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IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
AMERICAN HUMANIST
ASSOCIATION and
DESSA BLACKTHORN, PLAINTIFFS
v.
BAXTER COUNTY, ARKANSAS, and
MICKEY PENDERGRASS, BAXTER COUNTY
JUDGE, IN HIS OFFICIAL AND INDIVIDUAL
CAPACITIES DEFENDANTS
PLAINTIFFS MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR
SUMMARY JUDGMENT
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[email protected] textNo. 3:14-cv-03126-TLB
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I. SUMMARY OF THE FACTS
For at least the last 40 years, Baxter County has maintained an
overwhelmingly sectarian
Christmas display on the lawn of the Baxter County Courthouse.
The display consists almost
exclusively of a Christian crche: a representation of the birth
of Jesus of Nazareth as described in
the Gospels of Matthew and Luke. Matthew 2:1-12; Luke 2:1-20
(King James Version). The
display is a life-size representation of the birth of Jesus of
Nazareth, with at least fifteen elements
(Jesus, Mary, Joseph, two angels, three kings, two camels, three
sheep, a donkey, and at least two
shepherds) dedicated to the birth of Jesus as set forth in the
scriptures. A floating angel above the
infant Jesus bears a banner stating Gloria in Excelsis Deo.
For most of its 40-year history, the display consisted of the
crche alone. In recent years,
it has also included one small Santa Claus in the backdrop,
overshadowed by the Biblical Magi
(Comp. Ex. 1) and a relatively small Christmas tree, which also
sits behind the display rather than
incorporated into it. In 2014, following complaints from
Plaintiff American Humanist Association
(AHA) and other secular organizations, the County added a clear
plastic reindeer and sleigh,
incidental to the display. Members of the public perceive the
Countys display as religious; the
small, recent add-ons have not detracted from its overwhelming
Christian message. (Pendergrass
Dep. p. 55-61). Even the president of the Mountain Home Chamber
of Commerce agrees that the
display is fundamentally religious in nature. (Majeste Dep. p.
11).
Not only is the Countys crche a Christian display, but it has
also been used for religious
purposes. In particular, the crche has been the site for the
Countys annual tree-lighting ceremony,
which is complete with Christian prayers led by a Christian
minister and religious hymns. (Spencer
Dep. p. 20-21) (there's always been a minister, and he's always
given an invocation, and he's
always given the invocation in the name of Jesus Christ);
(Pendergrass Dep. p. 12-14).1
Judge Pendergrass oversees the Courthouse grounds and has final
decision-making
authority over the display. The crche itself is owned by Rick
Spencer, a Christian attorney
1 These Christian-themed Tree Lighting ceremonies convert what
arguably could be a secular tree to a religious symbol.
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residing in Baxter County. (Pendergrass Dep. p. 7).2
Nevertheless, the County Judge maintains
the right to decide what is placed on the courthouse lawn.
Indeed, he has repeatedly exercised this
authority in refusing to allow other displays. (Ex. 5); (Ex. 1);
(Pendergrass Dep. Ex. 8).
In 2013 and 2014, several citizens made requests to display a
Happy Winter Solstice
banner and a menorah on the Courthouse lawn by the crche. The
Winter Solstice (Yule) is a pagan
celebration that occurs in late December. Nonbelievers also
celebrate the Winter Solstice as an
astronomical event marking the season. The menorah is a symbol
of the Jewish faith, and is often
displayed in recognition of Hanukkah. Those requests were denied
by the County. With respect to
the request by the citizens to display the Solstice Banner,
Judge Pendergrass told them, inter alia:
If you put one, youve got to put them all. (Ex. 5, p. 6).
II. BAXTER COUNTYS CRCHE VIOLATES THE ESTABLISHMENT CLAUSE.
A. Establishment Clause Overview
The placement of a sectarian Christmas display on the grounds of
the Baxter County
Courthouse is a violation of the Establishment Clause of the
First Amendment. See Cnty. of
Allegheny v. ACLU, 492 U.S. 573, 610 (1989) (crche at courthouse
violated the Establishment
Clause). The Establishment Clause commands a separation of
church and state. Cutter v.
Wilkinson, 544 U.S. 709, 719 (2005). It at the very least,
prohibits government from appearing to
take a position on questions of religious belief and requires
the government [to] remain secular,
rather than affiliate itself with religious beliefs. Allegheny,
492 U.S. at 610.
Not only must the government not advance, promote, affiliate
with, or favor any particular
religion, it may not favor religious belief over disbelief. Id.
at 593 (citation omitted). The
Establishment Clause prohibits the government from sending 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[.] McCreary
Cnty. v. ACLU, 545 U.S. 844, 860
(2005) (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984)
(OConnor, J. Concurring)).
2 But see (Pendergrass Dep. p. 7-9).
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To comply with the Establishment Clause, government action must
pass the Lemon test,
pursuant to which it must (1) have a secular purpose; (2) not
have the effect of advancing or
endorsing religion; and (3) not foster an excessive entanglement
with religion. Lemon v.
Kurtzman, 403 U.S. 602, 612-13 (1971). State action violates the
Establishment Clause if it fails
to satisfy any of these prongs. Edwards v. Aguillard, 482 U.S.
578, 583 (1987).
Numerous courts, including the Supreme Court, have held similar
crche displays
unconstitutional. See, e.g., Allegheny, 492 U.S. at 610 (crche
display in courthouse violated the
Establishment Clause); Smith v. County of Albemarle, 895 F.2d
953 (4th Cir. 1990) (crche on the
front lawn of a county office building conveyed unmistakable
message of governmental
endorsement of religion); American Jewish Congress v. Chicago,
827 F.2d 120 (7th Cir. 1987)
(placement of crche near city hall conveyed the impression that
the municipality endorsed
Christianity); ACLU v. Birmingham, 791 F.2d 1561 (6th Cir. 1986)
(effect of crche was an
unconstitutional endorsement of religion); Amancio v. Town of
Somerset, 28 F. Supp. 2d 677 (D.
Mass. 1998) (holiday display erected by town on front lawn of
town hall unconstitutional); Burelle
v. Nashua, 599 F. Supp. 792, 797 (D. N.H. 1984) (privately owned
crche in front of city hall
unconstitutional); Citizens Concerned for Separation of Church
& State v. City & County of
Denver, 481 F. Supp. 522 (D. Colo. 1979) (crche near city
building unconstitutional).3
This case is governed by Allegheny, the Supreme Courts second
and most recent case
involving a crche display.4 In Allegheny, the Court held that a
privately-donated crche displayed
at a county courthouse was unconstitutional; it was a visual
representation of the New Testament
account of the birth of Jesus and therefore endorsed religion.
492 U.S. at 580. Neither the
disclaimer nor the Santa Claus figures and other Christmas
decorations elsewhere in the courthouse
could negate the endorsement effect of the crche. Id. at
598.
3 The courts have held that a standalone menorah display is
unconstitutional, as is a display of both the
crche and the menorah with no secularizing elements. See ACLU v.
Schundler, 104 F.3d 1435 (3d Cir.
1997) (display of crche and a menorah near city hall); American
Jewish Congress v. City of Beverly Hills,
90 F.3d 379 (9th Cir. 1996) (menorah in a public park);
Chabad-Lubavitch of Vermont v. Burlington, 936
F.2d 109 (2d Cir. 1991) (same); Kaplan v. City of Burlington,
891 F.2d 1024, 1030 (2d Cir. 1989) (same). 4 See ACLU v. City of
Florissant, 186 F.3d 1095, 1098 (8th Cir. 1999) (citing Allegheny
as controlling).
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As set forth in the following sections, Baxter Countys crche
fails the Lemon test because
it has the clear effect of endorsing religionin particular
Christianityand, serves no secular
purpose.
B. Baxter County lacks a secular purpose for displaying the
crche.
Baxter Countys purpose for displaying a crche at its Courthouse
is predominantly
religious and not secular, given the overwhelmingly religious
nature of the display and its historical
lack of secular items. E.g., McCreary, 545 U.S. 844 (holding
display of Ten Commandments in
courthouse had no secular purpose); Burelle, 599 F. Supp. at 797
(finding no secular purpose for
crche display outside city hall); Denver, 481 F. Supp. at 528
(same).
When the government permits religious symbols to be constructed
on public property, its
ability to articulate a secular purpose becomes the crucial
focus under the Establishment Clause.
ACLU v. Rabun Cnty. Chamber of Commerce, Inc., 698 F.2d 1098,
1110 (11th Cir. 1983) (internal
footnote omitted). Many courts addressing . . . challenges to
the maintenance of religious
symbols have ruled that the symbols fail Lemon upon the finding
of a religious purpose. Id. at
1110 n.23 (citations omitted).
The Supreme Court has placed the burden on the government to
articulate a predominantly
secular purpose for using the symbols under Lemon. Am. Humanist
Ass'n v. City of Lake Elsinore,
2014 U.S. Dist. LEXIS 25180, *21 (C.D. Cal. 2014) (war memorial
depicting cross headstone
markers lacked secular purpose). See McCreary, 545 U.S. at
870-72 (government failed to
articulate a secular purpose for Ten Commandments); Stone v.
Graham, 449 U.S. 39, 41-42 (1980)
(same); see also Metzl v. Leininger, 57 F.3d 618, 622 (7th Cir.
1995) (a secular purpose is in the
nature of a defense, and the burden of producing evidence in
support of a defense is . . . on the
defendant); Church of Scientology Flag Serv. v. City of
Clearwater, 2 F.3d 1514, 1530 (11th Cir.
1993) (the defendant [must] show by a preponderance of the
evidence that action challenged has
a secular purpose).5
5 See also Freethought Socy v. Chester Cnty., 191 F. Supp. 2d
589 (E.D. Pa. 2002) (holding that plaque of Ten Commandments on
courthouse primarily religious and only incidentally secular); ACLU
of Mississippi
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This secular purpose must be the pre-eminent and primary force
driving the
governments action, and has to be genuine, not a sham[.]
McCreary, 545 U.S. at 864. The Court
must judge the purpose of government action through the eyes of
an objective observer who
takes into consideration the history and context of the action.
Courts can infer[] purpose from
the public comments of its sponsor, or other openly available
data. Id. at 862-63 (citations
omitted). Religious intent may also be inferred where, as here,
the government action itself
besp[eaks] the purpose . . . [because it is] patently religious.
Id.
An objective observer would conclude that Baxter Countys
predominant, and indeed only
purpose is to advance religion, infra.
1. The crche presumptively lacks a secular purpose.
Where, as here, government action entails placing the display of
an instrument of
religion on its property, its purpose can presumptively be
understood as meant to advance
religion[.] Id. at 867 (quoting Stone, 449 U.S. at 41 n.3)
(noting that given the facts before the
court in Stone, the Court could presume a predominantly
religious purpose in displaying of the
Ten Commandments because the Ten Commandments monument is an
instrument of religion)).
See Stone, 449 U.S. at 41 ([t]he Ten Commandments are undeniably
a sacred text in the Jewish
and Christian faiths, and no legislative recitation of a
supposed secular purpose can blind us to that
fact.).
A nativity scene undoubtedly qualifies as the depiction of a
deity, with the infant Jesus
usually being worshiped as God-made-man by adoring angels,
shepherds, and wise men. Skoros
v. City of New York, 437 F.3d 1, 28 (2d Cir. 2006). Due to its
patently religious nature, the only
purpose which can be ascribed to the display here is to either
advance or endorse the Christian
religion. Mississippi State, 652 F. Supp. at 383. When a
state-sponsored activity has an overtly
religious character, courts have consistently rejected efforts
to assert a secular purpose for that
activity. Mellen v. Bunting, 327 F.3d 355, 367, 373 (4th Cir.
2003). See McCreary, 545 U.S. at
v. Mississippi State General Services Admin., 652 F. Supp. 380
(S.D. Miss. 1987) (holding display of cross
in holiday season so religious in effect that no secular purpose
can be ascribed to it); Libin v. Town of Greenwich, 625 F. Supp.
393, 399 (D. Conn. 1985).
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862-63; Stone, 449 U.S. at 41. Finding a memorial cross
unconstitutional pursuant to Lemons
purpose prong, the Eleventh Circuit in Rabun relied on the fact
that the cross is universally
regarded as a symbol of Christianity. 698 F.2d at 1111. In this
case, as in McCreary and Stone,
the Court can infer a religious purpose in the Countys decision
to display an overwhelmingly
Christian crche.
2. The history and sequence of events underscore the Countys
unconstitutional religious purpose for displaying the crche.
An objective observer would be aware of the history and context
of the crche and would
take into account the original religious purpose for placing a
crche at the courthouse years ago.
McCreary, 545 U.S. at 862.6 The observer would understand the
essentially isolated crche to be
an instrument of religion, giving rise to the presumption of a
predominantly religious purpose as
in Stone and McCreary, and would understand the recent and de
minimis addition of secular items
to be nothing more than an attempt to retain a predominantly
religious display in the face of
litigation. McCreary, 545 U.S. at 867; Stone, 449 U.S. at 41
n.3.
As the Supreme Court has made clear, a decision to tack other
elements onto a religious
display as a means to preserve it from litigation reveals a
religious purpose: the preservation of the
original religious element itself. McCreary, 545 U.S. at 870-71
(holding that a decision to add
secular images to surround a Ten Commandments display in
response to litigation revealed a
religious purpose). The reasonable observer here would be aware
of the late addition of a few
secular items, two of which were only added in 2014 in direct
response to the threat of litigation.
Id. at 874.7 She would understand the addition of these symbols
as the County simply reaching
for any way to keep a religious [display] on the [lawn] of [the]
courthouse[]. Id. at 873.
6 See also Kalman v. Cortes, 723 F. Supp. 2d 766, 787 (E.D. Pa.
2010) (Newspaper articles describing the Blasphemy Statute's
historical context and the specific sequence of events leading to
its passage further
illustrate the statute's predominant religious purpose.). 7
Whereas both parties in Florissant were able to look at a display
that was abundantly secular from its
outset and conclude that the City had a secular purpose, an
objective observer in Baxter County could not
reasonably conclude the same because this display is primarily a
crche with only a few, incidental secular
items. Florissant, 186 F.3d at 1097 n. 2.
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An objective observer aware of the relevant history and sequence
of events would also take
note of the fact that the County has made every effort to keep
the display predominantly Christian.
It has refused to allow citizens to put up a Happy Winter
Solstice banner near the crche.
(Pendergrass Dep. Ex. 8) (Comp. Ex. 3). The observer would also
be aware of the fact that Judge
Pendergrass had received phone calls from people stating that
they thought there ought to be a
menorah there and that the County has denied such requests to
make the display more inclusive.
(Pendergrass Dep. p. 40).
Also relevant to the history and sequence of events is the fact
that, after being threatened
with litigation, the County decided to lease the parcel of land
to the Chamber of Commerce for
$1, for the express purposes of erecting a nativity scene
display. (Comp. Ex. 8). This lease, as
discussed in more detail below in Section D, does nothing to
cure the constitutional violation and
in fact, because of its explicit religious objectives,
constitutes a separate violation of the
Establishment Clause in its own right, infra.
In addition to this history and sequence of events, as well as
the inherently religious nature
of the crche display, which all point to a predominant religious
purpose, the Court may consider
statements of the sponsoring officials. Id. at 862. Indeed,
[p]ublic comments of [a display's]
sponsors is important evidence to consider in assessing
government purpose. Lake Elsinore,
2014 U.S. Dist. LEXIS 25180, at *24. See McCreary, 545 U.S. at
866 n.14; Edwards, 482 U.S. at
594-95; Wallace, 472 U.S. at 57-58; Am. Atheists, Inc. v. City
of Starke, 2007 U.S. Dist. LEXIS
19512, *14 (M.D. Fla. 2007). This includes the religious
motivations of a displays private
sponsors. See Rabun, 698 F.2d at 1111 (finding unconstitutional
purpose based in part on the
several inspirational statements contained in the Chambers press
releases.); Gonzales v. North
Twp. of Lake Cnty., 4 F.3d 1412, 1418 (7th Cir. 1993); Books v.
City of Elkhart, 235 F.3d 292, 303
(7th Cir. 2000) (The participation of these influential members
of several religious congregations
makes it clear that the purpose for displaying the monument was
[religious]); Cooper v. USPS,
577 F.3d 479, 493-95 (2d Cir. 2009) (no secular purpose for
displaying [a Christian Churchs]
religious material).
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For instance, in Gonzales, the Seventh Circuit held that a war
memorial crucifix erected by
the Knights of Columbus, lacked a religious purpose. 4 F.3d at
1419. The town claimed that the
crucifix was intended to act as a war memorial, not a religious
icon, and that this purpose prevails.
Id. Holding that the cross lacked a secular purpose, the Seventh
Circuit imputed the Knights
purpose onto the town, noting: The record illustrates that the
Knights goal was to spread the
Christian message. Id. at 1421 (emphasis added). Similarly, in
Harris v. City of Zion, 927 F.2d
1401, 1414 (7th Cir. 1991), the Seventh Circuit held that the
City of Zions seal depicting a cross
failed the purpose and effect tests. Even though the seal was
not designed by the government and
the city adopted a resolution purporting, to retain the seal for
historical reasons, the court
concluded that the purpose for the adoption of Zion's unique
seal was primarily sectarian. Id. at
1413-14.
Here, statements by Judge Pendergrass and Rick Spencer reveal a
religious purpose. In
refusing to allow two citizens to display a Happy Winter
Solstice banner near the crche, Judge
Pendergrass stated in regards to the crche: the religious side
means so much to people. (Ex. 5,
Trans. p. 4). He refused to allow the display on the grounds
that if you put one, youve gotta put
them all. (Id. p. 6). To the media, Pendergrass declared: I'm
just not allowing anything else,
anywhere else on the square, besides that (crche). (Comp. Ex.
7).
Rick Spencer, the sponsor of the display, stated: I can't think
of a better way to try to
drown this Christmas spirit than to be a Washington group full
of atheists. (Comp. Ex. 7). When
explaining Judge Pendergrasss reasons for denying the Solstice
display, Spencer testified: it
would take away any peace associated with Christmas, because you
have people, various -- some
people are very adamant that this display should be left alone.
And some people, in a -- you know,
he just felt that the display was -- would cause a lot of
irritation. (Id. at 32).
In his deposition, Spencer stated: Obviously the purpose of it
was to celebrate Christmas.
I mean, if I put up something that was not in celebration of
Christmas, I'm sure whoever the county
judge was would have some problems with that. (Spencer Dep. p.
16-17). When asked about the
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purpose of Christmas, Spencer testified: yes, Christmas is --
the center of that is Jesus Christ's
birth. (Id. at p. 18).
The County Resolution to purportedly lease the plot of land to
the Chamber of Commerce
in 2014 for $1 during November and December (Court Order
2014-93) explicitly reveals the
Countys religious purpose: that a display celebrating the
Christmas holidays be erected on the
Courthouse lawn as an an effort to continue the Christmas
holiday tradition[.] (Comp. Ex. 8).
Statements by the Chamber of Commerce also evidence a religious
purpose. In his deposition, the
Chambers president, Eddie Majeste, was asked: Do you understand
the display to be
fundamentally religious in nature? (Majeste Dep. p. 11). He
replied: Yes. Yeah. (Id.).
This history clearly casts serious doubt on any argument that
[the display] was intended
as a generic symbol, and not a sectarian one. Trunk v. City of
San Diego, 629 F.3d 1099, 1124
(9th Cir. 2011), cert. denied, 132 S. Ct. 2535 (2012) (war
memorial cross held unconstitutional).
3. The Countys belated stated purposes are a sham and are
insufficient to satisfy the Lemon purpose prong.
Baxter County cannot satisfy its burden of proving a secular
purpose for the display
because there is none. The Court must ensure that the
governments stated purpose is not a sham,
and not merely secondary to a religious objective. McCreary, 545
U.S. at 862, 864, 866.
In its Answer, the County suggested that the purpose of the
crche is to bring consumers
into the County seat and that those consumers engage in
commerce, thereby benefiting the
community (Ans. 15); however, with the utmost respect for the
County, this suggested secular
purpose is a sham. Id. 866. These new statements of purpose were
presented only as a litigating
position[.] Id. at 871.
In Court Order 2014-93 regarding the lease to the Chamber of
Commerce, there is no
mention of the alleged secular purpose of attracting customers
to the county seat. (Comp. Ex. 8).
Resolution 2014-35 goes on to cite the inclusion of disclaimers
and displaying a crche in
someones memory, but again, there is no mention of a purpose to
attract business to the
community. (Comp. Ex. 9). In fact, there is no evidence
whatsoever that the crche serves the
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secular purpose of commercializing the holiday season. As stated
above, the evidence is clear that
the purpose of the display is to endorse and advance religion,
and this is not a legitimate secular
purpose.
Even if the Court accepted the entirely unsupported contention
that the purpose of the
crche is to attract tourists, that purpose would be insufficient
to satisfy the Lemon purpose test.
Indeed, in finding a memorial cross failed the purpose test, the
Eleventh Circuit in Rabun explicitly
held that even if the . . . purpose for constructing the cross
was to promote tourism, this alleged
secular purpose would not have provided a sufficient basis for
avoiding conflict with the
Establishment Clause. 698 F.2d at 1111 (citations omitted).
An identical purpose was advanced and then rejected in Denver,
481 F. Supp. at 528,
regarding Denvers crche display. Specifically, the city argued
that its purpose in including the
crche in the Christmas Display is sufficiently secular, in that
the entire display is designed to draw
tourists and residents alike into the downtown business
district, and to improve the City's national
image. In rejecting this purpose, the court explained: This
contention is troublesome, . . . because
it fails to explain the importance of the crche itself to such a
commercial purpose. Id. The court
continued: If the City's intent is indeed to use an appeal to
sectarian religious sentiments to attract
people into the city, that purpose might well be
constitutionally impermissible. Id.
The argument that a religious display is art or a tourist
attraction will not protect the
display from restrictions on government-sponsored religion.
Hewitt v. Joyner, 940 F.2d 1561,
1572 (9th Cir. 1991). When a religious symbol is erected for a
religious purpose, the fact that it
is also a work of art designed by a noted architect and approved
by an art commission does not
change its purpose. It simply is an attempt to create an
aesthetically pleasing religious symbol; it
does not obviate its religious purpose. Gonzales, 4 F.3d at
1421. See also Glassroth v. Moore,
335 F.3d 1282, 1295 (11th Cir. 2003) (Use of the Ten
Commandments for a secular purpose,
however, does not change their inherently religious nature).
In Kimbley v. Lawrence Cnty., 119 F. Supp. 2d 856, 868 (S.D.
Ind. 2000), the government
averred that the Ten Commandments Monument is on the Courthouse
lawn to honor the
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importance of the limestone industry in the County[.] However,
this failed to explain why the
documents depicted on the Monument were chosen. Id. The court
concluded that [w]hile
honoring the limestone industry is a valid secular purpose, as
in O'Bannon, the design and content
of the Monument indicate that such is not the true purpose for
the Monument, but that the purpose
is, in fact, religious in nature. Id. (emphasis added).
Similarly, in Mendelson v. St. Cloud, 719 F. Supp. 1065, 1067-70
(M.D. Fla. 1989), a cross
was given as a gift to a city and was placed on the citys water
tower. The city contended that the
cross has secular and historical value as a guidepost for
fishermen and pilots and as a landmark.
Id. Yet the court declared: Even if the court found the Citys
purpose to be truly secular, a
government may not employ religious means to reach a secular
goal unless secular means are
wholly unavailing. Id. (citation omitted).
In short, attempting to further an ostensibly secular purpose
through avowedly religious
means is considered to have a constitutionally impermissible
purpose. Holloman v. Harland, 370
F.3d 1252, 1286 (11th Cir. 2004). And new statements of purpose
do not erase the past.
McCreary, 545 U.S. at 873. Many courts have held that a
later-stated purpose for the religious
symbol could not alleviate a constitutional violation. Gonzales,
4 F.3d at 1420 (citations omitted).
Therefore, because an objective observer would understand this
display to be void of any secular
purpose, and because the secular purpose offered by the County
is, with all due respect, a sham,
the placement of this religious display at the Courthouse is a
violation of the Establishment Clause
under the first prong of Lemon.
C. The Countys Christian crche prominently displayed at the
County Courthouse has the effect of advancing or endorsing
religion.
Regardless of the purposes motivating it, supra, the crche
violates the Establishment
Clause under the second prong of Lemon. See Allegheny, 492 U.S.
at 598-600 (holding that the
governments display of a crche unconstitutionally endorsed
Christianity); Smith, 895 F.2d 953
(crche conveyed unmistakable message of governmental endorsement
of religion); Chicago, 827
F.2d 120 (crche violated effect prong independent of purpose).
The Baxter County display is
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overwhelmingly Christian; it is a Christian nativity scene,
depicting the birth of Jesus of Nazareth
as set out in the Gospels of Matthew and Luke.
The effect prong asks whether, irrespective of governments
actual purpose, the practice
under review in fact conveys a message of endorsement or
disapproval [of religion]. Wallace v.
Jaffree, 472 U.S. 38, 56 n.42 (1985) (quotation marks omitted).
An implicit symbolic benefit is
enough. Friedman v. Bd. of Cnty. Comm'rs, 781 F.2d 777, 781
(10th Cir. 1985). See Larkin v.
Grendel's Den, 459 U.S. 116, 125-26 (1982) (The mere appearance
of a joint exercise of
legislative authority by Church and State provides a significant
symbolic benefit to religion in the
minds of some by reason of the power conferred.) (emphasis
added).8
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
nonadherents as a disapproval, of
their individual religious choices. Grand Rapids Sch. Dist. v.
Ball, 473 U.S. 373, 390 (1985).
Here, as in the above cases, the Countys display of the crche at
the Courthouse unconstitutionally
endorses Christianity and sends a clear message to
non-Christians that they are unwelcome in the
community.
The Court must begin its analysis with the recognition that the
Nativity scene, with its
figures of Mary, Joseph, the infant Jesus, the Magi, shepherds,
angels, and animals, is an
unequivocal Christian symbol, unlike the Christmas tree and the
reindeer and the tinsel and Santa
Claus. ACLU v. City of St. Charles, 794 F.2d 265, 271 (7th Cir.
1986). A vivid tableau of the
birth of Jesus Christ, it brings Christianity back into
Christmas, unlike the star and the wreath and
the tree, which for most people are in the nature of lifeless
metaphors. Id. at 272. See also
Washegesic v. Bloomingdale Pub. Sch., 33 F.3d 679, 684 (6th Cir.
1994) (Christ is central only
to Christianity, and his portrait has a proselytizing, affirming
effect that some non-believers find
8 By way of illustration, in Granzeier, the court held that a
government sign depicting a small (4-inch) clip art cross violated
the Establishment Clause because, the sign could be, and was in
fact, perceived by reasonably informed observers, to be a
government endorsement of the Christian religion. 955 F. Supp. at
746-47, aff'd, 173 F.3d 568 (6th Cir. 1999).
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deeply offensive. . . . [I]t [i]s a governmental statement
favoring one religious group and
downplaying others.).
In Allegheny, the county permitted an organization to display a
crche at its courthouse.
The display bore a plaque disclaiming the countys ownership and
was surrounded by a floral
decoration. Santa Claus figures and other Christmas decorations
were present elsewhere in the
courthouse. The Court concluded that the crche violated the
effect test, declaring that the county
has chosen to celebrate Christmas in a way that has the effect
of endorsing a patently Christian
message. 492 U.S. at 601. Likewise, in Smith, the Fourth Circuit
ruled that a privately donated
crche displayed on the front lawn of a government building
failed the second prong of Lemon.
895 F.2d at 955-58. Notwithstanding the fact that it had a
disclaimer stating it was Sponsored by
Charlottesville Jaycees, and that it involved no expenditure of
County funds, the Fourth Circuit
concluded that the display sent the unmistakable message of
endorsement of religion. Id. at 958.
The Seventh Circuit similarly held that in Chicago that the
government-approved placement of
the nativity scene in Chicago's City Hall unavoidably fostered
the inappropriate identification of
the City of Chicago with Christianity, and therefore violated
the Establishment Clause. 827 F.2d
at 128.
The driving factor in determining the effect of a holiday
display is its setting, including
its physical location and also the objects that surround the
display. Lynch, 465 U.S. at 692
(OConnor, J., concurring); Allegheny, 492 U.S. at 598-600.
The display of religious symbols in public areas of core
government buildings runs a
special risk of mak[ing] religion relevant, in reality or public
perception, to status in the political
community. Lynch, supra, at 692 (concurring opinion). See also
Smith, 895 F.2d at 958 (The
creche was situated on the front lawn of the County Office
Building -- a prominent part, not only
of the town, but of the county office structure itself.
Prominent in the background is the sign
identifying the building as a government office structure.);
Chicago, 827 F. 2d at 128 (Because
City Hall is so plainly under government ownership and control,
every display and activity in the
building is implicitly marked with the stamp of government
approval. The presence of a nativity
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scene in the lobby, therefore, inevitably creates a clear and
strong impression that the local
government tacitly endorses Christianity).
When the government chooses to place a primarily religious
display at the seat of . . .
government, this has the effect of communicating a message of
endorsement, making it difficult
for any viewer to reasonably think that it occupies this
location without the support and approval
of the government. Allegheny, 492 U.S. at 599-600.9
The creches physical setting plainly distinguishes it from
Lynch: its placement in front
of the county courthouse. Chicago, 827 F.2d at 126. The creche
in Lynch, although sponsored by
the City of Pawtucket, was located in a privately-owned park, a
setting devoid of the governments
presence. Id. But the display here is located outside a
government building a setting where the
presence of government is pervasive and inescapable. Id. The
Courts holding in Lynch that the
inclusion of a creche in a holiday display located in a private
park did not violate the Establishment
Clause cannot control this case, where the display is placed
within an official government
building. Id. Thus, by permitting the display of the creche in
this particular physical setting, . .
. the county sends an unmistakable message that it supports and
promotes the Christian praise to
God that is the creches religious message. Allegheny, 492 U.S.
at 600 (citation omitted).
Moreover, nothing in the context of the display detract[s] from
the [displays] religious
message. Id. at 598-600 (rejecting the Countys contention that
adding traditional Christmas
greens negate[d] the endorsement effect of the crche.). Any
attempt to compare this case to case
in which the display is predominantly secular and the nativity
scene is incidental to the display
must fail. For instance, in Lynch, 465 U.S. at 671, a crche was
de minimis in a display including,
among other things, a Santa Claus house, reindeer pulling
Santa's sleigh, candy-striped poles, a
Christmas tree, carolers, cutout figures representing such
characters as a clown, an elephant, and
a teddy bear, hundreds of colored lights, a large banner that
reads SEASONS GREETINGS, and
9 Cf. Florissant, 186 F.3d at 1098 (holding that the holiday
display did not violate the Establishment Clause,
in part because it was located at the civic center as opposed to
the seat of government, and as such was less
likely to communicate a message of endorsement).
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the crche. The inclusion of a single religious symbol did not
taint the entire display. Id. at
686.10
The Baxter County display is overwhelmingly Christian in nature,
bearing a much stronger
resemblance to the display in Allegheny than the displays in
Lynch and Florissant. The display
consists of a life-size representation of the birth of Jesus of
Nazareth, with at least fifteen elements
(Jesus, Mary, Joseph, an angel, three kings, two camels, three
sheep, a donkey, and at least two
shepherds) dedicated to the depiction of the birth of Jesus as
set forth in the scriptures, plus one
Santa Claus11 one Christmas tree, and as of 2014, a single clear
plastic reindeer and sleigh that do
not match the rest of the display.12 The angel bears a banner
stating Gloria in Excelsis Deo, a
paraphrase13 of Gospel of Luke 2:14 (Vulgate) that forms the
basis for the traditional Christian
prayer, the Gloria. This praise to God in Christian terms is
indisputably religiousindeed
sectarianjust as it is when said in the Gospel or in a church
service. Allegheny, 492 U.S. at 598.
The County even holds an annual Christian-themed lighting
ceremony in front of the crche
where sectarian Christian prayers are offered by Christian
clergy. This religious sectarian religious
message by itself is enough to have the effect of endorsing or
advancing religion; the fact that the
display and the ceremony take place outside of the Courthouse
simply compounds this effect.
Allegheny, 492 U.S. at 599-600. See, e.g., Trunk, 629 F.3d at
1119-20 & n.19; Green, 568 F.3d at
801 (The reasonable observer would know that two of the three
commissioners attended the
unveiling of the Monument, which had been organized by Mr. Bush
and included remarks by local
pastors); Hewett v. City of King, 29 F. Supp. 3d 584, 635
(M.D.N.C. 2014).
10 See also Florissant, 186 F.3d at 1098 (crche was not the
primary element of the display, but rather only
one element in the grander context of an overall display
featuring multiple, large candy canes, decorated
trees, wrapped gifts, gift cutouts, lollipop cutouts, reindeer,
a snowman, a large Santa Claus with a sack of
gifts, an eight-foot wreath and multiple large signs featuring
secular messages, all of which accompanied
the venue for multiple secular community events, such as a
holiday craft show, a snack with Santa Claus, and a house
decorating contest.). 11 This was added about four or five years
ago. (Spencer Dep. p. 16). 12 Rick Spencer testified that he was
aware of at least one complaint when he purchased the reindeer
and
sleigh. (Spencer Dep. p. 7-8). 13 The Vulgate translation is
Gloria in altissimis Deo.
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This religious history heightens, rather than neutralizes, its
undeniably . . . religious
message. Trunk, 629 F.3d at 1120-21. Specifically, a reasonable
observer would know that the
crche has functioned as a holy object and a place of religious
observance. Id. See Allegheny,
492 U.S. at 599 (because some of the carols performed at the
site of the creche were religious in
nature, those carols were more likely to augment the religious
quality of the scene than to
secularize it.).
The few non-religious Christmas items included in this
displaythe Santa Claus tucked
behind one of the wise men, the Christmas tree, and the sleigh
and reindeer only added in 2014
are incidental to the nativity scene at best and do little to
nothing to detract from the over all
religious message of the display. See Green v. Haskell Cty. Bd.
of Commrs, 568 F.3d 784, 800,
and n.8 (10th Cir. 2009) (the reasonable observer would be aware
of the monuments precise
location on the lawn and its spatial relationship to the other
courthouse monuments); see also City
of St. Charles, 794 F.2d at 267 (holding cross in a
multi-faceted Christmas display unconstitutional
and noting that the cross was an overpowering feature of the . .
. decorations . . . and . . . there
[was] no taller object in the city's Christmas display);
Robinson v. City of Edmond, 68 F.3d 1226,
1232, n.11 (10th Cir. 1995); Joki v. Bd. of Educ. of
Schuylerville Cent. Sch. Dist., 745 F. Supp.
823, 829-30 (N.D. N.Y 1990) (the cross occupies a highly
prominent place in the painting and
draws the attention of the eye.).
In looking to the physical setting of a cross memorial, the
Ninth Circuit in Trunk
observed: The Cross is placed in a separate, fenced off box,
which highlights it, rather than
incorporates it as a natural part of the Memorial. 629 F.3d at
1123. Here too, the creches central
position . . . gives it a symbolic value that intensifies the []
sectarian message. Id. at 1123-24.
Moreover, the few Christmas-themed elements that have been added
behind the display
in recent years have strong Christian overtones. A Christmas
tree, for instance, may be considered
a secular symbol. But here, there is an annual lighting ceremony
at which sectarian Christian
prayers are offered. As such, a reasonable observer would
understand the Countys Christmas tree
as a holy object. Trunk, 629 F.3d at 1120-21.
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Even if the Court accepts the tree as a secular symbol,
notwithstanding its religious usage,
it is relatively small and stands in the backdrop of the
Christian nativity scene. In Allegheny, in
contrast, the Court upheld a second display challenged in that
case, which was an elaborate display
featuring a 45-foot Christmas tree, a sign saluting liberty, and
an 18-foot menorah. 492 U.S. at
614. In upholding the display, the Court stressed that the tree,
moreover, is clearly the
predominant element in the city's display. The 45-foot tree
occupies the central position beneath
the middle archway in front of the Grant Street entrance to the
City-County Building; the 18-foot
menorah is positioned to one side. Id. at 617. Given this
configuration, the Court reasoned, it
is much more sensible to interpret the meaning of the menorah in
light of the tree, rather than vice
versa. In the shadow of the tree, the menorah is readily
understood as simply a recognition that
Christmas is not the only traditional way of observing the
winter-holiday season. Id.
It is also relevant to the reasonable observer that for most of
its 40-year history, the display
consisted of the crche alone; it wasnt until the threat of
litigation that several non-religious
Christmas symbols were tacked on. See Trunk, 629 F.3d at 1103
(holding a government war
memorial cross unconstitutional and finding it relevant that the
Cross stood alone for most of its
history, while later becoming a more extensive war
memorial.).
The reasonable observer would also be aware of the County, and
Rick Spencers religious
motivations for displaying the crche, including their express
disapproval of including symbols
for non-Christians such as a Menorah or a Solstice banner. See
Green, 568 F.3d at 800 (the
reasonable observer would be aware of [the private donors]
religious motivation). [T]he
Establishment Clause does not limit only the religious content
of the government's own
communications. It also prohibits the government's support and
promotion of religious
communications by religious organizations. Allegheny, 492 U.S.
at 600.
In addition, the actions and statements of . . . the community
at large . . . also contribute
to the perception that the memorial [is] viewed as endorsing
religion. Lake Elsinore, 2014 U.S.
Dist. LEXIS 25180, at *35-36. See Green, 568 F.3d at 800 (the
reasonable observer would be
aware of the community's response to the Monument); City of
Starke, 2007 U.S. Dist. LEXIS
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19512, *14; Trunk, 629 F.3d at 1119-20 & n.19. In Trunk, a
local law center declared that Christ
won the war on Calvary. Id. Other groups launched petition
campaigns to save the cross, as is the
case here. Id. The court explained that [t]he starkly religious
message of the Cross's supporters
would not escape the notice of the reasonable observer. Id. at
1120.
In this case, local supporters of the display who wrote Judge
Pendergrass clearly perceived
the display as religious in nature. The emails contained quotes
such as, I still pray that God will
grant you special wisdom and power to stand against the humanist
legal forces, We stand with
God and Baxter County, As far as I know were still one nation
under God, There is a lot of
Christian faith in this county and surrounding. . . . It seems
to me that traditional Americans with
faith in God are willing to have leaders who will take
courageous stands. God bless you, and I
just want to weigh in and say that I believe we should stand up
for our rights as Christians to
worship and remember our savior. (Pendergrass Dep. p. 54-57). In
fact, only one email
proclaimed that the display was not religious, but was an homage
to the individual after whom our
calendar is counted. Id.
Even the Chamber of Commerce admits that the display is
predominantly religious and
Christian. (Majeste Dep. p. 11).
In conclusion, the crche undoubtedly has the effect of
communicating a message to the
public that Baxter County is endorsing religion, in violation of
the Establishment Clause.14
D. The lease to the Chamber of Commerce does not cure the
constitutional violation and in fact, evidences a clear religious
purpose, resulting in an
independent Establishment Clause violation.
Defendant will inevitably argue that the so-called $1 lease to
the Chamber of Commerce
in 2014 absolves it of its liability. Such an argument cannot
seriously be maintained.
14 Because the crche clearly fails the first and second prongs
of the Lemon test, the Court need not consider
whether the display also fosters excessive entanglement with
religion. However, Plaintiffs submit that it
would also fail this prong of the test. E.g., Mendelson, 719 F.
Supp. at 1071 (the city is entangled with religion because it
funded the illumination of the cross during the six month period).
In Denver, the court ruled that a citys crche failed the third
prong because, in addition to being divisive, the city provided the
space, placement and maintenance for [the] display of an inherently
religious symbol. 481 F. Supp. at 530. See also Doe v. Cnty. of
Montgomery, 915 F. Supp. 32, 38 (C.D. Ill. 1996).
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For one thing, the entire lease is a sham. There is no
discernable public benefit in the
transaction. Nor does the County reap any material financial
benefit. See Mendelson, 719 F. Supp.
at 1069 (The lease itself is suspect. According to the lease,
either party could terminate the
agreement for any reason with sixty days notice. Moreover, the
lessee could not remove the cross
and replace it with another symbol without the City's written
permission.).
It does not even appear that the County followed Arkansas law
for executing a proper lease.
(Pendergrass Dep. p. 45-48); Ark. Code Ann 14-16-110. Much like
in Mendelson, in which the
city did not follow its own policy for shutting off power to a
lessor when they were six months
behind on rent, here too the County has been operating under an
improperly executed lease. 719
F. Supp. at 1068-69. Indeed, Rick Spencer never discussed his
display with the Chamber, let alone
received permission from the Chamber to place the display on its
leased property in 2014.
(Majeste Dep. p. 10) (Spencer Dep. p. 21-22).15
Regardless, the express purpose of the lease is to continue
displaying a predominantly and
exclusively Christian display at the central seat of the county
government. As such, the lease itself
violates the Establishment Clause. When a state-sponsored
activity has an overtly religious
character, courts have consistently rejected efforts to assert a
secular purpose for that activity.
Mellen, 327 F.3d at 373. As the Supreme Court stated in Stone,
449 U.S. at 41, if an avowed secular
purpose is found to be self serving, it may not be sufficient to
avoid conflict with the First
Amendment.
Defendants actions are intended to ensure that a Christian
displayand only a Christian
displaywill be prominently featured on the property. (Ex. 8)
(the purpose of the lease is to allow
for a Christmas display.). Given the Countys explicitly
religious purposes for the lease, the
transaction violates the Establishment Clause under the first
and second prongs of the Lemon test.
See Wirtz v. City of S. Bend, In., 813 F. Supp. 2d 1051, 1068
(N.D. Ind. 2011) (below-market-rate
transfer of property to religious school had effect of placing
adherents and nonadherents on
15 In fact, Spencer did not even know about the lease until he
read about it in the paper; nor did he know
Eddie Majeste (the president of the Chamber of Commerce).
(Spencer Dep. p. 27-30).
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different footing.).
But even assuming that the lease is valid and not
unconstitutional, the Chamber of
Commerce is a state actor under these circumstances; stated
differently, the County can be liable
for the actions of the Chamber of Commerce in regards to the
crche. See generally Burton v.
Wilmington Parking Authority, 365 U.S. 715 (1961) (holding that
restaurant that rented land from
government was state actor); Lugar v. Edmonson Oil Co., 457 U.S.
922, 937 (1982). This Court
has specifically held that that a short-term lease of government
property constitutes a symbiotic
relationship sufficient for state action. See Wickersham v. City
of Columbia, 371 F. Supp. 2d 1061,
1081 (W.D. Mo. 2005) (a short term lease increases the risk of
confusion about the Citys
relationship to the Corporation because it is so transitory).16
The nature of the lease itself is further
evidence of state action as it shows the close nexus between the
government and the challenged
action. Id. at 1076. The lease was entered into for the purpose
of maintaining the challenged
Christmas display. (Ex. 8 at 1).
For instance, in Rabun, the Chamber of Commerce approved a plan
for the erection of a
cross on government land. 698 F.2d at 1101. The chamber sought
approval from the Georgia
Department of Natural Resources (Department). The Chamber would
take full responsibility for
the fund-raising of both the construction and maintenance costs.
Id. The Department merely
approved. Id. In fact, after receiving a complaint, the
Department ordered the Chamber to remove
the cross from state property. Id. at 1101-02. The court found
the purpose prong violated based
largely on the Chambers decision to dedicate the cross at Easter
Sunrise Services, and the several
inspirational statements contained in the Chamber's press
releases. Id. at 1111 (emphasis added).
The Eleventh Circuit specifically held that the Chambers motives
could be imputed for the
following reasons: The cross is located on state property. The
state, acting through its Department
of Natural Resources, initially approved the Chamber's project
and later failed to require the
16 See also Chicago Acorn v. Metropolitan Pier and Exposition
Authority, 150 F.3d 695, 697-99 (7th Cir.
1998) (finding state action when MPEA leased land to Democratic
Party for one dollar for Democratic
National Convention)
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Chamber to remove the cross. Under the now familiar principles
of state action, the state's
involvement with the cross is clearly sufficient [.] Id. at
1109, n.19.17
III. THE COURTHOUSE LAWN IS NOT A PUBLIC FORUM FOR PRIVATE
SPEECH AND IF THE COUNTY MAINTAINS THIS POSITION, IT MUST BE
HELD
LIABLE FOR ENGAGING IN UNCONSTITUTIONAL VIEWPOINT
DISCRIMINATION IN VIOLATION OF THE FREE SPEECH CLAUSE.
A. The Courthouse lawn is not a public forum for private
speech.
Any claim by the County that it established a public forum for
private speech (and
specifically, Rick Spencers speech) is belied by the actual
facts in this case. (E.g., Comp. Ex. 3)
(refusing to allow citizen to put up Winter Solstice banner).
For the past 40 years, the County
has permitted a single display on its property the crche and has
explicitly prevented other non-
Christian holiday symbols from being added to the display,
supra. The County did not open the
courthouse grounds to other private parties. In fact, Judge
Pendergrass declared to the media: I'm
just not allowing anything else, anywhere else on the square,
besides that (crche). (Comp. Ex.
7). [S]elective access does not transform government property
into a public forum. Santa Fe,
530 U.S. at 302-303 (citation omitted).
Moreover, certain kinds of speech may occur that, by their
nature, do not require a forum
doctrine analysis. See Pleasant Grove City v. Summum, 555 U.S.
460, 464 (2009) (holding that
[p]ermanent monuments displayed on public property typically
represent government speech).
Nor would the finding of a public forum here be controlling. The
critical gauge is whether
the overall context and nature of the restricted display conveys
the impermissible message of
governmental endorsement of religion. Smith, 895 F.2d at 958.
The Supreme Court has never
held [that] the mere creation of a public forum shields the
government entity from scrutiny under
the Establishment Clause. Santa Fe, 530 U.S. at 303 n.13.18
17 See also Am. Atheists, Inc. v. Duncan, 616 F.3d 1145, 1160
n.12 (10th Cir. 2010) cert. denied, 132 S. Ct.
12 (2011) (it was irrelevant that at least one, and perhaps
several, of these [cross] memorials are located on private land);
cf. Lynch, 465 U.S. at 671 (it was irrelevant to Establishment
Clause analysis that city-owned crche was situated in a privately
owned park). 18 See also Cole v. Oroville Union High Sch. Dist.,
228 F.3d 1092, 1101 (9th Cir. 2000) (even assuming
the graduation ceremony was a public or limited public forum,
the Districts refusal to allow the students to deliver a sectarian
speech or prayer was necessary to avoid violating the Establishment
Clause);
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Where the government's operation of a public forum has the
effect of endorsing religion,
even if the governmental actor neither intends nor actively
encourages that result, . . . the
Establishment Clause is violated. Capitol Square, 515 U.S. at
777 (OConnor, J., concurring).
This is so because the State's own actions (operating the forum
in a particular manner and
permitting the religious expression to take place therein), and
their relationship to the private
speech at issue, actually convey a message of endorsement. Id.
(emphasis added). In short,
Defendant cannot evade the requirements of the Establishment
Clause by running for the
protective cover of a designated public forum. Santa Fe, 168
F.3d at 818-20.
But based on the undisputed facts, the County simply has not
basis upon which to claim it
has established any sort of forum for private speech. The
duration of the display, two months, is
far more than a transitory expressive act[]. Pleasant Grove, 555
U.S. at 464. See also id, at 478
(contrasting limited space of public parks to hold monuments
with ability of typical forums to
disseminate many messages to many people). The Supreme Court
held in Pleasant Grove that: if
public parks were considered to be traditional public forums for
the purpose of erecting privately
donated monuments, most parks would have little choice but to
refuse all such donations. And
where the application of forum analysis would lead almost
inexorably to closing of the forum, it
is obvious that forum analysis is out of place. Id. at 480.
B. Assuming arguendo, Defendant created a public forum,
Defendant violated the First Amendment by engaging in viewpoint
discrimination in its refusal to
authorize a Winter Solstice Display and a Jewish Display.
In this case, the County will not be doing itself a favor by
arguing that it has created a
public forum. For it is undisputed that the County has
repeatedly refused to authorize appropriate
non-Christian holiday displays on the property adjacent to the
crche, supra.
In a public forum, by definition, all parties have a
constitutional right of access and the
State must demonstrate compelling reasons for restricting access
to a single class of speakers, a
Herdahl v. Pontotoc Cnty. Sch. Dist., 933 F. Supp. 582, 589
(N.D. Miss. 1996) (even if a school established a limited open
forum sectarian prayer broadcast over the public school loudspeaker
would still violate the First Amendment).
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single viewpoint, or a single subject. Perry Educ. Ass'n v.
Perry Local Educators' Ass'n, 460 U.S.
37, 55 (1983). Viewpoint discrimination by the government is
prohibited regardless of the type of
forum created (limited, designated, or traditional). Rosenberger
v. Rector & Visitors of the Univ.
of Va., 515 U.S. 819, 829 (1995); Burnham v. Ianni, 119 F.3d
668, 676 (8th Cir. 1997) (once it
chose to open the [display] case, it was prevented from
unreasonably distinguishing among the
types of speech it would allow within the forum.). Viewpoint
discrimination is thus an egregious
form of content discrimination. The government must abstain from
regulating speech when the
specific motivating ideology or the opinion or perspective of
the speaker is the rationale for the
restriction. Rosenberger, 515 U.S. at 829.
Clearly, if a public forum were created here, the Countys
actions in refusing to allow
citizens to display a Winter Solstice Banner and menorah would
amount to such egregious
unconstitutional viewpoint discrimination. Judge Pendergrass
strongly suggested that the non-
Christian Winter Solstice Banner would degrade the religious
side of the display (Ex. 5, Trans.
p. 4). Rick Spencer echoed Pendergrasss sentiment, declaring in
more explicit terms: I can't
think of a better way to try to drown this Christmas spirit than
to be a Washington group full of
atheists. (Comp. Ex. 7). In his deposition, Spencer stated: I
mean, if I put up something that was
not in celebration of Christmas, I'm sure whoever the county
judge was would have some problems
with that. (Spencer Dep. p. 16-17). When speakers and subjects
are similarly situated, the State
may not pick and choose. Perry, 460 U.S. at 55. And where, as
here, the government targets not
subject matter, but particular views taken by speakers on a
subject, the violation of the First
Amendment is all the more blatant. Rosenberger, 515 U.S. at
829.
IV. PLAINTIFFS ARE ENTITLED TO THE RELIEF THEY SEEK.
A party seeking a permanent injunction must demonstrate: (1)
that it has suffered an
irreparable injury; (2) that remedies available at law, such as
monetary damages, are inadequate;
(3) that, considering the balance of hardships . . . a remedy in
equity is warranted; and (4) that
the public interest would not be disserved. Christopher Phelps
& Assocs., LLC v. Galloway, 492
F.3d 532, 543 (4th Cir. 2007) (citation omitted). Plaintiffs
easily satisfy the first element because
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a violation of First Amendment rights unquestionably constitutes
irreparable injury. Elrod v.
Burns, 427 U.S. 347, 373 (1976). The second factor is also met
because monetary damages are
inadequate to compensate for the loss of First Amendment
freedoms. Legend Night Club v. Miller,
637 F.3d 291, 302 (4th Cir. 2011). The balance of hardships
weighs in Plaintiffs favor because
the government is in no way harmed by an injunction which
prohibits it from unconstitutional
activity. Newsom v. Albemarle Cnty. Sch. Bd., 354 F. 3d 249, 261
(4th Cir. 2003). The final element
is met because upholding constitutional rights serves the public
interest. Id.
Plaintiffs are also entitled to judgment on their claims for
nominal damages and declaratory
relief. By making the deprivation of such rights actionable for
nominal damages the law
recognizes the importance to organized society that those rights
be scrupulously observed. Carey
v. Piphus, 435 U.S. 247, 266 (1978). Nominal damages are
particularly important here. Suing a
State over religion puts nothing in a plaintiffs pocket and can
take a great deal out, and even with
volunteer litigators to supply time and energy, the risk of
social ostracism can be powerfully
deterrent. Van Orden v. Perry, 545 U.S. 677, 747 (2005) (Souter,
J., dissenting).
CONCLUSION
To be sure, some Christians may wish to see the government
proclaim its allegiance to
Christianity in a religious celebration of Christmas, but the
Constitution does not permit the
gratification of that desire. Allegheny, 492 U.S. at 612.
Prohibiting the display of a creche in the
courthouse deprives Christians of the satisfaction of seeing the
government adopt their religious
message as their own, but this kind of government affiliation
with particular religious messages is
precisely what the Establishment Clause precludes. Id. at 601
n.51.
In view of the foregoing, Baxter Countys annual Christian
display fails constitutional
muster and must be enjoined.
RESPECTFULLY SUBMITTED
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___________________________
J.G. Gerry Schulze Attorney for Plaintiffs
BAKER AND SCHULZE
Ark. Bar No. 83156
2311 Biscayne Drive
Suite 300
Little Rock, AR 72227
[email protected]:///h
Tel. (501) 537-1000
Fax. (501) 537-1001
Monica L. Miller
American Humanist Association
1777 T Street N.W., Washington, D.C, 20009
[email protected]
Tel. (202) 238-9088
Fax. (202) 238-9003
CA Bar: 288343 / DC Bar: 101625
DAVID A. NIOSE
Law Offices of David Niose
348 Lunenburg Street, Suite 202
Fitchburg, MA 01420
[email protected]
Tel. 978-343-0800
MA Bar: 556484 / DC Bar: 1024530
ATTORNEYS FOR PLAINTIFFS
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CERTIFICATE OF SERVICE
I hereby certify that on the _____ day of July, 2015, I served
the following by electronic
mail upon:
Jason E. Owens
Attorney for Defendants
RAINWATER, HOLT & SEXTON, P.A.
P.O. Box 17250
801 Technology Drive
Little Rock, AR 72222-7250
Telephone (501) 868-2500
Telefax (501) 868-2505
___________________________
J.G. Gerry Schulze Attorney for Plaintiffs
BAKER AND SCHULZE
Ark. Bar No. 83156
2311 Biscayne Drive
Suite 300
Little Rock, AR 72227
Case 3:14-cv-03126-TLB Document 16 Filed 07/08/15 Page 27 of 27
PageID #: 375
[email protected] text8th