Appeal from the United States District Court for the District of Oregon. D.C. No. CV-91-06164-MRH. Michael R. Hogan, District Judge, Presiding.
Before: Donald P. Lay,*fn* Harry Pregerson, and Diarmuid F. O'Scannlain, Circuit Judges. Per Curiam Opinion; Concurrence by Judge O'Scannlain.
In this second of two similar cases,*fn1 we must decide whether the City of Eugene, Oregon violates the Establishment Clause of the United States Constitution by its ownership and display of a fifty-one foot concrete Latin cross in a public park on Skinner's Butte.
The City of Eugene ("City") maintains a public park on and around Skinner's Butte, a hill cresting immediately north of the City's downtown business district. The land was donated to the City and has been maintained as a public park for many years. From the late 1930s to 1964, private individuals erected a succession of wooden crosses in the park, one replacing another as they deteriorated. In 1964, private individuals erected the cross at issue in this litigation. It is a fifty-one foot concrete Latin cross with neon inset tubing, and it is located at the crest of Skinner's Butte. The parties who erected the cross did not seek the City's permission to do so beforehand; however, they subsequently applied for and received from the City a building permit and an electrical permit.
Since 1970, the City has illuminated the cross for seven days during the Christmas season, five days during the Thanksgiving season, and on Memorial Day, Independence Day, and Veteran's Day.
The cross has been the subject of litigation since the time it was erected. In 1969, the Oregon Supreme Court held that the cross violated both the federal and the Oregon Constitutions because it was erected with a religious purpose and created the inference of official endorsement of Christianity. Lowe v. City of Eugene, 254 Ore. 539, 463 P.2d 360, 362-63 (Or. 1969), cert. denied, 397 U.S. 1042, reh'g denied, 398 U.S. 944 (1970). Soon after, the City held a charter amendment election, and on May 26, 1970, the voters, by a wide margin, approved an amendment to the City Charter designating the cross a war memorial. Pursuant to that amendment, the cross was deeded to the City as a gift, and a bronze plaque was placed at the foot of the cross dedicating it as a memorial to war veterans. The Eugene City Charter provides that the "concrete cross on the south slope of the butte shall remain at that location and in that form as property of the city and is hereby dedicated as a memorial to the veterans of all wars in which the United States has participated."
After the election, the parties who erected the cross brought suit to have Lowe set aside. The Oregon Supreme Court did so on the basis of the "changed circumstances" that had occurred since Lowe was decided and held that the cross no longer violated the state and federal constitutions. Eugene Sand and Gravel, Inc. v. City of Eugene, 276 Ore. 1007, 558 P.2d 338, 345 (Or. 1976), cert. denied, 434 U.S. 876, 54 L. Ed. 2d 155, 98 S. Ct. 226 (1977).
In this case, Separation of Church and State Committee ("Separation"),*fn2 brought suit in the United States District Court for the District of Oregon seeking injunctive and declaratory relief under 42 U.S.C. § 1983, alleging a violation of the Establishment Clause of the United States Constitution.*fn3 The parties filed cross-motions for summary judgment, and the district court granted the City's motion. The district court held that the cross has a secular purpose, does not advance religion, and does not foster an excessive entanglement with religion. See Lemon v. Kurtzman, 403 U.S. 602, 612-13, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971).
The fifty-one foot Latin cross located in a public park on Skinner's Butte clearly represents governmental endorsement of Christianity. The maintenance of the cross in a public park by the City of Eugene may reasonably be perceived as providing official approval of one religious faith over others.
The Supreme Court has focused Establishment Clause analysis on whether governmental practice has the effect of endorsing religion. Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 592, 106 L. Ed. 2d 472, 109 S. Ct. 3086 (1989). As Justice Blackmun observed for the Court in Allegheny :
Whatever else the Establishment Clause may mean (and we have held it to mean no official preference even for religion over nonreligion, see, e.g., Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 103 L. Ed. 2d 1, 109 S. Ct. 890 (1989), it certainly means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions). "The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another." Larson v. Valente, 456 U.S. 228, 244, 72 L. Ed. 2d 33, 102 S. Ct. 1673 (1982).
In the present case, the City urges that the cross is no longer a religious symbol but a war memorial. This argument, however, fails to withstand Establishment Clause analysis. In Grand Rapids School District v. Ball, 473 U.S. 373, 390, 87 L. Ed. 2d 267, 105 S. Ct. 3216 (1985), the Supreme Court stated:
It follows that an important concern of the effects test is whether the symbolic union of church and state effected by the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the ...