adopting on rehearing, the dissent of Goodwin, J. in original hearing, see 451 P.2d 117 at 124
How later courts described this case
- adopting on rehearing, the dissent of Goodwin, J. in original hearing, see 451 P.2d 117 at 124
- describing art. I, § 5 as an expression of Oregon’s commitment to the doctrine of separation of church and state
- cross erected in part to “enhance the commercial exploitation of the principal Christian holidays”
- no opinion issued after rehearing
Written by the judges who cited it.
The opinion
GOODWIN, J.,
dissenting.
As I understand the majority, the maintenance of the cross in a Eugene city park (a) is not a religious activity, or (b), if it is a religious activity, the city’s participation in it is so insubstantial as to fall within the rule that the law does not notice trifles.
Much as I would like to join the majority and thus avoid an expression of disunity concerning this locally acrimonious confrontation between “procross” and “anticross” factions, the record compels me toward a different conclusion.
The display of the lighted cross during Christian festivals is at least concurrently a religious activity, even if one were to accept the somewhat labored argument of the proponents of the cross that the true motive for the display has been secular, i.e., the commercial exploitation of religious holidays. Indeed, the “procross” faction in this litigation has been embarrassed by its friends. Several witnesses innocently jeopardized the defense by references at the city council hearing to their religious reasons for wanting to keep the cross on display as a silent witness to their faith. Their statements reflected the popular sentiment at the time and place, and furnished ample proof, if any were needed, that the chief purpose of the dis *533 play was religious. There is no doubt, from the record, that the mayor and council were responding to popular demand. It was to prevent this very kind of response to majority pressure, however, that the establishment clause of the First Amendment was written into our federal constitution. Abington School Dist. v. Schempp, 374 US 203 , 83 S Ct 1560 , 10 L Ed 2d 844 (1963).
Turning to our state constitution, and given the majority’s acknowledgment that the cross display is that of a religious symbol, there is further reason to rebuke the city council. Government has no more right to place a public park at the disposal of the majority for a popular religious display than it would have, in response to a referendum vote, to put the lighted cross on the city hall steeple. The whole point of separation of church and state in a pluralistic society is to keep the majority from using its coercive power to obtain governmental aid for or against sectarian religious observances. See Dickman et al v. School Dist. 62C et al, 232 Or 238, 246-247 , 366 P2d 533 (1961), cert. denied, 371 US 823 (1962).
Finally, I do not believe the difficult constitutional question is one that can be evaded by trivialization. The cross does not occupy a large tract of land, but it is permanent and it is conspicuous. Whether so intended by the city council or not, the city’s participation in the display has placed the city officially and visibly on record in support of those who sought government sponsorship for their religious display.
For the foregoing reasons, I would affirm the judgment entered below.
McAllister and O’Connell, JJ., join in this dissenting opinion.