Appeal from the United States District Court for the Central District of California. D.C. No. CV-90-06521-TJH. Terry J. Hatter, Jr., District Judge, Presiding.
Before: Betty B. Fletcher, William C. Canby, Jr. and Cynthia Holcomb Hall, Circuit Judges. Opinion by Judge Fletcher; Partial Concurrence and Partial Dissent by Judge Hall.
Plaintiffs-appellants, the American Jewish Congress and individual members (collectively "the Jewish Congress"), challenge under the religion clauses of the United States and California constitutions the action of defendants-appellees, the City of Beverly Hills and individual officials (collectively "the City" or "Beverly Hills") in permitting defendant-intervenor-appellee Chabad of California, Inc., ("Chabad") to erect a 27-foot menorah in a public park near City Hall during the holiday season. The Jewish Congress also claims that the City's general policy and practice of permitting unattended displays of large religious objects on public property is unconstitutional. The district court granted summary judgment in favor of the City. We reverse.
Since 1986, Beverly Hills has allowed Chabad to erect a menorah in Beverly Gardens Park for approximately two weeks each year during the Chanukah season. The menorah is 27 feet tall and 24 feet wide, and weighs 5,500 pounds. It is bolted to a permanent, concrete foundation that the City allowed Chabad to install in the park; Chabad covers the foundation with sod during the rest of the year. Each branch of the menorah is topped with a small electric light that is lit at night in accord with Jewish custom. The menorah was designed by Yaacov Agam, a well-known artist. The City does not fund the menorah or Chabad.
Beverly Gardens Park is a twenty-block-long public park that cuts through the City on an east-west axis. The park is bordered on its south side by Santa Monica Boulevard, a four-lane arterial. The menorah sits on a block of the park bordered on the east by Crescent Drive and on the west by Canon Drive. Directly across Santa Monica Boulevard from the menorah is a building that formerly housed the U.S. Post Office and has been vacant since the early stages of this litigation. City Hall is one block up and one block over from the menorah, about 450 feet distant. The Beverly Hills Civic Center is located on the side of City Hall facing away from the menorah.
The City traditionally puts up a holiday display of its own, composed of two 35-foot live spruce trees strung with colored lights, and a 60-foot gold-foil "Season's Greetings" sign. This display is located one block west of the menorah, two blocks away from City Hall.
During Chanukah, Chabad organizes ceremonies centered around the menorah. Chabad terms these ceremonies "parties," but they involve the ritual lighting of the electric "candles" and the speaking and singing of traditional Jewish prayers. Members of the City Council (which is also the body that approves the menorah's permit) have participated in these ceremonies each year, and some of them have served as "master of ceremonies." Local celebrities, of which Beverly Hills has no shortage, also attend. The Mayor was present on at least one occasion.*fn1
The City generally does not permit its citizens to erect large unattended objects on public property. It does, however, have a "Special Events Permit" application procedure, and a form agreement titled "Holiday Installation of Religious Objects on City Property." Chabad has applied for a special events permit, and has signed a "Holiday Installation" agreement each year. At least since 1986, the City has not granted a permit for a large unattended object to any individual organization other than Chabad. In 1989, the City denied two permit requests from individuals: one for a "winter solstice" display, and one for a Latin cross. The City claimed that both applications were simply protests against the menorah,*fn2 and that it denied them because neither provided sufficient specifics.
In 1990, the Jewish Congress filed a complaint in federal district court, alleging that the City's action in permitting Chabad's menorah violated the Establishment Clause of the United States Constitution. After a hearing, the district court issued a temporary restraining order that required the City either to place the menorah in closer proximity to a Christmas tree or to put up a Christmas tree near the menorah. Thereafter, the City put Christmas decorations and lights on an 80-foot spruce standing 82 feet from the menorah. Also pursuant to the restraining order, Chabad erected a sign next to the menorah, which reads,
THIS MENORAH IS SPONSORED BY CHABAD OF CALIFORNIA. IT IS NOT SPONSORED OR FUNDED BY THE CITY OF BEVERLY HILLS.
The sign faces busy Santa Monica Boulevard, but the parties dispute whether it can be read from a moving car. The district court also enjoined "any religious ceremonies, including, but not limited to, prayers, blessings, singing or rituals, of any type or nature at the site of the display." District Court Order of December 13, 1990 at 3. The TRO was dissolved on December 21, 1990, however, when the court decided that a preliminary injunction should be denied.
Almost two years later, the court denied the Jewish Congress's motion for summary judgment, and granted, sua sponte, summary judgment in favor of the City. The court made no findings, and did not state the legal justification for its ruling. It simply held that the City could continue to permit Chabad to display the menorah, provided that it was in close proximity to a Christmas tree of similar size and that if either was lighted, both must be lighted. It also ordered that the "disclaimer" sign facing Santa Monica Boulevard be altered so that it could be read from the opposite direction as well. The order was silent as to whether Chabad was allowed to continue holding Chanukah candle-lighting ceremonies at the menorah.
Appellees do not question the Jewish Congress's standing to challenge the City's action in permitting Chabad's menorah, which derives from its claim that the City's alleged establishment of religion interferes with its right freely to use and enjoy Beverly Gardens Park. See Kreisner v. City of San Diego, 1 F.3d 775, 778 n.1 (9th Cir. 1993) (under federal Constitution), cert. denied, 126 L. Ed. 2d 657, 114 S. Ct. 690 (1994); Ellis v. City of La Mesa, 990 F.2d 1518, 1523-24 (9th Cir. 1993) (under California Constitution), cert. denied, 114 S. Ct. 2707 (1994). Appellees argue, however, that the Jewish Congress lacks standing to challenge the City's special events permitting scheme, because neither the Jewish Congress nor its individual members have attempted, or plan to attempt, to apply for a special events permit.
Appellees wrongly view the Jewish Congress's challenge to the City's permitting scheme as a classic "prior restraint" claim brought under the Free Speech Clause of the First Amendment. See, e.g., City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 100 L. Ed. 2d 771, 108 S. Ct. 2138 (1988) (free speech challenge to city ordinance regulating placement of news racks on public property). The Jewish Congress's challenge to the City's permitting scheme sounds not in its right to freedom of speech, but rather in its right to be free from governmental establishment of religion. The Jewish Congress contends that the primary effect of the City's permitting practice and policy is not to grant equal access to all speakers, but rather to endorse one particular religious speaker. The Jewish Congress's own efforts to secure a special event permit are irrelevant to its standing to bring this claim. Rather, it need only allege that the City's permitting scheme interferes with its right to use and enjoy the park. See Kreisner, 1 F.3d at 787 (plaintiff argued that city's permitting scheme gave preference to private religious group sponsoring holiday display and thus violated Establishment Clause; court analyzed merits of argument without separately considering plaintiff's standing); Doe v. Small, 964 F.2d 611, 619 (7th Cir. 1992) (en banc) (also considering Establishment Clause challenge to city's permitting scheme without separately considering plaintiff's standing).
We review de novo the district court's grant of summary judgment in favor of the City, Ellis, 990 F.2d at 1523-24, and view the facts in the light most favorable to the Jewish Congress, Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994).
The Jewish Congress makes parallel arguments under the religion clauses of the California and United States constitutions.*fn3 As Article I, § 4 of the California Constitution includes language virtually identical to the federal Establishment Clause, see ...