Petition for Writ of Certiorari — City of Rolling Meadows v. Kuhn
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N Pas | vypprenié Court, U.S.
Mlel 4 a aes
— —_——_ <2 4
In The | YUL 13 1993
OSFIGE OF THE CLERK
Supreme Court of the Unites Sta es
@ctober Cerm, 1990
THEODORE M. KUHN and the SOCIETY OF
SEPARATIONISTS, INC.,
Respondents,
U.
CITY OF ROLLING MEADOWS and
CITY COUNCIL OF ROLLING MEADOWS,
Petitioners.
———
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
DONALD M. Rose*
KATHLEEN Ross
Rose & Ross, Lrp.
4215 Kirchoff Road
Rolling Meadows, IL 60008
708/303-6100
Counsel for Petitioners
*Counsel of Record
American Reprographics Management, Inc.™ (312) 332-2764
ee ————— — “_S
Cy ee ae _—_
ee
i
QUESTIONS PRESENTED
1. Whether plaintiffs in First Amendment cases attain
standing by merely alleging it, or whether plaintiffs must, in
response to a motion to dismiss, offer some proof of their
allegations regarding standing?
2. Does the First Amendment prohibit sectarian religious
imagery with an historical basis on any municipal seal?
‘i
THE PARTIES
The names of the parties to the proceeding are contained
in the caption.
Petitioner, the City of Rolling Meadows, is an Illinois
municipal corporation. The City Council is the elected, governing
body of the City, and the Mayor is the elected head of the Council.
TABLE OF CONTENTS
Page
APM PPT WBMES DIG 5.0 ccescecesesessssevecevensvsccesesensveveseeceees i
SS Fe ee ee ii
PE FR GEE OID secre cic sivecoccevesniersnsnsscrssovesevevecsceseovecersess iii
Pe Fe EI os cscscevesenccsseevceneceversesoresevorsicareczeveees iv
ai stemsesadappovegniobauenies 1
EERE Ca eee a 2
CONSTITUTIONAL PROVISION INVOLVED.........cccccccsseeee. 2
PM UMNO, OUT UNIS CAI oc ccseccecccessesccesesecvsssesossesevevosases 2
REASONS FOR GRANTING THE WRIT o.00.....ccccccscceseceeseeeees 11
a oak acitnls ean vicedcnnsbndusi 11
Tl. ESTABLISHMENT CLAUSE ........0.c.cccccccccssseseseseseees 16
iv
TABLE OF AUTHORITIES
CASES Page
Aguilar v. Felton, 473 U.S. 402 (1985) 00.0... cccceesssssteeeeeseseeeees 19
County of Allegheny v. American Civil Liberties Union,
DODD, Ce, IE II anc cissesereeccerssenesesens 6, 9, 10, 16, 17, 18
Edwards v. Aguillard, 482 U.S. 578 (1987) ........:ccccsssssseeeeeeeeeees 19
Freedom from Religion Foundation, Inc. v. Zielke,
Oe Fe Se rs Re iicccenterceectiniicrrrsescnnrenecevesinnine 13, 14
Lee v. Weisman, 111 S. Ct. 1305 (1991)............cccccccccssccccsrersrrreees 10
Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105
CERF Ro wsisasnsnthtaniesinpsiscnennionsciniennianienilleniasio’ 6, 9, 10, 11, 18, 19, 20, 21
Lynch v. Donnelly, 465 U.S. 668 (1984) 2.0... eeeeeeeeeeeeeeee 11, 18, 21
Marsh v. Chambers, 463 U.S. 783 (1983) ........ccccccccecseeereeeeees 11,18
Munro v. Socialist Workers Party, 107 S. Ct. 533 (1986) ........... 21
Roemer v. Board of Public Works, 426 U.S. 736 (1976) ............. 19
Schlesinger v. Reservists Committee to Stop the War,
es ee sidan tiicsenntadatscbitnsichiessaieseennesimninoniatintiniiiaiie 9
Sierra Club v. Morton, 405 U.S. 727 (1972) ..........cccccceeeseeereeeees 12
Turner v. Safley, 107 S. Ct. 2254 (1987) .......ccccccccccscsossssssssseesecees 21
Valley Forge Christian College v. Americans United
for Separation of Church and State, Inc.,
Fee T ONT 8, 9,11, 13, 15
Vance v. Bradley, 440 U.S. 93 (1979) ...........scsssessssssseserceeeeseceeeees 21
Wallace vu. Jaffree, 472 U.S. 38 (1985) ..............cccccceeeeeeeeeeeeeeeeeeees 19
Walz v. Tax Commission, 397 U.S. 664 (1970) ..........ccccceeeeeeeeeees 19
Wooley v. Maynard, 430 U.S. 705 (1977) ...........csssscseseceesseeeeeeeeeees 8
Page
CONSTITUTION
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STATUTES AND RULES
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BA SES SN spiitereciastbcsasiipttieiihisttaannssnsiipimtisioisaca Caen 4
Sar Paste NI NT iiiessedasonilndiesceniessealdéasiibieaapeenttansmmaddashacaaliicaas anaes 4
Se Sa MPD casictiscsticiessicaideiemitaisdasantaanechisatedatia nea 4
a SP SO Assssissistcininiencssunibeiebidibapasobicundavedddanate etn Esme 4
Sa eee ID sinsrectiestninirniaisnshichisabsceeecbsemrenciaiioienuusalaanaeniaa aaa 4
No.
In The
Supreme Court of the Hnited States
@ctoher Term, 1990
THEODORE M. KUHN and the SOCIETY OF
SEPARATIONISTS, INC.,
Respondents,
v.
CITY OF ROLLING MEADOWS and
CITY COUNCIL OF ROLLING MEADOWS,
Petitioners.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COUFT OF APPEALS
FOR THE SEVENTH CIRCUIT
Petitioner, THE CITY OF ROLLING MEADOWS, respect-
fully prays that a writ of certiorari issue to review the judgment
and opinion of the United States Court of Appeals for the Seventh
Circuit entered in this case on March 19, 1991.
OPINIONS BELOW
The opinion of the United States Court of Appeals for the
Seventh Circuit is not yet reported but is reproduced in the
appendix at App. la.
The February 9, 1990, decision of the United States District
Court for the Northern District of Illinois, which was reversed
by the foregoing decision of the Seventh Circuit, is published
2
at 729F. Supp. 1242 (N.D. Ill. 1990) and is included in the appendix
at App. 5la.
The February 22 and March 13, 1990 orders of the District
Court making that decision applicable to the City were not
reported but are included in the appendix at App. 66-7a.
The City filed a Petition for Rehearing, With Suggestion for
Rehearing In Banc, which was denied June 10, 1991. The order
denying rehearing is not yet reported but is reproduced in the
appendix at App. 47a.
The City moved, and was granted, a stay of the mandate
pursuant to Federal Rules of Appellate Procedure, 41(b).
JURISDICTION
Jurisdiction of this Court is invoked pursuant to 28 U.S.C.,
Sec. 1254(1).
CONSTITUTIONAL PROVISION INVOLVED
This case involves the Establishment Clause of the First
Amendment to the United States Constitution, which provides:
Congress shall make no law respecting an establish-
ment of religion.
STATEMENT OF THE CASE
1. THE CITY’S SEAL
The City Seal of Rolling Meadows, drawn by an eighth grade
student and adopted by the City in 1960, has caused this litigation.
App. 54a.
Adoption of the seal was part of the City’s Fifth Anniversary
celebration. App. 54a. A contest to design the seal was held among
the City’s grammar school children, and a committee selected
the design of Cheryl Knudsen as the winner. Cheryl, in an
affidavit, stated of her motivation for the design, “I drew what
I saw [and} had no purpose other than to complete an assign-
ment.” App. 55a.
3
The Rolling Meadows seal, in color reproduction, follows:
The seal appears on all City-owned vehicles, (except fire
trucks), including police cars, on City vehicle tax stickers
purchased by residents, on the shoulder patch of the uniforms
worn by City police officers, on City stationery, and in the City
Council chambers (App. 54a) and on any other property which
the City wishes to identify.
2. THE PLAINTIFFS
The Society of Separationists is a Maryland corporation
“.. devoted to the complete and absolute separation of state
and church... .”! which “.. frequently represents... .” its
members in actions such as this one, because:
Due to the often unpopular or nonmajoritarian stance
taking [sic] by persons or organizations involved in
civil rights conflicts, the Society will represent its
members, who generally have sufficient standing,
when those members desire anonymity.?
Plaintiff, Kuhn, plead that he is a resident of Rolling
Meadows and a member of the Society.®
3. THE DISTRICT COURT DECISION
The plaintiffs sued the City in District Court, alleging that
the City’s seal is unconstitutional because inclusion of a cross,
even though it was mistaken for a utility pole by the Society’s
agent (App. 60a), taking up 0.8256% of the seal’s surface* and
positioned in front of a “nondescript one-story building”® violates
the First Amendment.
Respondents invoked the jurisdiction of the District Court
under 28 U.S.C. 1983; 1988; 1343(3), (4); 1331; 2201 and 2202.
(Third Amended Complaint, page 1, paragraph 1)
The plaintiffs contended that the seal violates the consti-
tution because, as to Kuhn:
i) the actions of the City “... denigrate his religious
opinions and philosophical ideas... .”;
| Plaintiffs’ Third Amended Complaint, at page 3, paragraph 10.
2 Plaintiffs’ Third Amended Complaint, at page 3, paragraph 11.
3 Plaintiffs’ Third Amended Complaint, at page 1, paragraph 3 and
page 3, paragraph 11.
4 Defendants’ Memorandum in Support of Their Answer to Plaintiffs’
Motion for Summary Judgment, at Exhibit E, filed December 13, 1988.
5 Plaintiffs’ Memorandum in Support of Motion for Summary Judgment,
page 1.
ii)
iil)
o
making him feel like an “. . . outcast or second class
»,
citizen somehow not worthy of full citizenship... .”;
He is “... constantly visually bombarded ....” by
display of the seal; (Third Amended Complaint,
paragraph 4)
and he was injured because
i)
ii)
iii)
iv)
v)
vi)
vil)
he had to display the City’s vehicle sticker which has
a copy of the seal;
the City’s garbage sacks have a copy of the seal; (Third
Amended Complaint, paragraph 5)
he receives “... many items of correspondence... .
from the City which contain the seal; (Third Amended
Complaint, paragraph 6)
he avoids the use of public property on which the seal
is displayed; (Third Amended Complaint, paragraph
7)
“.. he mightily strives... .” to avoid seeing the seal;
“He will often avoid using the route to the downtown
area of Rolling Meadows ....” where the seal is
displayed; (Third Amended Complaint, paragraph 8)
“
he is “... genuinely and substantially embarrassed
and humiliated when he is called upon to show family
and friends the City in which he lives due to the
pervasive nature of the seal... .” ; (Third Amended
Complaint, paragraph 9)
And the Third Amended Complaint alleged as to plaintiff, Society
of Separationists, only that:
i)
li)
it is a Maryland corporation licensed in Illinois; a
nonprofit, nonpolitical, educational organization;
devoted to “... complete and absolute separation of
state and church... .”;
6
iii) its membership includes “... numerous individuals
.... in Illinois, the U. S., and the world; (Third
Amended Complaint, paragraph 10)
iv) it “... frequently represents ....” its members in
actions “. . . such as this one.”;
v) due to the unpopularity of “. .. civil rights conflicts,
the Society will represent its members, who generaliy
have sufficient standing, when those members desire
anonymity.” ; [Emphasis added.]
vi) Kuhn is a member of the Society, as well as others
who live, do business in, or travel through, the City
of Rolling Meadows;
vii) the other members of the Society suffer “... many
of the same injuries ....” as Kuhn; “The Society,
having been requested to pursue this action, will fairly
and adequately represent the interests of its members.”
(Third Amended Complaint, paragraph 11)
That’s it! The District Court and the Seventh Circuit found that
Kuhn, and consequently the Society, had standing. App. 10a.
The City moved to dismiss the Third Amended Complaint
for failure of standing. The District Court denied the motion.
App. 34a.
The Seventh Circuit Court of Appeals affirmed.
The District Court found that the cross on the City’s seal
did not violate the Establishment Clause of the First Amendment.
App. 52a.
The District Court first noted the “. . . Supreme Court’s most
recent guidance... .” in County of Allegheny v. American Civil
Liberties Union, 109 S. Ct. 3086, (1989) which reconfirmed the
three part test set forth in Lemon v. Kurtzman, 403 U.S. 602,
91 S.Ct. 2105 (1971), and relied on Lemon to determine if the
City’s seal is constitutionally permissible. App. 59a.
At the outset, the plaintiffs conceded that the Rolling
Meadows seal does not violate the “purpose” and “entanglement”
parts of the Lemon test. App. 59a. Thus, the District Court had
7
but to determine whether the principal or primary effect of the
Rolling Meadows seal is to advance religion. App. 60a.
Because of the physical context in which the cross appears
on the seal, the District Court found that the primary effect of
Rolling Meadows seal is not to advance religion. App. 60a.
The Court reached that conclusion because the cross rep-
resents but “. . . one aspect of the origin of the Rolling Meadows
community.”, each of the four pictures on the seal suggests a
different feature of the community on its fifth anniversary, the
cross is included in a scene, the abstract cross is not as strong
a symbol of Christianity as would be a lone or prominent cross,
(App. 61a) the cross takes up a “relatively small” space and is
surrounded by other symbols which “neutralize” it. App. 62a.
The District Court also noted that while there may be crosses
on municipal seals which endorse religion, Rolling Meadows
. is not one of those seals. There would be no
meaningful difference between holding otherwise and
holding that no municipal seal may contain a cross.
App. 62a.
4. THE COURT OF APPEALS DECISION
A divided panei of the Seventh Circuit reversed the District
Court stating that:
. we find that sectarian religious imagery simply
has no place on municipal seals. App. 2a.
The majority opinion, written by Judge Bauer, and the
dissent authored by Judge Easterbrook, engaged in a spirited
debate with each first addressing the standing of the plaintiffs
to bring the action.
The majority opinion acknowledged that “simple indigna-
tion” cannot be the basis for Article III standing, and the
“overstated language” of Kuhn’s complaint alleged injuries
“however slight” of little more than “identifiable trifles” . App.
8-9a. Despite those disclaimers, the majority found that Kuhn
had standing, anyway, because if he was “... not permitted
EEO
8
to sue, then there is simply no way to test the constitutionality
of the city seals.” App. 17a.
The majority then moved on to consider whether the cross
on Rolling Meadows sea! “established” a religion. App. 17a.
Judge Easterbrook dissented, vigorously, to the majority’s
conclusion that plaintiffs had standing. He observed that claims
about detours are about as trifling as one can produce. App.
33a. Such trifles “sidle up” , he wrote, against the holding in
Valley Forge Christian College v. Americans United for Sep-
aration of Church and State, Inc., 454 U. S. 464 (1982) that mere
offense at a government’s alleged complicity in religion does not
create standing. App. 33a.
Judge Easterbrook questioned why, if offense is not enough
to establish standing, a detour attributable to that same offense
establishes standing? App. 33a. The answer could not be, as the
majority suggested, that “. . . detour ‘validates the existence of
genuine distress’... .” App. 33a. Since dismay does not establish
standing pursuant to Valley Forge, the dissent contended, new
and better ways to prove its existence cannot create standing
either. App. 33a.
At the least, Judge Easterbrook argued, the plaintiffs ought
to be required to “prove” the allegations of the trifles suffered.
App. 34-5a. Judge Easterbrook doubted that Kuhn’s allegations
established standing, even if they could be proven. App. 36a.
Although Kuhn objected to displays of the seal, most of the
locations in which the seal is displayed did not lead to an
alteration, however slight, in his conduct. App. 36a. Moreover,
those displays of the seal, which led him to alter his conduct,
could be eliminated with the “simple self-help remedy” (App. 36a)
provided in Wooley v. Maynard, 430 U.S. 705 (1977). App. 37a.
Kuhn would then suffer no injury, in fact. Kuhn could edit the
seal from his garbage bags and tax sticker, pursuant to Wooley,
but he lacked standing to stop others from having or using the
seals. App. 37a.
The dissent points out that Kuhn never alleged that he goes
out of his way to avoid public displays of the Rolling Meadows
seal. App. 37a. Kuhn alleged only that he was “embarrassed”
9
by the seal so he doesn’t enter the public buildings where it is
displayed. App. 37a. Those allegations were, Judge Easterbrook
noted, a challenge only to the display of the seal in a particular
place rather than an objection to its composition. App. 37a. The
injury, the dissent concluded, could be eliminated by removing
the seals from the public way. App. 37a. No seal, no detour, and
no injury. App. 37a.
Judge Easterbrook’s dissent reminds that Article III of the
Constitution limits judicial power to cases and controversies. App.
38a. If because no one is injured there is no controversy, the
suit must be dismissed: “There is no exception for subjects that
as a result cannot be raised at all.” App. 39a. The dissent observed
that such a view would convert standing into a requirement that
“... must be observed only when satisfied.” Schlesinger v.
Reservists Committee to Stop the War, 418 U. S. 208, 227 (1984)
and Valley Forge Christian College v. Americans United for
Separation of Church and State, 454 U.S. 464, 489 (1981). App.
39a.
As to the merits of the Establishment Clause case, the
majority first declared its intent to
... correct the district court’s reluctance to apply the
full breadth of Establishment Clause freedoms and to
reiterate our commitment to an energetic first amend-
ment. App. 17a.
The majority relied on Lemon v. Kurtzman, and County of
Allegheny v. American Civil Liberties Union, just as the District
Court, (App. 19a.) and found that only the “effects” test of Lemon
need be applied. App. 20a.
The majority opinion concluded that because the U. S.
Supreme Court held a nativity on the grand staircase of the court
house in Allegheny County unconstitutional, then the cross on
the Rolling Meadows seal was also unconstitutional. App. 21a.
Moreover, since the creche in County of Allegheny was only
displayed seasonally, while the Rolling Meadows seal is displayed
all year, this is a more compelling case for finding the challenged
display unconstitutional. App. 22a. The majority acknowledged
that the “context” in which the creche was displayed in County
10
of Allegheny was crucial, but concluded that the rest of the Rolling
Meadows seal did not keep the cross from being unconstitutional.
App. 22a.
On the contrary, Judge Easterbrook, in his dissent, suggested
that the Seventh Circuit “bypass Lemon” as Justice O’Connor
has done, and, instead ask directly: would an objective observer
view the seal as an endorsement of religion? If that is done,
the dissent concluded, it will not be taken as an endorsement
of religion since the cross on Rolling Meadows seal “. . . looks
more like a telephone pole than a cross; its arms are too short
to crucify anyone.” App. 43a.
5. PETITION FOR REHEARING
The City’s Petition for Rehearing was denied by the panel
which heard the case. Judge Easterbrook, despite his eariier
dissent, voted to deny the City’s Petition for Rehearing so that
the case could “... proceed without further delay to the Court
that can resolve the issues the panel addressed.” Citing Lee v.
Weisman, i11 S. Ct. 1305 (1991) granting certiorari, 908 F.2d
1090 (1st Cir. 1990). App. 48a.
A majority, six, of the active members of the Seventh Circuit,
voted to deny a rehearing in banc. Five voted to grant rehearing
in banc. Judge Cudahy wrote a dissent to the denial of the
rehearing in banc, Judge Manion joining. App. 47-8a.
Judge Cudahy shared Judge Easterbrook’s misgivings as
to Kuhn’s standing to challenge the seal, in the first place. App.
48a. Judge Cudahy wrote that the District Court was correct
in finding Rolling Meadows seal constitutional:
Assuming that the diminutive symbol in question is
a Roman cross—it might be a telephone pole—any
message of endorsement is either non-existent or de
minimus. There is little evidence of meaningful offense
from the fancied religious implications of this ambig-
uous design—created by a schoolchild. App. 48a.
Judge Cudahy concluded his dissent by stating that “This
important opinion needs careful reconsideration by the whole
court and/or the United States Supreme Court.” App. 50a.
ae i
11
REASONS FOR GRANTING THE WRIT
The majority opinion of the Seventh Circuit, that theplaintiffs
in this case have standing, is a clear departure from the holding
of this Court in Valley Forge Christian College v. Americans
United for Separation of Church and State, Inc., 454 U.S. 464
(1982). Review of this case would provide the Supreme Court
an opportunity to announce whether Valley Forge still holds,
or whether pleading psychological injuries, will now suffice to
establish standing in First Amendment cases.
The Seventh Circuit invalidated the City’s seal purportedly
on the basis of the “effects” test of Lemon. App. 21a. In doing
so, it refused t consider the history of the seal, the context of
the cross as but one of many symbols, or to assess it in light
of other, traditional acknowledgments of religion which this
Court has sustained. Eg. Marsh v. Chambers, 463 U.S. 783 (1983);
Lynch v. Donnelly, 465 U.S. 668 (1984).
The merits of this case raise the question whether the
application of the Lemon test to all Establishment Clause cases
should continue, given its persistent tendency to invalidate some
practices with substantial historical roots while letting other,
similar expressions, survive.
I. STANDING
The majority opinion of the Seventh Circuit excused the
plaintiffs, Kuhn and the Society, from proving, or even verifying,
the factual! allegations used to establish standing. App. 35a.
The City moved to dismiss® the Third Amended Complaint,
inter alia, because Kuhn and the Society had not alleged standing.
The City’s motion pointed out to the District Court that
i) the bare allegation that the City’s “action” resulted
in an unnamed, abstract injury to Kuhn and the
Society did not confer standing; (paragraph 4)
6 Defendants’ Motion to Dismiss Plaintiffs Third Amended Complaint
for Failure of Standing and to State a Cause on which Relief Can Be
Granted, filed December 22, 1987.
12
ii) nor did indignation; (paragraph 5)
iii) Article III limits judicial review to actual controversies;
(paragraph 6)
iv) facts sufficient to show standing must always be plead;
(paragraph 7) and
v) “Standing must never be assumed.” (paragraph 7)
After Kuhn and the Society filed their answer to the City’s
motion to dismiss, it was even more apparent that neither Kuhn
nor the Society had standing.” When reminded by the City that
Sierra Club v. Morton, 405 U.S. 727 (1972) requires that facts
sufficient to allege standing must be plead in the complaint, the
plaintiffs made the astonishing assertion that:
Plaintiffs’ specific injuries are detailed in brief (sic)
which accompanies this motion.’
to which the City replied:
At some time, plaintiffs must realize that they cannot
show standing by allusion, illusion and reference to
matters other than those in the complaint.®
And at that, the only allegation of injury in the plaintiffs’ brief
was that the seal caused Kuhn “... great emotional distress
and philosophical discomfort.”
In response to the City’s challenge that no cognizable injury
had been plead in any of the plaintiffs’ four complaints, Kuhn
answered:
7 Although ordered by the Court to answer the City’s motion to dismiss,
Kuhn and the Society filed a motion and brief in Opposition to
Defendant’s Motion to Dismiss, instead; both of which the City and
the District Court treated as the plaintiffs’ answer.
5 Plaintiffs’ Motion in Opposition to Defendants’ Motion to Dismiss
which was treated as an answer, at I, page 1.
% The City’s Reply to Plaintiffs’ Motion in Opposition to Defendants’
Motion to Dismiss, filed January 15, 1988, page 2.
10 Plaintiffs’ Brief in Opposition to Defendants’ Motion to Dismiss, at
3.
.
13
That Plaintiffs have standing to bring this 42 U.S.C.,
Section 1983, First Amendment action against the
Defendants herein as they have suffered cognizable
personal injury as a result of the inclusion in the official
seal of emblem (sic) of the City of Rolling Meadows.!!
Although completely nonsensical, plaintiffs’ response illustrates
their obstinate refusal to tell what injury they suffered.
In summary, Kuhn’s pleadings show that he was able to
allege only psychological consequences from the City’s seal:
— he “feels” like an “outcast”; (Third Amended, par. 4)
— he “suffers” because of the City’s seal; (par. 4)
— he “mightily strives” to avoid seeing the seal; (par. 8)
— he is “embarrassed” and “humiliated” by it. (par. 9)
That’s why the City moved to dismiss because of the lack of
injury, citing Valley Forge Christian College. Prior to the Seventh
Circuit opinion in this case, psychological injury didn’t count
toward standing. Valley Forge, 765-6. To reach its conclusion,
the Seventh Circuit majority opinion gave lip service, only, to
the Valley Forge requirement that “simple indignation” cannot
be a basis for Article III standing. App. 8a
Ironically, the majority ignored the previous holding of the
Seventh Circuit in Freedom from Religion Foundation, Inc. v.
Zielke, 845 F.2d 1463 (7th Cir. 1988), which was written by one
of the majority in this case, and required some verification of
the allegations of standing.
Siace the City’s Motion to Dismiss (for failure of standing)
was filed December 22, 1987, some five months before the Seventh
Circuit opinion in Zielke was published, that opinion was not
available to guide the District Court in deciding Kuhn v. Rolling
Meadows. Significantly, though, the City presented, nearly
verbatim, to the District Court, the same principles for testing
Kuhn’s standing which appeared, months later, in the Seventh
Circuit Zielke opinion:
11 Motion (Answer), at I, page 1.
14
The City of Rolling Meadows:
Standing focuses on the party seeking to get his
complaint before a federal court and not on the issues
he wishes to have adjudicated. [Emphasis in
original. }!?
The Seventh Circuit in Zielke:
An analysis of a litigant’s standing to bring an action
in federal court focuses not on the claim itself but on
the party who is bringing the challenge. Freedom from
Religion Foundation, Inc. v. Zielke, 845 F.2d 1463, 1467
(7th Cir. 1988) [Emphasis added.]
Yet, the Seventh Circuit majority opinion in Kuhn v. Rolling
Meadows focused exclusively on the issues which Kuhn hoped
to raise, rather than on him:
... if Kuhn ... [is] not permitted to sue, then there
is simply no way to test the constitutionality of the
city seals. App. 17a.
The majority in Kuhn has determined that he has standing
because this is a very important First Amendment case, and
if Kuhn is not allowed to bring it, perhaps no one else will.
Even so, the Seventh Circuit cannot cite one example from
the record of injury to Kuhn and refers, instead, to the “burdens”
imposed upon Kuhn by the City’s seal. App. 8a. The subtle shift
from the “injury” formerly mandatory for standing to a mere
“burden”, indicates a shift in the requirements for standing, at
least in this Circuit.
The Seventh Circuit majority opinion in Kuhn is just plain
wrong when it alleges that the City did not challenge Kuhn’s
allegations of injury. App. 13a. The City did object to plaintiff's
allegations of standing: the gist of the City’s Motion to Dismiss
was that the City didn’t know what Kuhn’s injury was. Having
lost the Motion to Dismiss, the City again raised standing as
an affirmative defense that the complaint did not contain
allegations of a “‘cognizable’”’ injury. Finally, the City
12 Defendants’ Reply to Plaintiffs’ Motion in Opposition ... at
paragraph 2, page 4.
15
raised Kuhn’s lack of injury (except psychological) in the
Summary Judgment proceeding.'*
Finally, the Seventh Circuit opinion does not address how
the City might probe injuries so subjective that, really, only the
pleader knows: Kuhn is “embarrassed”, “humiliated” , “mightily
strives”, and has “philosophical discomfort”. How could the City
“.. oppose Kuhn’s statements that he seeks to avoid contact
with the Rolling Meadows seal ...” as the Seventh Circuit
maintains it should have? App. 13a. Follow him with a video
camera to show he did, in fact, drive by City Hall? Call him
a liar and be done with it?
Only Kuhn knows what’s in his head, and if he refuses to
spill the beans and the Courts do not make him, then his injuries,
other than indignation, embarrassment, and humiliation shall
remain his secret.
Even taking Kuhn at his word that the seal causes him
some degree of “philosophical discomfort”, the City has long
believed that he suffered no injury of the sort required by Valley
Forge. This may be because the allegations are in “overstated
language” (App. 9a) and, therefore, suspect. There is no way
for the City to confirm these suspicions, however, and the majority
opinion gives plaintiffs in First Amendment cases, a pass:
For the purposes of standing, we need not consider
if the plaintiffs can prove injury. It is enough that
the plaintiffs, Kuhn and Harris, have pleaded good-
faith allegations of damage that can be remedied by
the federal courts. [Emphasis in original.] App. 9a.
Plaintiffs, hereafter, are apparently on the honor system when
pleading standing in First Amendment cases.
The majority’s view is that it does not matter whether
plaintiffs cannot prove standing since that failure goes only to
the issue of damages, anyway. App. 10a. That view is tragically
flawed. Cases will be decided as here, where no Article III
controversy exists. The time and fees for such a pointless crusade
will already have been expended before it is ever known whether
‘3 Additional Memorandum on Summary Judgment, filed September
26, 1989, at 3.
16
the “facts” alleged for standing are merely an amalgam of buzz
words from previous opinions or what a plaintiff has actually
lived.
Perhaps the “... willingness of the plaintiffs to incur a
tangible, albeit small cost that validates the existence of genuine
distress ....”, as the Seventh Circuit majority opinion put it
(App. 9a) is a euphemism for a plaintiff simply saying what
he must to get by.
If a constitutional claim rides on a detour, fine, but let’s
at least first make the plaintiff establish that there was, indeed,
a detour. Simply saying it doesn’t make it so.
II. THE ESTABLISHMENT CLAUSE
The Seventh Circuit found the cross on the City’s seal to
be “. .. surely a sectarian display.” and, as an endorsement of
Christianity, a violation of the First Amendment. App. 24a.
Since the nation has a tradition of acknowledging, for-
thrightly, its religious heritage (“In God We Trust” ; San Diego;
prayers in Congress; “... one nation under God ....”), the
Seventh Circuit’s invalidation of the City’s seal is at odds with
national tradition and current practice. Unless, of course, there
is a separate ‘Federal standard’ which makes unconstitutional
for a unit of loca] government that which is acceptable for the
Federal government.
Or is it a ‘holiday standard’? What is otherwise a violation
of the First Amendment is not if displayed on a holiday:
The City’s seal is a permanent statement that is viewed
year-round, while the creche is displayed only season-
ally amidst the secular celebration of Christmas. App.
22a.
So, we have, now, a holiday exception to the constitution. It seems
that if a thing is unconstitutional when touched by government,
then it is always so, no matter the day or occasion.
Or does constitutionality depend upon location rather than
context, as the Seventh Circuit opinion suggests. App. 21a. The
District Court, in this case, analyzed the cross on the City’s seal
17
in the context in which it appears. App. 60a. That’s what County
of Allegheny v. American Civil Liberties Union, requires. Doing
that, the only conclusion possible was that:
... the seal before us cannot be fairly characterized
as prominently displaying the cross. The question, as
we understand it, is not whether a cross may appear
in a municipality’s seal; but rather, whether the context
in which the cross appears has the effect of endorsing
religion. There certainly may exist municipal seals that
contain crosses and that convey messages endorsing
religion. This, however, is not one of those seals. There
would be no meaningful difference between holding
otherwise and holding that no municipal seal may
contain a cross. App. 62a.
The District Court viewed the entire seal and did not, as
plaintiffs would prefer, focus on only the cross with tunnel vision.
By focusing, as do plaintiffs, only on the 0.8256% of the seal
taken by the cross, its significance is, of course, distorted.
Plaintiffs hope this Court will ignore the context in which the
City seal is found because it is reproduced in a setting which
totally neutralizes any effect which the cross, if displayed
prominently or alone, might otherwise have had, of establishing
religion. App. 62a.
Yet, the Seventh Circuit majority opinion concentrates on
where the seal is displayed: location, and brings up the secular
context of the cross, with what it is included, only to signal an
awareness of the U. S. Supreme Court Opinion in County of
Allegheny. App. 21-2a.
Whether or not the challenged symbol fails the establishment
test should depend upon what it contains, not where it is
displayed. If the seal only acknowledges and does not establish
religion, then it does not matter where or how the seal is displayed.
And what of coercion? Is government acknowledgment of
the part religion has played in history a violation of the
Establishment Clause, whether or not coercion is present? The
Seventh Circuit majority mentioned coercion not at all; only the
dissent raised the issue. App. 39a.
18
The “test” for establishment clause violations, which has
evolved from Lemon, is a misnomer. From it, no standards nor
criteria have resulted: only rulings which contradict each other
and conflict with the everyday practices of other governmental
actors, including this Court in Marsh v. Chambers and Lynch
v. Donnelly.
Governmental accommodation or acknowledgments of the
historical significance of religion are often sustained and, in doing
so, the Courts seem to ignore Lemon. Perhaps this is where the
‘Federal standard’ comes in. The Federal government, when
meeting “establishment” challenges, must neither take, nor pass,
the Lemon tests.
For the City of Rolling Meadows, earnestly trying to comply
with the constitution, the maze is indecipherable: this Court
imposes a “test” which the City seal seems to pass, but then
the Seventh Circuit holds the cross, unconstitutional, per se:
The conspicuous depiction of the preeminent symbol
of a particular faith on that seal conveys a message
of approval that is simply inconsistent with the first
amendment. App. 22a.
Is there really a test or are all crosses, even those that look like
telephone poles, per se, unconstitutional?
The Latin cross on the Rolling Meadows seal is surely
a sectarian display. As such, we hold that it endorses
Christianity in violation of the first amendment. App.
23-4a.
The City does not ask this Court to overrule Lemon. Rather,
the Lemon test might be re-examined to determine if it is
functioning as intended.
Judge Easterbrook’s dissent points out that only four Justices
relied on Lemon in Allegheny, and Lynch also “bypasses the
Lemon ‘tests’ ” altogether. App. 42a.
Indeed, many of the members of this Court have expressed
misgivings with different aspects of the Lemon test: County of
Allegheny v. American Civil Liberties Union, 109 S.Ct. 3086,
3134 (1989) (Kennedy, J., concurring in the judgment and
19
dissenting in part) (“Substantial revision of our Establishment
Clause doctrine may be in order”); Wallace v. Jaffree, 472 U.S.
38, 112 (1985) (Rehnquist, J., dissenting) (Lemon test is “a
constitutional theory [that] has no basis in the history of the
amendment it seeks to interpret, is difficult to apply and yields
unprincipled results” ); Aguilar v. Felton, 473 U.S. 402, 429, (1985)
(O’Connor, J., dissenting) (expressing “doubts about the entan-
glement test”); Roemer v. Board of Public Works, 426 U.S. 736,
768 (1976) (White, J., concurring in the judgment) (“I am no more
reconciled now to Lemon IJ than I was when it was decided.
.... The threefold test of Lemon I imposes unnecessary and
.... Superfluous tests for establishing [a First Amendment
violation}”’); Edwards v. Aguillard, 482 U.S. 578, 636 (1987) (Scalia,
J., dissenting) (“pessimistic evaluation .... of the totality of
Lemon is particularly applicable to the ‘purpose’ prong’”’).
So, while others, including some on this Court, have sug-
gested that Lemon may be an inappropriate standard, the City
respectfully suggests that its selective application creates even
more uncertainty, chaos and frustration.
Finally, the evolution and application of the Lemon tests
seem to have exceeded even the apparent intent expressed by
Chief Justice Burger in the paragraph preceding that now famous
one containing the “three tests”:
In the absence of precisely stated constitutional
prohibitions, we must draw lines with reference to the
three main evils against which the Establishment
Clause was intended to afford protection: “sponsorship,
financial support, and active involvement of the
sovereign in religious activity.” Citing Walz v. Tax
Commission, 397 U.S. 664, 668, 90 S. Ct. 1409, 25 L.
Ed. 2d 697 (1970). Lemon v. Kurtzman, 91 S. Ct. 2105,
2111 (1971).
What a long way, in subsequent application, Lemon has
wandered from the three evils which its author addressed. Of
course, the majority’s discussion of the City’s seal states that
the cross “endorses”, “promotes”, (App. 2la) “conveys” and
“approves” religion. App. 22a. Not once, though, does the opinion
address whether the City “sponsors” a religion with “financial
20
support”: nor does it question whether the City is actively involved
in religious activities.
None of the “evils” of establishment clause violations which
Chief Justice Burger set out in Lemon have befallen anyone
because of Rolling Meadows seal. It is “pallid”. (App. 40a.)
(Easterbrook, J.) It is difficult to discern how the City’s seal failed
any test which was passed, with honors, by “In God We Trust”.
And what of history? Plaintiffs just simply refuse to recognize
that the cross on the City’s seal has historic significance. They
complain that if it had “... well-known architectural, artistic
or historic significance... .” viewers would assume that the sea!
was not an attempt to establish a religion.’ Perhaps plaintiffs
perceive historicity as only that offered by the wonderful old
places in America, St. Louis, or St. Augustine. Rolling Meadows
history started when it was incorporated in 1955, and the seal
reflects the City, as perceived by a child, five years later:
** * *
3. When an eighth grader, my art teacher
assigned the project of drawing a City seal.
4. Idid my assignment by drawing a four-leaf
clover with the things I saw in Rolling
Meadows: a tree in one section, a bird in
one, a school in the third, and the new church
being built in my neighborhood, in the last.
* ee *
6. I drew what I saw, had no purpose other
than to complete an assignment, and had
no idea what the establishment of religion
was,... .}5
The Seventh Circuit discounted the intent of the seal’s creator
(App. 23a); yet, the Supreme Court in Lemon considered the
“legislative purposes” of the statutes there challenged to see if
14 Brief for Plaintiffs-Appellants, 90-1673, in the United States Court
of Appeals for the Seventh Circuit, at 11, 23.
15 Defendants’ Memorandum in Support of Their Answer to Plaintiffs’
Motion for Summary Judgment, filed December 13, 1988, Exhibit A,
Affidavit of Cheryl Knudsen Keifer, paragraphs 3, 4, and 6.
21
the establishment clause was violated and found “. . . no basis
for a conclusion that the legislative intent was to advance
religion.” [Emphasis added.] Lemon, 2111.
Unfortunately, in this case, there is no preamble to the seal
which can be studied in order to determine the motive for its
adoption. But, the affidavit of Cheryl, its creator, is uncontro-
verted, that the seal was created in a secular setting for a wholly
secular reason, and any benefit to anyone or anything was neither
imagined nor intended, nor could it have been foreseen.
The Seventh Circuit has overlooked that when factual issues
determine the constitutionality of governmental action, a Federal
court may not hold a trial and use its own findings to upset
the decisions of the political branches. Vance v. Bradley, 440
U.S. 93, 110-12 (1979). Even on matters touching the First
Amendment, Courts must accept plausible judgments by other
governmental actors. Turner v. Safley, 107 S. Ct. 2254, 2264-5n.
(1987); Munro v. Socialist Workers Party, 107 S. Ct. 533, 537-
8 (1986).
Rolling Meadows judgment in adopting Cheryl’s seal was
both plausible and constitutional in light of Justice O’Connor’s
concurring opinion in Lynch:
Those government acknowledgments of religion serve,
in the only ways reasonably possible in our culture,
the legitimate secular purposes of solemnizing public
occasions, expressing confidence in the future, and
encouraging the recognition of what is worthy of
appreciation in society. For that reason, and because
of their history and ubiquity, those practices are not
understood as conveying government approval of
particular religious beliefs. Lynch v. Donnelly, 465 U.S.
668, 693 (1984). [Emphasis added. ]
To do otherwise is to compromise the First Amendment’s
guarantee of the free exercise of religion. The goal of the First
Amendment is free exercise, to which nonestablishment is
instrumental. Nonestablishment should not be used to rewrite
history or repudiate the obvious.
22
But worse, framed as this case is, by atheists, their success
will be a signal that nonreligion or anti-religion is the attitude
preferred by the Federai Courts. The action of the Court in
removing a cross would not be “neutral”. It would have the
“effect” of giving those who recognize the genesis of the seal,
whether or not they have a religious axe to grind, constitutional
grievances of their own.
If the plaintiffs are allowed to use the Constitution merely
as a scissors to snip inclusion of all things religious from
municipal history, history will, indeed, have been skewed. While
the Establishment Clause is read to keep governments from
setting up churches, it is not a license to eradicate the part religion
has played in history, either.
CONCLUSION
For the foregoing reasons, Petitioners respectfully request
that this petition for a writ of certiorari to the United States
Court of Appeals for the Seventh Circuit be granted and the
case set for plenary review.
Respectfully submitted,
DONALD M. Rosse*
KATHLEEN Ross
Rose & Ross, Lrp.
4215 Kirchoff Road
Rolling Meadows, IL 60008
708/303-6100
Counsel for Petitioners
*Counsel of Record
APPENDIX
A NG Ke.
la
In the
United States Court of Appeals
For the Seventh Circuit
No. 90-1542
CLINT W. HARRIS and
THE SOCIETY OF SEPARATIONISTS, INC.,
Plaintiffs-A ppellees,
Vv.
CiTy oF ZION, LAKE COUNTY, ILLINOIS,
MAYOR OF ZION and ZION C!Ty COUNCIL,
Defendants-Appellants.
Appeal for the United States District Court
for the Northern District of Illinois.
No. 87 C 7204—James B. Zagel, Judge.
No. 90-1673
THEODORE M. KUHN and
THE SOCIETY OF SEPARATIONISTS, INC.,
Plaintiffs-Appellants,
v.
City oF ROLLING MEADOWS, MAYOR OF ROLLING MEADOWS
and ROLLING MEADOwS CITY COUNCIL,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois.
No. 87 C 7205—James B. Zagel, Judge.
ARGUED SEPTEMBER 17, 1990—DecIDED Marcu 19, 1991
Nos. 90-1542 & 90-1673
Before BAUER, Chief Judge, FLAUM and EASTERBROOK,
Circuit Judges.
BAUER, Chief Judge. In these two appeals, consolidated
for decision in the district court, we are asked to deter-
mine whether the Establishment Clause of the first amend-
ment prohibits the use of sectarian religious symbolism
on a municipality’s corporate seal. In both cases, we find
that sectarian religious imagery simply has no place on
municipal seals.
In Kuhn v. City of Rolling Meadows and Harris v. City
of Zion, both at 729 F. Supp. 1242 (N.D. IIl. 1990), the
Society of Separationists (“Society”) and two of its mem- |
bers, Theodore M. Kuhn and Clint W. Harris, filed suit
against the cities of Rolling Meadows and Zion, respec-
tively, as well as against their mayors and members of
their city councils in their official capacities, under 42 U.S.C.
§ 1983. Both suits seek declaratory and injunctive relief.
The plaintiffs in each case claim that the seal of Rolling
Meadows and the seal, emblem and logo of Zion violate
the Establishment Clause of the first amendment because
they contain Christian symbolism. All parties moved for
summary judgment under Fed. R. Civ. P. 56.
The district judge drew a fine distinction between the
two cases. In Kuhn, the district court found that, although
the official seal of Rolling Meadows contains a Latin cross,
it does not violate the first amendment. Thus, the court
denied the plaintiffs’ motion and later entered judgment
for the City of Rolling Meadows. In Harris, however, the
district court found that Zion’s seal, emblem and logo do
present constitutional violations. The court granted the
plaintiffs’ motion for summary judgment, enjoining Zion
from further use of its current seal, emblem and logo.
Theodore M. Kuhn and the Society (plaintiffs in Kuhn)
and the City of Zion (defendant in Harris) appealed. Find-
ing that both the seal of Rolling Meadows and the seal,
emblem, and logo of Zion represent unconstitutional uses
Nos. 90-1542 & 90-1673
of religious imagery, we reverse the district court judg-
ment in Kuhn, and affirm in Harns.'
I. Background
A Rolling Meadows
Rolling Meadows adopted its current seal in 1960, in
celebration of the City’s fifth anniversary. The seal was
designed as a school art assignment by Cheryl Knudsen,
then an eighth grade student at the Salk School in Rolling
Meadows.? Knudsen simply drew the things she saw in
Rolling Meadows: inside her design of a four-leaf clover,
she drew a tree in one section, a bird in another, a school
in the third, and the new church being built in her neigh-
borhood in the last section. The anniversary committee
that presented the winning design to the City Council for
approval altered Knudsen’s design somewhat. The tree
was changed to a leaf, and the bird was replaced by a
water tower and two industrial buildings. The neighbor-
hood church was retained. This final design was approved
by the Rolling Meadows City Council in June 1960. (See
Appendix A for Rolling Meadows seal.) The Rolling Meadows
seal is displayed on all City-owned vehicles, including police
patrol cars. The seal is also found on City letterhead, on
1 With no material issues of fact in dispute, the district court
ruled on the motions for summary judgment as a matter of law.
It is well-settled that whether a government display violates the
first amendment is indeed a question of law. See Mather v. Village
of Mundelein, 864 F.2d 1291, 1292 (7th Cir. 1989); American Jew-
ish Congress v. City of Chicago, 827 F.2d 120, 123 (majority opin-
ion), 129-30 (7th Cir. 1987) (J. Easterbrook, dissenting). Thus, on
review we examine the issues de novo with “no deference to the
district court’s resolution.” Mather, 864 F.2d at 1292.
2 There is some dispute in the record concerning the school that
Knudsen attended and her grade in that school when she designed
the seal. As the district court properly found, these facts are ir-
relevant, having no bearing on the larger issues in the appeal.
Resolution of such disputes is therefore unnecessary.
4a
Nos. 90-1542 & 90-1673
the shoulder patches worn by uniformed members of the
Rolling Meadows Police Department, on the residents’
garbage sacks, on vehicle tax stickers, and in the City
Council chambers.
Kuhn and the Society sued, objecting to the Latin cross
(i.e. a cross whose base stem is longer than the other
three arms) in the right quadrant of the Rolling Meadows
seal. This cross stands prominently before a one story
building—the church that was under construction in Chery]
Knudsen’s neighborhood back in 1960. While the building
depicted in the right quadrant of the seal is not ooviously
a church (its flat appearance could suggest another indus-
trial building or a school), there is no doubt that the struc-
ture in front of the building is a Latin cross. There also
can be no doubt that a Latin cross is the principal and
unmistakable symbol of Christianity as practiced in this
country today. See American Civil Liberties Union v. City
of St. Charles, 794 F.2d 265, 267 (7th Cir.) (enjoining St.
harles’ prominent display of a lighted Latin Cross as
part of the municipality’s annual Christmas display), cert.
denied, 479 U.S. 961 (1986).
Kuhn and the Society claimed that the presence of the
cross on the Rolling Meadows seal promotes or endorses
Christianity and, thus, violates the first amendment which
prohibits any law “respecting the establishment of reli-
gion.” U.S. Const. amend. I. The district court found that,
in the context of the Rolling Meadows seal, the relation
between the cross and Christianity is weak. The court
believed that the other images in the seal—specifically,
the leaf, the industrial scene and the school—“neutralize”’
the sectarian impact of the cross and preclude any un-
constitutional endorsement of Christianity. Kuhn, 729 F.
Supp. at 1248. From this decision, Kuhn and the Society
appealed.
B. Zion
To understand the genesis and design of Zion’s corpo-
rate seal, emblem and logo, we must consider the rather
5a
Nos. 90-1542 & 90-1673
unique history of the City. In 1896, the Reverend John
Alexander Dowie founded the Christian Catholic Church,
an evangelical protestant sect that still flourishes today
in a world-wide fellowship. Six years after the founding
of the Church, Reverend Dowie established the City of
Zion in Lake County, Illinois, in March 1902. The May
3, 1902 edition of ‘‘Leaves of Healing,” the Church news-
letter edited by Dowie, explains the reasons- for which
Zion was founded: “Zion City . . . is being built for the
purpose of the extension of the kingdom of upon earth
. . where God shall rule in every department of family,
i commercial, educational, adeno and polit-
ic _
At the first meeting of the Zion City Council on May 6,
1902, Reverend Dowie, who had assumed the title “‘Gen-
eral Overseer of the Christian Catholic Church in Zion,”
presented the new City Council with a proposed corporate
seal. This proposed seal consisted of a shield draped with
a ribbon that reads ‘‘God Reigns’ and encircled by the
words “Corporate Seal” and “City of Zion, Illinois.” The
shield lies in the center of the seal and is divided into
four sections. Each section contains a different symbol.
The left section contains a Latin cross; the upper section
contains a dove carrying a branch; the right section con-
tains a sword and a crown; and the lower section contains
the name “Zion.” In cio eae proposed seal to the
Zion City Council, Reverend Dowie urged:
I ask you to accept (this seal) and use it reverently.
Let no hand ever hold this lever and put this seal
to anything that God does not approve. Let the of-
ficer who uses this seal feel, as he pulls this lever
and makes this impression, ‘God Reigns,’’ that the
document must be such a one as God approves.
May every commission of every officer which bears
the seal of this City be looked upon as solemn thing;
that it is a commission to bear such authority, how-
ever small or great, as God’s minister—God’s minister
in law—God’s minister in the Eternal Covenant in a
measure.
a
6a
Nos. 90-1542 & 90-1673
Minutes of First Council Meeting, City of Zion, May 6,
1902. Reverend Dowie alsc explained the meaning of the
symbols included in the seal:
Look at the Dove which is the emblem of the Holy
Spirit, bearing the Message of Peace and Love over
the seas. The Cross represents everything to us in
Redemption, Salvation, Healing, Cleaning and Keep-
ing Power. The Sword is the Sword of the Spirit,
which is the Word of God. The Crown is the Crown
of Glory, the Crown of Joy, the Crown of Righteous-
ness, the Crown of Rejoicing.
Id.
The City Council unanimously approved Reverend Dowie’s
proposal, and his design has remained the corporate seal
for the City of Zion until the present day.? (See Appen-
dix B for the Zion seal.) The Zion City Council later de-
signed the City’s emblem and logo. The emblem is simply
the central part of the seal, consisting of the shield with
its four sections, and the ribbon that reads “God Reigns.”
The logo also is derived from the seal. The logo is cir-
cular and contains a large ‘“‘Z.”’ To the left of the ‘Z’”’
lies a Latin cross; to the right of the “‘Z” lies the crown
and the scepter; and above the “‘Z’’ flies the dove carry-
ing the branch. (See Appendices C and D for the Zion
emblem and logo.) The seal or emblem appears on the
City flag, on the City letterhead, in the City Council
chambers, on City vehicle stickers of all vehicles operated
by Zion residents, and on the shoulder patches of City
police officers and fire fighters. The logo appears on the
Zion water tower and on City street signs.
The district court found that the images displayed on
the Zion seal, emblem, and logo function as strong sym-
bols of a particular sect of Christianity with nothing to
3 The sword in the right section of the shield was later changed
to a scepter. This is the only variation in Zion’s present seal from
Reverend Dowie’s original design.
ante
7a
Nos. 90-1542 & 90-1673
“neutralize” the religious message. “The City of Zion’s
seal, emblem and logo have the effect of endorsing a
Christian message. Nothing more is required to demon-
strate a violation of the Establishment Clause.” Harris
v. City of Zion, 729 F. Supp. at 1250 (quoting County
of Allegheny v. American Civil Liberties Union, 109 S.
Ct. 3086, 3105 (1989)). Thus, the district court granted the
motion for summary judgment of Harris and the Society
and permanently enjoined the display of Zion’s seal, em-
blem or logo in their current forms. The City of Zion
appealed.
II. Discussion
A. Standing
The first issue we must consider is whether the plain-
tiffs have standing to maintain this suit. Because Article
III of the Constitution limits the “judicial power’’ of the
United States to the resolution of “‘cases and controver-
sies,”’ the authority of federal courts ‘“‘cannot be defined,
and indeed has no substance, without reference to the
necessity to adjudge the legal rights of ao in actual
controversies.”’ Valley Forge Christian College v. Ameri-
cans United for Separation of Church and State, 454 U.S.
464, 471 (1981) (quoting Liverpool S.S. Co. v. Commission-
ers of Emigration, 113 U.S. 33, 39 (1885)). See also Allen
v. Wright, 468 U.S. 737, 750 (1983). To have standing, the
plaintiff must have “alleged such a personal stake in the
outcome of the controversy as to assure that concrete ad-
verseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of dif-
ficult constitutional questions.”” Baker v. Carr, 369 U.S.
186, 204 (1961).
In order to establish a “personal stake” in the case, a
plaintiff must show that he has suffered “some threat-
ened or actual injury resulting from the putatively illegal
action. .. .”" Warth v. Seldin, 422 U.S. 490, 499 (1974)
(quoting Linda R. S. v. Richard D., 410 U.S. 614, 617
(1973)). See also Moose Lodge No. 107 v. Irvis, 407 U.S.
vill
8a
Nos. 90-1542 & 90-1673
163, 166-67 (1972); Flast v. Cohen, 392 U.S. 88, 101 (1968).
That injury must be fairly traceable to the challenged ac-
tion of the defendant, and it must be likely to be redressed
by a favorable decision. Valley Forge, 454 U.S. at 472. The
requirement that the plaintiff allege an “injury-in-fact,”
whether economic or non-economic, excludes simple indig-
: nation as a basis for Article III standing. That the plain-
tiffs may be offended by the defendants’ conduct is not
enough to confer standing. St. Charles, 794 F.2d at 268.
See also Allen, 468 U.S. at 751 (“The injury alleged must
be ‘distinct and palpable,’ and not ‘abstract’ or ‘conjec-
tural’ or ‘hypothetical.’ ’”’) (quoting Gladstone, Realtors v.
Village of Bellwood, 441 U.S. 91, 100 (1979) and Los An-
geles v. Lyons, 461 U.S. 95, 101-02 (1983)); People Orga-
nized for Welfare and Employment Rights v. pson,
727 F.2d 167, 171 (7th Cir. 1984) (“The injury brought
about by a violation of law must. . . affect one’s posses-
sions or bodily integrity or freedom of action, . . . and
not just one’s opinions, aspirations or ideology.”) The fed-
eral courts simply are not constituted as “ombudsmen of
the general welfare.”’ Valley Forge, 454 U.S. at 487.
With these general considerations in mind, we turn to
the plaintiffs’ claims. Because the Society alleges no in-
jury to itself, its standing depends on that of its members:
the individual plaintiffs K and Harris. Valley Forge
Christian College, 454 U.S. at 476 n.14; Warth, 422 US.
at 511; St. Charles, 794 F.2d at 267. Kuhn and Harris
each allege several direct burdens imposed on them by
the presence of the religious symbols in the City seals.‘
Kuhn claims he is injured by the requirement that he dis-
play the Rolling Meadows seal, which is depicted in the
municipality’s vehicle tax sticker, on the windshield of his
automobile; that he is likewise required to dispose his
household refuse in garbage sacks that display the seal;
* Although Kuhn and Harris allege that they are taxpayers, they
do not claim injury from any expenditure of tax revenues by either
city to display or maintain the seals. Thus, their status as tax-
payers is urelevant. See St. Charles, 794 F.2d at 267.
Nos. 90-1542 & 90-1673
and finally, that he “mightily strives to avoid any visual
contact” with the Rolling Meadows seal by utilizing alter-
native travel routes. Harris alleges similar types of injury—
that he is required to display on his automobile the Zion
vehicle tax sticker which, like the Rolling Meadows sticker,
contains the City’s seal, and that he too “mightily strives”
to avoid viewing Zion’s seal, emblem or logo by altering
his travel routes. Specifically, Harris alleges that he avoids
the particular route that brings him within visual contact
of Zion’s water tower which exhibits the Zion logo. Fol-
lowing our decision in St. Charles, 794 F.2d 265 (conclud-
ing that the ACLU had standing to challenge the lighted
cross in St. Charles’ Christmas display), the district court
held that both Kuhn and Harris alleged sufficient injury
to confer standing on these plaintiffs. We agree.
Regardless of the overstated language of the complaints,
the plaintiffs’ alleged injuries, however slight, are indeed
judicially cognizable. As the Supreme Court stated, “‘An
identifiable trifle is enough for standing to fight out a
question of principle; the trifle is the basis for standing
and the principle supplies the motivation.’”’ United States
v. SCRAP, 412 U.S. 669, 689 n.14 (1972) (quoting Davis,
Standing: Taxpayers and Others, 35 U. Chi. L. Rev. 601,
613 (1968)). The injuries claimed by Kuhn and Harris are
little more than “identifiable trifles.” As noted above, the
fact that the plaintiffs may be offended by the seals of
Rolling Meadows and Zion does not confer standing. It
is the willingness of the plaintiffs to incur 2 tangible,
albeit small cost that validates the existence of genuine
distress and warrants the invocation of federal jurisdic-
tion. St. Charles, 794 F.2d at 268. See also Saladin v.
City of Milledgeville, 812 F.2d 687, 690-692 (1ith Cir.
1987) (appellants had standing to challenge the constitu-
tionality of the Milledgeville seal which contained the word
“Christianity” in the center of the seal).
For the purposes of standing, we need not consider if
the plaintiffs can prove injury. It is enough that the plain-
tiffs Kuhn and Harris have pleaded good-faith allegations
of damage that can be remedied by the federal courts.
|
10a
Nos. 90-1542 & 90-1673
The test for standing, as for jurisdiction generally, is what
the complaint alleges, not what the evidence shows. St.
Charles, 794 F.2d at 269. “If a plaintiff merely fails to
prove injury, his failure goes to damages (or in an equity
case like this, to the right to obtain an injunction), rather
than to jurisdiction.” /d. That the allegations of a com-
plaint may be sufficient to confer standing also is supported
by South East Lake View Neighbors v. Department of
Housing and Urban Development, 685 F.2d 1027, 1034
(7th Cir. 1982), where this court declared:
A challenge to standing does not justify an inquiry
into the strength of a complaint. Questions of stand-
ing deal exclusively with whether the plaintiff alleged
facts satisfying the constitutional and prudential lim-
itations of the doctrine. The ability of the complaint
on its merits to survive a summary judgment motion
or support an award in law or equity after a full trial
is irrelevant. . . . Consequently, the district court con-
sidering a motion to dismiss for lack of standing ac-
cepts all material allegations in the complaint as true
and liberally construes the document in favor of the
plaintiff.
Id. at 1034 (citations omitted). Thus, Kuhn and Harris
have sufficiently alleged a personal stake in this litiga-
tion to justify the exercise of the court’s remedial powers
on their behalf. The litigants, then, have standing to main-
tain these suits.
In his dissent, infra at 33, Judge Easterbrook disagrees
with our analysis. He doubts that Kuhn and Harris ex-
perience the sort of injury necessary for standing. Judge
Easterbrook cites Lujan v. National Wildlife Federation,
110 S. Ct. 3177 (1990), to suggest that Kuhn and Harris
may not sufficiently have “proved” their injuries. We
disagree with this interpretation. Conferring standing
upon Kuhn and Harris in no way conflicts with Lujan.
On the contrary, Kuhn and Harris fully satisfy the logic
of Lujan.
In Lujan, a national wildlife group challenged the en-
tire “land withdrawal review program’”’ of the Bureau of
lla
Nos. 90-1542 & 90-1673
Land Management. This program determined the status
of public land and its availability for private uses such
as mining. The plaintiffs claimed a right to challenge the
Bureau’s decisions under § 10(a) of the Administrative
Procedure Act, 5 U.S.C. § 702, which provides: “A person
suffering legal wrong because of agency action, or adverse-
ly affected or aggrieved by agency action within the mean-
ing of a relevant statute, is entitled to judicial review
thereof.”” The Supreme Court determined that the plain-
tiffs did not satisfy § 702’s requirements for judicial
review because they failed to identify an ‘agency action”’
within the meaning of § 702. The court held that neither _
the allegations of the complaint nor the supporting affi-
davits “enable the respondents to challenge the entirety
of the so-called ‘land withdrawal review program.’ ”’ Id.
The Supreme Court, then, denied standing because the
plaintiffs failed to meet the statutory requirement that
they be adversely affected or aggrieved by an agency action.
We note that in its discussion of standing, the Lujan
Court focused on the allegations of the complaint and
turned to the affidavits to search for any saving support.
At no time did the Court state that well-pleaded allega-
tions of the complaint, if they appropriately identified an
“agency action,” would not be sufficiert to confer standing.
See 110 S. Ct. at 3189-93. The failure of the plaintiffs—evi-
dent in both the complaints and affidavits—was that they
sought “wholesale improvement of the ([Bureau’s] program
by court decree, rather than in the offices of the Depart-
ment [of the Interior] or the halls of Congress, where pro-
grammatic improvements are normally made.” Jd. at 3190.5
5 Even if Lujan somehow is read to stand for the dissent’s prop-
osition that the plaintiffs must be “‘put vo their proof,” the instant
cases are clearly distinguishable from Lujan. Lujan involved judi-
cial review of an administrative action; standing to challenge such
an action was determined by statutory interpretation. In Kuhn
and Harris, we must grapple with the meaning and implication
of the first amendment. Standing for Establishment Clause claims
should be determined primarily by applying the well-settled law
from prior Establishment Clause cases, not by applying an ill-
suited analysis from an inapposite case.
—
12a
Nos. 90-1542 & 90-1673
Thus, when the dissent suggests that, after Lujan, Kuhn
and Harris ‘‘must do more than allege; in response to a
motion for summary judgment, they must produce affida-
vits showing the essential kind of injury,” it blurs the
distinction between the allegations sufficient to confer
standing and the evidence necessary to support a motion
for summary judgment. As to the former, our above re-
view of the plaintiffs’ well-pleaded allegations makes clear
that Kuhn and Harris have adequately alleged palpable
injuries. But as to the latter, we need consider further
both the governing law and the record to assess the dis-
sent’s ent that Kuhn and Harris have not sufficient-
ly ea their allegations of injury. Such an examination
leads us to conclude that the claims of Kuhn and Harris
do not suffer from a failure of proof.
Rule 56(e) states:
When a motion for summary judgment is made and
supported as provided in this rule, an adverse party
may not rest upon the mere allegations or denials
of the adverse party’s pleading, but the adverse par-
ty’s response, by affidavits or as otherwise provided
in this rule, must set forth specific facts showing that
there is a genuine issue for trial. If the adverse party
does not so respond, summary judgment, if appropri-
ate, shall be entered against the adverse party.
Fed. R. Civ. P. 56(e). These two sentences were added
in 1963 to overcome the line of cases, chiefly in the Third
Circuit, which had impaired the utility of the summary
judgment device by permitting the adverse party to rest
on the pleadings, which on their face may present a gen-
uine issue for trial. Rule 56 requires, then, that the ad-
verse party present some evidence to block a grant of
summary judgment for the movant. See Notes of Advisory
Committee on Rules, Fed. R. Civ. P. 56; see also Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (‘Rule 56] re-
quires the nonmoving party to go beyond the pleadings
and by her own affidavits, or by the depositions, answers
to interrogatories, and admissions on file, designate spe-
13a
Nos. 90-1542 & 90-1673
cific facts showing that there is a genuine issue for trial.’’)
(quotations omitted).
A close examination of the record demonstrates the cor-
rectness of the district court’s finding that no material
facts were in dispute, making summary judgment an ap-
propriate resolution of these cases. The Cities of Rolling
Meadows and Zion simply failed to challenge the factual
allegations of injury that Kuhn and Harris declared in
their affidavits. For instance, in its answer to Kuhn’s mo-
tion for summary judgment, Rolling Meadows neglected
to oppose Kuhn’s statements that he seeks to avoid con-
tact with the Rolling Meadows seal and that the City
would not collect his personal refuse because he refused
to place the garbage in the official bag that depicts the
objectionable seal. Instead, the city argued that the seal
does not endorse religion. To that end, Rolling Meadows
submitted affidavits from several individuals to demon-
strate the absence of any sectarian endorsement.® By its
failure to challenge the declarations of injury in Kuhn’s
affidavit, the City of Rolling Meadows accepted those
statements as true, and waived any claim that Kuhn’s
allegations of injury present a triable issue.
Similarly, in Harris, the City of Zion also failed to chal-
lenge Harris’s declarations of injury contained in his af-
fidavit. Harris stated that he avoids certain routes that
bring him within visual contact of the Zion seal. Nowhere
does the City challenge these averments. Thus, like Rolling
Meadows, Zion must be deemed to have accepted these
declarations; therefore, there is no genuine issue of fact
suitable for trial concerning Harris’s injuries. As Fed. R.
Civ. P. 56(e) and Celotex instruct us, one of the principal
6 Specifically, Rolling Meadows submitted the affidavits of Cheryl
Knudsen Keifer, the school girl who designed the seal, Phil Prete,
a 1960 alderman of the city who participated in the seal’s adop-
tion, William Ahrens, a Rolling Meadows public official who de-
clares that the seal’s purpose is not to establish religion, and James
Muldowney, an engineer who measured the actual space that the
image of the cross occupies on the seal.
l4a
Nos. 90-1542 & 90-1673
purposes of the summary judgment rule is to isolate and
ie pe of factually unsupported claiins or defenses. 477
U.S. at 324. The district court correctly employed the
mechanism of summary judgment in determining that Kuhn
and Harris provided sufficient, uncontested allegations of
injury.”
The dissent also employs a touch of hyperbole to add
vigor to its arguments. When discussing why the Harris
case “looks like a put-up job,” the dissent compares Har- '
ris’s claims of injury with the allegations in St. Charles
and Doe v. Village of Crestwood, 917 F.2d 1476 (7th Cir.
1990). The dissent describes how the plaintiffs in those
earlier cases were compelled by religious scruples ‘‘to
change the pattern of their lives.’ For Harris, the seal
is only ‘“‘an attractive nuisance, not an irritant compell-
ing changes of the sort we discussed in St. Charles and
Crestwood.” Infra at 34. But what, in fact, were the
injuries in St. Charles ana Crestwood that so outweigh
the injuries of Kuhn and Harris? In St. Charlies, the plain-
tiffs argued that ‘‘they were so offended by the lighted
7 In developing its argument that Kuhn and Harris have failed
in their proofs, the dissent mischaracterizes the record. For ex-
ample, the dissent states: ‘{Djespite what the majority says, Kuhn
does not allege that he goes out of his way to avoid public displays
of the seal. His affidavit umits any such assertion, contending in-
stead that he is embarrassed by the seal, and he does not enter
public buildings where it appears.” See infra at 37 (emphasis in
original). These statements are not accurate. First, as we have
described, Kuhn alleged specifically in his complaint (which is, of
course, the primary focus of the standing weet that “he will
often avoid using the route to the downtown area of Rolling Meadows
. . . Where the seal of the City of Rolling Meadows is most promi-
nently displayed.” See Third Amended Complaint, para. 8. Second,
in his affidavit submitted in support of his motion for summary
judgment, Kuhn states: “In order to avoid seeing the Rolling
Meadows seal, I avoid public offices of the City of Rolling Meadows
such as the City Hall and the Public Works Building.” See Affi-
davit of Theodore M. Kuhn, para. 5. As we discuss above, the city
never challenged this statement of injury. Nowhere in his affidavit
does Kuhn state that he is “embarrassed” by the seal.
15a
Nos. 90-1542 & 90-1673
cross that they departed from their accustomed routes of
travel to avoid seeing it.” 794 F.2d at 267. Such an injury
was sufficient to confer standing on that plaintiff. (We note
that the objectionable government exhibit in St. Charles,
the lighted cross on top of the firehouse, was displayed
only at Christmas time for, at most, five weeks per year.)
In Crestwood, the injury that provided standing was sim-
ply that John Doe, a resident of the Village of Crestwood,
could not enjoy the use of a beer garden for a few hours
one afternoon each year. 917 F.2d at 1478. Hardly the
kind of injury that would lead to a change in the very
pattern of one’s life.
Kuhn and Harris at least endure as much of an injury
as did the plaintiffs in St. Charles and Crestwood. If any-
thing, Kuhn and Harris probably suffer an even greater
degree of distress due to the fact that the seals of Rolling
Meadows and Zion are displayed year-round, throughout
the cities, causing these plaintiffs to alter permanently
their behavior. Cf. Friedman v. Board of County Com-
missioners of Bernalillo County, 781 F.2d 777, 782 (10th
Cir. 1985) (Comparing the challenged seal of Bernalillo
County to the creche display in Lynch v. Donnelly, 465
U.S. 668 (1984), the Tenth Circuit noted, “The seal, unlike
the creche, pervades the daily lives of county residents;
[the creche] is displayed once a year for a brief period
on a single parcel of government land. [The seal] appears
on all county paper work, on all county vehicles, even on
county sheriff's uniforms.’’). Kuhn and Harris even offer
claims of injury that did not exist in St. Charles. Kuhn
alleges (and the City of Rolling Meadows admits) that he
is required to dispose of his refuse in garbage bags that
depict the seal. Both Kuhn and Harris allege (and both
cities admit) that they are required to display their Cities’
tax sticker, which contains the challenged seals, on their
car windshields.®
8 The dissent claims that the effect of Wooley v. Maynard, 430
U.S. 705 (1977), ought to be addressed. We fail to see how Wooley
(Footnote continued on following page)
16a
Nos. 90-1542 & 90-1673
The dissent also argues that conferring standing on Kuhn
and Harris represents a departure from circuit precedent,
citing Judge Flaum’s opinion in Freedom from Religion
Foundation, Inc. v. Zielke, 845 F.2d 1463 (7th Cir. 1988).
We disagree. On the contrary, Zielke provides additional
support for our analysis and holding in the instant cases.
Zielke supports the proposition that well-pleaded allega-
tions of palpable injury will satisfy the standing require-
ment. The reason that the plaintiffs in Zielke failed to
obtain standing was not due to a “failure of proof.” In-
stead, the Zielke plaintiffs failed to satisfy the standing
requirement because they were unable to allege any true
injury. In Zielke, this court declared:
Provided a litigant alleges the existence of a distinct
and palpable injury, even a minor injury can satisfy
the case or controversy requirement of Article III
. . . . [The plaintiffs] allege that the display [of a
monument depicting the Ten Commandments in a
public park] is a rebuke to their religious beliefs and
that they are offended by its presence; but they ad-
mit that they have not altered their behavior as a
result of the monument. The psychological harm that
results from witnessing conduct with which one dis-
agrees, however, is not sufficient to confer standing
on a litigant.
845 F.2d at 1467 (citations omitted). Zielke supports con-
ferring standing upon Kuhn and Harris. The Zielke plain-
tiffs never argued that they changed their behavior, as
8 continued
applies to this case. There are simply no facts in the record to
indicate that Kuhn and Harris ever tried to cover up their vehi-
cle tax stickers, or how Rolling Meadows and Zion would react
if they attempted to do so. We can only speculate—or we could
deny standing because Kuhn and Harris did not cover up or cut
out the objectionable of their stickers and thereby incur crim-
inal liability, as did the plaintiffs in Wooley. Either of these ap-
proaches is misguided; there are sufficient allegations in the com-
plaints to confer standing on Kuhn and Harms.
17a
Nos. 90-1542 & 90-1673
Kuhn and Harris have stated in both their complaints and
affidavits.
Behind this exposition of the case law “‘lies the prac-
tical recognition that if the injury, tenuous though it be,
suffered by the involuntary audience for a display alleged
to constitute an establishment of religion does not confer
standing to sue, there will be no judicial remedy against
establishments of religion that do not depend on public
funds.” St. Charles, 794 F.2d at 268. This “practical rec-
ognition” in no way suggests that Kuhn and Harris have
not satisfied the legal standards necessary for standing.
Instead, this notion only points out that if Kuhn and Har-
ris are not permitted to sue, then there is simply no way
to test the constitutionality of the city seals.
B. The Establishment Clause
We turn now to the merits of these appeals. Because
there were no material issues in dispute, the district court
appropriately resolved these cases on summary judgment.
It remains for us to correct the district court’s reluctance
to apply the full breadth of Establishment Clause free-
doms and to reiterate our commitment to an energetic
first amendment.
The first amendment provides that ‘“‘Congress shall make
no law respecting the establishment of religion, or pro-
hibiting the free exercise thereof.”’ U.S. Const. amend.
I. It is generally accepted that the framers had two pur-
poses in mind when they drafted the above quoted lan-
guage: “to prevent the establishment of a national church,
and to forbid a national preference of one Christian sect
over another.” American Jewish Congress v. City of Chi-
cago, 827 F.2d 120, 123 (7th Cir. 1987) (holding that the
placement of a nativity scene in Chicago’s City Hall fos-
tered an identification of the City with Christianity, thus
violating the Establishment Clause).
Perhaps originally the Religion Clauses merely sought to
protect the diversity of faiths and practices within Chris-
tianity itself. Thus, Joseph Story could fairly write that
18a
Nos. 90-1542 & 90-1673
“the real object of the [first] amendment was, not to
countenance, much less to advance, Mahometanism, or
Judaism, or infidelity, by prostrating Christianity; but to
exclude all rivalry among Christian sects, and to prevent
any national ecclesiastical establishment, which should give
to a hierarchy the exclusive patronage of the national
government.” 2 J. Story, Commentaries on the Constitu-
tion of the United States § 1877 at 594 (1851) (quoted in
Wallace v. Jaffree, 472 U.S. 38, 52 n.36 (1985)). See also
American Jewish Congress, 827 F.2d at 123-24. But when
the principles of religious freedom and tolerance were ex-
amined “‘in the crucible of litigation,’’ the Supreme Court
“unambiguously concluded that . . . the first amendment
embraces the right to select any religious faith or none
at all.”” Wallace, 472 U.S. at 52-53.
In addition to the individual’s complete freedom of con-
science, “(t]he Religion Clauses also have come to stand
for the principle of governmental neutrality, meaning not
only that government should not favor one religion over
another, but also that government should not favor reli-
gion over nonreligion.” American Jewish Congress, 827
F.2d at 124. With the incorporation of first amendment
freedoms into the Due Process Clause of the fourteenth
amendment,® ‘t]he modern Supreme Court has treated
the establishment clause as a aeadins to the courts to
strike down all public acts, federal, state, and local, whose
primary purpose or predominant effect is to promote one
religious group at the expense of others or even promote
religion as a whole at the expense of the nonreligious,
a position that treats even the nonreligious simply as
another sect.”’ St. Charles, 794 F.2d at 270.
9 See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (“The fun-
damental concept of liberty embodied in [the fourteenth amend-
ment] embraces the liberties guaranteed by the first amendment.
The first amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free ex-
ercise thereof. The fourteenth amendment has rendered the legisla-
tures of the states as incompetent as Congress to enact such laws.’’).
19a
Nos. 90-1542 & 90-1673
Needless to say, determining if a given public act pro-
motes a particular religious sect (including, as we have
said, the sect of nonbelievers) is no easy task. Yet, in this
delicate area of constitutional adjudication, we are re-
minded that the first amendment does not merely pro-
hibit the establishment of a state church or a state reli-
gion; instead, it demands that there should be no law even
respecting the establishment of religion. A given law or
governmental practice might not establish a state religion
but nevertheless be one “respecting” such a religion, and
hence offend the first lites. sare See Lemon v. Kurtz-
man, 403 U.S. 602, 612 (1971) (holding that the statutory
programs of Rhode Island and Pennsyivania that provide
state aid to church-related elementary and secondary schools
are unconstitutional). At the same time, “‘it has never been
thought possible or even desirable to enforce a regime of
total separation between religion and government.” Com-
mittee for Public Education v. Nyquist, 413 U.S. 756, 760
(1973). As a consequence, cases arising under the Religion
Clauses of the first amendment have presented some of
the most perplexing questions in constitutional law. /d.
Our task, then, is to assess the seals of Rolling Meadows
and Zion in light of these constitutional principles.
To determine if the challenged government conduct does
indeed offend the constitution, we rely upon the now fa-
miliar three-prong test that was first annvnciated in
Lemon v. Kurtzman, 403 U.S. 602, and recently recon-
firmed in County of Allegheny v. American Civil Liber-
ties Union, 109 S. Ct. 3086.1° If a statute or practice that
10 The dissent expends considerable effort counting justices and
speculating on the future of Establishment Clause jurisprudence
in order to suggest that the holding of County of Allegheny is
“shaky at best.’ Infra at 40. We submit that the fact that Coun-
ty of Allegheny was a 5-4 decision, and that one of the members
of the majority has since left the court, is not relevant; County
of Allegheny is still the law of the land, and should be followed
by intermediate federal courts of appeals unless and until we are
given contrary direction from the Supreme Court.
Nos. 90-1542 & 90-1673
touches upon religion is to be permissible under the Es-
tablishment Clause, then 1) it must have a secular pur-
pose (i.e. its purpose must not be to advance particular
religious beliefs); 2) it must neither advance nor inhibit
religion in its principal or primary effect; and 3) it must
not foster an excessive entanglement with religion. Coun-
ty of Allegheny, 109 S. Ct. at 3100; Lemon, 403 U.S. at
612-613. The challenged practice or statute—here the cor-
rate seal of Rolling Meadows and the seal, emblem ard
ogo of Zion—must pass each of these tests to be found
constitutional.
1. Rolling Meadows
The district court correctly limited the examination of
the constitutionality of the Rolling Meadows seal to the
second prong of Lemon; the seal neither evinces an illegit-
imate purpose nor fosters any religious entanglement.
Thus, the “effects” element forms the critical inquiry of
this appeal.
Briefly, as to the first Lemon element, it is clear that
Cheryl Knudsen, the school girl who essentially designed
the seal, acted with no unconstitutional purpose in mind.
Knudsen simply drew what she saw as she observed her
growing community. And in adopting Knudsen’s design in
celebration of the City’s fifth anniversary, Rolling Meadows
did not abandon its ad snare neutrality. See American
Jewish Congress, 827 F.2d at 126. The City Council adopted
the child’s entry in order to provide the City with a pleas-
ing design for its seal. There is no evidence to suggest
that the city sought to encourage religion in general or
Christianity in particular with the adoption and use of the
seal. That the City needed an official Rolling Meadows
seal to identify city property and correspondence is with-
out question. Thus, the secular purpose element of the
Lemon analysis is satisfied, as the City’s intent in adopt-
ing the seal was neither to advance nor inhibit religious
practice. See Edwards v. Aguillard, 482 U.S. 578, 585
(1987). See also Lynch v. Donnelly, 465 U.S. 668, 690
(1984) (O’Connor, J., concurring).
Nos. 90-1542 & 90-1673
Similarly, the Rolling Meadows seal creates no entangle-
ment with religion. The fact that the seal happens to
depict a church in Ms. Knudsen’s neighborhood, the Com-
munity Church of Rolling Meadows, does not necessarily
entangle the city’s business with the mission of the de-
picted church. There is no evidence in the record to sug-
gest that the Community Church ever intruded into the
affairs of the City or that the City ever participated in
the policies or operations of the Community Church. Thus,
the third prong of the Lemon test is also satisfied.
The second, “‘effects’’ element of Lemon, however, is
not so easily met. The aim of the “effects” or endorse-
ment element is to prevent “government from conveying
or attempting to convey a message that religion or a par-
ticular religious belief is favored or preferred... .
Whether the word is endorsement, favoritism, or promo-
tion, the essential principle remains the same: the Estab-
lishment Clause prevents the government from appearing
to take a position on questions of religious belief.” County
of Allegheny, 109 S. Ct. at 3101 (quotation omitted). See
also Edwards, 482 U.S. at 593 (‘Because the primary pur-
pose of the Creationism Act is to advance a particular
religious belief, the Act endorses religion in violation of
the first amendment.”’).
In County of Allegheny, the Supreme Court found that
a Christmas nativity scene displayed on the Grand Stair-
case of the Allegheny County Gertheens endorsed a pat-
ently Christian message, thus violating the Establishment
Clause. By displaying the creche on the most prominent
part of the seat of county government, the county sent
an unmistakable message t!.at it supported and promoted
Christian praise to God. 109 S. Ct. at 3104. In the same
way, the obvious presence of a Latin cross on the cor-
porate seal of Rolling Meadows also endorses or promotes
a particular religious faith. It expresses an unambiguous
choice in favor of Christianity. It presents to any observer
a clear endorsement of all those beliefs associated with
a Latin cross in violation of the Establishment Clause of
the first amendment.
Nos. 90-1542 & 90-1673
Like the seat of county government in County of Alle-
__ gheny, or the City Hall Building in American Jewish Con-
gress, the corporate seal of a municipality is ‘plainly under
government control . . . (and is) a clear symbol of govern-
ment power.” American Jewish Congress, 827 F.2d at
128. In fact, the Rolling Meadows seal presents a more
compelling case for finding the challenged display uncon-
stitutional. The City’s seal is a permanent statement that
is viewed year-round, while the creche is displayed only
seasonally amidst the secular celebration of Christmas.
The Latin cross oi the seal, then, brings together church
and state in a manner that suggests their alliance perhaps
even more ardently than the unconstitutional creche dis-
plays in County of Allegheny or American Jewish Con-
gress. The seal of Rolling Meadows acts as the City’s im-
primatur for official correspondence, property and busi-
ness. The conspicuous depiction of the pre-eminent symbol
of a particular faith on that seal conveys a message of
approval that is simply inconsistent with the first amend-
ment.
Relying on the presence of other images on the seal,
the district court found that “the relation of the chal-
lenged image before us, in the context we receive it, to
. religion, or more specifically Christianity, is weak.
. . - The remaining pictures sufficiently neutralize the seal
to avoid any religious me a lone or prominent cross
would convey.” Kuhn v. Rolling Meadows, 729 F.. Supp.
at 1248. Although we agree that the context surrounding
the challenged image is crucial,'! we do not agree that the
particular context in this case—the other images on the
seal—save the cross on the seal from an unconstitutional
endorsement of Christianity. The images on the seal are
is oe of Allegheny makes clear that the constitutionality of
ligious a will often depend upon its context. ‘The govern-
sy s use of religious aatedien is unconstitutional if it the
effect of endorsing religious beliefs, and the effect of the govern-
wn use of religious symbolism depends upon its context.” 109
. Ct. at 3103.
een ee
Nos. 90-1542 & 90-1673
not just neutral snapshots of the community; they are
charged with endorsement. The City tries to hide behind
the fact that a young girl essentially designed the seal
with no attempt to endorse a particular faith. Yet, re-
gardless of its origins, the Rolling Meadows seal does pro-
mote the selected images it depicts. To any observer, the
Rolling Meadows seal expresses the City’s approval of
those four pictures of City life—its flora, its schools, its
industry and commercial life, and its Christianity.‘
It is this last expression of approval—Rolling Meadows’
endorsement of Christianity—that simply cannot withstand
constitutional scrutiny. The City argues that the cross on
the seal invokes Christianity no more than conventional
public acknowledgements of religion that continue to per-
vade American culture, such as the slogan “In God We
Trust” on U.S. currency. See, e.g., Lynch, 465 U.S. at
675 (“Our history is replete with official references to the
value and invocation of Divine guidance in deliberations
and pronouncements of the Founding Fathers and contem-
porary leaders.”). Yet, in the line-drawing process that
erects a “blurred, indistinct, and variable barrier’’ be-
tween legitimate invocations of the deity and unconstitu-
tional infringements, we have found that “the more sec-
tarian the display, the closer it is to the original targets
of the Establishment Clause, so the more strictly the
clause is applied.” St. Charles, 794 F.2d at 271. See also
Lemon, 403 U.S. at 614. The Latin cross on the Rolling
‘2 The Supreme Court has determined that, when evaluating the
government’s use of religious symbolism, the court must consider
observers of the symbolism to include both adherents and non-
adherents. “{Ajn important concern of the effects test is whether
the symbolic union of church and state effected by the challenged
vernmental action is sufficiently likely to be perceived by ad-
coventa of the controlling denominations as an endorsement, and
by the nonadherents as a disapproval of their individual religious
choices.” Grand Rapids School District v. Ball, 473 U.S. 373, 390
(1985). Because the cross in the Rolling Meadows seal endorses
Christianity, by implication it also expresses disapproval for diver-
gent religious opinions.
Nos. 90-1542 & 90-1673
Meadows seal is surely a sectarian display. As such, we
hold that it endorses Christianity in violation of the first
amendment.
2. Zion
In Harris v. City of Zion, the district court found that
Zion’s seal, emblem and logo violates the “effects” or en-
dorsement element of the Lemon test. 729 F. Supp. at
1250. The district court suggested that the Zion seal, em-
blem and logo might also violate the “purpose” element
as well. Jd. at 1249-50. We agree with the district court’s
analysis. First, the purpose for the adoption of Zion’s
unique seal was primarily sectarian. In its adoption of its
seal, Zion abandoned fundamental neutrality and acted
with the intent to advance a particular religious viewpoint.
See American Jewish Congress, 827 U.S. at 126 (quoting
Corporation of Presiding Bishop v. Amos, 107 S. Ct. 2862,
2868 (1952)). Second, the seal, emblem, and logo continue
to endorse and promote that sect of Christianity that
founded the city and designed the seal in clear violation
of the first amendment.!*
As to the first point, Zion argues that, no matter what
the original City Council’s purpose in adopting the seal
in 1902, the current City Council voted to retain the seal
strictly for historical purposes. The City maintains that
because the City Council has the authority to modify the
seal at any time, the fact that the Council chose to re-
tain the seal for valid reasons provides a new, wholly
secular purpose to the seal’s adoption. Thus, the City ar-
13 Because we hold that the Zion seal, emblem and logo violate
the second element of the Lemon analysis, nothing more is re-
uired to demonstrate a violation of the Establishment Clause.
ounty of Allegheny, 109 S. Ct. at 3105. Yet, because the history
and purpose of the Zion seal is so much a part of this appeal, and
because of the inherent deli of first amendment adjudication,
we discuss the import of the first, “secular purpose” element of
Lemon as well.
ea FBT a ah At ENN NSA NNT aig tap i sil
a a Rn ele te
Nos. 90-1542 & 90-1673
gues, Reverend Dowie’s glowing explanation of the seal’s
religious significance is no longer relevant. The City relies
on our statement in American Jewish Congress that the
original purpose of Chicago’s 1959 creche display does not
form the purpose of a similar display in 1985. See Amer-
ican Jeursh Congress, 827 F.2d at 126 (quoting Mayor
Daley’s 1959 comment on the Chicago nativity scene,*4
and concluding that, “although perhaps relevant to the
original purpose of the nativity scene, [Mayor Daley’s com-
ment] reveals little about the purpose behind the 1985-86
display.’’).
The district court distinguished Zion’s seal from the
Chicago nativity scene by noting that the creche must be
erected and dismantled each Christmas season, a practice
that requires a new purpose every year. The Zion seal,
on the other hand, was adopted by one legislative deci-
sion on May 6, 1902, and has remained essentially unal-
tered. Nevertheless, the City points to a May 20, 1986
resolution in which the Council voted to retain the seal
for historical reasons. The 1986 resolution, the City ar-
gues, is the true expression of purpose for the Zion seal.
We are not persuaded. ‘While the court is normally def-
erential to a state’s [or municipality’s] articulation of a
secular purpose, it is required that the statement of such
purpose be sincere and not a sham.” Edwards, 482 U.S.
at 586-87. See also Wallace, 472 U.S. at 64 (Powell, J.,
concurring); id. at 75 (O’Connor, J., concurring in judg-
ment). The minutes from the May 20, 1986 Council meet-
ing offer, at best, meager evidence to demonstrate that
the decision to retain the current seal was prompted by
a desire to honor Zion’s history. With such explicit reli-
gious design behind the seal’s original adoption in 1902,
something more than a perfunctory appeal to history is
14 Mayor Daley (the First) said of the nativity scene: ‘‘We are
a Christian nation. I think the more religion we can get in politics,
the better off we are.”” American Jewish Congress, 827 F.2d at
126.
Nos. 90-1542 & 90-1673
required to legitimatize the underlying purpose of this par-
ticular seal.
Even if we accept the 1986 resolution as an “historical”’
revision of p , the Zion symbols constitute an uncon-
stitutional endorsement of Christianity, specifically, the
Christian Catholic sect that still flourishes in Zion. The
Zion seal presents the quintessential violation of the “long-
standing constitutional principle that government may not
engage in a practice that has the effect of promoting or
endorsing religious beliefs.’’ County of Allegheny, 109 S. Ct.
at 3115. The City argues that the symbols in the seal—
the shield, the sword or scepter, and the dove—do not
convey a religious message. The City maintains that to
the average resident who is not aware of Zion’s history,
the shield connotes achievement, the sword or scepter rep-
resents power or authority, and the dove suggests peace.
The City concedes, however, that the Latin cross is sin-
gularly religious.
We are not convinced. It may be true that each sym-
bol (with the exception of the cross), if taken individual-
ly, possesses several meanings, some religious and some
secular. But when all the symbols, including the cross,
are depicted in a single design under a flowing ribbon
which reads “God Reigns,” there is no question that the
message conveyed is not only religious, but also sectarian.'5
1S Again, we note that, when examining Zion’s use of Christian
symbolism in its corporate seal, we must consider the likely
perceptions of both adherents and nonadherents of the challenged
religious imagery. See supra at note 12. With this broad, objective
standard, the court must evaluate the overall impact of the seal,
emblem and logo. See Friedman v. Board of County Commission-
ers of Bernalillo County, 781 F.2d 777, 781 (10th Cir. 1985) (“The
existence of a non-secular effect is to be ju by an objective
standard, which looks only to the reaction of the average receiver
of the government communication or the average observer of the
government action.”). Thus, as the district court found on Zion’s
motion for reconsideration, the fact that the City’s mayor does
not believe that the seal conveys a religious message or that the
1600 residents who signed a petition do not feel that the seal
(Footnote continued on following page)
Nos. 90-1542 & 90-1673
The cross, shield, sword, scepter, dove, and crown are per-
haps the most dominant and recurring images of Chris-
tianity. Depicting these patently religious symbols on a
corporate seal that is wholly owned and controlled by the
City connotes the City’s approval for the message con-
veyed. See American Jewish Congress, 827 F.2d at 128
(‘Because City Hall is so plainly under government own-
ership and control, every Fi te and activity in the build-
ing is implicitly marked with the stamp of government
approval.’’) With its Christian imagery, therefore, Zion’s
corporate seal, emblem, and logo inevitably create an un-
mistakable impression that the local government tacitly
endorses Christianity.
Perhaps Zion’s strongest argument lies in its claim that
its seal, emblem and logo merely commemorate the his-
torical origins of the City and, thus, convey no unconstitu-
tional endorsement. The seal does not advance religion,
Zion maintains, but only celebrates the City’s roots. This
argument is buttressed by the fact that the City of Zion
can indeed boast a unique history, which this court re-
spects. This religious heritage may deserve commemora-
tion. Nevertheless, the City may not honor its history by
retaining the blatantly sectarian seal, emblem, and logo.
These symbols transcend mere commemoration, and effec-
tively endorse or promote the Christian faith.
In Friedman, the only other case on record that in-
volves a seal containing a Latin cross, the Tenth Circuit
held that the county’s seal violated the Establishment
Clause because its depiction of a golden cross under the
Spanish motto, “CON ESTA VENCEMOS” (“With This
We Conquer’’), clearly endorsed Christianity as its prin-
cipal or primary effect. The Tenth Circuit enjoined the
county’s use of the challenged seal even though the reli-
1S continued
denotes discrimination is barely relevant, and clearly non-probative.
The key issue in this case is not the mayor’s views or even dis-
crimination. The question to be resolved solely involves the pri-
mary Fog wy and predominant effect of Zion’s seal, emblem and
logo. We find that purpose and effect to violate the first amendment.
Nos. 90-1542 & 90-1673
gious imagery in the seal was said to commemorate the
role of the Catholic Church in the settlement of the South-
west. See 781 F.2d at 779. The City of Zion seeks to
distinguish its corporate seal from the seal of Bernalillo
County by noting that the Latin cross in the Zion seal
is smaller and shares space on the seal with a crown, a
scepter and a dove. We find this argument a baseless at-
tempt at distinction. Instead, we choose to follow the fun-
damental reasoning of the Tenth Circuit: “If the chal-
lenged practice is likely to be interpreted as advancing
religion, it has an impermissible effect and violates the
Constitution, regardless of whether it actually is intended
to do so.” Jd. at 781.
Zion’s seal, emblem, and logo do indeed endorse Chris-
tianity. As the district court found, nothing within the four
corners of Zion’s seal, emblem or logo detracts from their
sectarian message. No appeal to history can abate that
message when the images in the seal are abstract symbols
of a particular Christian sect. The Establishment Clause,
at the very least, “prohibits government from appearing
to take a position on questions of religious belief.”” County
of Allegheny, 109 S. Ct. at 3101. The resulting endorse-
ment of religion need not be material or tangible; an im-
plicit symbolic benefit is enough. Friedman, 781 F.2d at
781 (construing Larkin v. Grendel’s Den, 459 U.S. 116,
125 (1982)). Thus, Zion’s use of its current seal, emblem,
and logo must be discontinued due to their unconstitution-
al endorsement of Christianity.
III. Conclusion
We hold that the corporate seal of the City of Rolling
Meadows and the seal, emblem and logo of the City of
Zion represent unconstitutional endorsements of a partic-
ular religious faith. Accordingly, we affirm the district
court’s judgment in Harris v. Zion, and reverse in Kuhn
v. City of Rolling Meadows. Thus, both cities are perma-
nently enjoined from continued use of their seals (and in
Zion's case, its emblem and logo as well) in their present
unconstitutional forms.
29a
Nos. 90-1542 & 90-1673
APPENDIX A
Nos. 90-1542 & 90-1673
APPENDIX B
3la
Nos. 90-1542 & 90-1673
APPENDIX C
44, Y Z Ay
JE OM,
"ig
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32a
Nos. 90-1542 & 90-1673
APPENDIX D
Nos. 90-1542 & 90-1673
EASTERBROOK, Circuit Judge, dissenting. Applying
Lemon v. Kurtzman, 403 U.S. 602 (1971), to religious sym-
bols on city seals is no cakewalk. Lemon’s “three-part
test” is not a test. It is a triad of questions, the answers
to which conflict in all interesting cases. Conflict is what
makes a case worth litigating. How to resolve conflicts?
It is easy to list things to inquire about and hard to estab-
lish weights that produce outcomes congruent with the
Constitution. Lemon does the former but not the latter.
You need an understanding of the religion clauses, not
a list of factors, to resolve tough cases such as ours. Be-
fore giving a constitutional opinion, however, we should
be sure that there is a case or controversy. I have my
doubts, and it is on this ground that the majority and
I part company.
I
Plaintiffs say that they must go out of their way to
avoid pee Ree. geo symbols. This sort of allegation we
deemed sufficient in ACLU v. City of St. Charles, 794
F.2d 265, 267-69 (7th Cir. 1986), and Doe v. Village of
Crestwood, 917 F.2d 1476, 1478 (7th Cir. 1990). Stand-
ing sometimes depends on an “identifiable trifle”. Claims
about detours are about as trifling as one can produce.
They sidle up against the line drawn by Valley Forge
Christian College v. Americans United For Separation
of Church and State, Inc., 454 U.S. 464 (1982), which holds
that offense taken at the government’s complicity in reli-
gion does not create standing. Cf. Allen v. Wright, 468
U.S. 787 (1984). If offense is not enough, why is a detour
attributable to that offense enough? The answer cannot
be, as my colleagues say, that the willingness to take a
detour ‘“‘validates the existence of genuine distress” (ma-
jority op. at 9); Valley Forge tells us that dismay does
not establish standing, and therefore new and better ways
to prove its existence cannot create standing. St. Charles
holds instead that the detour narrows the class of plain-
tiffs and scope of dispute. If that is its function then we
must ensure, when the plaintiffs’ claims are challenged,
Nos. 90-1542 & 90-1673
that they have changed their daily constitutionals, that
we are indeed dealing with injured rather than ideologi-
cal plaintiffs. Both cities contested the plaintiffs’ claims,
yet the district court decided the cases without resolving
these disputes.
My colleagues say that in determining standing to sue
the allegations of the complaint must be taken as gospel.
Some lan in St. Charles looks in this direction, dis-
tinguishing the allegations needed to establish standing
from the proof needed to prevail, 794 F.2d at 269, but
the defendants there conceded the plaintiff's detour. These
cities do not concede that the plaintiffs have rearranged
their daily routines to avoid exposure to religious sym-
bols. Quite the contrary, Zion contends that Harris moved
in precisely because of the imagery in its seal. Harris
related during his deposition that he had been recruited
by the Society of Separationists as a potential plaintiff
(apparently none of the existing residents of the city ob-
jected to the seal). He moved to a — house within
the city’s limits and lent his name to the oe This
looks like a put-up job, distinct from the claim in St.
Charles and Crestwood that long-time residents had been
compelled by religious scruples to change the patterns of
their lives. Harris has not incurred a “tangible, albeit
small cost that validates the existence of genuine distress”
(majority op. at 9); he has incurred a tangible cost to ex-
pose himself to the seal. For Harris the seal is an attrac-
tive nuisance, not an irritant compelling changes of the
sort we discussed in St. Charles and Crestwood. At the
end of the day, what matters is that St. Charles recog-
nized that the plaintiff could not prevail without proving
the “detour” allegations of the complaint. 794 F.2d at 269.
Today’s opinion dispenses with that requirement.
Ought we render constitutional judgment on the theory
that federal courts are bound to accept whatever the
scrivener put in the complaint? Then parties could con-
fer jurisdiction on a court by consent, and collusive litiga-
tion would burgeon. Impositions on federal courts could
Nos. 90-1542 & 90-1673
flourish: one citizen of Illinois could sue another under the
diversity jurisdiction by alleging that he is a citizen of
Indiana, and despite the defendant’s protests the court
would not examine the veracity of the allegation. Yet
courts do examine the jurisdictional allegations of com-
plaints—that is what 28 U.S.C. $1359 and Fed. R. Civ.
P. 12(bX1), among other tools, are for.
Lujan v. National Wildlife Federation, 110 S. Ct. 3177
(1990), furnishes an example. The D.C. Circuit allowed an
inference of standing from the general allegations of the
complaint, despite a challenge by the defendants and an
inability of the plaintiffs to substantiate their allegations
with proof. The Supreme Court reversed, holding that
plaintiffs must do more than allege; in response to a mo-
tion for summary judgment, they must produce affidavits
showing the essential kind of injury. So it should be in
our cases. So it has been in the past in this circuit. Plain-
tiffs in Freedom from Religion Foundation, Inc. v. Zielke,
845 F.2d 1463 (7th Cir. 1988), contended that a monument
displaying the Ten Commandments violated the establish-
ment clause. Most of the plaintiffs said that they took of-
fense; we deemed this insufficient under Valley Forge.
One of their number, Phyllis Grams, alleged that she lived
nearby. This, too, we held insufficient:
Although Grams lives in the City of La Crosse, the
appellants did not demonstrate that she lives any-
where near Cameron Park, that the monument is
visible in the course of her normal routine, or that
her usual driving or walking routes take her past the
park. The appellants also failed to establish that
Grams suffered any injury simply because of her close
proximity to the . . . allegedly unconstitutional dis-
play. We therefore conclude that Grams cannot estab-
ish Article III standing simply on the basis of her
alleged but unproven proximity to the offending conduct.
845 F.2d at 1469. If Phyllis Grams had to prove her claims
when challenged, why not Clint Harris and Theodore Kuhn?
See also O'Hair v. White, 675 F.2d 680, 696 & n.35 (Sth
Nos. 90-1542 & 90-1673
Cir. 1982) (in banc) (plaintiff must prove the factual allega-
tions used to establish standing); Citizens Concerned for
Separation of Church and State v. Denver, 628 F.2d 1289,
1298 (10th Cir. 1980). A requirement of proof is essential
to avoid unnecessary constitutional adjudication, and I do
not see why we should go out of our way (take a detour?)
to undermine that safeguard.
Doubtless there is a sense in which failure of proof does
not abolish standing. A plaintiff suing a driver who, he
says, ran him down in the street, loses outright if the
evidence shows that the injury was suffered falling down
stairs at home; we do not retroactively dismiss for want
of standing. It is easy to marshal cases for this proposi-
tion; the majority does so, citing not only St. Charles but
also South East Lake View Neighbors v. rtment of
Housing and Urban Development, 685 F.2d 1027, 1034
(7th Cir. 1982). Little beyond nomenclature is at sake,
because both of these cases recognize that the plaintiff
must prove the allegations in order to ching? my as Lujan
held. See also Crawford v. United rates, 96 F.2d 924,
928-29 (7th Cir. 1986).
Failure of proof is not the only problem. I doubt that
the ~——— establish standing even if they can be
roved. The cities put their seals on vehicle stickers, gar-
age bags: public buildings and cars, and public docu-
ments. Plaintiffs object to all of these, but most of these
uses do not lead to an alteration in conduct. Harris’s com-
plaint, for example, protests the appearance of the seal
on mail Zion sends him. But he does not allege that these
symbols lead him to alter his conduct in any fashion. So
too with the seal on the stickers that demonstrate pay-
ment of the vehicle tax: Harris contends that he avoids
looking at the sticker, but this is hardly a detrimental
alteration in conduct; drivers are supposed to look at the
road ahead of them, not at tax stickers. Even this tiny
inconvenience could be eliminated. Someone with a sim-
ple self-help remedy for his problem suffers no “‘inj
in fact” and is not entitled to a judicial remedy that ad-
versely affects the interests of his neighbors who may like
Nos. 90-1542 & 90-1673
the seals. Plaintiffs have such a remedy. Wooley v. May-
nard, 430 U.S. 705 (1977), allows plaintiffs to cut out or
cover up the objectionable portions of the seals. Drivers
may not be conscripted as billboards for ideas of which
they disapprove. So too with the imprinting of seals on
the garege bags Rolling Meadows supplies. If it tried
to stop Kuhn from using bags without seals he would have
standing—but only to claim his _ under Wooley to edit
the bags. For all we can tell, the city has no objection
to redaction. Counsel for Kuhn said at oral argument that
Rolling Meadows does not pick up from that
do not bear the seal. But the record not reveal whether
this is because of the absence of the seal or because the
substitute bags were the wrong size or material. Silence
pag vor pe of this nature is not a firm basis for reaching
a difficult constitutional question. At all events, our plain-
tiffs lack standing to stop other persons from having or
using the seals. Could Maynard have obtained an injunc-
tion blocking New Hampshire from putting ‘Live Free
or Die” on any license plates? I doubt it.
The public seals (e.g., on the water tower in Zion) give
the best case for standing, because residents then may
say: “I take a longer route to avoid viewing that seal.”
There are two problems. First, despite what the majority
says, Kuhn does not allege that he goes out of his way
to avoid public displays of the seal. His affidavit omits
any such assertion, contending instead that he is embar-
rassed by the seal, and that he does not enter public
buildings where it appears. (Would he have used these
buildings in the absence of the seal?) Second, allegations
of this kind, if proven, challenge only the display of
the seal in a particular place, not its composition. St.
Charles allowed the plaintiff to object to a particular,
visible cross; we did not say that because the city erected
a 35-foot, lighted cross in public, the plaintiff could obtain
an order forbidding, say, a crucifix on the mayor’s desk.
The constitutional injury could be eliminated by taking
down the cross; here any injury could be eliminated by
removing the seals from the water tower and other public
places.
Nos. 90-1542 & 90-1673
Knowing that someone, somewhere, is using a seal with
a cross yields purely abstract injury, a demand that the
first amendment be enforced for its own sake. Under
Valley Forge neither Harris nor Kuhn has standing to
challenge internal use, any more than they would have
— eon iy an icon in the rp office, or a
créche being stored in the basement of city hall. Even
if they had standing, they could not prevail on the merits.
Bowen v. Roy, 476 U.S. 693, 699-701 (1986). Perhaps one
could say that they have “standing”’ once they come across
a single seal but that the relief should be limited to get-
ting the seals out of the public eye, but this would be
a detail. What matters is that they have asked for—and
the majority gives them—relief more extensive than that
necessary to eliminate their injuries. Call it standing, call
it redressability, call it (following Roy) the limited scope
of permissible relief on the merits, the point is the same.
They have at most an entitlement to the obliteration of
the symbols that cause detours; any more extensive relief
is unwarranted. We should dismiss the complaints to the
extent they challenge anything other than placements that
lead to inconvenient detours, and remand the residue with
instructions to put plaintiffs to their proof.
My colleagues’ unwillingness to do this stems in part
from their belief that if the plaintiffs lack standing, then
“there is simply no way to test the constitutionality of
the city seals” (majority op. at 17). This misunderstands
two things: my position, and the Constitution. I do not
say that the plaintiffs lack standing utterly; I contend,
rather, that the district court should determine whether
the plaintiffs’ factual assertions are true. If these plain-
tiffs cannot prove their allegations, perhaps some other
residents of Zion and Rolling Meadows could. One who
says that he was run down by a truck must prove it, and
the demand for proof no more obliterates tort litigation
than my position would wipe out establishment clause liti-
gation. But if it did, so what? Article III of the Constitu-
tion limits judicial power to cases and controversies. If
because no one is injured there is no controversy, then
Nos. 90-1542 & 90-1673
the Constitution demands that the court dismiss the suit.
There is no exception for subjects that as a result can-
not be raised at all. “ ‘The assumption that if [plaintiffs]
have no standing to sue, no one would have standing, is
not a reason to find standing.’ Schlesi v. Reservists
Committee to Stop the War, 418 U.S. (208,] 227 [(1984)].
This view would convert standing into a requirement that
must be observed only when satisfied.” Valley Forge, 454
U.S. at 489. Constitutional decisions ma sme A necessary in
the course of deciding real cases. Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803). Courts do not create cases
so that they will have the opportunity to render constitu-
tional decisions. Adjudication is a byproduct of a real con- -
troversy, and not the other way around. If there is no
case, then there is no occasion for deciding a constitutional
question, and we should not mourn or struggle st
this allocation of governmental = Hewitt v. Helms,
482 U.S. 755, 7616 -62 (1987); Alliance to End Repression
v. Chicago, 820 F.2d 873, 876 (1987).
II
I comment briefly on the merits because we may not
be the final decision-makers.
The establishment clause of the first amendment, as I
understand it, forbids taxation and coercion in ate as of
religion but does not forbid the disp yf of religious sym-
bols. Allegheny County v. ACLU, 109 S. Ct. 3086, ae
(1989) (Kennedy, J., dissenting); American Jewish Congres
v. Chicago, 827 F.2d 120, (7th Cir. 1987) (Easter-
brook, J., dissenting). I omit the line of argument that
produces this conclusion and refer readers to my earlier
opinion and Justice Kennedy’s (which Chief Justice Rehn-
quist and Justices White and Scalia joined). Religious im-
agery on city seals does not raise taxes (seals with crosses
are no more costly to produce than seals using other sym-
bols) or penalize non-observance. The Constitution distin-
guishes threats from shadows. Zion’s seal has been in use
for 89 years without stifling religious diversity or slow-
zs Nos. 90-1542 & 90-1673
ing the conversion of a religious enclave to a secular city.
Not one resident of Zion other than Harris has expressed
concern. Instead of driving non-believers away, the seal
attracted Harris to it.
_ Perhaps a seal could penalize non-belief by striking fear
into the hearts of viewers. See Friedman v. Board ©
County Commissioners, 781 F.2d 777 (10th Cir. 1985) (in
banc). “Con esta vencemos”, Bernalillo County’s slogan,
was one the Jesuits used when burning heretics. When
the police cars bearing it toured a predominantly Indian
population, which had been mistreated by the Christians,
there was reason to fear that the “Christian police” were
at hand, —- with the Graid Inquisitor in tow. 781
F.2d at 779. Zion’s seal carries no such message to an
objective (or any other) observer, and Rolling Meadows’
is pallid.
Justice Kennedy’s views did not prevail in Allegheny.
Three justices (Brennan, Marshall, & Stevens, JJ.) took
a strict separatist position, and two (Blackmun & O’Con-
nor, JJ.) reached the conclusion that a local government
may use religious symbols if it does not “endorse’’ reli-
gion. 109 S. Ct. at 3100-01. That two-justice position, the
most narrow offered in support of the judgment, is the
“holding” of Allegheny. Marks v. United States, 430 U.S.
188, 193 (1977). Any legal position rejected by seven jus-
tices is shaky at best, and we cannot be confident that it
will survive. Stability has not been a notable feature of
establishment clause jurisprudence. No one should be sur-
prised if the view held by four justices, one with deeper
historical roots, see AJC, 827 F.2d at 135-37, eventually
obtains a majority.
Applying the two-justice ‘no endorsement” view to city
seals produces nothing but headaches. What is endorse-
ment in a world pervaded by religious imagery, from ‘the
eye in the Great Seal of the United States (the eye of
God in a pyramid representing the Christian Trinity) to
“In God We Trust” on the coinage to Thanksgiving Day
(to Whom are thanks being given?) to the religious stamps
4la
Nos. 90-1542 & 90-1673
the Postal Service issues at Christmas and Easter to the
names of our cities (Los Angeles, San Francisco, Corpus
Christi) and submarines (the same list; there is even a
‘“‘Los Angeles class” of submarines)? See Aronow v. United
States, 432 F.2d 242 (9th Cir. 1970); O’Hair v. Murray,
588 F.2d 1144 (5th Cir. 1979). Did the United States en-
dorse a particular religion when putting “Corpus Christi”’
on a submarine? But perhaps the name’s significance has
been forgotten, or is overlooked in daily use. Why not
say the same about the imagery on seals?
Does the city “endorse” everything on its seals? The
majority answers yes and on this ground gives judgment
for the plaintiffs. But Justices Blackmun and O’Connor
did not cleave to such a view. Allegheny involved religious
symbols on public property. The justices could have said
that a city necessarily endorses whatever appears in its
halls. Had they done this, the Court would have held un-
constitutional the placement of a huge menorah in front of
Pittsburgh’s city hall. Yet the Court sustained the place-
ment, because a nearby Christmas tree withdrew any im-
plication that the city endorsed Judaism. Should one not
say the same thing for at least the Rolling Meadows seal,
in which the cross is surrounded by secular symbols, in-
cluding a leaf, a school, and a water tower? The major-
ity’s riposte—whatever the city prints, it endorses—is in-
consistent with the views of six justices in Allegheny.
Cases such as ours show some of Lemon’s problems.
The majority immediately throws away one “prong” of
its test for both cases, and a second tine (“purpose’’)
sloughs off for Rolling Meadows. Everything collapses to
the no-endorsement rule, one more compelling if divorced
from the three-part test (or as advanced thinkers call it
these days, ‘‘tri-partite inquiry”). Why use three parts
when only one matters?
A majority of the Court has reached this conclusion,
making our reference to Lemon cutdated. The four dis-
senting justices in Allegheny withheld support, 109 S. Ct.
at 3134, and Justice O’Connor, who provided the essen-
tial fifth vote for the majority, did so without relying on
Nos. 90-1542 & 90-1673
Lemon, a case of which she has been critical. Aguilar v,
Felton, 473 U.S. 402, 426-30 (1985) (O’Connor, J., dissent-
ing). Thus only four justices relied on Lemon in Allegheny.
Lynch v. Donnelly, 465 U.S. 668 (1984), the Court’s other
recent case dealing with religious symbols, also bypasses
the Lemon ‘“‘tests’’. We should take this cue and do like-
wise.
To see why Lemon has lost its tang one need look no
further that the majority’s application of its purpose
prong. My colleagues say that Zion’s seal violates the first
amendment because it was designed by Rev. Dowie and
adopted by the city council in 1902 to carry out the re-
ligious mission of the Christian Catholic Church. Indeed
so; Zion was founded as a religious utopian community,
and the Theocratic Party governed for more than two '
generations. In 1902 no one would have given this a sec-
ond thought: the speech clause of the first amendment
was not applied to the states until Gitlow v. New York,
268 U.S. 652 (1925), and the religion clauses were not ex-
tended to the states for another 27 years. Zorach v.
Clauson, 343 U.S. 306 (1952). Given our commitment to
cultural and religious diversity, Wisconsin v. Yoder, 406 .
U.S. 205 (1972), the establishment of religious communities
is unexceptionable. Many of this Nation’s founders sought
to establish religiously identifiable communities, and their
value has been shown recently by the Mormons, who
needed separate communities to survive hostility to their
beliefs, and 7 the Amish, whose a of life is tightly
integrated with their religious beliefs. The purpose behind
Zion’s creation—of which its seal is only an incidental
part—does not count against it.
Why should a purpose to promote religion ever condemn
an act of government? Often it does not: all of the accom-
modation-of-religion cases flunk this purpose inquiry, yet
many accommodation rules are sustained and, when doing
this, the Court ignores Lemon. Michael W. McConnell, Ac-
commodation of Religion, 1985 Sup. Ct. Rev. 1. Other
laws have religious purposes (e.g., the Sunday closing
laws) but are sustained because they also have secular
purposes.
Nos. 90-1542 & 90-1673
Suppose Zion originally built schools because Rev. Dowie
said they made for better missionaries. Would the schools
in Zion have to be torn down? Fra Angelica painted to
glorify the Roman Catholic Church; do we doubt that the
display of his paintings in the National Gallery has a
secular purpose? Why would the purpose of maintaining
the seal in Zion be different? If there is something wrong
with the seal, how about the city’s name? This, too, was
picked for a religious purpose and conveys a religious
message—more potent than the seal. Must the city change
its name?
The majority allows that a genuine change of heart can
cleanse the improper motive. Yet why has not Zion had
a change of heart? Are we looking into the heads of the
members of the city council who voted in 1986 to retain
the seal for (they assert) historical reasons? The Theo-
cratic Party lost power in Zion more than 40 years ago
and is defunct. So far as the record shows, not one mem-
ber of Zion’s city council belongs to the Christian Catho-
lic Church or owes office to constituents who support that
faith. Before declaring that the current purpose of the seal
is religious, we would need a trial that has not yet oc-
curred. Zion can’t lose a motive question on an empty
record. (There were fat records in Edwards v. Aguillard,
1 578 (1987), and Wallace v. Jaffree, 472 U.S. 38
(1985).)
So we should bypass Lemon as Justice O’Connor did
in Allegheny and ask her question directly: would an ob-
jective observer view these seals as endorsements of
Christianity? Whether the observer would have this re-
action gives me more trouble than it does the majority.
The imagery in Zion’s seal is overwhelming, but the his-
torical context may prevent an informed observer from in-
ferring contemporary endorsement. As for Rolling Meadows:
its seal is not powerfully Christian. The object of every-
one’s attention looks more like a telephone pole than a
cross; its arms are too short to crucify anyone. The orig-
inal plaintiff dropped out because he came to conclude that
the symbol is a utility pole in front of an industrial build-
Nos. 90-1542 & 90-1678
ing. We know, from the affidavit of the artist, that it was
meant to be a cross, but an objective observer lacks this
knowledge. I do not think we can say, as the majority
does (op. at 4), that it is “‘no doubt” a cross. It is ‘‘ob-
viously” a cross only after you know the genesis of the
seal, whici is to say that to the outside observer it is
not obviously a cross. It is enough, however, that Rolling
Meadows concedes that an observer would take this as
a cross, and we ought to accept the concession rather than
treat the ddbotable as obvious.
How, then, are we to carry out the tasks set for us by
Justices Blackmun and O’Connor? There is no straightfor-
ward way—perhaps no way, period—to do so. Which may
indicate that we have been sent on a wild goose chase,
that the proper answer lies along the path of the sepa-
ratists (Justices Brennan, Marshall, and Stevens) or along
the path marked by Justice Kennedy. The best I can do
is to predict that Justices Blackmun and O’Connor would
condemn the use of any religious imagery not nestled in
a secular context. What kind of context? We discussed
the subject in Crestwood, 917 F.2d at 1478-79:
Two contexts mattered—first the season, for in each ~
case [Allegheny and its predecessor Lynch] the gov-
ernment was displaying the symbols appropriate to
the time of year; sno bo the immediately surrounding
symbols, for in each case the government was dis-
playing an assortment of symbols appropriate to all
aspects of the holidays. Christmas and Hanukkah are
secular as well as religious holidays; to use symbols
appropriate to all aspects of the occasion is not to
endorse a particular religion. Mather v. Village of
Mundelein, 864 F.2d 1291 (7th Cir. 1989). If Christ-
mas may be a secular holiday, the state may recog-
nize whose birthday is being commemorated.
Zion’s symbols do not have a secular context of any sort.
Rolling Meadows is not trying to put the cross in a sea-
sonal context and is not displaying all of the symbols for
an occasion. It selected a few, which are unrelated ex-
Nos. 90-1542 & 90-1673 y
cept by being within the borders of the city. Governance
is not a “context’’ that drains the siynificance of a reli-
gious image.
So long as the two-justice position in Allegheny rules,
we must condemn these seals (if we reach the merits).
This approach avoids the need to apply judicial aesthetic
judgment, or perhaps recur to the gestalt psychologists.
I don’t know ats to determine what observers think, if
they think at all about these seals. Line drawing in this
area will be erratic and heavily influenced by the personal
views of the judges. We ought to use bright line rules,
and Allegheny (while it lasts) admits of this one.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA 79004—Midwest Law Printing Co., Inc., Chicago—3-19-91—500
46a
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Chicago, Illinois 60604
June 10, 1991
Before
Hon. WILLIAM J. BAUER, Chief Judge
Hon. WALTER J. CUMMINGS, Circuit Judge
Hon. HARLINGTON WooD, JR., Circuit Judge
Hon. RICHARD D. CuDAHY, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOHN L. CoFFEY, Circuit Judge
Hon. JOEL M. FLauM, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 90-1542
CLINT W. HARRIS and
THE SOCIETY OF SEPARATIONISTS, INC.,
Plaintiffs-Appellees,
v.
CiTy OF ZION, LAKE COUNTY, ILLINOIS,
MAYOR OF ZION and ZION CITY COUNCIL,
Defendants-Appeliants.
Appeal from the United States District Court
for the Northern District of Illincis, Eastern Division.
No. 87 C 7204—James B. Zagel, Judge.
(Caption continued on following page)
47a
Nos. 90-1542 & 90-1673
No. 90-1673
THEODORE M. KUHN and
THE SOCIETY OF SEPARATIONISTS, INC.,
Plaintiffs-Appellants,
Vv.
CITY OF ROLLING MEADOWS, MAYOR OF
ROLLING MEADOWS and THE ROLLING
MEaADOwsS CITY COUNCIL,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 87 C 7205—James B. Zagei, Judge.
ORDER
Defendants-Appellants, the City of Zion, the Mayor of
Zion and the Zion City Council, and Defendants-Appellees,
the City of Rolling Meadows, the Mayor of Rolling Meadows
and the Rolling Meadows City Council, filed petitions for
rehearing and suggestions of rehearing in banc on April
2, 1991. All members of the panel voted to deny the peti-
tions for rehearing. A vote of the active members of the
court was requested, and a majority of the active judges
have voted to deny a rehearing in banc. Circuit Se
Cudahy, Posner, Coffey, Manion and Kanne voted to grant
rehearing in banc. The petitions for rehearing are there-
fore DENIED.
Nos. 90-1542 & 90-1673
EASTERBROOK, Circuit Judge, concurring in the denial
of rehearing in bane. My vote against rehearing does not
reflect second thoughts about the position stated in my
dissenting — or doubt about the importance of the
issues. I believe, instead, that the case should proceed
without further delay to the Court that can resolve the
issues the panel addressed. Cf. Lee v. Weisman, 111 S.
Ct. 1305 (1991), granting cert. to review 908 F.2d 1090
(1st Cir. 1990).
CUDAHY, Circuit Judge, with whom MANIoN, Cireuit Judge,
joins, dissenting from denial of rehearing en banc.
Whatever else may be said about the panel opinion (Harris
v. City of Zion, No. 90-1542; Kuhn v. City of Rolling
Meadows, No. 90-1673, slip op. (7th Cir. Mar. 19, 1991)),
its potential impact is sweeping. The rationale that any
religious reference (“endorsement” is a misnomer) in a
municipality’s mark or name is constitutionally suspect ap-
parently puts in jeopardy the names of famous cities across
the land. St. Louis, Santa Fe, Los Angeles—even places
like Devil’s Head and Hell’s Canyon (diabolism?)}—come to
mind, not to mention Zion itself. The resonantly Biblical
name ‘Zion’ for a city, under the present logic, advances
and endorses Judaism or Christianity or both.
I think that the district court had it right in Rolling
Meadows. Assuming that the diminutive symbol in question
is a Roman cross—it might be a telephone pole—any mes-
sage of endorsement is either non-existent or de minimis.
There is little evidence of meaningful offense from the
fancied religious implications of this ambiguous design—
created by a schoolchild. The plaintiffs’ injury is elusive,
and I share Judge Easterbrook’s doubt whether it is the
sort of harm that rises to a “‘case or controversy” or the
type of injury crying out for constitutional redress. Cf.
Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U.S. 464, 482-87
49a
- Nos. 90-1542 & 90-1673
(1982) (simple offense at perceived constitutional violation
not enough to provide standing).
The Zion seal has been part of that city’s nearly 100-
year history, and has always been so regarded (with af-
fection and pride) until the plaintiff's claim of harm im-
plausibly conjured up the First Amendment. Again, the
claim of injury seems not only too far-fetched to win ‘“‘case
or controversy” status but actually appears manufactured
for purposes of litigation only. In any event the Zion seal
merely reflects an historical fact—that the city was founded,
named and emblematized as an act of protestant evange-
lism. It is not the function of the courts to cause the his-
torical facts to vanish—even through a whiff of the First
Amendment. |
If the seal of Salt Lake City were to show Brigham
Young emerging from the mountains toward the valley
of the Great Salt Lake with the Book of Mormon (or even
the golden plates of Joseph Smith) tucked under his arm,
anyone with a common sense of history would see this as
reflecting a dramatic event in American history—hardly
as an endorsement of a religion. In fact, there were ex-
cellent reasons why the Mormons might have named their
Utah destination ‘‘Zion”!—thereby catching themselves in
the constitutional snares of the present doctrine.
This analysis to meet the Lemon test, Lemon v.
Kurtzman, 403 U.S. 602, 612-13 (1971). In Rolling Meadows
only the “effects” prong is arguably implicated and it seems
to me that the seal gives rise to no effects of consequence.
In Zion both the “effects” and the “purpose” prongs are
met by the historical setting of the seal. Any religious
purpose resides far in the past while the current purpose
is purely commemorative, and the present effects of the
seal are only to call a unique history to mind.
The history of the city of Zion (Illinois) cannot be erased
or obliterated. The city has stood for almost a hundred
1 Cf. Zion National Park in southwestern Utah.
50a
Nos. 90-1542 & 90-1673 «
years as a memento of Christian evangelism. To destroy
the seal, which contemporaneously reflected the founding
of the city, is to demean an important value in the name of
a threat which simply isn’t there. It is significant that the
Zion city council, containing no members of the “Chris-
tian Catholic” sect and presumably therefore victims rather
than beneficiaries of the seal’s imagined religious implica-
tions, voted with enthusiasm to keep it as their historical
heritage.
The ‘wall of separation’”’ between church and state is
not in question, but we need not sprinkle broken glass
and string barbed wire on top. This important opinion
needs careful reconsideration by the whole court and/or
the United States Supreme Court.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA 79004—Midwest Law Printing Co., Inc., Chicago—6-10-91—500
5la
Clint W. HARRIS, et al.,
Plaintiffs,
v.
CITY OF ZION, et al.,
Defendants.
Theodore M. KUHN,
Plaintiffs,
v.
CITY OF ROLLING MEADOWS, et al.,
Defendants.
Nos. 87 C 7204, 87 C 7205.
United States District Court,
N.D. Illinois E.D.
Feb. 9, 1990
Residents of two cities and a separationist organization
brought action against the two cities for declaratory and
injunctive relief, seeking to enjoin further display of religious
symbols on the cities’ corporate seals. Plaintiffs moved for
summary judgment. The District Court, Zagel, J., held that: (1)
the first city’s seal’s principal or primary effect was not one that
advanced religion, and (2) the second city’s seal’s emblem and
logo had the effect of endorsing a Christian message.
Grai ted in part, and denied in part.-
1. Constitutional Law
Presence of cross on city’s corporate seal did not have
principal or primary effect of advancing religion, and thus, did
not violate First Amendment’s establishment clause; cross was
only one of several pictures that comprised display on seal, and
remaining pictures sufficiently “neutralized” seal to avoid any
religious message lone or a prominent cross would convey.
U.S.C.A Const.Amend. 1.
_ ee ee
52a
2. Constitutional Law
Presence of cross and dove of peace along with words “God
Reigns” on city’s seal were intended by city’s legislature to
identify city with Christian Catholic Church and impart
symbolically the values of that church; thus, seal violated First
Amendment’s establishment clause. U.S.C.A. Const.Amend. 1.
Richard M. Gutman, Chicago, IIL, for plaintiffs.
Roderick A. Palmore, Jane A. Zimmerman, Paul S. Chervin,
Wildman, Harrold Allen & Dixon, Chicago, IIll., Berle L. Schwartz,
Highland Park, Ill., Adeline Jay Geo-Karis, Zion, for City of Zion,
et al.
Donald Rose, Cathleen Ross, Rose & Ross, Ltd., Rolling
Meadows, IIl., for City of Rolling Meadows, et al.
MEMORANDUM OPINION AND ORDER
ZAGEL, District Judge.
I. INTRODUCTION
The plaintiffs in Kuhn v. City of Rolling Meadows and the
plaintiffs in Harris v. City of Zion bring actions under 42 U.S.C
sec. 1983, seeking declaratory and injunctive relief. The plaintiffs
in Kuhn have moved for summary judgment pursuant to
Fed.R.Civ.P. 56. The plaintiffs and the defendants in Harris have
both moved for summary judgment under Fed.R.Civ.P. 56. A
summary judgment motion under Rule 56 imposes on the movant
the burden of establishing the lack of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548,
2552, 91 L.Ed.2d 265 (1986). Because there are no material factual
issues in dispute in either case, summary judgment is appropriate
for the resolution of this litigation.
The two cases before the Court present the same legal issue:
the constitutionality of a religious symbol in a municipality’s
corporate seal. Our judgment is this: In Kuhn v. City of Rolling
Meadows we deny the plaintiffs’ motion. We hold that the official
seal of the City of Rolling Meadows does not violate the First
Amendment of the United States Constitution. However, because
the defendant in Ku/in has not moved for summary judgment,
53a
we take no further step than to deny the plaintiffs’ motion for
summary judgment. In Harris v. City of Zion we deny the
defendants’ motion and grant the plaintiffs’ motion. We hold
that the seal, emblem, and logo of the City of Zion violate the
First Amendment of the United States Constitution, and therefore
enjoin the City of Zion from their continued use.
Il. FACTS
A. The City of Rolling Meadows
The plaintiffs are Theodore M. Kuhn, a resident of the City
of Rolling Meadows, and the Society of Separationists, Inc., a
Maryland corporation. The defendants are the City of Rolling
Meadows, Cook County, Illinois (“Rolling Meadows”), the Mayor
of Rolling Meadows, and the City Council of Rolling Meadows.
The plaintiffs sue the individual members of the City Council,
which includes the Mayor, in their official capacities
Rolling Meadows’ corporate seal (Exhibit A) appears below:
Exhibit A
This seal appears on all city-owned vehicles, including all
police cars and some fire trucks, on the city vehicle stickers of
all vehicles operated by city residents, on the shoulder patch
of the city police officers, on the city letterhead, and in the City
Council chambers.
Rolling Meadows adopted the sea! in 1960, the year Rolling
Meadows celebrated its fifth anniversary. An eighth grader,
Cheryl Knudsen, designed the seal in response to a school art
assignment. In an affidavit, Knudsen described the inspiration
55a
for her design: “I drew what I saw, [and] had no purpose other
than to complete an assignment.” An independent committee
selected, and the City Council approved the adoption of,
Knudsen’s design.
B. The City of Zion
The plaintiffs are Clint W. Harris, a resident of the City
of Zion, and the Society of Separationists, Inc. The defendants
are the City of Zion, Lake County, Illinois (“Zion”), the Mayor
of Zion, and the Zion City Council. The plaintiffs sue the
individual members of the City Council, which includes the
Mayor, in their official capacities.
Zion’s corporate seal (Exhibit B), which contains the Zion
emblem, and Zion’s logo (Exhibit C) appear below:
Exhibit B
57a
Exhibit C
The emblem is found in the seal and is surrounded by the phrases
“CORPORATE SEAL” and “CITY OF ZION, ILLINOIS.”
The seal or logo appears on the city flag, on the city letterhead,
in the City Council chambers, on the city vehicle stickers of all
vehicles operated by city residents, on the shoulder patch of the
city police officers and fire fighters, on the city’s water tower
located near Ninth Street in Zion, on all city street signs, and
on all city-owned vehicles.
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58a
At the first meeting of the Zion City Council on May 6, 1902,
the Reverend John Alexander Dowie, “the Overseer of the
Christian Catholic Church in Zion,” presented the City Council
with a proposed City of Zion corporate seal. The Christian
Catholic Church of Zion was and is an Evangelical Protestant
church founded by Dowie. The City of Zion was also founded
by Dowie “for the purpose of the extension of the Kingdom of
God upon earth ... where God shall rule in every department
of family, industry, commercial, educational, ecclesiastical and
political life.” The City Council’s Minutes are clear, in the words
of Dowie, on the purpose of the seal:
In presenting to you this seal, I ask you to accept it
and to use it reverently. Let no hand ever hold this lever
and put this seal to anything that God does not approve.
Let the officer who uses this seal feel, as he pulls this
lever and makes this impression, “God Reigns,” that the
document must be such a one as God approves.
May every commission of every officer which bears the
seal of this city be looked upon as solemn thing; that it
is a commission to bear such authority, however small or
great, as God’s minister — God’s minister in law—God’s
minister in the Eternal Covenant in a measure.
City of Zion, Minutes of First Meeting of City Council, May 6,
1902. Dowie later makes clear the meaning of each symbol in
the emblem:
Look at that Dove which is the emblem of the Holy Spirit,
bearing the Message of Peace and Love over the seas. The
Cross represents everything to us in Redemption, Salvation,
Healing, Cleaning and Keeping Power.
The Sword is the Sword of the Spirit, which is the Word
of God.
The Crown is the Crown of Glory, the Crown of Joy, the Crown
of Righteousness, the Crown of Rejoicing.!
1 The sword was later changed to a scepter.
59a
Id. The City Council, all of whose members belonged to the
Christian Catholic Church in Zion and the Theocratic Party,
unanimously adopted the ordinance establishing the proposed
seal as the official corporate seal of the City of Zion. In 1978
the city developed the logo, modelled on the city’s seal, t6 affix
to the Zion water tower.
Ill. DISCUSSION
A. Introduction
As we enter this Establishment Clause thicket, see Doe v.
Small, 726 F.Supp. 713 (N.D.I1.1989) (Shadur, J.), we look first
to the Supreme Court’s most recent guidance in County of
Allegheny v. American Civil Liberties Union, __ U.S. ____, 109
S.Ct. 3086, 106 L.Ed.2d 472 (1989). As Judge Shadur notes, County
of Allegheny reconfirmed the three part test in Lemon uv.
Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971),
on which we rely to determine if the challenged government
conduct is permissible. For a court to find a statute or government
practice constitutional:
First, the statute must have a secular legislative purpose;
second, its principa! or primary effect must be one that
neither advances nor inhibits religion, ...; finally, the
statute must not foster “an excessive government, entan-
glement with religion”.
Id. 91 S.Ct. at 2111. The statute or practice must pass each of
these three “tests” to be found constitutional.
B. Rolling Meadows
{1] The plaintiffs’ concede that the Rolling Meadows seal
does not violate the “purpose” and “entanglement” prongs of
the Lemon test. We bear in mind that if any one of the three
prongs is violated the seal is unconstitutional. It therefore
behooves the defendant to agree that the seal does not violate
the “purpose” and “entanglement” prongs. Yet, the defendant
oddly insists we examine these “two crucial criteria.”
We agree with the plaintiff that the seal does not violate
the “purpose” and “entanglement” tests. Although the seal does
not have a preamble revealing the purpose for its adoption, the
60a
defendant submitted affidavits indicating the city adopted the
seal for the purpose of celebrating the community’s fifth
anniversary. The designer of the seal was an eighth grader who
swears, “I drew what I saw, [and] had no purpose other than
to complete an assignment.” An independent committee chose
the seal as the winning entry. We conclude that the legislative
purpose in adopting the seal was secular.
Nothing in the record suggests, and neither party argues,
that the seal involves excessive entanglement with government.
The core issue is whether the seal’s principal or primary
_ effect is one that advances religion. Lemon, 91 S.Ct. at 2111.
As the Supreme Court has noted, whether the verb we choose
is “advance,” “endorse,” “favor,” “prefer,” or “promote,” the
principle is the same: “The Establishment Clause, at the very
least, prohibits government from appearing to take a position
on questions of religious belief or from ‘making adherence to
a religion relevant in any way to a person’s standing in the
political community.’” County of Allegheny, 109 S.Ct. at 3101
(quoting Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 1366,
79 L.Ed.2d 604 (1984) (O’Connor, J., concurring)).
The primary effect of the seal turns largely on the overall,
“Synique physical” context, American Jewish Congress v. City
of Chicago, 827 F.2d 120, 128 (7th Cir.1987), in which the
challenged religious symbol here, the cross,? appears. The
Supreme Court has stated that “the government’s use of religious
symbolism is unconstitutional if it has the effect of endorsing
religious beliefs, and the effect of the government’s use of religious
symbolism depends upon its context.” County of Allegheny, 109
S.Ct. at 3103. Based upon the context in which the cross appears
in the Rolling Meadows seal, we find that the primary effect
of the seal does not advance religion.
-
2 We do not quibble with the plaintiffs over whether the challenged
symbol is in fact a cross. The defendants counter with the experience
of Robert Sherman, a Society of Separationists member and director
of the Northern Illinois Chapter of Atheists, who abandoned his
challenge to the Rolling Meadows seal. After researching the challenged
symbol, Sherman concluded that the symbo! was in fact a utility pole
in an industrial setting. We conclude, for the purpose of the plaintiffs’
summary judgment motion, that the symbol is a cross.
6la
The challenged content of the seal, the cross, is a symbol
of Christianity. American Civil Liberties Union v. City of St.
Charles, 794 F.2d 265, 271 (1986). We are particularly sensitive
that this symbol is “not only religious but also sectarian.” Id.°
This is of concern to us because “the more sectarian the display,
the closer it is to the original targets of the [establishment] clause,
so the more strictly is the clause applied.” Jd. We are also mindful
that the municipal corporate seal in which the cross appears
is not unlike City Hall, which is a “symbol of government power”
and “marked with the stamp of government approval.” City of
Chicago, 827 F.2d at 128. We proceed with both of these concerns
in mind.
In the context of the Rolling Meadows seal, the cross
represents one aspect of the origin of the Rolling Meadows
community. Each of the four pictures on the seal, including the
cross, water tower, leaf, and school‘, suggests a different feature
of the Rolling Meadows community as found on its fifth
anniversary. Notably, the image that includes the cross appears
as a scene: Although the cross obviously appears in a style that
is more abstract than the way it would register on a photographic
plate, we do not find that the image’s level of abstractness renders
the image, in the context of the other four images, as strong
a symboi of Christianity (or religion) as would a lone or prominent
cross. Although this distinction may appear to emanate from
the offices of an interior decorator, see City of Chicago, 827 F.2d
at 129 (Easterbrook, J., dissent), we find it relevant. While there
is no doubt that a Latin cross is itself a symbol of Christianity,
we conclude that the relation of the challenged image before us,
in the context we receive it, to the referent at issue—religion,
or more specifically, Christianity—is weak. We refrain from
emphasizing this point too strongly because to the average
observer of the Rolling Meadows seal there does appear a Cross.
8’ The seal varies slightly among its reproductions. The cross, which
is obviously of most interest to us, is not uniform in all the seals. It
is fair to say, however, that the cross appears as a Latin cross in each
seal.
‘ The plaintiffs allege the lower quadrant of the seal contains a single
family residence. The defendants claim the building is in fact a school.
This difference is not material to the decision of this court.
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However, we must take the image as we see it in, not out of,
context. See R. Arnheim, Visual Thinking 135-52 (1969).
The plaintiffs argue that the cross on the Rolling Meadows
corporate seal is “large,” “conspicuous,” “prominent,” and
“massive.” We do not agree. We hesitate to use adjectives to
muddle the clarity of Exhibit A. However, as we noted, the cross
is only one of several pictures that comprise the display on the
seal. We find that the remaining pictures sufficiently “neutralize”
the seal to avoid any religious massage a lone or a prominent
cross, City of St. Charles, 794 F.2d at 267 (cross in display found
“highly prominent”), would convey.
Were it not for the other symbols that surround the cross,
the fact that the cross occupies a relatively small portion of the
seal’s space, and to a lesser extent, the fact that the cross appears
in scene form, a nonadherent might consider the seal an
endorsement of religion. This case would thus be indistin-
guishable from the cases in which the prominent display of a
cross has been held unconstitutional. However, the seal before
us cannot be fairly characterized as prominently displaying the
cross. The question, as we understand it, is not whether a cross
may appear in a municipality’s seal; but rather, whether the
context in which the cross appears has the effect of endorsing
religion. There certainly may exist municipal seals that contain
crosses and that convey messages endorsing religion.5 This,
however, is not one of those seals. There would be no meaningful
difference between holding otherwise and holding that no
municipal seal may contain a cross.
C. Zion
[2] The plaintiffs challenge Zion’s seal, emblem, and logo.®
Zion’s corporate seal consists of the Zion emblem surrounded
by the phrases “CORPORATE SEAL” and “CITY OF ZION,
ILLINOIS.” Zion’s logo contains the same three symbols—a
cross, a dove, and a crown with a scepter—found in the emblem,
5 See, for example, our discussion of the City of Zion’s seal below.
6 The plaintiffs also challenge an alleged motto of Zion’s: “Where God
Rules, Man Prospers.” Zion denies having such a motto. To the extent
Zion does not and will not use this motto the challenge is moot.
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but does not appear in the form of a shield and does not contain
a ribbon inscribed with the words “GOD REIGNS.”
The defendants argue that the corporate seal, emblem, and
logo have three secular purposes:
First, the seal is required by state law to authenticate municipal
records. Second, the seal, emblem and logo facilitate the
identification of property with the municipality and identify
the community itself. Finally, all three symbols commemorate
the rich and unique historical heritage of Zion as an experiment
in establishing a twentieth century utopian community.
Defendants’ Motion for Summary Judgment at 2. The plaintiffs
challenge the content of the seal (the emblem), not the validity
of Zion’s having a municipal seal. Therefore, the first and second
of these alleged purposes are irrelevant. The third alleged
purpose—that the historical significance of the city’s founding
outweighs the original religious purpose—is not without merit.
The city was in fact a religious experiment and the seal, emblem,
and logo recognize that origin. But it is clear that in adopting
the Zion seal the Zion legislature sought to identify the City
of Zion with the Christian Catholic Church and impart sym-
bolically the values of the church. That purpose was blatantly
sectarian at the seal’s adoption.
The defendants argue that even if the orginal purpose of
the city in adopting the seal were religious, the current, relevant
purpose is historical, and therefore secular. We disagree with
respect to the seal and the emblem. The defendants rely on City
of Chicago for their proposition that “the original purpose of
a government’s use of a symbol has little if any relevance to
an analysis of whether its current use has a secular purpose.”
Memorandum in Support of Defendants’ Motion for Summary
Judgment, at 5. However, City of Chicago involved a creche that
the city erected and dismantled every Christmas season. The
Seventh Circuit treated each season’s creche display as involving
a distinct decision made by the city. City of Chicago, 827 F.2d
120, 126 (mayor’s 1959 comment “reveals little about the purpose
of the 1985-86 display”). In the case before us, one legislative
decision on May 6, 1902 adopted the city seal and emblem. The
record shows the city has used essentially the identical seal and
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emblem ever since. We thus find the relevant purpose was not
secular. To support their contention that the relevant legislative
purpose is found much later than in the Minutes accompanying
the seal’s original adoption, the city points to the Minutes of
City Council, May 20, 1986, in which the City Council voted
to retain the city seal in its current form for historical reasons.
The Minutes do not clearly demonstrate that the Council’s vote
to retain the seal was motivated purely for historical purposes.
In any event, and especially with respect to the later-developed
logo, this issue is not dispositive because, as we discuss below,
the effect of the seal, emblem, and logo is not secular.
In fact, the effect of the seal, emblem, and logo advances
religion and violates the effects prong of the Lemon test.
Regardless of whether one knows of the religious origin of the
City of Zion and can discount the religious effect of the seal
accordingly, the seal, emblem, and logo, as we discuss below,
are sectarian. We do not impute complete knowledge of history
to the average observer of the seal—whether adherent or
nonadherent. We therefore cannot assume that the average
member of Zion’s political community will have either general
or specific knowledge of Zion’s “unique” history. In fact, the
defendants’ own expert on the history of the City of Zion,
Professor Philip Cook, stated otherwise: “it is possible that the
majority of Zion’s 15,000 inhabitants know little of its unique
history.” Affidavit of Philip L. Cook, at 4. We therefore find that
the average observer would consider that Zion makes adherence
to religion relevant to a person’s standing in the political
community.
The defendants are not correct when they assert that the
symbols in the seal and logo “merely recognize Zion’s early
religious history” (emphasis added). Nothing within the four
corners of the seal or the logo detracts from their sectarian
messages. The symbols in question are abstract and function
as strong symbols of a particular sect of Christianity. As Reverend
Dowie indicated, each of the three symbols has an independent
religious significance. The sum of the individual symbols imparts
a decidedly religious, in fact sectarian, message. The seal,
containing the emblem, connotes an even stronger message
because the symbols appear on a shield below a ribbon that
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reads “GOD REIGNS.” Nothing “neutralizes” the religious
message.
The First Amendment declares that “Congress shall make
no law respecting an establishment of religion....” The
Supreme Court and the Seventh Circuit precedents teach that
a municipality may not display religious symbols in a way that
endorses religion. We find that the City of Zion’s seal, emblem,
and logo have the effect of endorsing a Christian message.
Nothing more is required to demonstrate a violation of the
Establishment Clause. County of Allegheny, 109 S.Ct. 3086, 3105.
We therefore permanently enjoin the display of the City of Zion’s
seal, emblem, and logo in their current forms.
IV. CONCLUSION
We deny the plaintiffs’ summary judgment motion in Kuhn
v. Rolling Meadows. We grant the plaintiffs’ summary judgment
motion as to the Zion seal, emblem, and logo and deny the
defendants’ summary judgment motion in Harris v. City of Zion.
We permanently enjoin the City of Zion from the continued use
of its seal, emblem, and logo in their present forms.
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UNITED STATES DISTRICT COURT, NORTHERN
DISTRICT OF ILLINOIS, EASTERN DIVISION
Name of Assigned
Judge or Magistrate James B. ZaGeL
Case Number 87 C 7205
Date 22 Feb 90
Case Title KUHN V. CITY OF ROLLING MEADOWS
(1) [xx] Judgment is entered as follows:
The Defendants’ motion for summary judgment is granted. In
accordance wi
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