Summum, a Corporate Sole and Church, and R.L. Zefferer v. City of Ogden, a Municipal Government Entity Glenn J. Mecham, Mayor Jesse M. Garcia, Member, City Council Kenneth J. Alford, Member, City Council Fasi M. Filiaga, Member, City Council Rick J. Mayer, Member, City Council John W. Wolfe, Member, City Council Ralph W. Mitchell, Member, City Council and Garth B. Day, Member, City Council
Docket: 01-4022
Court: Court of Appeals for the Tenth Circuit; July 19, 2002; Federal Appellate Court
Summum, a church, and R.L. Zefferer filed a 42 U.S.C. § 1983 action against the City of Ogden and its officials, claiming violations of their First Amendment rights. Both parties sought summary judgment, which the district court granted in favor of the City. The Tenth Circuit reviewed the case under 28 U.S.C. § 1291, affirming in part and reversing in part, remanding for further proceedings.
The case centers on a monument displaying the Ten Commandments located on the lawn of Ogden's municipal building, maintained by the City since 1966. The monument, nearly five feet tall and three feet wide, prominently features the Ten Commandments along with various symbols, including Stars of David, Greek letters, an all-seeing eye, a pyramid, an eagle, and an American flag. It also has an inscription acknowledging its presentation by the Fraternal Order of Eagles in 1966, which sought to provide youth with a moral code. In addition to the monument, the Municipal Grounds include a police officer memorial and a sister city tree and plaque, along with other historical markers.
The litigation surrounding the Eagles' monuments primarily involves claims of First Amendment violations by the Summum religion. In *Summum v. Callaghan*, the court recognized a Free Speech Clause claim when a municipality displayed a Ten Commandments monument donated by the Eagles while rejecting a similar proposal from Summum. In *Books v. City of Elkhart*, the court found that displaying the Ten Commandments violated the Establishment Clause. Summum, founded in 1975 in Utah, argued that the City's display of the Ten Commandments Monument infringed upon its First Amendment rights, particularly by not allowing a monument representing the Seven Principles of Summum. The City of Ogden rejected Summum's proposal, and in response, Summum sued, claiming violations of the Establishment and Free Speech Clauses. The City countered that previous circuit precedent permitted the display of the Ten Commandments and argued that the monument represented the City's speech, not private speech from the Eagles, thereby claiming no discrimination against Summum. The district court sided with the City, ruling the Ten Commandments Monument as primarily secular and not in violation of the Establishment Clause, and stated that allowing Summum's monument would improperly allow them to dictate the City's expression. Summum's counsel conceded that the court could not overturn the precedent regarding the Establishment Clause claim, leading to affirmation of the district court's ruling on that issue.
Summum has successfully established that the City of Ogden violated its rights under the Free Speech Clause of the First Amendment, prompting a reversal of the district court's summary judgment. The analysis follows three steps:
1. Preliminary matters include reviewing the elements of a 42 U.S.C. § 1983 claim, the de novo standard of appellate review, confirming the speech in question is protected, identifying the relevant forum as the municipal building grounds, classifying it as a nonpublic forum, and applying a reasonableness standard that prohibits viewpoint discrimination.
2. The City discriminated against Summum by rejecting the Seven Principles Monument while allowing the Ten Commandments Monument, and this discriminatory action was deemed unreasonable.
3. The City's concern over violating the Establishment Clause does not justify the rejection of the Seven Principles Monument.
Additionally, for a 42 U.S.C. § 1983 claim, Summum must prove a violation of federally protected rights caused by a person's conduct under state law. The City contests only the first element, asserting no violation of the Free Speech Clause occurred. The court conducts a rigorous de novo review of the record to ensure First Amendment rights are upheld, noting that the Seven Principles Monument does not fall under any limited exceptions to protected speech.
Private religious speech is fully protected under the Free Speech Clause of the First Amendment, similar to secular speech. The City of Ogden acknowledges that the proposed Seven Principles Monument represents protected speech. To analyze this speech under the Free Speech Clause, it is necessary to identify and classify the relevant forum, which influences the legal standards applied. The identification process involves considering both the government property in question and the type of access sought by the speaker.
In this case, the relevant property is the lawn of the Ogden City municipal building, where the access sought is not just temporary signage but the installation of permanent monuments. The City does not contest this characterization of the forum.
The classification of this forum determines the appropriate legal standards. The forum could be a traditional public forum, a designated public forum, or a nonpublic forum. The classification hinges on the government's intent regarding the property and its use. No public forum will be recognized if there is clear evidence of contrary intent from the government, and a public forum will not be inferred if the property's nature does not support expressive activities.
The gallery of permanent monuments on the Municipal Grounds is determined to be public property that does not traditionally serve as a forum for public communication, qualifying it as a nonpublic forum. The City of Ogden acknowledges this classification. Municipalities can impose reasonable and viewpoint-neutral restrictions on access to nonpublic forums, as established in legal precedents. Restrictions must not discriminate based on viewpoint and must be reasonable, aligning with the forum's intended use. Control over access can consider subject matter and speaker identity, provided these distinctions are reasonable given the forum's purpose.
In evaluating the City of Ogden's restrictions, two main arguments are presented to support the reasonableness and viewpoint neutrality of displaying the Ten Commandments Monument while refusing to display the Seven Principles Monument. First, the City claims that by adopting the Ten Commandments Monument, it has eliminated private speech from the forum, thus negating any claim of discrimination against private speakers. Second, the City argues that even if there is discrimination in rejecting the Seven Principles Monument, such discrimination is justified as both reasonable and viewpoint neutral due to the historical significance of the texts to the Ogden community. The document indicates that these arguments will be examined in detail.
The City of Ogden argues that it cannot discriminate between speakers regarding the Free Speech Clause because it has adopted the speech of the Ten Commandments Monument as its own. However, the court rejects this argument, stating that the City is not the sole speaker and does not have unrestricted rights to proclaim any speech it chooses. The court then applies the Wells factors to assess the City's claim of adoption.
1. The central purpose of the Monument is to promote the views of the Eagles, the organization that designed and donated it, rather than those of the City. Evidence includes the Eagles' intent to provide a moral code for youth and the City attorney's admission of ignorance regarding parts of the Monument's meaning.
2. The City exercised no editorial control over the Monument's design or content, as the Eagles maintained complete control and delivered the finished product to the City.
3. While the City may seem to be the literal speaker of the Monument's contents, the court concludes that the Eagles are the true speakers because they created the speech independently of City control, as acknowledged by the Monument itself.
Overall, the court finds that the Ten Commandments Monument represents the speech of the Eagles rather than that of the City of Ogden, underscoring the importance of the distinction in evaluating the Free Speech Clause claim.
The municipality's responsibility for the content of the Ten Commandments Monument is examined, noting that initially, the City did not hold such responsibility as the Eagles built it independently. After the City acquired title, it could have altered or disposed of the Monument, suggesting potential ultimate responsibility. However, an analysis of the Wells factors indicates that the City of Ogden did not effectively adopt the Monument's speech. This conclusion is reinforced by the post hoc nature of the City's claim of adoption. The Supreme Court has highlighted concerns regarding post hoc rationalizations that may indicate viewpoint discrimination, as seen in cases like City of Lakewood and Cornelius. In these cases, the Courts emphasized the need for municipalities to apply clear standards to avoid biased expressions. The City of Ogden failed to provide pre-litigation evidence of explicit adoption of the Monument's speech. The City Council's statement, made four months after the lawsuit was filed, is the first documented claim of such adoption. Furthermore, the former mayor indicated that the City had a practice of accepting gifts that reflected its official views, but this was not substantiated as a standard prior to the litigation.
The City of Ogden has not demonstrated any specific instances of applying its alleged practice regarding the installation of monuments prior to litigation. The City admits that during the 1985-1991 process to install a historical marker, the Planning Commission's Staff Report indicated that existing policies did not address monument additions, highlighting uncertainty in decision-making. The court concludes that the speech represented by the Ten Commandments Monument reflects the views of the Eagles rather than the City itself.
The court rejects the City's argument that its bias against Summum in favor of the Eagles is justified by historical relevance. While it acknowledges that municipalities can control access to nonpublic forums based on historical relevance, it finds that the City lacked sufficient safeguards to prevent this criterion from being misused as a pretext for viewpoint discrimination. Citing *Summum v. Callaghan*, the court emphasizes the risk of unconstitutional conduct when government officials make discretionary decisions about who may speak on municipal property without clear guidelines, which raises concerns about content and viewpoint censorship.
The court reaffirms the necessity for municipalities to avoid viewpoint discrimination under the Free Speech Clause, suggesting that written guidelines are not the only way to achieve this, as long as there is a consistent and established practice governing speaker selection.
The City of Ogden is unable to substantiate its 'historical relevance' criterion for monument selection through either a written policy or a well-established practice. The city lacks a formal written policy that addresses monument selection based on historical relevance, as evidenced by the timing of a City Council statement issued in July 1999, which came after the initiation of Summum's lawsuit in March 1999. This statement referenced the purposes for reserving forum space but did not specifically define the 'historical relevance' criterion. Additionally, a Municipal Gardens Master Plan from 1984 does not develop this criterion but only mentions the possibility of making history visible through various means.
Regarding a 'well-established practice,' the City claims such a practice exists based on testimony from Mayor Glenn J. Mecham, who stated that historical relevance is a factor in monument acceptance decisions. However, his testimony does not provide concrete evidence of a consistent practice, and it is noted that individual City Council members may not apply the same standard. There is no indication that the council members considered the 'historical relevance' criterion prior to Summum's lawsuit, leading to the conclusion that the City has not demonstrated a reliable practice in this regard.
The monuments adjacent to the Ten Commandments Monument do not clearly demonstrate a standard of "historical relevance to the Ogden City community," as the City has failed to explain their significance. The two adjacent monuments—a police memorial and a tree with a plaque for Ogden's sister city—do not inherently suggest historical relevance. Furthermore, the City has not provided evidence of a written policy for monument placement based on historical relevance, relying instead on limited deposition testimony from one individual. Consequently, the City has not shown a consistent practice of accepting monuments based on their historical significance.
Additionally, the City attempts to defend its rejection of the Seven Principles Monument by invoking the Establishment Clause, arguing that displaying it could lead to a violation. However, the Supreme Court has not definitively ruled whether avoiding an Establishment Clause violation can justify viewpoint discrimination. In this case, the Court concludes that the City lacks a valid Establishment Clause interest, paralleling similar findings in prior Supreme Court cases. Ultimately, the City has not proven that displaying the Seven Principles Monument would violate the Establishment Clause.
The legal analysis centers on the application of the Lemon test from *Lemon v. Kurtzman*, which remains authoritative for Establishment Clause cases despite debates about its viability. The Lemon test comprises three prongs: (1) the government action must have a secular legislative purpose, (2) its primary effect must neither advance nor inhibit religion, and (3) it must not foster excessive government entanglement with religion. The inquiry also emphasizes the necessity for government neutrality towards religion, assessing both the actual government actions and the perceptions of a reasonable observer. Additionally, the analysis must be sensitive to any coercive pressures that may arise from the policy in question.
In evaluating the hypothetical acceptance of the Seven Principles Monument by the City of Ogden, the court considers the arguments regarding the purpose and effects of the display. The City claims that the purpose behind Summum's donation is to promote its religious beliefs, which is deemed insufficient for determining the government's intent. The focus is on the government's rationale for allowing such displays on public property, referencing precedent that highlights the government's motives in similar contexts.
The policy faces a facial challenge due to the District's encouragement of prayer. Concerns regarding the Establishment Clause would be significant if the City of Ogden's City Council displayed the Seven Principles Monument with improper intentions. However, there is no evidence suggesting that the City's acceptance of the monument was motivated by anything other than a desire for equal access. The City contends that a reasonable observer might see the display of the Seven Principles Monument as an endorsement of the Summum religion, particularly since Summum would be the only church contributing a monument in the area. The argument is countered by the assertion that a reasonable observer would recognize the diversity of monuments on municipal grounds, which include both secular and sectarian examples. The presence of the Ten Commandments Monument, acknowledged as a sacred text, does not negate the secular purposes attributed to the municipal display. The trend in Supreme Court decisions indicates that accommodating a variety of ideas, including religious ones, in public forums does not infringe upon the private religious freedom intended to be protected by the Establishment Clause. If the City is concerned about potential misinterpretations, it could post disclaimers indicating that certain monuments are privately funded. Ultimately, the conclusion emphasizes that the Free Speech Clause requires the City of Ogden to treat religious expressions equally, necessitating the display of both the Ten Commandments Monument and the Seven Principles Monument.
The ruling affirms the district court's summary judgment favoring the City of Ogden regarding Summum's Establishment Clause claim, while reversing the judgment on the Free Speech Clause claim. The case is remanded for further proceedings consistent with this opinion. Judge Louis F. Oberdorfer concurs with the result. The excerpt discusses various symbols related to Judeo-Christian and other religious traditions, mentioning their unclear meanings and associations with fraternal organizations and currency. It also outlines Summum's "Seven Principles," which encompass concepts of creation, duality, rhythm, cause and effect, and gender, emphasizing their philosophical significance. Additionally, it critiques the Establishment Clause issue, referencing case law that raises questions about the precedent set by previous rulings, particularly concerning religious speech's purpose and effect, as established in the Lemon v. Kurtzman case.
A three-pronged analysis of the Establishment Clause is established, focusing on the purpose and effect of religious speech. The case of Santa Fe Independent School District v. Doe elaborates on the purpose prong, while County of Allegheny v. American Civil Liberties Union addresses the effect prong. The display of the Ten Commandments Monument in Salt Lake City is cited as having a proper purpose, but this does not imply that the City of Ogden shares the same purpose or that its monument would not have an improper effect. The term "limited public forum" is defined as a nonpublic forum that permits selective access to certain speakers or types of speech without becoming a designated public forum, referring to the Eighth Circuit's analysis in Knights of the Ku Klux Klan. Additionally, the City of Ogden occasionally refers to the monument as the "OFOE Monument," indicating its association with the Ogden Fraternal Order of Eagles. The Supreme Court's approach in Santa Fe is noted, emphasizing the perspective of an "objective observer" and the historical context of the community. Further consideration is given to how governmental actions may be perceived by different religious adherents, based on Allegheny's findings, as well as the reasonable observer standard highlighted in Good News.
