96 Cal. Daily Op. Serv. 6187, 96 Daily Journal D.A.R. 10,127 Separation of Church and State Committee Jeff Lewis Jimi Mathers v. City of Eugene of Lane County, State of Oregon, a Municipal Corporation
Docket: 93-35094
Court: Court of Appeals for the Ninth Circuit; August 20, 1996; Federal Appellate Court
The case involves an appeal regarding the City of Eugene, Oregon's ownership and display of a fifty-one-foot concrete Latin cross in a public park on Skinner's Butte, potentially violating the Establishment Clause of the U.S. Constitution. The park has been maintained by the City since its donation and has a history of wooden crosses erected by private individuals from the late 1930s until 1964 when the current cross was installed without prior City permission but subsequently received necessary permits. The City has illuminated the cross during specific holidays since 1970.
Litigation surrounding the cross began shortly after its erection. In 1969, the Oregon Supreme Court ruled that the cross violated both the federal and Oregon Constitutions due to its religious purpose, inferring official endorsement of Christianity. In response, the City amended its charter in 1970 to designate the cross as a war memorial, leading to its deed to the City and the installation of a memorial plaque. Following the amendment, the parties who erected the cross sought to overturn the prior ruling, resulting in the Oregon Supreme Court reversing its decision based on "changed circumstances," thereby concluding that the cross no longer violated constitutional standards.
Separation of Church and State Committee sued the City of Eugene in the U.S. District Court for the District of Oregon, seeking injunctive and declaratory relief for an alleged violation of the Establishment Clause under 42 U.S.C. 1983. The court granted the City’s motion for summary judgment, concluding that the fifty-one-foot Latin cross in a public park serves a secular purpose, does not promote religion, and avoids excessive entanglement with religion, referencing the Lemon test.
However, the court recognized that the cross represents governmental endorsement of Christianity, which may be perceived as official approval of one religion over others, conflicting with Supreme Court precedents emphasizing that the Establishment Clause prohibits preference for one sect over another. The City argued that the cross should be viewed as a war memorial, but this assertion did not hold up under scrutiny, as the symbolic connection of church and state could lead to perceived endorsement by adherents of the dominant religion and disapproval by nonadherents.
The court affirmed that the Latin cross is inherently a Christian symbol and its public placement violates the Establishment Clause, constituting a breach of the First Amendment's separation of church and state. The decision was reversed and remanded. Circuit Judge O'Scannlain concurred with the result but criticized the court's legal reasoning, emphasizing the need for a clearer explanation of the cross's varied judicial treatment over the years.
The court incorrectly applied the legal standard regarding the Establishment Clause, despite arriving at a judgment consistent with Supreme Court precedent. Historical analysis of the Establishment Clause indicates it was intended to serve a limited purpose, primarily preventing Congress from establishing a national religion or favoring one sect over another. At the time of the First Amendment's ratification, several states maintained established religions, suggesting the Clause was not meant to create a broad framework for church-state relations but to restrict federal intervention in religious matters, leaving such issues to the states.
The motivations behind the ratification of the Establishment Clause were rooted in federalism rather than concerns about government endorsement of religion. Early U.S. history reflects a tradition of accommodating religion, evident in practices such as presidential prayers, the declaration of a National Day of Prayer, and the provision of paid Chaplains by Congress. Additional examples include the national motto "In God We Trust" and the phrase "One nation under God" in the Pledge of Allegiance. However, starting with Everson v. Board of Education in 1947, a significant shift occurred in Establishment Clause jurisprudence, adopting a strict "wall of separation" metaphor that diverged from the original understanding of the Clause.
The concept of a "wall of separation" underlies the Establishment Clause analysis in post-World War II Supreme Court decisions concerning church and state. This principle led to the development of tests to assess whether a government action violates the Establishment Clause. The landmark case Lemon v. Kurtzman established a three-pronged test: a government practice must have a secular purpose, must neither advance nor inhibit religion, and must not foster excessive entanglement with religion. Despite criticisms, including challenges from Justices and scholars, the Lemon test remains in use, although it has resulted in numerous contentious 5-4 decisions and a lack of doctrinal coherence. The Court has occasionally avoided applying the Lemon test in specific cases, such as in Lee v. Weisman, which struck down school prayers due to their pervasive nature, and Marsh v. Chambers, which upheld legislative prayer based on its unique historical context. The Court also applied strict scrutiny in Larson v. Valente, ruling against a tax exemption statute that discriminated between religious organizations, emphasizing that the Lemon tests are meant for uniform benefits across all religions, not for discriminatory provisions.
Larson's strict scrutiny standard is applicable only in cases where government actions or laws explicitly discriminate against specific religious groups, as established in subsequent Supreme Court rulings. In contrast, cases involving government expressions related to religion, such as public displays of religious symbols, utilize the Lemon test or its variants, like the endorsement test, rather than Larson. The Supreme Court has clarified that Larson’s test does not apply to laws that merely accommodate religious practices. Notably, in Lynch v. Donnelly, the Court declined to apply Larson's strict scrutiny to a government-owned creche, emphasizing that it did not exhibit explicit discrimination as defined in Larson.
The City of Eugene contends that a cross dedicated as a war memorial does not signify governmental endorsement of religion. This cross has been recognized as a war memorial by voters and lacks official city sponsorship for over thirty years. The City argues that a reasonable observer would interpret the cross as a memorial rather than a governmental endorsement of Christianity, particularly given its isolated park location, which differs significantly from the prominent placement of the creche in Allegheny, where its location suggested government support and approval.
The cross on Skinner's Butte is argued to lack government endorsement due to its remote location from government buildings. However, based on the Allegheny analysis, this display is deemed unconstitutional as it may imply government support for a specific religious belief, particularly Christianity, despite its stated purpose as a war memorial. The perception that only Christian veterans are honored through this symbol raises further concerns under the Establishment Clause. The district court has discretion regarding remedies to address this violation, which could include selling the property to a non-governmental entity rather than destroying the cross. The Supreme Court's decision in Capitol Square Review and Advisory Board v. Pinette is referenced, highlighting the inconsistency in constitutional protections; while the cross's benign purpose is overridden, the Ku Klux Klan's use of the cross as a hate symbol is constitutionally protected. The judges express frustration over the Supreme Court's unclear guidance on the Establishment Clause. Additionally, local citizens have standing to challenge the display due to its impact on their use of the area, and the challenge is grounded in the First Amendment rather than the Oregon Constitution, thus avoiding state constitutional issues.
The strict separation of church and state predates Thomas Jefferson's 1802 letter to the Danbury Baptist Association, which articulated the concept as a "wall of separation" based on the First Amendment's prohibition against laws establishing religion or restricting its free exercise. Jefferson and James Madison notably opposed a state tax for Virginia's established religion in 1785, leading to the passage of the Act for Establishing Religious Freedom, which further reinforced the notion of separation. The Supreme Court has recognized that the First Amendment's provisions, influenced by Jefferson and Madison, aim to protect religious liberty similarly to Virginia's statute.
Professor Leonard W. Levy emphasized the Virginia statute's role in promoting religious liberty while establishing church-state separation. A concurring opinion by Judge O'Scannlain aligned with the court's analysis using the endorsement test from Allegheny County v. Greater Pittsburgh ACLU. The court clarified that it cannot issue advisory opinions on constitutional matters or endorse any proposed remedies for constitutional violations, leaving such decisions to the parties involved.
The "wall of separation" concept, often associated with Jefferson, is noted as surprising since he did not participate in framing the Establishment Clause. Justice Rehnquist criticized Jefferson's historical interpretation of the Religious Clauses. Professor Harold Berman argued that the Establishment Clause, drafted by Madison, was meant to prevent a national religion, not to prohibit government support for religion. Furthermore, Jefferson's support for a bill punishing violations of the Christian Sabbath in the 1780s indicates his less-than-strict adherence to church-state separation principles.
Jefferson negotiated a treaty with the Kaskasia Indians that included provisions for a salary for a Catholic priest and funding for a Catholic church by the U.S. government. Justice Story noted a prevalent belief at the time of the Constitution’s adoption that Christianity should be encouraged by the state, provided it did not infringe on individual rights or religious freedom. Several states, including Connecticut and Massachusetts, maintained established religions. Story argued that due to religious intolerance, the national government should have no power over religious matters, leaving such authority to state governments. The Supreme Court case Larson deemed a statute unconstitutional under the Lemon test, which continues to be referenced in appellate cases regarding religious displays on government property. Justice Kennedy's dissent in Allegheny used precedents to assert that the Establishment Clause prohibits permanent religious symbols on government buildings. The endorsement test's application to private religious displays has been questioned, especially as the Oregon Supreme Court determined that a cross initially erected for religious purposes had, since 1970, served a secular role as a war memorial, with memorial events conducted by the American Legion and the cross illuminated on various national holidays.
The analysis of the cross's effect is viewed through the lens of a reasonable observer, who is presumed to be informed about the community's context and history regarding religious displays. A reasonable observer would recognize the cross as a government display rather than a private endorsement of Christianity. The visibility of the cross does not inherently lead to a constitutional violation; rather, the focus is on whether the display creates an appearance of governmental endorsement of religion, irrespective of how many people see it.
Additionally, a distinction is made between a bare Latin cross and a crucifix. The Latin cross does not necessarily denote a Christian endorsement, while a crucifix, which depicts Jesus, clearly symbolizes Christianity and has been deemed to violate the Establishment Clause in prior rulings. Historical examples, such as religious artwork in government-supported museums, illustrate that religious imagery can exist in a public context without constituting an endorsement of a particular faith.
Finally, a suggestion was made during oral arguments in another case that the cross could remain if the land it occupies were designated as non-public, indicating a potential compromise in addressing concerns over the cross's constitutionality.
