judgment was for the plaintiffs, the Archdiocese would reimburse the City for all costs incurred in the construction of the platform. It was agreed by the parties that the City should complete the construction of the platform so that there would be no disruption of the plans for the Pope's visit on October 3 and 4, 1979. It was also agreed that the Court would enter an Order, pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure, advancing the trial of the action on the merits and consolidating it with the hearing on the preliminary injunction motion, and that the hearing would be scheduled for October 9, 1979.
The original plaintiffs are Susan Jane B. Gilfillan and the Reverend Mary Anne Forehand, both taxpayers of the City of Philadelphia. Their standing as taxpayers under the First Amendment religion clauses is well established. Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968). The Court granted defendants' unopposed motion to join the American Civil Liberties Union and the National Ministries, American Baptist Churches in the United States of America as parties plaintiff. On the day of trial, Reverend Walter Weider, Reverend Bryan Kopke, Bertha R. Smith, Herbert S. Herrman, Gerard H. Bye, Antoinette Montanaro, Elizabeth M. Calter, Martha Walker Miln, Paul H. Fox and Janice Schulte sought to intervene as parties plaintiff pursuant to Federal Rule of Civil Procedure 24(a). These applicants for intervention raise claims identical to those of the original plaintiffs, but, in addition, they raise claims involving equal protection under the Fourteenth Amendment and the City's alleged expenditures for the Mass celebrated by the Pope at the Civic Center on October 4. The Court finds that these applicants for intervention have not met the requirements for intervention of right pursuant to Rule 24(a), in that the original plaintiffs adequately represent applicants' interests as to the claim concerning the constitutionality of the expenditure of public funds for the platform. The evidence presented to the Court concerns only the platform expenditures. No evidence was presented on the equal protection issue nor on the issue of the City's alleged expenditures in connection with the Mass at the Civic Center on October 4. Therefore, the disposition of the issues raised by the original plaintiffs will not impair or impede the ability of these applicants to present their equal protection claims and their claims concerning the Mass at the Civic Center in a separate action. The Court will, however, grant applicants permission to intervene pursuant to Rule 24(b) as to those claims raised by the original plaintiffs, since these applicants for intervention are taxpayers of the City of Philadelphia and their claims concerning the platform are identical to the claims raised by the original plaintiffs.
Evidence was presented and the Court heard oral argument on October 9, 1979. For the reasons hereinafter set forth, the Court will enter a judgment for plaintiffs declaring to be unconstitutional under the First Amendment "establishment" clause the expenditure of taxpayer's funds for labor and materials employed in constructing, decorating, and dismantling the Logan Circle platform, and for such associated costs as carpeting, seating, sound amplification, trees, shrubbery and flowers. The City will be ordered to obtain reimbursement of such costs from the Archdiocese of Philadelphia pursuant to its agreement with the Archdiocese.
The facts of this case are largely uncontested. The parties have stipulated that on October 3, 1979 the Pope, assisted by approximately forty bishops, celebrated Mass on a platform constructed by the City of Philadelphia at Logan Circle. During the course of the Mass, Communion, a sacrament of the Roman Catholic Church, was distributed to approximately 250,000 persons. The platform upon which was placed an altar and a large cross was designed by staff architects employed by the City in the Department of Public Property. The platform completely covered the Swann Fountain in Logan Circle.
Its base was cylindrical in shape, 281/2 feet high and 144 feet in diameter. On the northwest axis of the Benjamin Franklin Parkway, the City constructed 57 steps, 60 feet wide and extending 110 feet northwest from the platform to the street level. A red carpet, owned by the City, was extended along the length of the staircase. In the center of the platform the City built a 16 step four-sided pyramidal structure, 45 feet on a side and 14 feet high. Atop this pyramid was a smaller, five-step pyramid upon which was placed the chair in which the Pope sat. The top of the pyramid was carpeted. The City painted the platform white, and surrounded it with flowers and shrubs. The City also furnished 20,000 chairs and constructed an enclosure for them. The Papal Mass was amplified by a City-owned public address system consisting of 115 loudspeakers and installed at taxpayer's expense by City workers along the Parkway. A 36 foot high Christian cross was erected on the platform; it was in place and lighted at night for six nights prior to the ceremony. The platform was used only for the open-air Mass. It remained in place for a week so that visitors could view it and was then dismantled.
In addition to the stipulation of facts, the plaintiffs presented the testimony of Robert Silver, the Commissioner of Public Property of the City of Philadelphia. He testified that the platform was designed by City architects, and, although officials of the Archdiocese approved the design, they did not participate with the architects in the actual planning. Commissioner Silver testified, however, that, from the inception of the planning process, it was understood by City officials that the platform was to be used for the celebration of a Roman Catholic Mass. He said that the City's purpose for constructing a high platform was to ensure the safety of the Pope and the crowd, as well as to make the Pope visible to the assembled gathering.
Plaintiffs also presented witnesses who testified that a ticket was required for access to the immediate area surrounding the platform.
The evidence presented by the plaintiff was not controverted by the defendants. It is uncontested that the only persons present on the platform during the celebration of the Mass by the Pope were Roman Catholic clergy and lay people who participated in the service. Civil officials were not present on the platform; the Governor, the Mayor and other public officials greeted the Pope upon his arrival at the airport.
Plaintiffs contend, therefore, that the platform was planned, prepared and used exclusively for a religious service, a Roman Catholic Mass celebrated by the Pope, assisted by the clergy, and that the expenditure of public funds for such a religious service is forbidden by the establishment clause of the First Amendment to the United States Constitution. On the other hand, the defendants contend that, although the platform was used for a religious service, the City had no religious purpose in constructing it. It is the City's position that the Pope is an international dignitary and head of state,
and, in view of the extraordinary public interest in seeing and hearing him, the City planned and constructed the platform in the interest of the Pope's security, the safety of the crowd and the maximum possible access for those who wished to see and hear the Pope. The Court does not question the sincerity of the City's expressed reasons for building the platform at Logan Circle in preparation for this extraordinary event. However, the First Amendment to the Constitution of the United States has consistently been interpreted in letter and in spirit as prohibiting the expenditure of public funds for a religious service.
The language of the First Amendment can best be interpreted in the context of the history of its inception. See Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711 (1947). The Virginia Declaration of Rights of 1776 asserted the principle of religious freedom, although Patrick Henry and many other Virginians felt at the time that all religions should be tax-supported. Public opinion was aroused to the contrary, however, in 1785 by James Madison's "Remonstrance Against Religious Assessments". The Statute of Religious Freedom, drawn up by Thomas Jefferson and enacted by the Virginia Senate in 1786, prohibited taxation for a religious purpose. The Constitution of the United States, drafted in Philadelphia in 1787, did not include a Bill of Rights. There was considerable opposition to ratification of the Constitution, particularly in Virginia, because it did not contain a Bill of Rights. Madison, who was originally opposed to the incorporation of a Bill of Rights in the Constitution, changed his position and presented twelve proposed amendments to the Constitution to the First Congress which met in New York in 1789. Ten of these amendments, our Bill of Rights, were ratified by the States in 1791. As Mr. Justice Frankfurter commented in McGowan v. Maryland, 366 U.S. 420, 465, 81 S. Ct. 1101, 1153, 1156, 6 L. Ed. 2d 393 (1961):
What Virginia had long practiced, and what Madison, Jefferson and others fought to end, was the extension of civil government's support to religion in a manner which made the two in some degree interdependent, and thus threatened the freedom of each.
The First Amendment to the Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ."
While tensions inevitably arise in the application of the "free exercise" and "establishment" clauses,
the Framers of the Constitution regarded the interaction of the two clauses as essential to the separation of church and state. This wall of separation was determined by them to be necessary to the preservation of both religious and governmental freedom. See Tribe at 812-19. A violation of the principle of separation of church and state has been said to create the danger of "destroy(ing) government and degrad(ing) religion." Engel v. Vitale, 370 U.S. 421, 431, 82 S. Ct. 1261, 8 L. Ed. 2d 601 (1962).
Indeed, the Framers recognized that the power of government to aid or "establish" religion also embodies the power to destroy or impede its "free exercise". Justice Rutledge, dissenting in Everson, supra, 330 U.S. at 53-54, 67 S. Ct. at 529, eloquently expressed this principle:
The reasons underlying the Amendment's policy have not vanished with time or diminished in force. Now as when it was adopted the price of religious freedom is double. It is that the church and religion shall live both within and upon that freedom. There cannot be freedom of religion, safeguarded by the state, and intervention by the church or its agencies in the state's domain or dependency on its largesse. Madison's Remonstrance, Par. 6, 8. The great condition of religious liberty is that it be maintained free from sustenance, as also from other interferences, by the state. For when it comes to rest upon that secular foundation it vanishes with the resting. Id., Par. 7, 8. Public money devoted to payment of religious costs, educational or other, brings the quest for more. It brings too the struggle of sect against sect for the larger share or for any. Here one by numbers alone will benefit most, there another. That is precisely the history of societies which have had an established religion and dissident groups. Id., Par. 8, 11. It is the very thing Jefferson and Madison experienced and sought to guard against, whether in its blunt or in its more screened forms. Ibid. The end of such strife cannot be other than to destroy the cherished liberty. The dominating group will achieve the dominant benefit; or all will embroil the state in their dissensions. Id., Par. 11. (footnotes omitted).