# Amicus Curiae Brief — Board of Trustees v. McCreary

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 915

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0053%3A09. Public record. Not legal advice.