# Fox v. City of Los Angeles > California Supreme Court · December 15, 1978 · 22 Cal. 3d 792 URL: https://www.frixlaw.com/law-library/cases/9611594 ## Case - **Full name:** S. DOROTHY METZGER FOX, Plaintiff and Respondent, v. CITY OF LOS ANGELES Et Al., Defendants and Appellants - **Court:** California Supreme Court - **Decided:** December 15, 1978 - **Citations:** 22 Cal. 3d 792; 150 Cal. Rptr. 867; 587 P.2d 663; 1978 Cal. LEXIS 321 - **Precedential status:** Published - **Opinion:** Dissent by Clark - **Judges:** Newman, Bird, Richardson, Clark - **Cited by:** 56 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9611594 ## Opinion text CLARK, J., Dissenting. I concur in the opinion prepared by Justice Richardson respecting the substantive issues presented the court by this case. While neither of us voted to bring this matter before the court, it must now be dealt with. By additional statement, I find it necessary to comment on the majority opinion’s failure to state either a definitive holding or a rationale. *823 We are constitutionally charged with stating reasons for our decisions. (Cal. Const., art. VI, § 14.) Not only am I unable to discern the majority’s reasons, but also I fear its random discourse will confuse rather than guide the bench and bar in an area where four members of this court, having voted to grant the petition for hearing (Cal. Rules of Court, rule 29(b)), apparently felt definition needed. The majority opinion is divided into four parts. Part I recites, without comment, trial court “findings”—in large part comprising conclusions of law. . Part II notes the Supreme Court has treated the establishment and free exercise clauses of the federal Constitution with “ ‘perplexing diversity of views,’ ” simply noting the guaranty of such rights in the California Constitution is not dependent on the federal Constitution. The opinion concedes that other courts have approved displays arguably comparable to the Los Angeles cross, but then adds that some of these cases may be distinguishable. But the distinguishable go undistinguished. No principle of law is stated. Part III states the California Constitution guarantees exercise of religion without discrimination or preference—a more comprehensive prohibition than in the federal Constitution. In seeking to establish the cross constituted a preference, the majority speculate that “members of the Eastern Orthodox community apparently thought” there had been a preference, a city hall official thought there might be a conflict, and an Orthodox family was grateful for display of the cross on the city hall. 1 The majority acknowledge the California Constitution does not require “that each religion always be represented” in a public display of religious materials, but then opine to “illuminate only the Latin cross . . . does seem preferential.” Does part III hold there is an unconstitutional preference? If so, it is by implication only. No attempt is made to define a preference. All we are told is that the Constitution does not require every religion always be represented, but that to display a cross may be prohibited even though the records show the city has never rejected a request for a competing display. Part III further implies that if in fact there is a general lack of interest in challenging the display or in requesting other displays, there *824 may not have been sufficient preference to invoke constitutional proscriptions. There is no assurance, however, that on remand the city would prevail if it made a proper showing. Nor do the majority advise what would be needed to make such a showing. Just where the line is to be drawn between permissible and impermissible display remains as obscure as the city’s now darkened cross. Part IV argues with the city’s contention that the display was no more than a secular participation in Christmas and Easter holidays, generally shared by all residents of the city. Conceding the city may constitutionally depict objects with spiritual content, 2 the opinion denounces the instant display as “promoting” spiritual content. No attempt is made to distinguish between displaying and promoting. The opinion suggests the city might have engaged only in displaying if only their resolutions proclaiming a secular purpose had been enacted in good faith. But, placing itself in the councilmen’s seats, our court appears to conclude the resolutions were fraudulent and thus the council’s actual purpose was to surreptitiously and impermissibly promote a religion. The opinion is further confused by its concluding statement. We are told the city must be deemed to have promoted religion because it did not honor the beliefs of persons never heard from. 3 Surely the majority do not suggest the council should initiate a program of hearings to ascertain these beliefs particularly when—according to the majority—the phantom protestors are disinclined to speak out on the subject. I do not suggest our opinions should be written in a particular style (cf. Witkin, Manual on Appellate Court Opinions (1977 ed.) ch. V). Style is a highly personal matter to each of us. But the bench and bar are entitled to know from our written opinions not only that a judgment on appeal is being either affirmed or reversed, but also the majority’s reasons therefor. “A conclusion in which the holding on the legal issue is clearly stated is . . . highly desirable, it is an important part of the reasoning and discussion: it states the governing rules of law that lead to the decision *825 . . . and also serves as precedents.” (Witkin, Manual on Appellate Court Opinions, supra, ch. V, p. 137.) Not only does the majority opinion in the instant case fail to state its reasons or conclusions—clearly or otherwise—but it also fails to advise the parties litigant what must be established or refuted on remand “for appropriate further proceedings” as have been ordered by the majority. In sum, the majority’s opinion fails to reveal that removal of the offending symbol is constitutionally required. In truth, it is required only by today’s decree from five judges. The majority appear to urge that the expression of a handful of persons who felt a religious impact from the display is to be weighed more heavily in the balance than the evident acceptance of the display by the remaining three million inhabitants of the city. In Protestants & Other Amer. Unit, for Sep. of Ch. & St. v. O’Brien (D.D.C. 1967) 272 F.Supp. 712 , the display of the Madonna and Child on a postage stamp issued at Christmas—surely having a more significant and preferential religious connotation than the lighting of the temporary cross—was held not to offend the federal constitutional proscription against the establishment of religion. (Id., at p. 721.) It is, of course, unrealistic to presume, as the majority urge, that in a city of three million persons, the failure of but a few persons to make their views known during a thirty-year period is due to “complex and troubling” reasons which might have intimidated them from speaking out. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9611594. Public record. Not legal advice.