Amicus Curiae Brief — Board of Trustees v. McCreary

No. 84-277

Supreme Court of the United States

OCTOBER TERM, 1984

THE BOARD OF TRUSTEES OF THE VILLAGE OF SCARSDALE, et al.,

Petitioners,

KATHLEEN S. MCCREARY, et al.,

Respondents.

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION AND

THE NEW YORK CIVIL LIBERTIES UNION AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

STEVEN R. SHAPIRO

New York Civil Liberties Union

84 Fifth Avenue

New York, New York 10011

(212) 924-7800

SCHULTE, ROTH & ZABEL

460 Park Avenue

New York, New York 10022

(212) 758-0404

| November 29, 1984

BURT NEUBORNE

(Counsel of Record)

CHARLES S. SIMS

American Civil Liberties

Union Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9800

NORMAN DORSEN

New York « aiversity

School of Law

40 Washington Square South

New York, New York 10012

(212) 598-2555

Q.

TABLE OF CONTENTS

INTEREST OF AMICI Seeminins 6660066666066 06066608

INTRODUCTION AND

SUMMARY OF Been 0 6 0000066 6696608066006608

ARGUMENT

A MUNICIPALITY MUST REFUSE TO

PERMIT PUBLIC LAND TO BE USED FOR

THE DISPLAY OF RELIGIOUS SYMBOLS

WHICH WOULD BE VIOLATIVE OF THE

ESTABLISHMENT CLAUSE IF DISPLAYED

BY THE MUNICIPALITY ITSELF WHEN,

AS HERE, SUBSTANTIAL DANGER

EXISTS THAT THE DISPLAY WILL

APPEAR TO LEND THE IMPRIMATUR OF

THE STATE TO RELIGION. ccc ccc cece reece c see ed

COs ccececesseseeeeeesseeceesececeoseuee

TABLE OF AUTHORITIES

Cases Pages

ACLU v. City of Birmingham,

588 F. Supp. 1337

(E.D. Mich, Ee ee

ACLU v. Rabun County

Chamber of Commerce,

510 F. Supp. 886 (N.D. Ga. 1981),

aff'd and remanded,

678 F.2d 1379

(llth Cir. 1982),

atf'd and remanded

er curiam on reh'g,

BoE F.2d 1098

(llth Cir. PP eseacoecoeccoceesoeccooese®

Abington School District

v. Schempp,

374 U.S. 203 bl) ) PST TT TTT TTT rTrTTt

Anderson v. Laird,

466 F.2d 283

(D.C. Cir.),

cert. denied,

See Gels BETO CROTabcccccccesoocccececccc bf

Blackwell v. Issaquena County

Board of Education,

363 F.2d 749 (Sth Cir. 1966)... cccccceeeel3

Brandon v. Board of Education,

635 F.2d 971 (2d Cir. 1980),

cert. denied,

See Doe BESS CEPSLp cccccceccoccccccesccee4S

Burnside v. Byars,

DOs Feae Fee CSCR Cig. B9S6) cccccccsceccesshd

» 44 @

Clark v. Community for

Creative Non-Violence,

. 7 iwed¢bwetene dsee0ne eee

Fowler v. Rhode Island,

345 U.S- 67 Dn 2666666600466666000006605

Gilfillan v. City of

Philadelphia,

637 F.2d 924 (3d Cir. 1980),

cert. denied,

451 U.S. 987 (1981)... ccccccccvecveeeveelS

Hague v. CIO,

307 U.S- 496 PERO cccccoceococooseeoeeosoas

Heffron v. ISKCON,

cc ceeenseeeceerne

Larkin v. Grendel's Den,

459 U.S. IT16 (1982)... cc wwe ween ee cece e dy 3

Linmark Associates v. Township

of Willingboro,

431 U.S. 85 pg, Err TTrrrrrereriery ff.

Lowe v. City of Eugene,

254 Or. 518, 451 P.2d 117,

op. withdrawn, 459

P.2d 222 (Or.), further

reh'g, 463 P.2d 360

Or. 1969), cert. denied,

397 U.S. 1042 (1970),

vacated under changed

circumstances sub nom.

Eugene Sand & Gravel, Inc.

v. City of Eugene,

276 Or. 1007, 558 P.2d 338 (1976)......44.-6

Lynch v. Donnelly,

79 L.Ed. 2d 604 (1984).....eeeeeeee ee sPassim

- iii -

INTRODUCTION AND SUMMARY OF ARGUMENT

This case, which raises the question of

whether private persons may compel a

municipality to permit the display of a

Nativity scene measuring nine feet by six

feet by three feet on public land for an

extended period of time during the Christmas

season, illustrates a tension between the

Free Speech Clause and the Establishment

Clause of the First Amendment.

The Court's approach in cases involving

a Similar tension between the Free Exercise

and Establishment Clauses has been to avoid a

doctrinal formulation which subordinates one

clause to another. E.g., Larkin v. Grendel's

extent possible, respects the core values

underlying each clause. Compare, e.g.,

Larkin v. Grendel's Den, supra, and Stone v.

Graham, 449 U.S. 39 (1980), with Widmar v.

Vincent, 454 U.S. 263 (1981). Such an

approach, amici believe, is the proper method

of resolving this case.

Respect for the core values of the Free

Speech Clause compels a recognition that

speech about religious themes is clearly

entitled to First Amendment protection.

Widmar v. Vincent, supra. Moreover, respect

Den, 459 U.S. 116 (1982); Thomas v. Review

Board, 450 U.S. 707 (1981); Wisconsin v.

Yoder, 406 U.S. 205 (1972). See Welsh v.

United States, 398 U.S. 333, 356-57 (1970)

(Harlan, J., concurring). Instead, the Court

has sought a resolution which, to the fullest

for the communicative significance of symbols

compels a recognition that the display of

religious symbols is highly protected

communicative activity precisely because

symbols are often a more powerful method of

communication than purely verbal speech.

Spence v. Washington, 418 U.S. 405 (1974);

Tinker v. Des Moines Independent Community

School District, 393 U.S. 503 (1969);

Stromberg v. California, 283 U.S. 359 (1931).

Where, however, the display of religious

symbols on public land poses a danger of the

appearance of state endorsement of the

religious message, respect for the core

values of the Establishment Clause compels a

recognition that a municipality may (and in

certain circumstances must) decline to permit

certain sectarian religious displays on

public land.

In those settings where the appearance

of government endorsement of religion cannot

be demonstrated by articulable facts, no

countervailing Establishment Clause concern

exists, and the Free Speech Clause fully

protects the private display of religious

symbols on public property. Widmar v.

Vincent, supra; Fowler v. Rhode Island, 345

U.S. 67 (1953); Brandon v. Board of

Education, 635 F.2d 971 (2d Cir. 1980), cert.

denied, 454 U.S. 1123 (1981); O'Hair v.

Andrus, 613 F.2d 931 (D.C. Cir. 1979).

Thus, in Widmar v. Vincent, Supra, the

use by a student group of a university class-

room for religious activities prior to the

opening of the school day was deemed protect-

ed speech precisely because, in a university

setting, permitting religious speech in one

unused classroom could not reasonably be

perceived as an endorsement of religion.

Similarly, in O'Hair v. Andrus, supra,

permitting the celebration of a Papal Mass on

the Mall was deemed permissible because,

given the obvious lack of an appropriate

alternative site, pe-mitting the use of

public land could not fairly be viewed as

1

anything more than religious toleration.

Conversely, when the risk of an

1 A fortiori, when private religious speech takes

place on private property, no threat of an appearance

of public endorsement exists. Accordingly, the

private display of religious symbols on private land

is fully protected by Free Speech principles. Cf.

Linmark Associates v. Township of Willingboro, 431

U.S. 85 (1977).

appearance of government linkage with

religion is clear, as it is in the context of

permanent or semi-permanent displays by

private persons of religious symbols on

public land, respect for Establishment Clause

values would compel -- not merely justify --

a prohibition on the displays.

Thus, in ACLU v. Rabun County Chamber of

Commerce, 510 F. Supp. 886 (N.D. Ga. 1981),

aff'd and remanded, 678 F.2d 1379 (llth Cir.

1982), aff'd and remanded per curiam on

reh'g, 698 F.2d 1098 (llth Cir. 1983), and

Lowe v. City of Eugene, 254 Or. 518, 451 P.2d

117, op. withdrawn, 459 P.2d 222 (Or.),

further reh'g, 463 P.2d 360 (Or. 1969), cert.

denied, 397 U.S. 1042 (1970), vacated under

changed circumstances sub nom. Eugene Sand &

Gravel, Inc. v. City of Eugene, 276 Or. 1007,

558 P.2d 338 (1976), courts ruled that the

permanent display of privately owned crosses

on public land constituted a violation of the

Establishment Clause. See also Stone v.

Graham, 449 U.S. 39 (1980) (per curiam); f.

\

Tudor v. Board of Education, 14 N.J. 31, 100

A.2d 857 (1953) (private distribution of

Gideon Bibles on school property violates

Establishment Clause), cert. denied, 348 U.S.

816 (1954).

Where, as here, a municipality has

determined that a given religious display on

public land for a two-week period during the

Christmas season would be destructive of

Establishment Clause values because it would

be perceived by many as improperly linking

religion and government, the imperative to

respect Establishment as well as Free Speech

values argues that the municipality's

judgment be upheld, since the judgment was

based on an articulable set of facts

Gemonstrating a substantial danger to

Establishment Clause values. Indeed, given

the factors discussed infra at 18-23, amici

believe that were Scarsdale to have permitted

the display, it would have been in violation

of the Establishment Clause.

ARGUMENT

A MUNICIPALITY MUST REFUSE TO

PERMIT PUBLIC LAND TO BE USED FOR

THE DISPLAY OF RELIGIOUS SYMBOLS

WHICH WOULD BE VIOLATIVE OF THE

ESTABLISHMENT CLAUSE IF DISPLAYED

BY THE MUNICIPALITY ITSELF WHEN,

AS HERE, SUBSTANTIAL DANGER

EXISTS THAT THE DISPLAY WILL

APPEAR TO LEND THE IMPRIMATUR OF

THE STATE TO RELIGION

In Lynch v. Donnelly, 79 L.Ed.2d 604

(1984), this Court ruled that the inclusion

of a creche by a municipality in a

comprehensive holiday display including

numerous traditional secular symbols of the

Christmas season, such as Christmas trees,

reindeer, Santa Claus, banners, toys and

colored lights, neither evinced a purpose to

advance religion nor had the forbidden effect

of endorsing religion. Accordingly, this

Court declined to override the municipality's

decision that display of the creche would not

violate Establishment Clause values. In

Lynch, both the Chief Justice and Justice

O'Connor, concurring, stressed the fact-bound

nature of the Court's decision. Lynch v.

Donnelly, 79 L.Ed.2d at 608, 614, 622-23.

Each noted that government displays which

treated religious symbols not merely as one

among many symbols of the holiday season, but

as an undue expression of the holiday's

religious significance, would cross the line

from neutrality to endorsement and, thus,

would violate the Establishment Clause. Not

Surprisingly, therefore, in the wake of

Lynch, lower courts have enjoined municipal

displays which have unduly emphasized the

religious nature of the holiday. See, e.g.,

ACLU v. City of Birmingham, 588 F. Supp. 1337

(E.D. Mich. 1984).

Respondents candidly concede that,

unlike the display in Lynch, the display at

issue in this case consists solely of a

sectarian religious symbol and is not part of

a general attempt to display the traditional

symbols of the holiday season -- secular and

religious alike. Pet. App. 49a n. 14.

Moreover, they concede that the use of public

land is indispensable to the “ecumenical"

content of their message that Christmas is a

Christian religious holiday, amply justifying

the district court's finding that "an aura of

Village approval" of their religious message

is precisely what respondents sought to

convey. Pet. App. 57a.

Given the emphasis placed by the Lynch

majority on the association of the creche

with secular elements in holding that the

display in that case had neither the purpose

nor effect of endorsing religion, it seems

clear that if the Village of Scarsdale sought

to display the creche sought by respondents

as an “ecumenical” symbol of Christmas to

remind its residents that Christmas remains a

Christian holiday, Scarsdale would

undoubtedly violate the Establishment

Clause. The issue posed by this case is

whether a private group can compel Scarsdale

to permit the erection of a creche on public

land, designed to convey precisely such a

sectarian message, despite Scarsdale's fear

that the display will be perceived as

government endorsement of a sectarian view of

Christmas.

2 Thus, this case does not involve the power of a

municipality to restrict speakers engaged in

communicative activity that does not implicate or

endanger Establishment Clause values. It is the

existence of two clauses of the First Amendment --

Free Speech and Establishment -- tending in different

directions that gives this case its uniquely difficult

cast. Were the speech at issue in this case not

calculated to erode Establishment Clause values, the

public forum analysis of the Second Circuit would,

amici believe, be fully correct. In particular, we do

not agree with the petitioners that government,

without any rules and on the basis of vague and ill-

defined interests, has discretion to pick and choose

among those non-religious symbols which Americans may

display in public fora. To be sure, there may be a

role for time, place, and manner regulations; but

Scarsdale has not seen fit to promulgate any. Compare

Shuttlesworth v. City of Birmingham, 394 U.S. 147

(1969), with Clark v. Community for Creative Non-

Violence, 82 L.Ed.2d 221 (1984).

» ih @

In effect, this case poses the obverse

of Lynch. In Lynch, the Court upheld a

municipal decision that a given display by a

municipality would have neither the purpose

nor effect of appearing to place the

imprimatur of the state on the Christian

doctrine of Divine Birth. In this case, a

municipality has made a contrary decision,

fearing that certain religious displays on

public land, even if privately sponsored,

would appear to place the prestige of the

government behind a given sectarian

message.

Amici believe that while the private

display of religious symbols on private

property is entitled to full protection under

the Free Speech Clause, and while private

religious speech on public property is

undoubtedly entitled to substantial First

Amendment protection, the Village of

Scarsdale retains power to safeguard

Establishment Clause values by declining to

permit an overtly religious display on public

land for an extended period of time under

circumstances posing a substantial danger of

an appearance of religious endorsement. Cf.

Tinker v. Des Moines Independent Community

School District, 393 U.S. 503, 509 (1969);

compare, e.g., Burnside v. Byars, 363 F.2d

744 (Sth Cir. 1966) (cited approvingly in

Tinker; finding “substantial risk of

disruption" test not met), with Blackwell v.

Issaguena County Board of Education, 363 F.2d

749 (5th Cir. 1966) (also cited in Tinker;

finding substantial risk of disruption).

Of course, not every display of a

religious symbol on public land carries with

it a danger of appearing to place the

imprimatur of the State on religion. For

example, where a religious display takes

place in the context of a religious

e 13 -

observance utilizing public land as the only

convenient gathering place, as in O'Hair v.

Andrus, supra, the danger of an appearance of

government endorsement of religion is not

sufficiently great to implicate Establishment

Clause values.? As in O'Hair, when no

convenient private site exists for a given

religious display, permitting public space to

be utilized for the display should be

perceived by any reasonable observer not as

appearing to endorse religion, but as an

understandable attempt to permit the free

exercise of religion. O'Hair v. Andrus,

supra.* Similarly, when a religious event

3 The ACLU filed a brief in support of the federal

government in O'Hair, arguing that allowance of the

open-air Papal Mass on public property in that case

was required by the free speech clause and raised no

substantial risk of governmental imprimatur. State-

supported chaplains in the military and in prisons are

permissible for much the same reason. See, e.g.,

Abington School Dis‘ rict v. Schempp, 374 U.S. 203,

296, 396 (1962) (concurring opinions); id. at 309

(dissenting opinion); Anderson v. Laird, 466 F.2d 283,

298 (D.C. Cir.) (Leventhal, J., concurring), cert.

denied, 409 U.S. 1076 (1972).

takes place in a public forum in the context

of numerous contemporaneous secular uses, the

danger of an appearance of endorsement is

insufficient to justify a limitation on

religious speech. Widmar v. Vincent, supra;

Heffron v. ISKCON, 452 U.S. 640 (1981).

Thus, religiously oriented events such as

marches, demonstrations, leafletting, and the

like taking place in a public forum would

raise no substantial or even colorable risk

of imprimatur.

Where, however, a private religious

display appropriates a public space for an

extended period of time, neither a pro-forma

4 Of course, where the government adds valuable

services to religious speech beyond those granted to

other non-religious speakers, the Establishment Clause

is violated. Thus, in Gilfillan v. City of

Philadelphia, 637 F.2d 924 (3d Cir. 1980), cert.

denied, 451 U.S. 987 (1981), the Court agreed (at the

ACLU's urging) that the city properly allowed a Papal

Mass on public property, but held that the city

violated the First Amendment by spending more than

$200,000 for platforms for the Mass, religious choir,

and other extraordinary assistance,

disclaimer nor the concept of public forum

removes the very real danger that members of

the public will perceive the display as

placing the imprimatur of the state on

religion in general, to say nothing of the

particular dogma involved. Given the obvious

concerns of the Founders, such a danger of

appearing to endorse religion justifies, and

in some circumstances obligates, a

municipality in refusing to turn over its

public spaces for such extended religious

displays, especially when fully adequate

private sites are available.

Thus, although the streets and parks

have "time out of mind" been places open to

the exercise of free speech, Hague v. CIO,

307 U.S. 496, 515 (1939) (Roberts, J.),

surely the dominant churches in every city,

village and hamlet throughout the nation may

not compel, on free speech grounds, their

towns to display large lighted crosses in

e 16 «

om ee a el

public squares and parks at the center of

town. To put it another way, the

Establishment Clause precludes American

cities from being forced to emulate Rio de

Janeiro's public statue of Christ atop

Sugarloaf Mountain. Where, as here,

religious adherents eschew available private

spaces for their display and, instead, insist

upon displaying religious symbols for an

extended period of time on public property

not subject to a variety of complementary

secular uses, the perception (and, as the

district court found, the intention Pet. App.

S57a,) is not one of fostering free exercise,

but rather of insisting upon an appearance of

public endorsement.

The line between religious speech that

is absolutely protected by the Free Speech

Clause and religious speech that is subject

to this minimal degree of regulation to avoid

violating the Establishment Clause is

undoubtedly a subtle one. However, the

adoption of subtle lines is necessary to

preserve both sets of values embedded in the

Establishment and Free Speech Clauses of the

First Amendment...

On the record in this case, the line is

not difficult to draw. Indeed, were

Scarsdale to have permitted the display, it

would have violated the Establishment Clause.

First, the display is avowedly and

unabashedly sectarian. Unlixe the display at

issue in Lynch, no argument exists that the

Scarsdale display is merely part of a general

attempt to celebrate the holiday season by

exhibiting its many symbols. The Scarsdale

nativity scene stands unadorned by any

secular trappings. Cf. Lynch v. Donnelly,

Supra.

Second, the subjective intention of the

respondents is to convey a sectarian

message. It is the very purpose of the

Sa Re NR el a al he A ke gt

display to remind the residents of Scarsdale

that, despite governmental recognition as a

national secular festival, Christmas remains

a Christian holiday.

Third, respondents' decision to insist

upon a public platform for the creche,

despite the existence of numerous private

alternatives, is an attempt to assert the

official status of Christmas as a national

holiday of Christian dimensions; not merely a

secular celebration of shared Western values.

Fourth, the proximity of the creche to

Scarsdale's War Memorial, a public monument

erected and maintained by the Village,

powerfully reinforces the risk of an

appearance of governmental endorsement of the

creche's sectarian message.

Fifth, the dearth of contemporaneous

secular events utilizing the public land in

question increases the risk of an appearance

of endorsement. Unlike the numerous

contemporaneous secular uses which surrounded

the religious speech in Widmar and the

contemporaneously displayed secular objects

in Lynch, respondents' display stands alone,

thus increasing the danger of public equation

of extended presence with endorsement.

Sixth, the existence of numerous obvious

alternative private sites increases the

danger of an appearance of government

endorsement. Unlike Widmar and O'Hair, where

no alternative private sites existed, the use

of public land for an extended religious

display cannot be explained as a neutral act

of toleration. Rather, it will be perceived

by many -- indeed, respondents hope that it

will be so perceived -- as an expression of

government support for religion.

Seventh, the unfortunate history of

religious polarization in Scarsdale over the

issue of whether to permit the creche makes

it clear that a substantial segment of the

community, both for and against the display,

views the decision whether to permit it as an

indication of government support for the

religious message involved. Unlike the

Situation in Lynch, the creche issue had

divided Scarsdale on religious lines for over

a decade before the Village trustees sought

to end the division by transferring the

display to private premises, and well before

this litigation commenced.

Eighth, the lack of pre-existing rules

and regulations in Scarsdale governing access

to public land for free speech purposes

renders the decision to permit or to deny the

display an ad hoc exercise in subjective

decision-making, making it all the more

likely that a decision to permit the creche

would be viewed as an expression of

government support for its message. Were

areas of Scarsdale's parks set aside as

genuine public fora and utilized as such by

the community, the danger that a religious

display, as one of a multitude of

contemporaneous secular uses, would be

perceived as an endorsement would be

materially decreased.

Ninth, the size, duration, and timing of

the display, coupled with the lack of a

meaningful disclaimer,” exacerbated the risk

that members of the public would view the

display as a government endorsement of the

Christian version of Christmas.

Moreover, the decision to ban the

display frees Scarsdale from the very

difficult question of whether simultaneous

and divisive private displays of other sects'

religious symbols -- to say nothing of

> the display at issue in this case stands in the

midst of a traffic circle and is designed to be viewed

from an automobile. Moreover, the display is lit and

is designed to be viewed at night. While it is

doubtful that any disclaimer would be sufficient to

eliminate the appearance of endorsement, surely an

unlit sign which is not visible from a passing

automobile was insufficient.

» 22 «

ee oe aoe

ee

displays by agnostics and atheists -- must

also be permitted.

In view of the confluence of these

factors and given the need to accommodate

both Establishment and Free Speech values,

Scarsdale's decision to confine the display

to equally prominent private spaces was not

only a permissible exercise of power; it was

a required one.

CONCLUSION

For the above-cited reasons, the

judgment of the United States Court of

Appeals for the Second Circuit should be

reversed.

Respectfully submitted,

BURT NEUBORNE

(Counsel of Record)

CHARLES S. SIMS

American Civil Liberties

Union Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9800

» 23 «

November 29,

1984

NORMAN DORSEN

New York University

School of Law

40 Washington Square South

New York, New York 10012

(212) 598-2555

STEVEN R. SHAPIRO

New York Civil Liberties

Union

84 Fifth Avenue

New York, New York 10011

(212) 924-8700

SCHULTE, ROTH & ZABEL

460 Park Avenue

New York, New York 10022

(212) 758-0404