city s downtown area. The primary purpose of that event is to attract shoppers, and the city does not sponsor the event, but several city employees install this event s decorations, including 1,000 feet of white lights, about 150 wreaths on utility poles, decorations for two Christmas trees and assorted garlands and banners. The celebration begins with a parade that passes through downtown and includes the lighting of two Christmas trees. Page 10

11 So what happened was that a lawsuit was filed over the display of the menorah on public property and the use of taxpayer money to display it. The court first held in this case that the display of the menorah on public property is not an endorsement of religion. The court emphasized that the context of the display and how a reasonable observer would perceive the display made all the difference. So here, the location we had was a public sidewalk at a main intersection. But the sidewalk was in front of a privately-owned building, not in front of the government building. In the immediate vicinity of the menorah were various decorations, which the court felt typified the secular celebration of Christmas, rather than the religious celebration. Other symbols in the nearby public parking lot included a Christmas tree, a star-and-crescent display, which is a symbol of the Muslim faith, and other lights, and I think there are plastic animals as well, which is kind of a typical thing you d see. In this context, the menorah did not lose its religious symbolism, but the surrounding canceled out any appearance of government endorsement. So a reasonable observer would understand the menorah as a celebration of the diversity of the holiday season, including traditional religious and secular symbols. But the court said that a principle purpose of the celebration was to preserve the economic viability of downtown, and not to endorse religion. But this case also has a final twist. The court also considered the use of the municipal funds, labor and equipment for the nightly menorah lighting and held that even if the city were reimbursed for the labor and equipment, a reasonable observer would perceive that the government had excessively entangled itself with religion. So the display of the menorah was okay, but the use of the funds and labor and equipment crossed the line. Our third case is Ritell v. Village of Briarcliff Manor. This is a New York case from 2006, and it s another dispute over the display of a menorah. In this case, the village put up a nine foot menorah in a public park next to the village s main roadway. The menorah was also located next to a natural-growing twelve foot evergreen tree. The tree was lighted after dark, but during daylight hours, it did not appear to be lighted. Now this lawsuit happened when the Page 11

12 plaintiff petitioned the village to allow him to display a nativity scene near the menorah, and the village refused, stating that it had a policy not to allow private unattended displays in the park. The court first addressed the plaintiff s argument that the village had exercised his free exercise rights by not letting him set up a nativity scene, and this was a slam dunk. The village is allowed to have an outright ban that is, a total ban on all unattended private displays in public parks, and the court explained that without some kind of restriction, the village park would be cluttered with signs and displays, and the ordinance that the village came up with had nothing to do with the content of the displays. It applied to every display, whether it had a religious message or a political message or any type of message at all. The court then turned to whether the village s display violated the Establishment clause. The court discussed the Allegheny and Pinette cases, and said that it would have been okay for the village to grant plaintiff s request to display a nativity scene in order to balance the menorah. But instead, the city displayed a purely religious symbol of one faith that is, the menorah and no privately-sponsored symbol of any other faith. Now the court noted that there was evidence that the roadside display was part of a comprehensive holiday program, including caroling, the placing of wreaths on light poles, and the whole idea was to celebrate religious diversity and to demonstrate that people of all faiths were welcome in the village. The court noted that the village was sincere about this and that its goal was admirable. But despite these good intentions, a reasonable observer would still think that the government was selecting one religion to single out for approval. So the display here is dominated by religious symbolism without a neutralizing secular background. And you might think, Well, wait a minute. Doesn t the Christmas tree, the evergreen tree, kind of cancel out the menorah? And the court addressed that, and the court said the evergreen tree wasn t enough. The court did not seem to think that the evergreen tree was a true bona fide Christmas tree. It wasn t decorated and it wasn t obviously lighted during the day. And the court also distinguished the case I think it was Allegheny where they had a 45 foot tree and a small menorah by pointing out that in this case, the tree and the menorah were about Page 12

13 the same height, and the menorah was not overshadowed by a secular symbol. So the end result here was that the display violated the Establishment clause. And now we come to probably our most complicated case, which is Snowden v. Town of Bay Harbor Islands. This is a Florida case from 2004, and it s complicated because it involves, again, both the Free Exercise and Establishment clauses. So here we have a town that owns an island, and on this island, there is a grassy area that s several hundred feet in area about 800 feet by 140 feet. There is no public parking next to the grassy area, but there is parking associated with some tollbooths and a gas station nearby. There are no park-like amenities there and the area is surrounded by a high-traffic road, so it s not very safe to get to the grassy area. But there are no signs that forbid people or pets to use the grassy area for recreation, like walking or flying kites. So I wouldn t call it a park, but it s not not a park. Anyway, in December 2001, the mayor, who was then a councilmember, proposed that his synagogue be allowed to display a fourteen foot stainless steel menorah on the grassy area. The council voted to place the menorah on the grassy area near a power source that was provided for and paid for by the town. Next to the menorah, the town also put temporary colorful sailboat decorations. And so this display appeared in the winter seasons of 2001, 2002 and During those holiday seasons, the town also put seasonal displays downtown along a state road, including several six foot tall blue-and-white Stars of David and some eight foot tall blue-andwhite menorahs and several poinsettia plants. The dispute arose here in The plaintiff, who lived in the town, asked if she could place a nativity scene on the grassy area, and she was willing to include a disclaimer that said it was her personal display. She also proposed a living nativity with actors and/or lighted nativity banners downtown. Page 13

14 Unfortunately, the whole thing got out of hand fairly quickly. The record shows that at some point, a councilman called the plaintiff s landlord and tried to have her evicted, just because she wanted to have a nativity scene displayed. Eventually in March 2004, over a year later, the council voted to change its holiday display. At the grassy area, it continued to have a menorah and the sailboat, but it added a fourteen foot decorated Christmas tree, and in the downtown area, the council voted to display eight menorahs, eight Christmas trees and eight snowflakes. And the town also decided it would only allow town-sponsored decorations on town property. There would be no private displays allowed, and they denied the request for a nativity scene. The result here is kind of complicated. First, the court said that the plaintiff proposed displays the Christian religion ones were religious speech protected by the First Amendment. The court then said that neither the state road downtown nor the grassy area is a public forum. It was reasonable for the town to deny the request to display the things downtown related to the state road, but for the grassy area, the court found that the request seemed to have been denied because of religious hostility that is, it wasn t reasonable for the town to deny her request, especially when it was contrasted with the earlier approval that was given to the synagogue. The second issue the court looked at was whether endorsing the Jewish religion and showing hostility to Christianity. And they did this by breaking down each of the two areas and then looking at the original display from 2001 to 2003 and the later display after the town changed it. So the Stars of David, the menorahs, the poinsettias that were displayed downtown from 2001 to 2003, those were found to have violated the Establishment clause. The later display that had snowflakes and Christmas trees did not violate the Establishment clause. And moving over to the grassy area, the initial display in 2001 to 2003 with just the menorah and the sailboat, that was found to violate the Establishment clause. But the later display with the Christmas tree added did not violate the Establishment clause. Page 14

15 So what we have here is that, again, the pattern of when more symbols of different religions and more secular symbols are added, a city can change an unconstitutional display to a constitutional one. And after those cases, I will hand this off to Chris. Lund: Thanks. I have two other lower court cases that I wanted to briefly talk about to give you a further sense of what s going on. I imagine your head might be hurting from all of these lower court cases, the complicated factual patterns going in different directions. We ll do our best to reconcile the law in a little bit. But first, I want to talk about two more cases. The first is Freedom from Religious Foundation v. the City of Warren, decided earlier this year by the Sixth Circuit, as you can see from the slide. It s actually the same defendant as in the Satawa case that Kate talked about. The background is this each year the City of Warren, Michigan puts up a holiday display in the atrium of the Warren Civic Center. The Civic Center is the city s primary municipal building. The display goes up shortly after Thanksgiving. It s gone up for a number of years. And the display includes many things. It includes a lighted tree, reindeer, snowmen, a mailbox from Santa, elves, a Winter Welcome sign and, as you might have guessed by now, it also contains a nativity scene, a crèche. The plaintiffs here are the Freedom from Religion Foundation. They initially asked the City of Warren to take down the holiday display entirely. But the City of Warren refuses to do that, and when the City of Warren refuses, the plaintiffs then ask the city to add the plaintiff s own display to the mix. And the plaintiff s own display was essentially a sign with a written message on it, and the written message stated the beliefs of the Freedom from Religion Foundation. The message was that there is no God and that religion is unproductive superstition. The City of Warren refuses to accept that display and the plaintiffs sue. Page 15

16 Here the court upholds the City of Warren s actions. First of all, the court says, this display is constitutional under Lynch and under Allegheny County. It doesn t violate the Establishment clause. The court said this and I m going to read you a short passage If the multi-purpose, multi-symbol displays in Lynch and Allegheny County did not offend the Establishment clause, then neither does Warren s display. Included with the nativity scene in Warren s display is a series of secular figures comparable in all relevant ways to the display in Lynch Santa s mailbox, an elf, ornaments and so on, even a nutcracker, for good measure. Thus, the court concludes, this display is constitutional under Lynch and Allegheny County. It doesn t violate the Establishment clause. And then second, the court says, Warren had no duty to take the display of the Freedom from Religion Foundation. Warren did not have this duty under either the Free Exercise clause or the Free Speech clause. This was not a public forum, the court says. The City of Warren did not open this space to all comers. This wasn t a public park. It wasn t a public forum. It wasn t like the highway median in the Satawa case that Kate described earlier. The City of Warren did not open this space up to everyone. It sponsored a single display of its own, and so it had no duty to take the display of the Freedom from Religion Foundation. Now in some conceivable situations, the court implied, the City of Warren might have a duty to take the display of the Freedom from Religion Foundation. It s certainly true that the City of Warren couldn t agree to take displays from everyone else and put them up in the city atrium, but then turn around and ban Freedom from Religion Foundation. But that s not this case, the court says. The city hadn t been taking displays from everyone else. The city had not opened up a public forum here. A very similar case to this was an earlier one. There is no slide on it, but the case is Skoros v. the City of New York, a 2006 case from the Second Circuit. Skoros is somewhat similar to a lot of the cases we ve been talking about. The City of New York had a policy regarding holiday displays on the grounds of its schools and Department of Education building. The policy allowed Christmas trees and other kind of secularized symbols. It also allowed the Page 16

17 Jewish menorah to be displayed as a symbol of Hanukkah. And allowed the Muslim star-andcrescent to be displayed as a symbol of Ramadan. And here a plaintiff, Andrea Skoros, sued. She said this policy was unconstitutional. Skoros was Catholic. She had tried to get the city to allow a Christian nativity scene, but they had refused. She then sued, claiming this violated the Free Exercise and Establishment clauses. But the Second Circuit rejected her claim. The Second Circuit held that this was constitutional. The secular symbols, the menorah and the Muslim star-and-crescent combined to create a multi-cultural holiday display, the court said. People who look at this combination of symbols will not take it as an endorsement of Judaism or Islam, the court said. They wouldn t think that the state was endorsing Judaism or Islam over Christianity or Atheism. It didn t mask a hostility to Christianity or Atheism, the court said, especially because the displays included some Christian and some secularized symbols Christmas trees, candy canes, reindeer. Now it didn t include a nativity scene, true, but it didn t leave Christianity out altogether. And while this school district policy might have been able to include a nativity scene if had wanted to, the court said, no individual plaintiff has the right to get his or her items added to the government s holiday display. This again was not a public forum for private speech. The government wasn t allowing outside groups to put up their own displays. The government was deciding for itself what it itself would display. No one had the right to get their own religious symbols added to the city s chosen display. But I should also note that this decision was somewhat controversial. There was a dissent. This was, in essence, two judges against one judge, and the dissent said that he would strike this down as favoring Judaism and Islam and disfavoring Christianity. So you see, I think, just how undecided and how complicated this whole area of the law is. Nevertheless, Kate and I will try to summarize some guidelines and best practices in this next section. And so with that, I ll turn it back over to Kate. Page 17

18 Swenson: We ve tried to assemble kind of some guideposts that will help you to figure out whether a display or a proposed display is constitutional. And unfortunately, there s just really no certainty based on the lack of Supreme Court precedent and just the complicated nature of every display that we ve seen. But the first point you can look at, the first question you should ask is, what type of religious symbol does the display involve? And when we say religious symbol, it s not really what the person on the street would think of as being religious. It s what the court has said is religious and not. Religious symbols include a crèche, a menorah, a Star-of-David, a star-and-crescent or a cross. Non-religious symbols include candy canes, snowflakes, Santa Claus, reindeer, poinsettias, Christmas trees although it has a religious term right in there and going off of our presentation today, we would also have to include robots, I guess. So that s kind of the first question you would have to ask. Another very important question is, what is the context of the display, the holistic kind of gestalt thing that we look at? Is the religious symbol displayed in isolation? Remember, the menorah cases, where it was just a menorah and there was nothing to cancel out the religious message of that symbol. Is it neutralized by other symbols? If you have several religious symbols together, it s going to be perceived that as unlikely that the government is endorsing a single religion. Another factor is how obtrusive the display is. That is, how in your face is it? If you have a Christmas tree the size of Rockefeller Center, but it s got religious decorations on it, that s probably not going to pass muster compared to a smaller display that is less likely to provoke citizens who get provoked easily. And here are some other just kind of odds and ends that we ve gotten from these cases. It s more likely for a display to be constitutional if it includes a disclaimer, maybe a small sign that says This represents the view of a citizen or The government is not trying to endorse Page 18

19 religion or We re celebrating the secular spirit of the holiday or something like that. It s more likely to be constitutional if it includes non-religious signs a salute to liberty or Happy Holidays or Wonderful Winter or something like that. This next one is something I stole from one of my law professors. He used to call this the Constitutional Tacky Test. If a display is tacky or not very you know it when you see it. So if it includes a mix of symbols, plastic animals, elves, reindeer, robots, flashing lights and a mix of various religious symbols, that s more likely to pass constitutional muster than if you had a very tasteful display focusing on one religion that was considered to be in good taste. Another factor that will make a display more likely to be constitutional is that it is owned and paid for by a private party. And that not only includes the display itself, but any efforts to put up the display, take it down, store it, add power to it, things like that. Chris, do you have any thoughts to add on guidelines and best practices? Lund: I think that s basically it. Maybe I have one or two things to add. Swenson: Sure. Lund: The first point that Kate made about the type of religious symbols of the display involved this probably is the most important. Crèches, nativity scenes and crosses are usually the most difficult symbols to defend because of their obvious religious meaning. There was a sign two years ago that a city fire station put up that said Keep Christ in Christmas. If that gets challenged, it s almost certainly going to be found unconstitutional. And then one other thing to add to the general discussion of the gestalt or the holistic nature of this inquiry a good thing to ask is, What s the history behind the display? If a display has gone up every year for the past forty years, it seems much more legitimate than if a city has just put it up this year. The historical rationale, the rationale of tradition, seems a lot more plausible and it seems a lot less like religious partisanship. Page 19

20 But that s all I have to add, Kate. Swenson: Thank you. It looks like we ve got another slide. This just kind of summarizes the Pinette case that we were talking about. I think it s good to review. But when you re talking about, instead of a display where it s put up entirely by the government, if you ve got an individual a private individual or a group putting a display up on government property, if the government allows some individuals to do it, it cannot pick and choose. In the Pinette case, if it allowed a display by a Jewish group and the United Way, it has to allow a display by the Ku Klux Klan. If it allows a Christian group and a Jewish group, then it must allow a Muslim group or an Atheist group. If somebody has the idea of opening up a forum for individuals to come and speak, once that happens, the government can t pick and choose based on viewpoint. And so with that, we will hand this off to John Baker to talk about holiday decorations and sign regulations. Baker: Thanks, Kate and Chris. That was very helpful. I want to shift the focus to a different part of the First Amendment now, away from the Free Exercise clause and the Establishment clause to the Free Speech clause. And to put this in context for you planners out there, this will resemble that part of your training in which they taught you that when you re writing a sign code or another regulation that you are expected to be just as permissive under the First Amendment Free Speech clause of the Greenpeace sign over on the right side of this slide as you would be about the display that the developer wants to put up on the corner of the vacant lot that they re developing into twelve new home sites to promote the next residential development under the circumstances. You can be perhaps more permissive of Greenpeace, but you can t be less permissive of that kind of non-commercial display as you are to the commercial display. One of the other things that will be different about the settings that I m talking about compared to the settings that Chris and Kate were talking about is that most of these situations arise in private, rather than public, property. Page 20

21 When we re talking about the Free Speech clause in sign codes, there are three basic principles to remember. Thinking of the example I just gave of the development sign and the sign code, your sign code shouldn t favor commercial speech over non-commercial speech. So outside of the holiday decorations context, you should ask whether your code makes it as easy to fly the Greenpeace flag as it is to put up a development sign. In the context of holiday displays, the question would be whether your code makes it at least as easy to put up a cross or a menorah on your own lawn as it is for someone to put up a development sign, because it should be. Now when your ordinance is distinguishing between types of non-commercial speech, the Supreme Court s decisions make it clear that your sign regulations should be content-neutral. And I m going to spend most of my time talking about what the courts have said content neutrality means, because that s one of the most complicated parts of all of this, I think. But even something that s content-neutral even something that s viewed for that reason as a time, place or manner regulation it still has to be reasonable. And what the courts mean by reasonable when it comes to time, place and manner is, number one, they re supposed to be justified without reference to the content of the regulated speech; second, they also have to be narrowly tailored to serve a significant governmental interest. And there are about two or three things wrapped into that, one of which is, the government s interest must be a significant one, rather than a trivial one. It has to actually serve that interest; it has to advance it in some conceivable way. And it has to do so in a way that is narrowly tailored toward that goal, and isn t overkill, in other words. And finally, you have to leave open ample alternatives, alternative channels for communication of the information. Your regulation can t effectively suppress what they want to do. Let me talk the most about content neutrality here. It s easy to say that these regulations have to be content-neutral. Knowing in advance whether or not a court is going to draw that conclusion is what s really tough. Now a little bit about the context in which these things come up. These kinds of cases I m going to describe typically are not ones that are brought by people who want to put up Page 21

22 holiday displays. To the contrary, they are people who want to put up other things real estate signs, political signs, election signs. And their argument to the court for why they should be able to do that is, I should get to put up my sign because he or she over their gets to put up her reindeer or cross or menorah or ugly display on the front yard under the holiday or religious display provision of your sign code. Now judges often disagree about what the right test is for content discrimination. There is one test that I call the literal test. I ll explain more about that in a minute. And there is another test that I call the pragmatic test. And if that s not enough, there is a case in front of the U.S. Supreme Court right now not involving holiday displays or signs, but involving protective areas of reproductive rights clinics in which the plaintiffs are asking the court to create a third kind of content neutrality requirement that requires that the practical effects of the regulation also be neutral as to the viewpoints of the people affected. But they haven t done that yet, so I won t focus on that. I ll instead focus on the literal test and the pragmatic test. The test that applies may depend on what judge is randomly assigned to your case. Even within the same federal U.S. court of appeal and even within the same districts, you have judges who agree to disagree about these things. So what we ve tried to do when we re writing sign codes is to try to write it in a way that would pass muster under either test. And we don t always succeed at that. Sometimes you just have to take the risk or not regulate it at all. If the judge uses the literal test for content neutrality, he or she is going to ask whether or not you as the regulator have to look at or read what the display says in order to determine whether the regulation applies to that display. Under this approach, for example, if you ve got an exception to your regulations for non-commercial announcements of occasions such as birthdays or anniversaries, there is a good chance that that would flunk the literal test because in order to determine whether or not the banner that s stretched across the front of somebody s front yard is or is not a non-commercial announcement of an occasion, you ve got to read what it says. Page 22

23 And so another effect of applying the literal test is the distinctions based on subject matter are vulnerable to being overturned. So if you forbid banners in residential areas except those that are relating to holiday celebrations, for example, that may be a subject and not a viewpoint or not an opinion, but nevertheless, in the literal test, it may be invalid. And even if your objective isn t to censor even if you are instead just trying to find a compromise between different approaches to this under the literal test, that may not save what you re trying to do here. This one is the pragmatic test. This is the one that s easier to satisfy. And if this is the one that s used, your law will be upheld if any of the following three things are true. First of all, if this is a regulation of the where a regulation of places where some speech can occur rather than regulation of what a regulation of the speech itself then some judges will say, that itself is something that makes it constitutional. It s not that it makes it contentneutral. Even then, it could be constitutional if the regulation was not adopted because of disagreement with what the message conveys, but for some other objective. And finally and this is similar to the second part if the government s interest in the regulation that you re relying upon to justify it is unrelated to the content of the affected speech, then it would pass muster there. So let s get into some examples here of how courts are choosing different tests and how they re applying those tests. This gets a little bit more complicated where what you re talking about are holiday decorations. There is a federal judge who upheld some, but not all, of the way in which a tightly regulated residential area outside Atlanta called Avondale Estates was regulating what you could put on your front yard. But as part of his effort to apply the tests, one of the things that he observed was that, while a political sign has got content, not so holiday decorations. He explained, while a black cat, a reindeer with a red nose, a leprechaun or an Easter bunny may certainly evoke feelings, usually positive, warm feelings in all but the most grumpy, it would be difficult to ascribe content to such decorations. He said such decorations communicate nothing more about a homeowner s opinion than that he or she has a sense of whimsy, a communal spirit and a desire to reconnect with the traditions that bind the generations. Page 23