Amicus Curiae Brief — City of Birmingham v. American Civil Liberties Union

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Supreme Court, U.S.

FILED

J) OCT 9 1986

ce me

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

CITY OF BIRMINGHAM,

Petitioner,

AMERICAN CIVIL LIBERTIES UNION

and MICKI LEVIN,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF OF AMICUS CURIAE CHRISTIAN LEGAL

SOCIETY IN SUPPORT OF THE PETITION

FOR A WRIT OF CERTIORARI

MICHAEL J. WOODRUFF

Counsel of Record

SAMUEL E. ERICSSON

KIMBERLEE W. COLBY

MICHAEL A. PAULSEN

Post Office Box 1492

Merrifield, Virginia 22116

(703) 560-7314

WILSON - Epzs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIABE ................................ 1

RPI GOUT PR MMB UNIT, ercccictececsscectnecsesnevcessesnenscerse 2

pA UNS oS SSE an Ly na a teen 3

THE DECISION BELOW IS CONTRARY TO

LYNCH v. DONNELLY, 465 U.S. 668 (1984),

AND SYMPTOMATIC OF A TREND AMONG

LOWER COURTS TO READ LYNCH AS LIM-

as Ro By 6, . SAA eee 3

GRRE I, sx ccnncccnrsccheilgaiccinipideniicbasnieiaercbimmuminipianined anita 9

TABLE OF AUTHORITIES

Cases: Page

Abortion Rights Mobilization v. Baker, 80 Civ.

5590 (S.D.N.Y. 1986), petition for certiorari

denied, 55 U.S.L.W. 3235 (U.S. Oct. 6, 1986)

CPR BB-BOY asic cinssciniss ctkccss eee 5

American Baptist Churches v. Reagan, 786 F.2d

194 (3rd Cir. 1986), petition for cert. filed, 55

U.S.L.W. 3094 (U.S. July 24, 1986) (No. 86-

D | | nes EEE Meme Mer eT a 8

American Civil Liberties Union v. City of Birming-

ham, 791 F.2d 1561 (6th Cir. 1986) ~.................... passim

American Civil Liberties Union v. Rabun County

Chamber of Commerce, 698 F.2d 1098 (11th

tA) Mani Re aie Nene A Ao No

Barrows v. Jackson, 346 U.S. 249 (1953) —........... Ai

City of St. Charles v. American Civil Liberties

Union, 794 F.2d 265 (7th Cir. 1986), petition

for cert. filed, 55 U.S.L.W. 3175 (U.S. Sept. 2,

TORR) Cie: ED picccsteeteceee sateen 4,5,6,8

Conrad v. City and County of Denver,

(Colo.), slip op. No. 84SA313 (September

DBI cnevicviserniccnstitieccasereigienhesenaeaas 4,7

Craig v. Boren, 429 U.S. 190 (1976) ............2202........ 8

Flast v. Cohen, 392 U.S. 88 (1968) .......................... 8

Hawley v. City of Cleveland, 773 F.2d 736 (6th

aon

Cir. 1985), cert. denied, 106 S.Ct. 1266 (1986)... 5

Libin v. Town of Greenwich, 625 F. Supp. 393 (D.

CO, ETI Desc cccinsnncunislnnssin scclsonandedivaenainth eamemnrnaatie

Lynch v. Donnelly, 465 U.S. 668 (1984) 0.000.000... 2, 3, 4,7

McCreary v. Stone, 739 F.2d 716 (2d Cir. 1984),

aff’d by an equally divided Court sub nom. Board

of Trustees of Village of Scarsdale v. McCreary,

472 USS. , 105 S.Ct. 1859 (1985) ................... 4

Pierce v. Society of Sisters, 268 U.S. 510 (1925)... 8

School District of Abington Township v. Schempp,

gg BP Gere nn nn PEE NCR i, SEES 5 : f

Valley Forge Christian College v. Americans

pete, 44 US: 6s ee 6, 7,8

Wallace v. Jaffree, 105 S.Ct. 2479 (1985) .....0020022.... 8

Other authorities:

Rocky Mountain News, September 11, 1986 ............ 7

IN THE

Suprenve Court of the United States

OCTOBER TERM, 1986

No. 86-389

CITY OF BIRMINGHAM,

Petitioner,

Vv.

AMERICAN CIVIL LIBERTIES UNION

and MICKI LEVIN,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF OF AMICUS CURIAE CHRISTIAN LEGAL

SOCIETY IN SUPPORT OF THE PETITION

FOR A WRIT OF CERTIORARI

INTEREST OF AMICUS CURIAE

The Christian Legal Society is a non-profit Christian

professional association, founded in 1961, with a present

membership of 3,500 judges, attorneys, law professors,

and law students. Concerned about constitutional rights,

it founded the Center for Law and Religious Freedom in

1975 to protect and promote the freedoms guaranteed by

the First Amendment through advocacy and education.

The letters from the parties consenting to the filing of

this brief are submitted herewith to the Clerk pursuant

to Rule 36.1.

SUMMARY OF ARGUMENT

The petition in No. 86-389, American Civil Liberties

Union v. City of Birmingham, 791 F.2d 1561 (6th Cir.

1986), presents a straightforward question of the ap-

plication of this Court’s decision in Lynch v. Donnelly,

465 U.S. 668 (1984). The Court of Appeals has uncon-

vincingly distinguished Lynch in such a manner as to

suggest that the legal rationale of the Lynch holding is

inapplicable beyond the particular facts of that case.

Amici support the granting of a writ of certiorari to

review the judgment below on the grounds that it is con-

trary to Lynch and, perhaps more importantly, that it is

representative of a disturbing trend among lower courts

to refuse to follow this Court’s opinion in Lynch in

closely analogous situations.

In addition, amici wish to note for the Court similari-

ties and differences between the issues in this case and

the issues present in several other petitions for certiorari

now before this Court, as the relationships among these

cases may be important in determining whether or not to

grant the writ in No. 86-389. Specifically, the genre of

cases typified by this lawsuit—Establishment Clause chal-

lenges to symbolic or ceremonial references to religion—

share frequently latent (and occasionally obvious) prob-

lems of justiciability not considered in Lynch v. Don-

nelly. The jurisdictional question of standing to raise

such attacks on government actions under the Establish-

ment Clause is a recurring and unsettled ore, the resolu-

tion of which could have lasting impact on the growing

use of federal courts as a forum to air grievances about

state symbolic or traditional uses of religion via lawsuits

brought by persons who have suffered no cognizable in-

jury as a result of such practices.

ARGUMENT

THE DECISION BELOW IS CONTRARY TO LYNCH

v. DONNELLY, 465 U.S. 668 (1984), AND SYMPTO-

MATIC OF A TREND AMONG LOWER COURTS TO

READ LYNCH AS LIMITED TO ITS FACTS.

1. The facts of the instant case are nearly identical

to those presented in Lynch: A municipality has erected

and maintained a nativity scene during the Christmas

holiday season. While the majority below and the plain-

tiffs’ complaint referred to the creche as “unadorned”,

the dissent below accurately notes the presence of a

light display, and a Christmas tree in the backdrop of the

creche (Pet. App. at A21, n.4 (Nelson, J., dissenting) ),

and chides the majority for creating a “St. Nicholas, too”

test as the sole basis for distinguishing this Court’s hold-

ing in Lynch. Id. at A18. (Nelson, J., dissenting) .1

The panel majority’s proffered distinction based upon

minor factual differences is wholly unpersuasive. The

distinction rests on the notion that the outcome of Lynch

somehow turned on the “neutralization” of the religious

content of the creche by virtue of the particularly clut-

tered, secular physical environs in which it stood—a dis-

play including plastic elves, a sleigh, reindeer and bells.

However, this characterization of the holding was empho-

tically rejected by the Lynch majority. 465 U.S. at 685

n.12. The context in which the creche was to be con-

sidered for Establishment Clause purposes was not the

context of the display but the setting of the creche in the

context of the Christmas holiday season. Jd. at 679; id.

at 680; id. at 685.

1 Another possible factual distinction, not relied upon by the

majority below, is the fact that the Birmingham creche was on

public property, while the Lynch creche was on private property

but maintained at public expense.

Nonetheless, with a few notable exceptions’, it has

been the above mischaracterization of the holding of

Lynch which has misled lower courts in their treatment

of this recurrent issue. Were the Court of Appeals’ hold-

ing in Birmingham an isolated occurrence, it might be

thought aberrational and review by this Court would be

unnecessary so soon after Lynch. Regrettably, however,

the decision below exemplifies a trend among lower

courts, which have read Lynch in an unduly narrow

fashion, refusing to follow it outside of its own facts.

See, e.g., City of St. Charles v. American Civil Liberties

Union, 794 F.2d 265 (7th Cir. 1986), petition for cert.

filed, 55 U.S.L.W. 3175, No. 86-351; Libin v. Town of

Greenwich, 625 F.Supp. 393 (D.Conn. 1986) (enjoining

inclusion of cross in municipal Christmas display).

This case presents no occasion for an extensive dis-

cussion of Establishment Clause case law or doctrine.

The relevant considerations were evaluated at length in

Lynch. But it is necessary to make clear to local officials,

generally anxious to avoid expensive litigation over such

matters, that this Court has not adopted a “St. Nicholas,

too” test for the constitutionality of municipal Christ-

mas displays that include a nativity scene. The issues in-

volved are so clearly settled, and the decision below so

clearly contrary to those principles, that this case may

be an appropriate candidate for granting the writ and

2 McCreary w. Stone, 739 F.2d 716 (2d Cir. 1984), aff'd by an

equally divided Court sub nom. Board of Trustees of Village of

Scarsdale v. McCreary, 472 U.S. ——, 105 S.Ct. 1859 (1985).

Cf. Conrad v. City and County of Denver, P.2d —— (Colo.),

Slip op. No. 84SA313 (September 8, 1986) (finding Lynch persua-

sive, Colorado Supreme Court finds that municipal creche does not

violate state constitution). There is no necessary “conflict” among

lower courts within the meaning of this Court’s Rules 17.1(a) and

(c), as the resolution of McCreary turned primarily on a “public

forum” question and Conrad decided only a question of state con-

stitutional law. Nonetheless, it is clear that the lower courts have

not been uniform in their treatment of the meaning and scope of

the Lynch decision.

summarily reversing the judgment below as being con-

trary to Lynch. Alternatively, the writ should be granted

and the case set for full briefing and argument.

2. We note that another petition, No. 86-351, City of

St. Charles v. American Civil Liberties Union, presenting

similar issues in a slightly different factual context—the

inclusion of a lighted cross as part of a municipal

Christmas display—is also before this Court. We suggest

that if the writ is granted in the Birmingham case, it

should be granted in the St. Charles case as well, with

the two cases set for joint argument. Were review

granted only in Birmingham (and the judgment below

ultimately reversed), the unintended impression might

be conveyed of a “creche-cross” bright line distinction.

This is not to say that the two cases might not be

capable of different dispositions, but only to say that such

different outcomes ought not be produced sub silentio

through the discretionary review process.

We suggest further that, should this Court grant the

writ in either or both cases, the parties be directed to

brief the threshold jurisdictional issues of standing to

sue. This question is especially problematic in the St.

Charles case and should not go unnoticed simply be-

cause it is not raised in the petition.

Indeed, the jurisdictional question—explicit in St.

Charles and implied in Birmingham—may well be of

greater ongoing importance to the conduct of litigation

in this area than would a decision on the merits of

either case. Lower federal court decisions already reflect

a good deal of confusion in this area, recognizing stand-

ing on exceptional and peculiar grounds in Establishment

Clause cases. See ARM v. Baker, 80 Civ. 5590 (S.D.N.Y.

1986), petition for certiorari denied, 55 U.S.L.W. 3235

(U.S. October 6, 1986) (No. 86-157) (recognizing special

“Establishment Clause standing” to sue the government

to compel it to take certain policy action against a reli-

gious group); Hawley v. City of Cleveland, 773 F.2d 736

(6th Cir. 1985), cert. denied, 106 S.Ct. 1266 (1986)

(standing to challenge privately-run chapel in rented

space at airport based on abridgement of use and en-

joyment of airport terminal and avoidance of unwelcome

religious practices) ; American Civil Liberties Union v.

Rabun County Chamber of Commerce, 698 F.2d 1098,

1102-09 (11th Cir. 1983).

The “sense” which the Seventh Circuit’s opinion in

St. Charles endeavors to make of this trend is plainly

inconsistent with this Court’s holding in Valley Forge

Christian College v. Americans United, 454 U.S. 464

(1982). Judge Posner’s opinion for the Seventh Cir-

cuit devotes several pages to its conclusion that at least

one of the plaintiffs had standing to sue based on her

decision to drive a different route at night to avoid see-

ing the cross. Judge Posner reasons that were such

an injury, “tenuous though it be,” insufficient to confer

standing, many Establishment Clause disputes would be

nonjusticiable, since “no one would have standing.” No.

86-351, App. at 4a-5a. Recognizing that not all alleged

constitutional violations are justiciable, Judge Posner

asserts that this Court’s cases recognize what amounts

to an exception to traditional Article III standing re-

quirements in Establishment Clause cases.

The mischief such a view can work in church-state

litigation is manifest. Establishment Clause cases _ be-

come not vehicles for vindication of individual rights of

religious freedom from the coercive pressures of the

majority but special platforms from which to complain

about government actions with which one disagrees.

Such suits degrade the lofty purposes of the Establish-

ment Clause. While these disputes often generate con-

siderable acrimony within their communities, the acri-

mony seems less related to a concern on the part of

either side about their religious liberty, but more about

the insistence of the other side on having its own way.*

Those bringing suit resent the choice of the community

(usually arrived at quite informally); the community

takes offense at litigation by persons whose chief com-

plaint is that the display offends their sense of the proper

separation of church and state. Cf., Valley Forge, 454

U.S. at 482-87. Perhaps the intolerance and stubbornness

of each side is rightly condemned by the other. But the

intensity of emotions on both sides does not itself gen-

erate a dispute of constitutional dimension.

It is because of the acrimony that such suits arouse

and the extraordinarily sensitive nature of the issues in-

volved that it is essential that such suits be brought by

a proper plaintiff. The issues would then be properly

framed to address a genuine question of deprivation of

religious liberty, not an academically interesting question

of whether some government act is ultra vires.

Several points need to be clarified in this regard.

First, there is no general “Establishment Clause excep-

tion” to the fundamental requirements of Article III

standing, and, in light of Valley Forge, the dictum in

School District of Abington v. Schempp, 374 U.S. 203

(1963), cannot be read to have created one. Second, the

“injury” that results from a violation of the Establish-

men Clause is an infringement to a species of religious

liberty—a burden on the right of persons to exercise the

religion of their choice or none at all, or the communica-

tion by the state of a message of disapproval of that

% As a Denver newspaper editorial described it, commenting on

the final resolution of the Conrad case, “[t]he lawsuit challenging

the nativity scene was actually more divisive than the religious

display itself. Yet this is typical of such lawsuits. They represent

a streak of unreasonableness among a very few people who seek to

cleanse every last speck of religious connotation from the public

domain.” Rocky Mountain News, Thursday, September 11, 1986,

p. 66 col. 3. See also Lynch, 465 U.S. at 684.

2 LTT NL, PILL AIT NS AIT SMI TNE SEIN

choice.* Third, in certain circumstances third parties

may assert this religious liberty interest of others in con-

junction with some other “actual injury” to themselves,

but only in those limited circumstances when third-party

standing is recognized generally, see, e.g., Craig v. Boren,

429 U.S. 190 (1976); Barrows v. Jackson, 346 U.S. 249

(1953) ; Pierce v. Society of Sisters, 268 U.S. 510 (1925) ;

cf. Flast v. Cohen, 392 U.S. 83 (1968),° such circum-

stances not including those where the asserted third-

party injury is simply some restatement of the psychic

injury suffered by seeing supposed violations of the re-

ligious liberty of others, rejected in Valley Forge.

The record in St. Charles obviously presents the jus-

ticiability problem in sharper relief than does the Birm-

ingham record. Nonetheless, the issue is presented by

both cases in that each plaintiff alleges not a violation

of his or her own religious liberty through government

coercion or discrimination but only his or her subjective

belief that the display in question violates the Establish-

ment Clause. The issue whether such claims are justici-

able under Valley Forge is worthy of this Court’s review.

4 See Wallace v. Jaffree, 105 S.Ct. 2479, 2497 (1985) (O’Connor,

J., concurring in the judgment) (government “endorsement” of a

particular religious practice “infringes the religious liberty of the

non-adherent” through indirect coercive pressure upon religious

minorities to conform).

5 The holding in Flast can be viewed in terms of third-party

standing. Taxpayer standing was recognized for certain kinds of

Establishment Clause cases on the premise (somewhat tenuous, we

believe) that a taxpayer suffers redressable injury by virtue of

infringement of someone else’s religious freedom, and that tax-

payers are appropriate parties to assert the rights of such per-

sons. Taxpayer standing was unavailable to plaintiffs in St. Charles,

as no government funds were alleged to have supported the cross-

shaped lighting display. No. 86-351. Pet. App. at 3a.

These issues are implicated in yet another petition before the

Court. American Baptist Churches v. Reagan, 786 F.2d 194 (3d

Cir. 1986), petition for cert. filed, 55 U.S.L.W. 3094 (U.S. July 24,

1986) (No. 86-113) ).

ELLIE LT ALI a NL AERO BEEN TY OM NEEL LE,. MATE BGT REET EIE

CONCLUSION

For these reasons, amici urge this Court to consider

the petition for certiorari in No. 86-389 together with

the petition in No. 86-351, grant the writ in both cases,

and direct the parties to brief and argue both the juris-

dictional and substantive questions in each case.

Respectfully submitted,