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Kreisner v. City of San Diego

filed: March 3, 1993.


Appeal from the United States District Court for the Southern District of California. D.C. No. CV-88-1993-WBE. William B. Enright, District Judge, Presiding. {Counsel}{Q}Counsel{/Q}{/Counsel}

Michael A. Jacobs, John F. Delaney, Susan St. Amour, Morrison & Foerster, San Francisco, California, for the plaintiffs-appellants.

Mary Kay Jackson, Deputy City Attorney, San Diego, California, for the defendant-appellee.

Before: Robert Boochever, Alex Kozinski, and Diarmuid F. O'Scannlain, Circuit Judges. Opinion by Judge O'Scannlain; Concurrence by Judge Kozinski; Dissent by Judge Boochever.

Author: O'scannlain


O'SCANNLAIN, Circuit Judge:

This appeal squarely presents a conflict between two of our most deeply cherished liberties: freedom of speech and freedom of religion. The question we must decide is whether the City of San Diego may, consistent with the Establishment Clause of the United States Constitution, permit a private group to erect a religious display in a public park during the Christmas season. Because the park is a traditional public forum removed from the seat of government, we hold that the City may permit the display provided it does so in a non-discriminatory manner.


San Diego's Balboa Park is a 1200-acre public park containing recreational facilities ranging from theatres, museums, and a zoo to picnic areas and sporting fields. Every year during the Christmas holiday season, Balboa Park is the site of a holiday display. The City, in conjunction with a private non-profit group known as the Community Christmas Center Committee ("the Committee" or "the Christmas Committee"), sponsors a secular holiday display, which includes a Santa Claus, reindeer, a Christmas tree, and numerous festive colored lights. That display is not challenged here.

Some 250 feet away from the secular display, and partially separated from it by a wall and a road, is a small, open-air amphitheatre known as the Organ Pavilion. Each year, the Christmas Committee is granted a permit to set up a display consisting of scenes from the New Testament in the Organ Pavilion. The Committee's display, which remains in place for approximately six weeks from late November through early January, includes eight scenes, four of which are placed on each side of the Pavilion's stage. Each scene is housed in a palm-covered booth ten feet high and fourteen feet wide. Each contains life-size statuary depicting a biblical scene from the life of Christ, a painted backdrop, and a descriptive sign. Seven of the eight scenes also include gospel passages in English and Spanish. As described by the signs, the eight scenes and their accompanying biblical passages are as follows:

Scene Biblical Quotation The Annunciation "Fear not Mary: for thou hast found favour with God; and behold, thou shalt bring forth a son, and shalt call his name Jesus."

Luke 1:30-31 [no description;

Mary and Joseph being turned away from the inn.] "there was no room for them at the Inn."

Luke 2:7

Angel appearing before the shepherds "The shepherds said, let us now go . . . and they came with haste and found both Mary and Joseph, and the babe lying in a manger."

Luke 2:15-16 The birth of Christ[text does not appear in record] Wise Men on their way to Bethlehem "Behold, wise men from the east came to Jerusalem saying, Where is he that is born King of the Jews?. . . for we are come to worship him."

Matt. 2:1-2

The Flight into Egypt "Arise and take the young child and his mother, and flee into Egypt, for Herod will seek the young child to destroy him, and Joseph took them by night."

Matt. 2:13-14 Christ in the Temple[no text]

Suffer the little children to come unto me "But Jesus said, Suffer the little children to come unto me, and forbid them not; for to such belongeth the Kingdom of God."

Mark 10:14

One or more disclaimer signs, stating that the Biblical display is privately sponsored and not allied with the City, accompany the display. The record does not reveal the size, text, or location of these disclaimers.

The Committee pays no fee for its use of the Organ Pavilion. The City ordinarily charges organizations who wish to reserve the Pavilion for exclusive use a fee varying from $440 to $1,325 per day, depending upon the nature of the use and the user. City regulations allow waiver of these fees for nonprofit community services organizations, defined as "recognized groups, clubs, agencies or organizations whose activities are of a service or character building nature, who give service to the community as a whole, and . . . where no portion of the net earnings are used for or inure to the benefit of any individual or member of the group."

The City explains that it charges no fee for the Committee's display because the Committee's use of the Organ Pavilion is "non-exclusive." Other groups and individuals can and do use the Pavilion while the display is in place. The City represents that, if another user so requests, it will require the Committee to cover the display while any overlapping exclusive use permit is in effect.

The Committee's Biblical display has been an annual tradition in Balboa Park since 1953. The Committee has always owned the statuary and booths. Before 1988, the display was erected and removed each year by City employees, and stored on City property. In the wake of an opinion issued by the City Attorney to the effect that the City's involvement was unconstitutional, the Committee now erects, removes, and maintains the display itself, and stores it on private property. The Committee reimburses the City $150 for the estimated cost of electricity used by the display. The City provides no other services in connection with the display.

To help defray the costs of the display, the Committee maintains donation barrels at the site. It also maintains a stock of small pamphlets, which contain a schedule of concerts and events to be held at the Pavilion during the Christmas season, a brief history of the Christmas Committee, and a plea for donations to support the Committee's activities.

Acting pro se, appellant Howard Kreisner filed suit in the federal district court seeking to prevent the City from allowing the Committee to erect the display on public property. Kreisner alleged that the City's decision to permit the display in Balboa Park violated the religion clauses of both the federal and state constitutions. His complaint requested declaratory and injunctive relief, as well as punitive and other damages.*fn1

The parties agreed that no material facts were in dispute, and submitted cross motions for summary judgment. On November 8, 1989, Judge Enright granted judgment for the City on the federal claim and dismissed the state claim.*fn2 This timely appeal followed. This court appointed counsel to represent Kreisner on appeal.

After the appeal was argued before this panel, it became obvious that the parties disagreed about the nature of the City's permit policy in Balboa Park. They submitted competing declarations and affidavits describing the policy to us. To resolve the dispute, we remanded to the district court for entry of factual findings.*fn3 The district court (Judge Huff, following Judge Enright's recusal) held a hearing and determined that the City followed a first-come, first-served policy in Balboa Park. Judge Huff also reaffirmed Judge Enright's Conclusion of law that permitting the display on public property did not violate the Establishment Clause of the United States Constitution.

We solicited additional briefing from the parties, and postponed submission pending the decision of the Supreme Court in Lee v. Weisman, 120 L. Ed. 2d 467, 112 S. Ct. 2649 (1992). We now affirm.



The First Amendment provides that "Congress shall make no law respecting an establishment of religion . . . ." U.S. Const. amend. I. Although written as a limitation upon congressional power, this clause also operates, through the Fourteenth Amendment, to constrain the power of state governments. See Everson v. Board of Educ., 330 U.S. 1, 8, 67 S. Ct. 504, 91 L. Ed. 711 (1947).

Like most cherished social values, the principle of religious freedom that is embodied in the Establishment Clause is easy to proclaim but difficult to define: "Candor compels acknowledgment . . . that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law." Lemon v. Kurtzman, 403 U.S. 602, 612, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971). The Supreme Court has, however, generally articulated the boundaries of the Clause's coverage. In a world of constant compromise and qualification, the Establishment Clause

means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.

Everson, 330 U.S. at 15-16 (quoting Reynolds v. United States, 98 U.S. 145, 164, 25 L. Ed. 244 (1879)). Or, more succinctly put:

In the course of adjudicating specific cases, [the Supreme Court] has come to understand the Establishment Clause to mean that government may not promote or affiliate itself with any religious doctrine or organization, may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious institution, and may not involve itself too deeply in such an institution's affairs.

County of Allegheny v. ACLU (" Allegheny County "), 492 U.S. 573, 590-91, 106 L. Ed. 2d 472, 109 S. Ct. 3086 (1989).

On the other hand:

The First Amendment does not prohibit practices which by any realistic measure create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercises or in the favoring of religion as to have meaningful and practical impact. It is of course true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow.

Lee v. Weisman, 112 S. Ct. at 2661 (quoting Abington School District v. Schempp, 374 U.S. 203, 308, 10 L. Ed. 2d 844, 83 S. Ct. 1560 (1963) (Goldberg, J., Concurring)). The Constitution "permits government some latitude in recognizing and accommodating the central role religion plays in our society." Allegheny County, 492 U.S. at 657 (Kennedy, J., Concurring and Dissenting).

Applying these general tenets in the context of a particular case "remains a delicate and fact-sensitive" task. Lee v. Weisman, 112 S. Ct. at 2661.

In each case, the inquiry calls for line-drawing; no fixed, per se rule can be framed. The Establishment Clause like the Due Process Clauses is not a precise, detailed provision in a legal code capable of ready application. The purpose of the Establishment Clause "was to state an objective, not to write a statute."

Lynch v. Donnelly, 465 U.S. 668, 678, 79 L. Ed. 2d 604, 104 S. Ct. 1355 (1984) (quoting Walz v. Tax Comm'n, 397 U.S. 664, 671, 90 S. Ct. 1409, 25 L. Ed. 2d 697 (1970)).

In the context of religious holiday displays, the Court's Establishment Clause jurisprudence has been particularly fact-bound. No clear general principles emerge from the two most recent cases considering the constitutionality of such displays. In Lynch v. Donnelly, 465 U.S. 668, 79 L. Ed. 2d 604, 104 S. Ct. 1355 (1984), the Court found no Establishment Clause violation in the City of Pawtucket's ownership and annual display of holiday decorations including, among other things, a Santa Claus, a Christmas tree, and a Nativity scene. The display was located in a privately-owned park in the heart of the City's shopping district. In Allegheny County, a deeply divided Court held unconstitutional the display of a privately-owned creche on the "Grand Staircase" of the County courthouse, but permitted a second privately-sponsored display consisting of a menorah, a Christmas tree, and a sign saluting liberty outside a government office building a block from the courthouse. Together, Lynch and Allegheny County call for a detailed contextual inquiry that has been aptly described as "requiring scrutiny more commonly associated with interior decorators than with the judiciary." American Jewish Congress v. City of Chicago, 827 F.2d 120, 129 (7th Cir. 1987) (Easterbrook, J., Dissenting).


Although the Court has "repeatedly emphasized [its] unwillingness to be confined to any single test or criterion in this sensitive area," Lynch, 465 U.S. at 679, it has generally applied the three-part test first articulated in Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971), to determine whether a challenged practice or statute comports with the Establishment Clause. Moreover, despite criticisms by current members of the Court, see Lee v. Weisman, 112 S. Ct. at 2685 (Scalia, J., Dissenting) (cataloging such criticisms), the Supreme Court expressly declined to reconsider the Lemon test in Lee, id. at 2655 (opinion of the Court). We therefore see no justification for the Dissent's articulation of a new Establishment Clause test.

Even were a new test warranted, the Dissent's proposed sliding scale test has what we see as a major flaw: It requires the court to Judge the "intensity" of the religious message. This is problematic in a several significant ways. First, an inquiry into the intensity of a religious symbol essentially asks how "central" that symbol is to the faith it represents. For example, is a menorah more intense than a cross? The Supreme Court has disapproved this sort of inquiry in religion cases. See Employment Division v. Smith, 494 U.S. 872, 886-87, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990) (constructing free exercise test to avoid judicial inquiry into the "centrality" of a practice to a person's faith); see also Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 699, 109 S. Ct. 2136, 104 L. Ed. 2d 766 (1989) ("It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith . . . ."); United States v. Lee, 455 U.S. 252, 257, 71 L. Ed. 2d 127, 102 S. Ct. 1051 (1982) ("It is not within the judicial function and judicial competence, however, to determine whether appellee or the Government has the proper interpretation of the Amish faith . . . .") (quotation omitted). Second, the Dissent's test raises a difficult question of perspective. The dancing Siva, Nataraja, has much religious import to a Hindu, but its significance would be lost on most Americans. From whose perspective do we determine intensity? The reasonable Judeo-Christian observer? There are no judicially manageable standards to apply in making these sensitive judgments. Finally, the likely consequence of the Dissent's test would be that only diluted religious messages would be allowed in public forums. Yet Lee v. Weisman cautioned against precisely this result:

The First Amendment's Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State. The design of the Constitution is that preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission. It must not be forgotten then, that while concern must be given to define the protection granted to an objector or a Dissenting nonbeliever, these same Clauses exist to protect religion from government interference. James Madison, the principal author of the Bill of Rights, did not rest his opposition to a religious establishment on the sole ground of its effect on the minority. A principal ground for his view was: "Experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation."

Id. at 2656-57 (citations omitted). In the same way that government-crafted prayers threaten to water down religious messages, permitting only those Christmas displays that are of minimal "intensity" will detract from or destroy their religious significance. The Lemon test focuses our inquiry on the objective circumstances - such as its location and sponsorship - that measure the government's involvement in the religious display. The test thus avoids the serious risks associated with judicial scrutiny of the content of the message conveyed.

In our application of the Lemon test, we take guidance from Allegheny County, 492 U.S. at 592, where the Court explained:

Under the Lemon analysis, a statute or practice which touches upon religion, if it is to be permissible under the Establishment Clause, must have a secular purpose; it must neither advance nor inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion.

The challenged practice must survive all three prongs of the Lemon analysis in order to pass constitutional muster. Edwards v. Aguillard, 482 U.S. 578, 583, 96 L. Ed. 2d 510, 107 S. Ct. 2573 (1987). Kreisner argues that the City's grant of a permit allowing the Committee to erect its display in Balboa Park violates each facet of the Lemon test.


A government practice or statute fails the purpose prong of Lemon if its purpose is to endorse a religious custom or viewpoint. See Allegheny County, 492 U.S. at 592; Edwards, 482 U.S. at 593; Wallace v. Jaffree, 472 U.S. 38, 60, 86 L. Ed. 2d 29, 105 S. Ct. 2479 (1985). "Government endorsement of religion has been found when the government conveys or attempts to convey a message that a particular religion is favored or preferred, or when it promotes one religion or religious theory against another or even against the militant opposite." Cammack v. Waihee, 932 F.2d 765, 773 (9th Cir. 1991), cert. denied, 112 S. Ct. 3027, 120 L. Ed. 2d 898 (1992). As Justice O'Connor explained in her Concurring opinion in Lynch : "The purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion." Lynch, 465 U.S. at 690 (O'Connor, J., Concurring).

A practice will stumble on the purpose prong "only if it is motivated wholly by an impermissible purpose." Bowen v. Kendrick, 487 U.S. 589, 602, 101 L. Ed. 2d 520, 108 S. Ct. 2562 (1988); Cammack, 932 F.2d at 774. A reviewing court must be "reluctant to attribute unconstitutional motives" to government actors in the face of a plausible secular purpose. Mueller v. Allen, 463 U.S. 388, 394-95, 77 L. Ed. 2d 721, 103 S. Ct. 3062 (1983).

We have no difficulty concluding that the City's decision to permit the Committee to erect its holiday display in Balboa Park is supported by a legitimate, sincere secular purpose. The City cites two such purposes: (1) the promotion of holiday spirit and (2) the promotion of free expression. We need not consider the City's first avowed purpose because the second suffices. The Supreme Court has made it clear that a policy of permitting open access to a public forum, including non-discriminatory access for religious speech, is a valid secular purpose. Board of Education v. Mergens, 496 U.S. 226, 249, 110 S. Ct. 2356, 110 L. Ed. 2d 191 (1990); Widmar v. Vincent, 454 U.S. 263, 271, 70 L. Ed. 2d 440, 102 S. Ct. 269 (1981).

The City's past sponsorship of the display does not undercut our Conclusion. It is undisputed that the City no longer acts as a sponsor. Further, the City has taken affirmative steps to disassociate itself from the Committee and the display. Under the circumstances, the City's past conduct is not persuasive evidence of its current motives.


Purposes aside, Kreisner contends that the principal and primary effect of granting the Committee's annual request for a permit is to advance one particular religion and its theological viewpoint. The test under this prong is whether "the challenged government action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices." School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390, 87 L. Ed. 2d 267, 105 S. Ct. 3216 (1985). The question, in other words, is whether the government's action "actually conveys a message of endorsement" of religion in general or of a particular religion. Wallace, 472 U.S. at 69 (O'Connor, J., Concurring in the judgment).

We assume that, were the Committee's display sponsored by the government, its overwhelming message of glorification of the divinity of Jesus Christ would violate the Establishment Clause. Notwithstanding its strong religious content, however, we conclude that because the display is private speech in a traditional public forum removed from the seat of government it does not have the primary effect of advancing religion. We set forth below the reasoning by which we arrive at this Conclusion.


Essentially, the question presented here is whether placement of a private, overtly religious holiday display on public property represents government endorsement of religion. The Supreme Court has not yet squarely addressed this issue. Cf. Allegheny County, 492 U.S. at 600 n.50 (creche display on courthouse staircase does not raise public forum issue). This question was presented but not authoritatively resolved in Board of Trustees of Scarsdale v. McCreary, 471 U.S. 83, 105 S. Ct. 1859, 85 L. Ed. 2d 63 (1985) (lower court decision holding that city could constitutionally allow private group to display creche in traditional public forum affirmed by an equally divided court). It has divided the circuits. See Doe v. Small, 964 F.2d 611 (7th Cir. 1992) (en banc) (injunction forbidding display of religious paintings by private organization in public park held overbroad); Chabad-Lubavitch of Georgia v. Miller, 976 F.2d 1386 (11th Cir. 1992) (per curiam) (private group properly prohibited from erecting menorah on plaza in front of, or in the rotunda of, state capitol building). Even within individual circuits, the answer has not always been consistent. Compare Kaplan v. City of Burlington, 891 F.2d 1024 (2d Cir. 1989) (holding that permitting private display of menorah in City Hall Park violated Establishment Clause), cert. denied, 496 U.S. 926, 110 L. Ed. 2d 640, 110 S. Ct. 2619 (1990), with McCreary v. Stone, 739 F.2d 716 (2d Cir. 1984) (holding that village's grant of a permit allowing private group to display creche in public park did not violate Establishment Clause), aff'd by an equally divided court sub nom. Board of Trustees v. McCreary, 471 U.S. 83, 85 L. Ed. 2d 63, 105 S. Ct. 1859 (1985). Indeed, as Judge Boggs, writing for the Sixth Circuit, noted in Americans United for Separation of Church and State v. City of Grand Rapids (" Grand Rapids I "), 922 F.2d 303 (6th Cir. 1990), virtually every panel to consider this issue has found itself divided.

In addressing ourselves to this difficult question, we start from the observation that Balboa Park, a public park which is held open for various expressive activities, is unquestionably a traditional public forum. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983) (describing public parks as "quintessential public forums"); Hague v. CIO, 307 U.S. 496, 515, 83 L. Ed. 1423, 59 S. Ct. 954 (1939) (parks have "immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions"). Religious speakers have the same right of access to public forums as others. Widmar, 454 U.S. at 269; McDaniel v. Paty, 435 U.S. 618, 641, 55 L. Ed. 2d 593, 98 S. Ct. 1322 (1978) (Brennan, J., Concurring); O'Hair v. Andrus, 198 U.S. App. D.C. 198, 613 F.2d 931, 935 (D.C. Cir. 1979) ("The government may not allocate access to a public place available for communication among citizens on the basis of the religious content of the messages."); see also Lamb's Chapel v. Center Moriches Union Free School Dist., 113 S. Ct. 2141, 2147-48, 124 L. Ed. 2d 352 (1993) (assuming arguendo that school premises constituted limited public forum, concluding that school district violated Free Speech Clause by denying church access to exhibit film solely because of religious subject matter).

It necessarily follows from the fact that Balboa Park, including the Organ Pavilion, is a traditional public forum, that the City may not enforce a content-based restriction on private speech there without a compelling interest, and that any such restriction must be narrowly tailored to achieve that interest. Perry Educ. Ass'n, 460 U.S. at 45.*fn4 This means that, absent some compelling state interest, the City cannot forbid the Committee from erecting its display in Balboa Park because of the religious content of the message. The Supreme Court has raised, but never resolved, the question whether avoiding an Establishment Clause violation provides a compelling state interest justifying a content-based restriction on speech in a public forum. See Widmar, 454 U.S. at 271; see also Lamb's Chapel, 113 S. Ct. at 2148. The Widmar analysis of such a case involves two steps: first, determining whether there is a violation of the Establishment Clause; then, deciding whether avoiding the violation is an interest sufficiently weighty to justify placing restraints on free speech.

Thus, in this case, we must first decide whether the City's open forum policy, which accommodates the Committee's religious display, violates the Establishment Clause. If it does not, the predicate is lacking for restricting speech in Balboa Park, and the policy will stand. If there is an Establishment Clause violation, we must turn to the (even more difficult) question of whether avoiding that violation provides a compelling state interest that justifies placing a content-based restriction on religious speech in a public forum - a restriction that would otherwise would be forbidden by the Free Speech Clause.


In evaluating the effect of the City's grant of a permit to the Committee, we apply the standard of a "reasonable observer." Allegheny County, 492 U.S. at 620 (opinion of Blackmun, J.). This hypothetical observer is informed as well as reasonable; we assume that he or she is familiar with the history of the government practice at issue, as well as with the general contours of the Free Speech Clause and public forum doctrine. See Wallace, 472 U.S. at 76, 83 (O'Connor, J., Concurring in the judgment). For purposes of this case, then, we assume that the reasonable observer is aware of Balboa Park's public forum nature and ...

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