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American Civil Liberties Union of New Jersey v. Schundler

January 13, 1997

AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, ON BEHALF OF ITS MEMBERS; ROBERT LANDER; ADAM JACOBS; JOEL SOLOW; AND ANN SORREL

v.

BRET SCHUNDLER, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF JERSEY CITY, NEW JERSEY; THE CITY COUNCIL OF JERSEY CITY, NEW JERSEY; CITY OF JERSEY CITY, NEW JERSEY BRET SCHUNDLER, THE CITY COUNCIL OF JERSEY CITY, AND THE CITY OF JERSEY CITY, NEW JERSEY, APPELLANTS NO. 95-5865 AND NO. 95-5866. AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, ON BEHALF OF ITS MEMBERS; ROBERT LANDER; ADAM JACOBS; JOEL SOLOW; AND ANN SORREL APPELLANTS

v.

BRET SCHUNDLER, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF JERSEY CITY, NEW JERSEY; THE CITY COUNCIL OF JERSEY CITY, NEW JERSEY; CITY OF JERSEY CITY, NEW JERSEY NO. 96-5023



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. No. 95-cv-00206)

BEFORE: NYGAARD, LEWIS and McKEE, Circuit Judges.

LEWIS, Circuit Judge.

ARGUED AUGUST 7, 1996

Filed January 13, 1997)

OPINION OF THE COURT

Toward the end of each calendar year, people around the world celebrate what has come to be known as "the holiday season." Some do so by adorning their lawns with various religious or secular ornaments, which are usually intended to convey an individual's interpretation of the holiday season. Thus, while some may subtly express an acknowledgement of the season through a lighted tree or a candle in a window, others may prefer a dazzling array of lights, ornaments, and a cast of religious and secular characters.

Although the Constitution provides no guidance on matters of taste or aesthetics, it does provide protection for citizens to erect even the most energy-consuming, taste-challenged holiday display. In particular, the Free Exercise Clause guarantees the citizen's right to celebrate the season's religious origins. This right is reinforced by the Establishment Clause, which prevents the government from imposing its religious will upon its citizens. Thus, while the individual citizen can express himself or herself freely during the holiday season through the display of religious symbols, the Establishment Clause imposes constraints on the content of government-sponsored holiday displays. By restricting government displays, the Establishment Clause prevents government from sponsoring, celebrating, or endorsing religion.

The uncertain contours of these Establishment Clause restrictions virtually guarantee that on a yearly basis, municipalities, religious groups, and citizens will find themselves embroiled in legal and political disputes over the content of municipal displays. As a result, threats of municipal display lawsuits and restraining orders have become almost as much a part of the holiday season as last-minute shopping sprees.

In this case, we must determine whether the City of Jersey City, New Jersey, should be permitted to erect a display containing a crŠche and a menorah on the lawn in front of its City Hall. We will affirm the district court's holding that the City's original display of the crŠche and the menorah violated the Establishment Clause. In addition, we will hold that the district court applied the wrong standard to determine that the City's second display, which added Santa Claus, Frosty the Snowman, and a red sled to the crŠche and menorah, did not violate the Establishment Clause.

I.

Facts and Procedural History

Appellees and Cross-Appellants, the American Civil Liberties Union of New Jersey ("ACLU") and four residents of Jersey City brought this action against Appellants and Cross-Appellees, the City of Jersey City (the "City"), its mayor and its city council. The ACLU sought to preliminarily and permanently enjoin the City from erecting and maintaining a holiday display containing a crŠche and a menorah on the lawn (also known as "City Hall Plaza") in front of its City Hall. The City has displayed the crŠche and menorah in City Hall Plaza for at least the past thirty years. Both the crŠche and menorah, as well as the property on which the displays are located, are owned by the City.

Jersey City displays its crŠche, a representation of the Christian nativity scene, on the days immediately preceding and following Christmas. The crŠche is a depiction of the day Jesus was born in a manger in Bethlehem. The City's display is approximately twelve feet long by eight feet wide and includes replicas of Joseph, Mary, Jesus, and the Three Wisemen, as well as traditional manger imagery such as farm animals and hay. The event depicted by the crŠche has particular significance to the Christian religion, which worships Jesus as the Son of God and the Messiah.

Jersey City displays its menorah, a nine-branched candelabrum, during the Jewish holiday of Hanukkah. A menorah is used by Jews to commemorate the Miracle of the Oils, a seminal event in Jewish history that took place during the rededication of the Temple of Jerusalem. The lighting of the menorah is the central ritual of Hanukkah. As the Supreme Court recognized in Allegheny County v. ACLU, 492 U.S. 573, 587 & n.33 (1989), in contrast to the Christian celebration of Christmas, Hanukkah is not one of the central religious holidays of Judaism.

Jersey City customarily displays the menorah on the Plaza lawn to the left of the main entrance to City Hall and the crŠche on the lawn to the right. Because the Hanukkah festival normally overlaps with the Christmas season, the menorah and crŠche are usually displayed at the same time. In 1994, however, when the present action was initiated, Hanukkah fell unusually early on the calendar (November 28 to December 5). Consequently, the City took down the menorah display the day before it erected the crŠche. The City also decorated an evergreen tree with Christmas ornaments on the Plaza lawn on December 14. Other than this tree, the crŠche and menorah displays were unaccompanied by any other traditional secular symbols of the holiday season. *fn1

The ACLU sent a letter to Jersey City Mayor Bret Schundler asking the City to reevaluate its practice of displaying religious symbols on public property. In response, the City erected a sign adjacent to its display in front of City Hall on December 16, 1994, which read: "Through this display and others throughout the year, the City of Jersey City is pleased to celebrate the diverse cultural and ethnic heritages of its peoples." Thus, when the ACLU initiated this lawsuit, the Jersey City holiday display was comprised of a crŠche, a Christmas tree, and the sign.

On December 21, 1994, the ACLU filed a complaint in the Superior Court of New Jersey seeking a declaratory judgment and a permanent injunction to prevent the City from displaying a menorah and a crŠche on the Plaza in front of Jersey City City Hall during the winter holiday season. In their five-count complaint, the ACLU alleged violations of the First and Fourteenth Amendments of the United States Constitution, as well as three provisions of the New Jersey Constitution. *fn2 The City removed the action to federal district court. On September 19, 1995, both parties moved for summary judgment.

On November 28, 1995, the United States District Court for the District of New Jersey issued an order granting the ACLU's motion for summary judgment on counts one and three, sustaining their claims based upon the Establishment Clause of the First Amendment of the United States Constitution and the Religious Preference Clause of the New Jersey Constitution. ACLU of N.J. v. Schundler, No. 95-206, 1995 WL 869972, at *8 (D.N.J. Nov. 28, 1995). The district court entered a permanent injunction prohibiting the City from "erecting the crŠche and menorah display described in the complaint in this action, or any substantially similar scene or display at the front entrance of the City of Jersey City City Hall or on other property owned, maintained, or controlled by the defendants in their official capacities." ACLU of N.J. v. Schundler, No. 95-206 (D.N.J. Nov. 28, 1995) (order granting injunction).

On December 13, 1995, despite the district court's injunction, Jersey City erected its annual holiday display in front of City Hall. The 1995 display consisted of the traditional crŠche and menorah but also included a four-foot tall plastic figure of Santa Claus, a four-foot tall plastic figure of Frosty the Snowman, and a red wooden sled. Frosty and the sled were placed on the same side of the Plaza as the crŠche, and Santa was placed near the menorah and the Christmas tree. The 1995 version of the crŠche was slightly different from the 1994 version. The figures in the crŠche were taken out of the manger and placed in a circle to one side of the empty manager. The City Hall Plaza Christmas tree was also slightly different, as it was decorated with Kwanzaa symbols in addition to the usual lights and holiday ribbons. This modified 1995 display was also accompanied by two 20" x 30" signs bearing the City seal and the statement: "Through this display and others throughout the year, the City of Jersey City is pleased to celebrate the diverse cultural and ethnic heritage of its people." In response to the City's 1995 display, the ACLU submitted applications to the district court for both a preliminary injunction against further display of the menorah and crŠche and a judgment that the City was in civil contempt of the injunction issued November 28, 1995. On December 18, 1995, the district court issued an order denying the ACLU's request for a preliminary injunction and its petition for contempt. The court concluded that the addition of Santa and Frosty, as well as the sled and the Kwanzaa symbols, brought the City's display into compliance with the Establishment Clause. The district court thus modified its order of November 28, 1995, to require the City to maintain the additional secular holiday exhibits (i.e., Frosty, Santa, and the sled) in order to remain in compliance with the Establishment Clause. ACLU of N.J. v. Schundler, No. 95-206 (D.N.J. Dec. 21, 1995) (order denying preliminary injunction). The district court, in entering the order, stated:

I conclude that by making these additions defendants have sufficiently demystified the [holy], they have sufficiently desanctified sacred symbols, and they have sufficiently deconsecrated the sacred to escape the confines of the injunctive order in this case. Tr. at 12.

The City timely filed notices of appeal on December 20, 1995, from both the November 28 order and injunction, as well as the December 18 order modifying that injunction. The City asserts that the district court erred by concluding both that its 1994 holiday display of a crŠche and a menorah was unconstitutional and that its 1995 holiday display was constitutional as modified. In other words, the City asserts that both its unmodified 1994 display and its modified 1995 display were in compliance with the Establishment Clause. On January 4, 1996, the ACLU cross-appealed from the December 18, 1995 order denying their second application for injunctive relief. The ACLU maintains that both displays violate the Establishment Clause of the First Amendment.

II.

The Supreme Court's Display Cases

The Establishment Clause of the First Amendment declares that "Congress shall make no law respecting an establishment of religion." U.S. Const. amend. I. In the Supreme Court's seminal modern Establishment Clause case, Everson v. Board of Education, 330 U.S. 1, 15 (1947), the Court recognized that "[n]either a state nor the Federal Government can set up a church. Neither can pass laws which aid all religions, or prefer one religion over another." The Court, paraphrasing Thomas Jefferson, stated that the First Amendment "has erected a wall between church and state." Id.

The wall-of-separation metaphor, however, overstates the actual level of separation of church and state the Court has required in its Establishment Clause jurisprudence. The Court has determined that government may acknowledge the nation's religious heritage and that not every law or practice that confers a benefit upon religious institutions is unconstitutional. See Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 760 (1973). *fn3

We have recognized that the much-maligned test arising out of Lemon v. Kurtzman, 403 U.S. 602 (1971) (the "Lemon test"), continues to provide the analytical framework courts must use to determine whether a particular practice violates the Establishment Clause. ACLU of N.J. v. Black Horse Pike Regional Bd. of Educ., 84 F.3d 1471 (3d Cir. 1996) (in banc). In Black Horse Pike, we stated:

The Lemon test has been the subject of critical debate in recent years, and its continuing vitality has been called into question by members of the Supreme Court and by its noticeable absence from the analysis in some of the Court's recent decisions (including Lee). Nevertheless, Lemon remains the law of the land, and we are obligated to consider it until instructed otherwise by a majority of the Supreme Court. Id. at 1484.

The Lemon test is a three-pronged test requiring the following: (1) the statute or government practice must have a secular purpose; (2) its practical effect must be one that neither advances nor inhibits religion; and (3) the statute or government practice must not foster "an excessive government entanglement with religion." Lemon, 403 U.S. at 612-13.

The Supreme Court first applied the Lemon test to a government-sponsored holiday religious display in Lynch v. Donnelly, 465 U.S. 668 (1984). In Lynch, a 5-4 decision, the Court upheld the constitutional validity of a winter holiday display maintained by the city of Pawtucket, Rhode Island. The display was situated in a private park. The display itself was owned by the city and included a crŠche, a wishing well, a Santa Claus house (with a live Santa), a Christmas tree, reindeer pulling Santa's sleigh, candy-striped poles, a "Seasons Greetings" banner, hundreds of colored lights, live carolers, and cutout figures of a clown, an elephant, and a teddy bear. Id. at 671. The Court, applying the Lemon test, found that: (1) the display, because it contained secular as well as religious symbols, had the legitimate secular purpose of recognizing and celebrating a national holiday; (2) the crŠche did no more to advance or inhibit religion than the myriad government benefits and endorsements previously held constitutionally permissible; and (3) there was no evidence of administrative entanglement of religion. Id. at 680-85.

Justice O'Connor's concurrence in Lynch focused primarily on the second prong of the Lemon test. She styled her approach as an "endorsement test," which stated that "[e]ndorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." Id. at 688 (O'Connor, J., concurring). The context of the particular government practice was at the core of Justice O'Connor's endorsement test. She stated:

Every government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion. In making that determination, courts must keep in mind both the fundamental place held by the Establishment Clause in our constitutional scheme and the myriad, subtle ways in which Establishment Clause values can be eroded. Government practices that purport to celebrate or acknowledge events with religious significance must be subjected to careful judicial scrutiny. Id. at 694 (emphasis added).

In Allegheny County v. ACLU, 492 U.S. 573 (1989), the Supreme Court again considered the constitutionality of a holiday display. Allegheny County involved two different displays. The first display was a crŠche located on the Grand Staircase of the Allegheny County, Pennsylvania Courthouse. Id. at 580. The second display was a menorah placed next to a Christmas tree and a sign saluting liberty, all of which were located just outside the Pittsburgh City-County Building. Id. at 582. The crŠche display was surrounded by a fence and a poinsettia floral frame and included small evergreen trees but did not include traditional secular holiday figures. The crŠche had at its crest an angel bearing a banner that proclaimed "Gloria in Excelsis Deo," which translates to "Glory to God in the highest." Id. at 580 & n.5. The menorah, on the other hand, was placed next to a Christmas tree and a sign saluting liberty.

The Court's decision in Allegheny County spawned several opinions and two different holdings. A 5-4 majority held that the display of the crŠche in the county courthouse violated the Establishment Clause. A 6-3 majority upheld the constitutional validity of the display of a ...


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