Petition for Writ of Certiorari — Sincerely Yours, Inc. v. Cooper

Supreme Court brief2010

Ask Donna

What actually matters in this document.

Text

, WS.

FILED

0°-608 NOV 17 2009

No. Wittiam K. Suter, Ciert,

IN THE

Supreme Court of the United States

SINCERELY YOURS, INC., ET AL.,

Petitioners,

Vv.

BERTRAM COOPER, ET AL.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

PETITION FOR WRIT OF CERTIORARI

JORDAN W. LORENCE GARY MCCALEB

JEFFREY A. SHAFER ALLIANCE DEFENSE FUND

Counsel of Record 15100 N. 90th Street

ALLIANCE DEFENSE FUND Scottsdale, AZ 85260

801 G Street N.W. (480) 444-0020

Washington, D.C. 20001

(202) 393-8690 JOSEPH P. SECOLA

SECOLA LAW OFFICES

P.O. Box 5122

Brookfield, CT 06804

(203) 740-2350

Counsel for Petitioners

sore gs et th TORE SEIS CASTS AC SELLE URSA AE SSAC EMI RE ALED ASIEN

QUESTIONS PRESENTED

The Full Gospel Interdenominational Church in

Manchester, Connecticut, is one of thousands of

private entities nationwide that operate a contract

postal unit (CPU), t.e., a private property from which

postal products are sold on consignment according to

a contract with the U.S. Postal Service. The church

operates its CPU on its own property—identified as

such—and presents in that facility a number of wall-

hangings and other displays containing messages

about its various ministries. Certain patrons, fully

cognizant of the church’s operation of the CPU, of

the private status of the property, and of the church

as the source of the messages found in the CPU,

nonetheless object on Establishment Clause grounds

to the church’s speech, claiming that the church’s

speech should be legally classified as that of the

federal government because of its proximity to the

postal contract endeavor.

1. Do observers of religious speech have Article

III standing to challenge that speech on

Establishment Clause grounds merely because they

object to its presence or feel uncomfortable observing

it?

2. May the speech of a church about its own

ministries, presented on its own property, at its own

initiative, and exclusively under its own control, be

classified as speech of the federal government and

constitute a violation of the Establishment Clause?

PARTIES TO THE PROCEEDINGS

In addition to Sincerely Yours, Inc., the following

parties were defendants-appellants in the Second

Circuit and are petitioners here:

Full Gospel Interdenominational Church, Inc.

Dr. Phillip Saunders Heritage Association, Inc.

In addition to respondent Bertram Cooper who

was plaintiff-appellee in the Second Circuit, the

following parties, who were intervening appellees in

the Second Circuit, are also respondents:

Gary Chipman

Kimon N. Karath

Leslie Strong

The following parties are defendants before the

district court, were not appellants in the Second

Circuit, and are not parties in this proceeding:

United States Postal Service

John E. Potter, Postmaster General of the

United States Postal Service

Ronald G. Boyne, Postmaster of the Manchester,

Connecticut Post Office

ili

RULE 29.6 STATEMENT

Sincerely Yours, Inc. states that it is a

corporation organized and owned by Full Gospel

Interdenominational Church in the State of

Connecticut. Sincerely Yours, Inc. is not publicly

held.

Full Gospel Interdenominational Church, Inc.

states that it is a non-profit corporation in the State

of Connecticut. Full Gospel Interdenominational

Church, Inc. does not have a parent corporation and

is not publicly held.

Dr. Philip Saunders Heritage Association, Inc.

states that it is a corporation organized and owned

by Full Gospel Interdenominational Church in the

State of Connecticut. Dr. Philip Saunders Heritage

Association, Inc. is not publicly held.

TABLE OF CONTENTS

Ie FD sb nviessn tiianceverasiscsntenetinrerntncerveseren i

PARTIES TO THE PROCEEDINGS ..........ccccccccccececccsccvcece li

Ee Fe ED vise svcsicxvnesnencaccoscecenavsdesccocsessssocs iii

eC BEEN cen cccccuvocceucascececosesccoceccscoccesss vii

I a a res 1

6 REREAD PR eR ER ASO IN MN eae 2

STATEMENT OF JURISDICTION .......cc..cocccccccccecccccccosceces 3

CONSTITUTIONAL PROVISIONS AND POLICY ...........0e000- 3

STATEMENT OF THE CAGE .....<ccccocccccoccecsccccsccccoccsoscccces 3

REASONS FOR GRANTING THE WRIT...........0ccccceceecesee 14

I. RESPONDENTS DO NOT HAVE STANDING TO

SEEK RELIEF AGAINST THE CHURCH. ............00e0000- 15

A. The Second Circuit’s holding that

“feeling uncomfortable” constitutes an

injury giving rise to standing under

Article III conflicts with this Court’s

LTS TS LE RTE 15

1. Federal courts are not to serve as

forums for the airing of grievances

by concerned bystandersg...................... 17

2. “Feeling uncomfortable” is nothing

other than the psychological

consequence of observing conduct

with which one _ disagrees, a

consequence that this Court has

identified as insufficient to

constitute injury for standing under

PII 12. seeaccnbccrcasaes coacdiies eedeiweanine 19

3. This Court’s decision in Schempp

does not authorize standing for

those who report psychic discomfort

upon observing a passive religious

NN gs dn ass Cea aucnic vat din shesscueneatnceen 21

B. Cooper’s claim was moot at the time the

Second Circuit ruled that his complaint

allegations gave him standing. .................. 24

C. Intervenor Respondents lack standing

for they have not testified to having

suffered any harm from the church’s

speech, and such harm may not be

PUREE OO BE UII D, ce cnecenesesicesceciscccssscncssctace 26

D. This Court should vacate the decision

below under Munsingwear, or else hold

this case pending the outcome of

Salazar v. Buono or Boy Scouts of

America v. Barnes-Wallace.............::ceseeeeees 29

Il. THE CHURCH’S SPEECH DID NOT, AND CANNOT,

VIOLATE THE ESTABLISHMENT CLAUSE. .............. 30

A. The Court of Appeals erred in

classifying the church’s speech as the

ZOVErMMENt’s SPEECH. ............-ecccceecesseceseeeees 31

B. The Lemon test is not designed to

investigate what is not governmental ....... 35

ede aLiaibis bisebueueabeneaaaoused 37

APPENDICES

A. Opinion of the U.S. Court of Appeals for the

Second Circuit (Aug. 20, 2009).....................00 la

B. Memorandum of Decision and Order of the

U.S. District Court for the District of

Connecticut (April 18, 2007) ...........cccsscccccsscesees 1b

C. Memorandum of Decision and Order of the

U.S. District Court for the District of

Connecticut, amending judgment (August 28,

D. U.S. Const. Art. ITI, sec. 2, cl. 1; Amend. I......... ld

TABLE OF AUTHORITIES

CASES:

ACLU of Georgia v. Rabun Co. Chamber of

Commerce, Inc.,

698 F.2d 1098 (11th Cir. 1982) ..............02......... 23

ACLU Nebraska Foundation v. City of

Plattsmouth,

358 F.3d 1020 (8th Cir. 2004) ...00000. ee. 16

ACLU-NJ v. Township of Wall,

S46 F.3d B68 (Sad Cir. BOO1)......0cccccrcccerscccceoee 28-29

Adland v. Russ,

BT Oe G7 b CGCEs CAP, BOGE) oo cecccsssccccocccernssnceces 16

Agostini v. Felton,

Be eh, y REN eene nein meee roe 32

Allen v. Wright,

Be ER We CIE onsicesvcsccesecsassncvccduanss 14, 17, 20

American Civil Liberties Union of Illinois uv.

City of St. Charles,

704 F.2d 266 (7th Cir. 1086) ...........ccccccccsccesseeee 23

Arizonans for Official English v. Arizona,

PN A, MEE CIE D cassnsicniccessscccissncossasetes 24, 27, 30

Blum v. Yaretsky,

re ee I ceconnnvansavanvansciavaacion 33

vill

Books v. Elkhart Co., Ind.,

401 F.3d 857 (7th Cir, 2005) ...........cecesseeeees 16, 19

Brentwood Academy v. Tenn. Secondary

School Athletic Ass’n,

ee ee IED «5s cos cususnasencovasonsneesnacioeses 33

Bunting v. Mellen,

SE ID ssc cnhcnenicobunubavadnesessesenéeses 24

Capitol Square Review and Advisory Board uv.

Pinnette,

HEE ENED bnseccdansncecevectenndvosnencecsediae 32, 35

County of Allegheny v. American Civil

Liberties Union Greater Pittsburgh

Chapter,

OE ID saseensednsesicsscsriconcnincscaseses 13, 22

DaimlerChrysler Corp. v. Cuno,

| PR AR 17

DeFunis v. Odegaard,

ie SE ITED os cscccncssuctnaresnsccscevssosencduce 25-26

Doe v. Tangipahoa Parish School Bd.,

Oe Oe SED i siceretindericcescnsessesicnscecstisesens 29

Doremus v. Bd. of Ed. of Borough of

Hawthorne,

ST ED oo. css ccavebdceesdivenenvinannncesusets 24

Edwards v. Aguillard,

Ee Geld. BI CLOSED cvesctcceccccccescenccssesessnes oneemaeds 22

Flast v. Cohen,

BOB UTS. Ge CRG EN secteccseccvsccvcvceccccccescceees peeisoines 18

Foremaster v. City of St. George,

882 F.2d 1485 (10th Cir. 1989)..................:000 16

Freethought Soc'y of Greater Phila. v. Chester

County,

SSE FBG Bee Cee ee i isccccsscccccccscsccscscesceees. 16

FW/PBS, Inc. v. City of Dallas,

SBS UF a Be iiatrtarssecceccsccccescccscccess 28

Good News Club v. Milford Central School,

GSS Uy Fe, Pe ee acccricecconscesvsccesccceess 33, 35

Harvey v. Cobb County, Ga.,

811 F.Supp. 669 (N.D. Ga. 1993), affd 15

F.3d 1007 (TUG Cae, TOO E) ooo ccscccccccccssscsccsccccesess 23

Hawley v. City of Cleveland,

TTS FBG Tae Ce ee BED ce scccccccccsscccccvescsecces 16

In re Navy Chaplaincy,

534 F.3d 756 (D.C. Cir. 2008) .................eseccevee 21

Johanns v. Livestock Marketing Association,

B44 UB, Bile ee tertcaieceassscccssccccccccccccceess 34

Kaplan v. City of Burlington,

891 F.2d 1024 (2d Cir. 1989)...............cccceeeeeeeeee 16

Lee v. Weisman,

505 U.S. 577 (1992)................. Lo 32

Lemon v. Kurtzman,

Ee Oe IIIT <dccckninissugussncuuvtbaconousabecodaas 35

Lujan vu. Defenders of Wildlife,

Be Sr I CRE iecticescncnscenssccstcvncctovesis passim

Murray v. City of Austin,

947 F.2d 147 (65th Cir. 1991) .......................00.00e 16

National Collegiate Athletic Association ov.

Tarkanian,

es ee 6 inh tiiesnsintactetrtenesmneneneiaisent 33

O’Connor v. Washburn Univ.,

416 F.3d 1216 (10th Cir. 2005)...........000000000000.. 15

Polk County v. Dodson,

re ey IED keniccscinosdccdckcenetecccusetsansemmcatiats 33

Raines v. Byrd,

ee ET os sccctonsnscaseacmecetumeeenicemnaeee 17

Rendell-Baker v. Kohn,

ee RINE DUDE ac ane ARI 7 7 1]

Rosenberger v. Rector and Visitors of the Univ.

of Va.,

ee re oa ae 36

Saladin v. Milledgeville,

812 F.2d 687 (11th Cir. 1987) ............00.0000000000.. 16

Santa Fe Independent School District v. Doe,

ee a asuaasuanaaseas 32

Schlesinger v. Reservists Committee to Stop the

War,

Se le Be IEE osc cussacccoccossdescosccccesvesnsess 18, 20

School Dist. of Abington Twp. v. Schempp,

Ne I csncvsctienvizsinesssonsesconsisntans 21-23

Suhre v. Haywood County,

131 F.3d 1083 (4th Cir. 1997)..................... 16, 23

Trunk v. City of San Diego,

568 F. Supp. 2d 1199 (S.D. Cal. 2008).............. 20

United States v. Munsingwear, Inc.,

Sy I cseecunsneegnuleunnin 30

Valley Forge Christian College v. Americans

United for Separation of Church and

State,

ee MN 0 ID acsccecccoceodnsnsoncecarnvecseests passim

Vasquez uv. Los Angeles County,

487 F.3d 1246 (9th Cir. 2007) ....................0ece ees 15

Washegesic v. Bloomingdale Public Schools,

33 F.3d 679 (6th Cir. 1994) ......0....0.0.... Re asain 16

Zobrest v. Catalina Foothills Sch. Dist.,

a 32

INTRODUCTION

The court below ruled that a plaintiff who felt

“uncomfortable” when near religious displays on a

religious organization’s property has suffered an

injury authorizing federal court jurisdiction over his

complaint about those displays. In so ruling, the

Second Circuit followed the consensus position

among the courts of appeal that any person

harboring subjective angst over allegedly

government action may bring a federal case about

it—provided that case asserts an Establishment

Clause violation. But by validating as a cognizable

injury the ephemeral, indistinct experience of

psychological unease, and by treating Establishment

Clause claimants as exempt from the Article III

standards that apply to all other federal court

claimants, the Second Circuit’s decision conflicts

with this Court’s precedents.

This case presents to this Court an ideal vehicle

through which to clarify what constitutes injury for

Article III standing in the Establishment Clause

context. At a minimum, this case should be held

pending the outcome of the standing questions

presented in cases now before the Court, including

Salazar v. Buono, 129 S.Ct. 1313 (2009) (certiorari

granted) (argued October 7, 2009), and Boy Scouts of

America v. Barnes- Wallace, U.S. No. 08-1222 (March

31, 2009) (certiorari pending). Alternately, the

mootness of the plaintiff's claim combined with the

intervenors’ lack of standing makes this case

appropriate for vacatur under United States uv.

Munsingwear, 340 U.S. 36 (1950).

On the merits, the court below ruled that speech

of a church presented on its own property where it

operates a contract postal unit (CPU) is speech of the

federal government, and constitutes an

Establishment Clause violation because the church

presented that speech for a religious purpose.

Instead of directing its Establishment Clause

analysis to the U.S. Postal Service’s neutral

administrative terms which leave equally

unregulated the speech of all of the thousands of

private CPU operators, the Second Circuit

enigmatically applied the Lemon test to the private

speech of one particular religious contractor. The

court’s unprecedented analysis compounds errors of

classification and evaluation in conflict with

numerous decisions of this Court, and turns the

First Amendment in on itself—by imposing on a

private party a restriction that only applies to the

government.

This Court should grant review.

OPINIONS BELOW

All the decisions below are captioned Cooper v.

U.S. Postal Service. The Second Circuit’s opinion is

reported at 577 F.3d 479 (2d Cir. 2009). App. A. The

district court’s decision on summary judgment and

injunctive relief is reported at 482 F.Supp.2d 278

(D.Conn. 2007). App. B. The district court’s opinion

amending its injunction is reported at 245 F.R.D. 60

(D.Conn. 2007). App. C.

STATEMENT OF JURISDICTION

The United States Court of Appeals for the

Second Circuit issued its decision on August 20,

2009. This Court has jurisdiction under 28 U.S.C. §

1254(1).

CONSTITUTIONAL PROVISIONS AND POLICY

The text of Article III, section 2, clause 1 of the

U.S. Constitution, and of the First Amendment to

the U.S. Constitution, are set forth in Appendix D.

STATEMENT OF THE CASE

I. Material facts

The United States Postal Service administers a

nation-wide program in which it contracts with

private parties to sell postal products and services on

private property. JA334.} Such private contractors

operate what is called a “Contract Postal Unit,” or

“CPU.” The CPU program serves to expand the

number of outlets for sale of postal products while

relieving the financially-constrained Postal Service

of the expense and responsibility of maintaining a

facility and staff of employees of its own. JA310.

Over five thousand CPUs are operated by private

parties in locations as diverse as private homes,

seminaries, hardware stores, groceries, and gas

stations. App. 6a.

1 “JA” refers to the joint appendix submitted to the Second

Circuit by defendants-appellants on February 27, 2008.

A number of CPUs are operated by religious

entities, id., including sectarian universities,

seminaries, religious bookstores, camps, a Catholic

Press Society, and Catholic sisters organizations.

JA983-84. The religious character of a contracting

party is not a consideration the Postal Service deems

relevant to the qualifications for participation in the

CPU program. JA991-1013, JA1138-39, JA1042. And

the contracts that govern the relationship between

the Postal Service and CPU operators do not restrict

or otherwise regulate private religious speech on the

private property where the contract functions are

fulfilled. App. 8a, JA1050, JA132, JA991-1013.

Petitioner Sincerely Yours, Inc. (SYI), a

corporation organized and owned by petitioner Full

Gospel Interdenominational Church, operates a CPU

in the town of Manchester, Connecticut. Petitioner

Dr. Philip Saunders Heritage Association, Inc., owns

the property on which SYI operates its CPU, and is a

wholly owned subsidiary of the Full Gospel

Interdenominational Church. (Collectively,

Petitioners are referred to herein as “the church.”)

The church’s CPU operates in a storefront facility on

Main Street in Manchester, just down the road from

the main church campus. JA154, JA262. The church

operates its storefront facility for the purpose of both

providing a much-desired commercial service for the

community, JA 68-69, and serving as an outreach

and informational forum for the church’s ministries.

JA252-54.

The church’s facility is marked with various

signs identifying it as the “Sincerely Yours, Inc.

Contract Postal Unit.” App. 10a. A sign greeting

patrons inside the front door of the church’s CPU

states: “The Full Gospel Interdenominational

Church is so delighted to serve you—our community.

We are dedicated to making your visit with us a

pleasant and successful one for all of your mailing

needs. Sincerely Yours.” JA282; JA20 424. A sign

placed on the counter where transactions with the

public are conducted presents the following:

“Sincerely Yours, Inc. United States Contract Postal

Unit is operated by the Full Gospel

Interdenominational Church. Thank you for your

patronage.” (JA80, 412(aX(2).) Additionally, two

signs bearing the postal eagle identify the facility as

a “United States Post Office Contract Unit.” JA101.

Inside the facility, the church has posted a

number of photographs and other displays which

detail or otherwise exhibit its ministries. For

instance, on one wall is a framed display urging

those seeking prayer to contact the church office.

JA76-77 9 4); JA239. The church makes “prayer

cards” available that contain the name _ and

telephone number of the church, and present space

in which to write prayer requests. JA241. The

church placed on the transaction counter a

receptacle into which patrons may place these cards.

App. lla. Other displays in the church’s CPU

include a description of the church’s humanitarian

mission organization “World-Wide Lighthouse

Missions” (WWLM); pamphlets which describe and

present photos of overseas missionary service of

WWLM ministers, JA73-77 99-10; and a television

monitor presents varied videos relating to WWLM,

the church, and the church’s ministries. JA78-79

911. The USPS has prominently posted the

following disclaimer on the counter where

transactions with the public occur: “The United

States Postal Service does not endorse the religious

viewpoint expressed in the materials posted at this

Contract Postal Unit.” JA80, JA98-99.

Mr. Bertram Cooper, while a_ resident of

Manchester, filed a lawsuit against the Postal

Service asserting that the church’s CPU operation

violates the Establishment Clause. Cooper knew

that the religious speech found in the church’s CPU

is the speech of the church (JA18 714, JA19 4921-22,

JA20 724, JA21 927) and he understood that the

CPU system involves private parties operating the

postal units. (JA18 414, JA19 921, JA20 424.)

Nonetheless, Cooper testified via affidavit that “the

religious displays at Sincerely Yours made me feel

very uncomfortable.” JA65 45.

While this case was pending on appeal, Cooper

moved out of Manchester into a nursing home in a

neighboring city, and he no longer sought postal

products in Manchester. App. 12a n.8. To avoid

having the case mooted on appeal, counsel for

Cooper moved the Second Circuit to allow the

intervention of three additional plaintiffs into the

case: Gary Chipman, Kimon Karath, and Leslie

Strong. Id. These proposed Intervenors testified by

affidavit that they had recently learned of Cooper’s

potential inability to defend the district court

judgment on appeal, and they sought to intervene

solely to defend on appeal the district court

judgment. Affidavits of Proposed Intervenors, 445,

6, attached to Motion to Intervene, filed with Second

Circuit April 30, 2008. They further testified that

they regularly frequent the Sincerely Yours, Inc.

CPU, and that they “object” to the displays in the

church’s facility. Id. at 43. The proposed

intervenors did not assert that they found the

displays offensive, that they were coerced to view

them, or that their “objection” was anything other

than ideological. The court of appeals granted them

intervention on June 18, 2008. App. lla n.8.

II, Proceedings Below

A. District Court

On October 3, 2003, Bertram Cooper sued the

United States Postal Service and certain of its

employees, alleging inter alia that’ the

Establishment Clause was violated by the church’s

speech displayed at the Sincerely Yours, Inc. CPU.

He sought injunctive and declaratory relief.

Complaint (Dkt. 1). Thereafter, the church parties

were granted intervention as defendants. (Dkt. 29).

After discovery, Cooper and the Postal Service filed

cross-motions for summary judgment. Defs.’ SJ

motion (Dkt. 38); Pls.’ SJ Motion (Dkt. 41). The

district court denied Defendants’ motion for

summary judgment and granted Cooper’s motion.

App. B (Dkt. 72). In so ruling, the court held that

the church’s operation of the CPU converted it into

the federal government for such purposes, and that

the church had violated the Establishment Clause by

its presentation in the CPU of messages about its

ministries.

The distnct court did not evaluate whether the

church’s speech should be classified as private or

governmental under the terms of Establishment

Clause or Speech Clause case law. Instead the court

employed “state action” case law to assess whether

the church might be classified as a state actor and

thus automatically bound by the Establishment

Clause. App. 17b-36b. Moreover, in classifying the

status of the church’s speech, the district court did

not evaluate the speech itself, but instead the

church’s participation in the CPU contract. Id.

The district court first analyzed whether the

church could be classified as the federal government

by means of identifying its CPU operation as a

“public function.” App. 19b-21b. The court found

that the church’s mail receipt and consignment sale

of postal products could not be considered a public

function, because those endeavors (widely engaged

by private entities) are not now, and never have

been, the exclusive function of the government—the

standard by which a “public function” status is

adjudged. App. 27b-29b.

While denying that the church’s CPU operations

were a “public function,” the court identified the

church’s wall-hangings at its CPU to be the actions

of the federal government because Sincerely Yours,

Inc. and the government were “entwined” through

the contractual relationship governing the CPU

operation. App. 35b-36b. The court’s classification

inquiry here did not evaluate whether the

government was entwined in the presentation of the

church’s speech—that is, the matter about which

plaintiff complained—but rather whether’ the

government was entwined with the postal contract

functions—about which plaintiff did not complain.

See App. 29b-36b.

The district court thereafter applied the Lemon

test to the church and found it violated all three

prongs of that test. App. 39b-43b.

The district court issued an injunction against

the church and the Postal Service, requiring the

removal of all religious speech from the interior of

the church’s facility housing its CPU. App. 50b. The

court additionally enjoined the Postal Service to

remove all religious speech from all CPUs across the

country. Jd. Upon the Postal Service’s motion for

reconsideration of that latter order, the court

determined that Cooper did not have standing to

obtain relief as against the thousands of CPUs

across the country, and thus narrowed its injunction

exclusively to the church’s CPU in Manchester. App.

12c.

On November 11, 2007, the court granted the

church’s motion for a stay of its injunction pending

appeal. (Dkt. 99.)

B. Second Circuit

The Postal Service and the church appealed the

district court’s judgment to the Second Circuit. The

Postal Service later withdrew its appeal. App. 13a.

1. Standing assessment

On August 20, 2009, the Second Circuit issued

its opinion. The threshold question which the court

adjudicated was whether Cooper had standing.?

Notably, the court lamented the inadequate

guidance of extant precedents and strongly signaled

its desire for this Court to clarify Article LI] standing

in Establishment Clause cases. The court identified

the standing determination in the Establishment

Clause realm as a “tough question,” App. 15a, one

that is “vexed,” id. at 16a, “difficult,” id. at 15a n.9,

and one for which “[t]here are serious arguments on

both sides of th[e] question.” 7d. at 16a. The Court

further observed that the question is one on which

“the Courts of Appeals have divided,” id. (internal

quotation marks omitted), and quoted the Eighth

Circuit to the effect that “[nJo governing precedent

describes the injury in fact required to establish

standing in a religious display case,” id. at 15a

(internal quotation marks omitted). The Second

Circuit also opined that this Court “has announced

no reliable and handy principles of analysis,” id., and

that “[llower courts are left to find a threshold for

injury and determine somewhat arbitrarily whether

that threshold has been reached.” Jd. at 16a. “In

short, there is uncertainty concerning how to apply

the injury in fact requirement in the Estabhshment

Clause context.” Id. at 17a.

The court acknowledged that intervention had

been granted to the new plaintiffs-appellees to

salvage the litigation. App. 4a (“Cooper stopped

using the CPU when he entered a nursing home, but

the suit has continued on behalf of three intervenors

2 On April 3, 2009, the parties had submitted post-hearing

letter briefs to the court addressing the question of the

plaintiffs-appellees’ standing.

who are similarly aggrieved”); id. at 1la n.8 (“While

this appeal was pending, Mr. Cooper moved out of

Manchester and into a nursing home in West

Hartford, Connecticut. Because the move created

potential jurisdictional problems, this Court’s June

18, 2008 order allowed other Manchester residents

to intervene as appellees”). Yet the court

inexplicably directed its jurisdictional standing

evaluation exclusively to Cooper’s status as it existed

prior to his permanent departure from town. And

notably, the court presented its conclusion as to Mr.

Cooper’s viable standing as a past, not a current,

condition. App. 4a (“[wle conclude that Cooper had

standing to raise an Establishment Clause

challenge”) (emphasis added); App. 18a (court found

complaint allegations authorized standing).

2. Government classification of church speech

In addressing the merits of the case, the Second

Circuit—like the district court—did not analyze the

question of the private-versus-governmental status

of the church’s speech through First Amendment

jurisprudence, but instead through the different

standards of the state-action case law. The Second

Circuit first found that “the CPU contract here is not

enough by itself to make SYI a state actor[,]” relying

on this Court’s decision in Rendell-Baker v. Kohn,

457 U.S. 830 (1982). App. 2la. But the court did

find the church to be “a state actor” under the

alternative standard of the “public function” test.

App. 22a. The district court’s detailed, contrary

analysis notwithstanding (and not acknowledged),

the Second Circuit perfunctorily announced that the

contract functions carried out at the church’s CPU

are part of the postal monopoly. The court therefore

concluded that the church’s contract performance

action is properly classified as federal government

action. Id.

Having assigned federal government status to

the church’s postal sales endeavor, the court

extended that government status also to the church’s

speech in the immediate area of the sales counter.

The court justified this by announcing that its

function-based conclusion on government status

carried a spatial implication: the “areas where the

business of the CPU is conducted” were also

adjudged to be governmental. App. 23a. The court

did not explain why the church’s speech found in

that space must be classified as that of the federal

government.

3. Establishment Clause analysis

Having classified the church’s speech found in

proximity to where SYI carries out its functions

under the CPU contract as federal government

speech, the Second Circuit proceeded to apply the

Lemon test to it. App. 27a-29a. The court stated:

“The express and admitted purpose of the religious

material is to raise awareness for the mission

sponsored by the Church and to spread the Church’s

Christian message. We have no trouble concluding

that the displays on the postal counter soliciting

prayer requests and advertising the mission express

a distinctly religious purpose, and that they fail

spectacularly under the first inquiry of Lemon.” Id.

at 27a.

Having found that the church violated the first

prong of Lemon, the Second Circuit explained it need

go no further in its establishment clause inquiry. /d.

However, the court paused to state that the presence

of the Postal Service’s disclaimer on the transaction

counter (which recites that the Postal Service’s does

not endorse the church’s posted messages)

complicates the court’s (already concluded) analysis.

App. 27a. But the court opined that relevant case

law is not decisive as to the legal utility of

disclaimers as a category, so the court stated that

the Postal Service’s particular disclaimer is

ineffective.? App. 29a. In support of that conclusion,

the court relied on this Court’s decision in County of

Allegheny v. ACLU, 492 U.S. 573 (1989), which,

unlike Respondents’ case, did not involve a

government disclaimer. App. 27a-28a.

The Second Circuit found the district court’s

injunction requiring removal from the CPU of all of

the church’s speech about its ministries to be

overbroad. App. 3la. The pane! instead required

that the immediate vicinity of the transaction

counter be rid of the church’s speech about its

ministries, and that visual cues be erected that

divide the transaction area from the rest of the

facility. App. 3la-32a.

4. Stay of Second Circuit mandate

3 The court in its subsequent remedy discussion changed course

and attributed effectiveness to the disclaimer, stating that the

disclaimer should stay on the transaction counter for it is

“helpful in differentiating the public space and function from

the private one[.}” App. 31a.

Upon motion by the church, the Second Circuit

on September 17, 2009, granted a stay in the

issuance of its mandate, pending the church’s

petition for certiorari.

REASONS FOR GRANTING THE WRIT

The Second Circuit's decision authorizing

plaintiffs’ standing conflicts with this Court’s

holdings in Valley Forge Christian College v.

Americans United for Separation of Church and

State, 454 U.S. 464 (1982), and Allen v. Wright, 468

U.S. 737 (1984), and implies the irrelevance of

Article III’s concrete injury requirement to

Establishment Clause claimants. The court of

appeals’ explicit validation of psychological

discomfort as grounds for standing was joined by the

court’s implicit ruling that mootness is not a bar to

Establishment Clause claims, and that mere

partisanship without injury is adequate grounds to

invoke federal court intervention in such cases.

The court’s classification of the church’s speech

as that of the federal government is unprecedented

in method and conclusion, and in both respects

perilous to First Amendment values. In effect, the

court of appeals erased the critical distinction

between private and government speech. The court

refused to follow this Court’s carefully constructed

standards defining that crucial division, and as a

result attributed no significance to the undisputed

facts about either the church’s lone participation in

its speech, or the context of its presentation. Having

so departed from both the law and facts in its

classification of the church’s speech, it was with an

ironic consistency that the court of appeals applied

the Lemon test to limn the church’s purposes for its

own speech, and to condemn them as religious.

This Court should grant review.

I, RESPONDENTS DO NOT HAVE STANDING TO SEEK

RELIEF AGAINST THE CHURCH.

Respondent Cooper’s assertion of “uncomfortable

observer” standing must fail under Article III. Infra

§I(A). In any event, Cooper’s case while on appeal

has become moot. Infra §I1(B). Moreover,

Respondents who intervened at the court of appeals

on grounds that they “object” to the church’s speech

have failed to present an injury cognizable under

Article III. §1(C).

A. The Second Circuit’s holding that

“feeling uncomfortable” constitutes an

injury giving rise to standing under

Article III conflicts with this Court’s

decisions.

The recognition in Establishment Clause

cases of “offended observer” standing has never been

validated by this Court. Indeed, the suppositions

entailed in classifying psychological unease as an

Article III injury in Establishment Clause cases are

starkly at odds with several principles of this Court’s

standing jurisprudence. Yet the anomalous

“offended observer” theory of federal court

jurisdiction flourishes in the lower courts. See, e.g.,

Vasquez v. Los Angeles County, 487 F.3d 1246, 1252-

53 (9th Cir. 2007) (standing for plaintiff offended by

redesign of city’s seal); O’Connor v. Washburn Univ.,

416 F.3d 1216, 1222-23 (10th Cir. 2005) (standing for

plaintiff having unwelcome contact with a statue);

Books v. Elkhart County, 401 F.3d 857, 861 (7th Cir.

2005) (standing for plaintiff deeply bothered by

religious display); ACLU Nebraska Foundation uv.

City of Plattsmouth, 358 F.3d 1020, 1030 (8th Cir.

2004) (standing for plaintiffs offended when seeing a

monument); Freethought Soc’y of Greater Phila. v.

Chester County, 334 F.3d 247, 250, 255 n.3 (3d Cir.

2003) (standing for plaintiff bothered by courthouse

Ten Commandments plaque); Adland v. Russ, 307

F.3d 471, 478 (6th Cir. 2002) (standing for plaintiffs

worried they might see a monument unwelcome to

them); Suhre v. Haywood County, 131 F.3d 1083,

1086-89 (4th Cir. 1997) (standing for plaintiff feeling

revulsion over courtroom display); Washegesic uv.

Bloomingdale Public Schools, 33 F.3d 679, 681 (6th

Cir. 1994) (standing for plaintiff able to see a

portrait unwelcome to him); Murray v. City of

Austin, 947 F.2d 147, 150-51 (5th Cir. 1991)

(standing for plaint-ff offended by cross in coat of

arms on city insignia); Foremaster v. City of St.

George, 882 F.2d 1485, 1490-91 (10th Cir. 1989)

(standing for plaintiff offended and intimidated by

illustration of Mormon temple contained on portion

of city logo); Kaplan v. City of Burlington, 891 F.2d

1024, 1027 (2d Cir. 1989) (standing for plaintiff

suffering mentally upon seeing a menorah on public

property); Saladin v. Milledgeville, 812 F.2d 687,

691-92 (llth Cir. 1987) (standing for plaintiffs

affronted by word on city seal); Hawley v. City of

Cleveland, 773 F.2d 736, 739-40 (6th Cir. 1985)

(standing for plaintiffs not enjoying their use of

airport because a chapel was on the premises).

The Second Circuit’s decision ratifying the

standing of Mr. Cooper because he felt “very

uncomfortable” upon viewing the church’s speech in

its CPU facility is merely another manifestation of

the settled practice in the lower courts to authorize

Establishment Clause claimants, uniquely, to seek

injunctions against what bothers them.

1. Federal courts are not to serve as

forums for the airing of grievances

by concerned bystanders.

This Court has identified that “[nJo principle is

more fundamental to the judiciary’s proper role in

our system of government than the constitutional

limitation of federal-court jurisdiction to actual cases

or controversies.” DaimlerChrysler Corp. v. Cuno,

547 U.S. 332, 341-42 (2006) (quoting Raines v. Byrd,

521 US. 811, 818 (1997)). Defining that

jurisdictional limitation is the “irreducible

constitutional minimum of standing” under Article

III, which includes a requirement that a plaintiff

have suffered an “injury in fact.” Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560 (1992). Such injury

must be “distinct and palpable,” and not one that is

“abstract” or “conjectural.” Allen v. Wright, 468 U.S.

737, 751 (1984) (citations omitted).

The requirement that a plaintiff suffer a

concrete injury to qualify for standing under Article

III both serves and is guided by the policy that

disallows federal courts to function as easy-access

venues for the airing of policy disputes. If the form

of injury required for federal court access were mere

dismay emanating from a_ would-be plaintiffs

disagreement with a particular state of affairs, the

courts would be converted into nothing more than

“publicly funded forums for the ventilation of public

grievances or the refinement of jurisprudential

understanding.” Valley Forge Christian College v.

Americans United for Separation of Church and

State, 454 U.S. 464, 473 (1982). In such case, “the

concept of ‘standing’ would be quite unnecessary.”

Id. This Court has disclaimed the idea that its

function is to serve as a “national classroom on ‘the

meaning of rights’ for the benefit of interested

litigants,” id. at 476 n.13, or as “a forum in which to

air ... generalized grievances about the conduct of

government.” Id. at 483 (quoting Flast v. Cohen,

392 U.S. 83, 106 (1968)). The idea that the business

of the federal courts is to correct constitutional

errors at large “has no place in our constitutional

scheme,” id. at 489, and for federal courts to

cooperate in such a role “open[s] the Judiciary to an

arguable charge of providing ‘government by

injunction.” Schlesinger v. Reservists Committee to

Stop the War, 418 U.S. 208, 222 (1974).

Accordingly, any proposed standard of Article III

injury—such as “feeling uncomfortable” about a

passive religious display—that effectively authorizes

the form of courthouse access that this Court has

denounced, must be rejected.

2. “Feeling uncomfortable” is nothing

other than the _ psychological

consequence of observing conduct

with which one _ disagrees, a

consequence that this Court has

identified aS insufficient to

constitute injury for standing under

Article ITI.

In Valley Forge, this Court settled that “the

psychological consequence presumably produced by

an observation of conduct with which one disagrees”

does not constitute “injury sufficient to confer

standing under Art. III[.]” 454 U.S. at 485. This

holding surely is not vocabulary-dependent.

Offended observance as such is insufficient whether

labeled as “offense,” “dismay,” “discomfort,”

“alienation,” “annoyance,” or any other comparable

term. The federal courts do not serve to vindicate

the value interests of “concerned” bystanders. Jd. at

473. The pleading device of labeling a concerned

bystander as an “uncomfortable” or “offended”

observer should make no difference to the status of

that person’s claim under Article III. Otherwise

“anyone could [then] contest any public policy or

action he disliked.” Books v. Elkhart Co., Ind., 401

F.3d 857, 870 (7th Cir. 2005) (Easterbrook, J.,

dissenting).

Those persons with particularly intense

commitment to legal and policy positions that are

contradicted by government pursuits may be

expected to identify correspondingly greater

psychological discomfort upon observing the

contested government action, as they mentally

rehearse its departure from their firm convictions.

But this Court has explained that the sincerity and

motivation of a party's convictions are of no moment

to the standing evaluation. Schlesinger, 418 U.S. at

225-26. Neither should be the _ inevitable

psychological accompaniment of those convictions. A

subjective report of psychic offense allegedly

resulting from one’s awareness of a disfavored

circumstance cannot be a judicially cognizable injury

so long as “injury” is to serve as a limitation on

federal court access.

In Allen v. Wright, 468 U.S. 737 (1984), this

Court ruled that the plaintiffs who brought an equal

protection challenge to the IRS’s tax-exemption

policy benefiting allegedly racially discriminatory

schools, and who as a result of awareness of that

policy suffered from a sense of racial stigmatization,

did not have standing to bring their claim. Rather,

only those who were “personally denied equal

treatment under the challenged policy had standing

to sue.” Id. at 755. So here, Mr. Cooper was not

subject to discriminatory treatment or restraint at

the church’s postal unit. He enjoyed the same access

to and benefits of the Sincerely Yours, Inc. CPU that

were extended to all members of the public. His

discomfort over his awareness of the church’s wall-

hangings does not authorize a federal case.

The widespread disregard of Allen v. Wright by

lower courts when considering Establishment Clause

claims is a_ product of their identification of

Establishment Clause cases as exempt from the

ordinary rules of Article III standing. See, e.g.,

Trunk vu. City of San Diego, 568 F. Supp. 2d 1199,

1205 (S.D. Cal. 2008) (“If [merely ideologically

offended] Plaintiffs’ claims were based on any theory

other than violation of the Establishment Clause,

they would likely be out of court for lack of

standing”); In re Navy Chaplaincy, 534 F.3d 756, 765

(D.C. Cir. 2008) (“the distinct context of the religious

display and prayer cases” may uniquely allow for

“abstract offense” as basis for standing). However,

that view departs from this Court’s clear instruction

to the contrary. “[TJhere is absolutely no basis for

making the Article III inquiry turn on the source of

the asserted right.” Lujan, 504 U.S. at 576. See also

Valley Forge, 454 U.S. at 484 (“we know of no

principled basis on which to create a hierarchy of

constitutional values or a complementary ‘sliding

scale’ of standing which might permit respondents to

invoke the judicial power of the United States”).

3. This Court’s decision in Schempp

does not authorize standing for

those who report psychic discomfort

upon observing a passive religious

display.

The Valley Forge Court’s carefully explained

disqualification of psychological discomfort as a

harm cognizable under Article III illumines the

Court’s explanation for the standing of plaintiffs in

School Dist. of Abington Twp. v. Schempp, 374 U.S.

203 (1963). See Valley Forge, 454 U.S. at 486 n.22.

Yet lower courts have unaccountably interpreted

Schempp, and Valley Forge’s description of the

Schempp plaintiffs (“impressionable schoolchildren

subjected to unwelcome religious exercises,” Valley

Forge, 454 U.S. at 486 n. 22), as authorizing

standing for persons offended by mere observation

of, or awareness of, a passive religious display—

precisely the sort of abstract injury that Valley Forge

excludes from Article III cognizance.

The unique context of Schempp explains the

plaintiffs’ standing in that case: schoolchildren were

coerced via compulsory attendance laws to attend a

religious exercise as captive audience members,

while constrained by the established rules of the

classroom to give respectful attention to the

presentation. See Schempp, 374 U.S. at 206-08, 210-

11. See also Edwards v. Aguillard, 482 U.S. 578, 584

(1987) (“Students in such institutions are

impressionable and their attendance is involuntary.

The State exerts great authority and coercive power

through mandatory attendance requirements, and

because of the students’ emulation of teachers as role

models and the children’s susceptibility to peer

pressure”) (internal citations omitted). The unique

schoolroom context of Schempp is worlds apart from,

for instance, Respondents’ mere observation or

awareness of the church’s passive displays in the

non-coercive setting of the CPU. “Passersby who

disagree with the message conveyed by these

displays are free to ignore them, or even to turn

their backs, just as they are free to do when they

disagree with any other form of government speech.”

County of Allegheny v. American Civil Liberties

Union Greater Pittsburgh Chapter, 492 U.S. 573, 664

(1989) (Kennedy, J., concurmng in part and

dissenting in part).

4 See, e.g., cases discussed infra at 23.

Yet the Fourth Circuit has construed Schempp to

validate Article III standing for any plaintiffs having

“personal contact with state-sponsored religious

symbolism.” Suhre v. Haywood County, 131 F.3d

1083, 1086 (4th Cir. 1997).5 The Seventh Circuit

interpreted Schempp to validate standing for

plaintiffs suffering as “the involuntary audience for a

display.” American Civil Liberties Union of Illinois

v. City of St. Charles, 794 F.2d 265, 268 (7th Cir.

1986). The Eleventh Circuit professed inability to

identify any “qualitative differences” between the

injury suffered by the Schempp students and that

endured by persons who were made aware through

anonymous phone calls and media reports that a

cross stood in a state park about 100 miles away

from them, provoking their unwillingness to recreate

in that park. ACLU of Georgia v. Rabun Co.

Chamber of Commerce, Inc., 698 F.2d 1098, 1107-08

(1lth Cir. 1982). Another court summarized

Schempp’s rule as follows: “unwelcome’ direct

contact with the offensive object is enough to

establish injury for purposes of standing.” Harvey v.

Cobb County, Ga., 811 F.Supp. 669, 674 (N.D. Ga.

1993), aff'd 15 F.3d 1097 (11th Cir. 1994). The effect

of such interpretations of Schempp by the lower

courts has been their disregard of this Court’s

instruction in Valley Forge on Article III’s concrete

injury requirements.

While Valley Forge and Allen make clear that

psychic offense does not constitute the concrete

5 That court asserted that the distinction between the standing

determinations in Schempp and Valley Forge turned merely on

the “proximity of the plaintiffs to the conduct they challenged.”

Id. at 1087.

injury required for standing under Article III, the

broad disregard of that standard in Establishment

Clause cases by lower courts, including the court

below, presents cause for this Court to reinforce and

further clarify that constitutional standard.

B. Cooper’s claim was moot at the time the

Second Circuit ruled that his complaint

allegations gave him standing.

Federal courts “do{] not sit to decide arguments

after events have put them to rest.” Doremus uv. Bd.

of Ed. of Borough of Hawthorne, 342 U.S. 429, 433

(1952). Since the time that Respondent Cooper

moved out of Manchester and, as a result, no longer

seeks postal services there, his lawsuit seeking an

injunction against the church and the Postal Service

has been moot. The Second Circuit erred in

considering the status of Cooper’s standing as it

existed prior to his move from Manchester, for the

court was required to evaluate—after Cooper’s

departure—the current status of its jurisdiction over

the appeal in this case. “[AJn actual controversy

must be extant at all stages of review, not merely at

the time the complaint is filed.” Arizonans for

Official English v. Arizona, 520 U.S. 43, 67 (1997)

(internal quotation marks omitted) (case against

State employer moot after plaintiff resigned from

government employ and obtained private sector

employment). See also Bunting v. Mellen, 541 U.S.

1019 (2004) (case moot on appeal after plaintiffs

graduated from military institute whose policies

they challenged, and defendant left employ of same);

Doremus, 342 U.S. 429 (case moot when student

graduated from school about which lawsuit

complained).

During briefing of the merits of the appeal

below, counsel for Cooper notified the court of newly-

discovered facts demonstrating that Cooper’s case

was moot. Memorandum in Support of Motion to

Intervene (filed with Second Circuit by proposed

intervenors on April 30, 2008) at 1, 6, 7; attached

Declaration of Kevin M. Smith at 4 4. Because

Cooper had suffered a broken hip and other declines

in health, he was confined to a nursing home in

another town, and there was no realistic expectation

that he would return to Manchester to shop for

postal products. Jd. Having notified the court of

appeals of Cooper’s change in condition, his counsel

acknowledged that governing Second Circuit case

law called for dismissal of his case on mootness

grounds. Id. at 7n.5. But counsel urged that their

proposed intervenor plaintiffs were capable of

stepping into Cooper’s shoes to defend the judgment

on appeal. Id.

Counsel for Cooper submitted to the Second

Circuit that “[wJhile it is conceivable that [Cooper]

could visit the SYI CPU in the future, there is no

realistic expectation that he will do so.” /d. at 6.

Yes, in theory Cooper might someday depart from

the nursing home and travel to Manchester in

pursuit of postal products; but such hypothetical

speculation is not adequate to overcome mootness.

“[S]uch speculative contingencies afford no basis for

our passing on the substantive issues [the petitioner]

would have us decide, in the absence of evidence that

this is a product of immediacy and reality.” DeFunis

v. Odegaard, 416 U.S. 312, 318 n.5 (1974) (internal

quotation marks omitted). As this Court explained

in Lujan, “{s)uch ‘some day’ intentions—without any

description of concrete plans, or indeed even any

specification of when the some day will be—do not

support a finding of the ‘actual or imminent’ injury

that our cases require.” 504 U.S. at 564.

Because Cooper’s case had become moot by the

time the Second Circuit heard it, that court should

have vacated the decision below and ordered the case

dismissed. Infra §I(D).

C. Intervenor Respondents lack standing

for they have not testified to having

suffered any harm from the church’s

speech, and such harm may not be

inferred by a court.

The intervenor plaintiffs cannot remedy the lack

of standing. Their asserted injury is, if anything,

even weaker. These proxy plaintiffs have failed to

state that they have sustained an injury—even an

abstract, psychological one—from their awareness of

the church’s speech in the Sincerely Yours, Inc. CPU.

Instead, they have merely stated that they “object”

to the presence of that speech. The intervenors’

bypass of the perfunctory assertion of “offense” has

placed them even outside the indulgent boundary

line of the lower courts’ lax standard—which

requires at least a formalistic announcement of some

form of chagrin.

The declarations of the intervening plaintiffs-

appellees each present an identical statement about

their interest in the case. That statement reads as

follows:

I regularly patronize the “Sincerely Yours,

Inc.” contract postal unit to obtain U-‘S.

Postal Service products and services, and /

object to the religious symbols and practices

that I encounter on display there.

Declaration of Gary Chipman, 43, Declaration of

Kimon N. Karath, 43, Declaration of Leslie Strong,

43 (foregoing declarations appended to motion of

proposed intervenors filed with Second Circuit on

April 30, 2008) (emphasis added). Each of the

intervenors also explained that “I wish to intervene

for the sole purpose of defending on appeal the

district court’s judgment[.]” Jd. at 95, respectively.

Intervening parties are not authorized to “step

into the shoes of the original party” on appeal, unless

those intervenors independently fulfill Article III

standing requirements. Arizonans for Official

English, 520 U.S. at 64-65. “Concerned bystanders”

seeking to sustain appellate review “as a vehicle for

the vindication of value interests” are not

constitutionally authorized to do so. Id.

A plaintiff bears the burden of proving facts

showing the injury that is prerequisite to standing.

Lujan, 504 U.S. at 561.

® Counsel for Intervenors gave notice to the Second Circuit in

post-hearing briefing that Intervenor Gary Chipman has moved

from Manchester to Suffield, Connecticut. Letter brief of

Appellees, filed April 3, 2009, at 2,n2. It therefore appears

that Mr. Chipman’s claim would be moot, as well.

Since [the components of the standing

evaluation] are not mere pleading

requirements but rather an indispensable

part of the plaintiffs case, each element

must be supported in the same way as any

other matter on which the plaintiff bears the

burden of proof, i.e., with the manner and

degree of evidence required at the successive

stages of the litigation.

Id. Thus, a court may not infer an injury that a

plaintiff has not alleged or proved. Presenting

evidence of injury is_ plaintiffs’ unavoidable

obligation.

It is a long-settled principle that standing

cannot be inferred argumentatively from

averments in the pleadings, but rather must

affirmatively appear in the record. And it is

the burden of the party who seeks the

exercise of jurisdiction in his favor, clearly to

allege facts demonstrating that he is a

proper party to invoke judicial resolution of

the dispute. Thus, petitioners in [a] case

must allege ... facts essential to show

jurisdiction. If [they] fail{} to make the

necessary allegations, [they have} no

standing.

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231

(1990) (internal citations and quotation marks

omitted). As then-judge Alito observed in ACLU-NJ

v. Township of Wall, 246 F.3d 258, 266 (3d Cir.

2001),

While we assume that the [plaintiffs]

disagreed with the [religious] display for

some reason, we cannot assume that the

(plaintiffs) suffered the type of injury that

would confer standing. ... Mere assumption

would not satisfy the plaintiffs’ burden to

prove an element of their cause of action at

this stage of the litigation and it cannot

satisfy their burden to prove standing.

See also Doe v. Tangipahoa Parish School Bd., 494

F.3d 494, 498 (2007) (en banc) (“{wlithout the

requisite specifics, this court would be speculating

upon the facts. This is something we cannot do,

particularly in the standing context, where the facts

must be proven, not merely asserted or inferred”).

The intervenor Respondents have failed to assert

an injury. Their meager testimony is limited to

announcing themselves to be partisans (“I object”)

willing to take up Cooper’s cause. Their failure to

present specific evidence of injury automatically

forecloses their standing.

D. This Court should vacate the decision

below under Munsingwear, or else hold

this case pending the outcome of

Salazar v. Buono or Boy Scouts of

America v. Barnes-Wallace.

Because Cooper’s case—if ever viable—became

moot upon his confinement in a nursing home in

another town, and because the intervening plaintiffs

never had standing, “[t]he case had lost the essential

elements of a justiciable controversy and should not

have been retained for adjudication on the merits by

the Court of Appeals.” Arizonans for Official

English, 520 U.S. at 48. In such instance, “[t]he

established practice. . . in the federal system. . . is to

reverse or vacate the judgment below and remand

with a direction to dismiss.” Jd. at 71, quoting United

States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950)

(internal quotation marks omitted). This practice of

vacatur serves the cause of equity by “eliminating a

judgment the loser was stopped from opposing on

direct review.” Jd. at 71, citing Munsingwear, 340

USS. at 40.

Alternatively, this Court could hold this case

pending its resolution of Salazar v. Buono, 129 S.Ct.

1313 (2009) (certiorari granted) (argued October 7,

2009), or Boy Scouts of America v. Barnes- Wallace,

U.S. No. 08-1222 (March 31, 2009) (certiorari

pending), either of which may clarify the status of

“offended observer” or “objecting plaintiff’ standing.

This Court could then grant this petition for

certiorari, vacate the court of appeals’ judgment, and

remand for further consideration in light of this

Court’s holding in the relevant case.

II. THE CHURCH’S SPEECH DID NOT, AND CANNOT,

VIOLATE THE ESTABLISHMENT CLAUSE.

The court below turned the First Amendment on

its head. Never has this Court validated the

counter-intuitive notion that the private religious

speech of a religious institution presented on its own

property is subject to classification as speech of the

federal government and _ prohibited under the

Establishment Clause. The lower court’s

unprecedented ruling was the product of a series of

cumulative analytical missteps.

The court below could not, through an

assessment of the church’s speech itself, plausibly

categorize that speech—presented in the church’s

own name, about its own ministries, in its own

facility, without any government participation in its

presentation—as the speech of the _ federal

government. So the court classified a different

endeavor (Sincerely Yours, Inc.’s contracted postal

sales) as governmental, and then extended that

government classification to the church’s speech—

though that speech was not a component of the

commercial transactions deemed governmental.

Having imputed that government status to the

church’s speech, the court woodenly kept course to

apply the Lemon test to the church, notwithstanding

the patently counterfactual nature of deploying

Lemon to analyze a church’s purposes for speaking

about its own ministries. Predictably, the court

concluded that the church is religious, and therefore

violates Lemon.

That anomalous method and conclusion calls for

this Court’s review.

A. The Court of Appeals erred in

classifying the church’s speech as the

government’s speech.

The Second Circuit’s method of evaluating the

status of the church’s speech was flawed in two

prominent respects. First, although plaintiffs

present an Establishment Clause challenge to the

church’s speech, the court did not apply the

pertinent Establishment Clause case law. Instead,

the court drew from “state action” case law in other

fields.

Establishment Clause jurisprudence has a

wealth of precedent on the precise question of what

speech is attributable to the government. See, e.g.,

Santa Fe Independent School District v. Doe, 530

U.S. 290, 302-310 (2000) (resolving the “crucial

difference” between government and private speech

at issue in the facts of that case); Agostini v. Felton,

521 U.S. 203, 234 (1997) (resolving “whether . .

activities are ‘governmental indoctrination’ because

they are supported directly and almost entirely by

State funds”); Capitol Square Review and Advisory

Board v. Pinnette, 515 U.S. 753 (1995) (resolving

whether private religious display on government

property is attributable to government); Zobrest v.

Catalina Foothills Sch. Dist., 509 U.S. 1, 10 (1993)

(resolving whether government interpreter in private

school interpreting Catholic doctrine should be

classified as a governmental or private speaker); Lee

v. Weisman, 505 U.S. at 587-88 (resolving whether a

rabbi’s prayer at a public high school graduation

constituted government expression). The private-

versus-governmental classification standards found

in Establishment Clause case law are tailor-made to

claims like the one here.? The Second Circuit erred

by disregarding the instruction of those cases.

’ For instance, establishment clause jurisprudence includes as

a premier classifying consideration the determinative role

played by private decisionmaking in response to neutral

government eligibility criteria. See Agostini, 521 U.S. at 226.

Secondly, the court of appeals violated even the

standards contained within the non-Establishment

Clause state action case law it employed. Those

standards require a court to focus on the

complained-of acts themselves—not other,

unchallenged actions. As this Court affirmed in

Brentwood Academy v. Tenn. Secondary School

Athletic Ass’n, 531 U.S. 288 (2001), “[t]he judicial

obligation is . . . to assure that constitutional

standards are invoked ‘when it can be said that the

State is responsible for the specific conduct of which

the plaintiff complains.” Id. at 295 (citing National

Collegiate Athletic Association v. Tarkanian, 488

U.S. 179, 191 (1988); Blum v. Yaretsky, 457 U.S.

991, 1004 (1982)) (latter emphasis added).

Yet the court of appeals evaluated for

governmental status the uncontested postal sales

transactions, determining these to comprise a

“public function,” thereby establishing a basis from

which to extend to the church’s speech a government

classification that could never have derived from a

direct evaluation of that speech itself. © Such

unthinking equation is precisely what state action

case law forbids. See Polk County v. Dodson, 454

U.S. 312, 321-325 (1981) (defendant public defender,

while a state actor for certain purposes, was not a

“In distinguishing between indoctrination that is attributable

to the State and indoctrination that is not, [the Court has]

consistently turned to the principle of neutrality, upholding aid

that is offered to a broad range of groups or person without

regard to their religion.” Good News Club v. Milford Central

School, 533 U.S. 98, 114 (2001) (emphasis and brackets in

original; internal quotation marks omitted).

state actor for the particular purpose challenged by

plaintiff).

The court of appeals’ approach is repudiated in

the relevant Speech Clause context as well. In

Johanns v. Livestock Marketing Association, 544

U.S. 550 (2005), this Court addressed the question—

like that presented here—whether the challenged

speech belonged to the federal government or a

private party, and this Court engaged a factual

assessment directed to the speech itself. This Court

reached its determination by identifying who

initiated, designed, and controlled the presentation

of that speech. Jd. at 560-62. Here, obviously, it was

the church, not the USPS, that controlled the speech

from start to finish.

After the Second Circuit classified the postal

contract sales as governmental, the court held that

the church’s speech found in close proximity to the

postal sale transactions it had deemed governmental!

was itself governmental. Its explanation for that

extension was both arbitrary and incomplete.

First, the court conflated function and space.

The court ruled that the CPU postal transactions

constitute a “public function,” but did not restrict the

resulting government status to the activity that

comprises that “public function” (i.e., the postal

transactions). Rather, the court extended the federal

government classification to the “areas” where the

putative public function is carried out—a spatial

conclusion that does not follow from its functional

evaluation. App. 23a.

But even if the court’s government classification

of the space near the transaction counter could be

justified, its federal government classification of the

church’s speech remains unexplained. For private

speech in “government space” does not necessarily

become the government’s speech. See, e.g., Good

News Club, 533 U.S. 98 (Christian student club

meetings in government school facility are private

speech); Capitol Square Review and Advisory Board,

515 U.S. 753 (privately-placed religious symbol on

government property constitutes private speech).

The court of appeals’ analysis here, as well, departs

from important standards of First Amendment

concern.

B. The Lemon test is not designed to

investigate what is not governmental.

Having classified part of the church’s speech as

that of the federal government, the Second Circuit

mechanistically proceeded to apply the Lemon test to

the church. Lemon v. Kurtzman, 403 U.S. 602

(1971). But the court of appeals went beyond merely

carrying forward the error of its preceding

governmental classification of the church’s speech;

the court erred anew in its application of Lemon

itself. For the court applied Lemon’s first prong to

evaluate the church’s “purpose” for something other

than the activity upon which the court had rested its

governmental classification of the church. That is,

the court did not evaluate the church’s purpose for

its postal transactions (the activity the court deemed

a “public function”), but rather the church’s purpose

for its speech found near that activity (which was not

deemed a public function, but merely held to be

derivatively—not by its own lights—governmental).

Had the court all along evaluated the church’s

speech itself instead of its postal transactions, the

court could never have classified that speech as

governmental in the first place. But even having

done so, had the court remained consistent and

evaluated the church’s purpose for its postal sales

instead of for its speech, the court could not have

credibly identified a Lemon violation.

Never has this Court ratified anything like the

outcome reached by the court below. “More than

once [has this Court] rejected the position that the

Establishment Clause even justifies, much less

requires, a refusal to extend free speech rights to

religious speakers who participate in broad-reaching

government programs’ neutral in_ design.”

Rosenberger v. Rector and Visitors of the Univ. of

Va., 515 U.S. 819, 839 (1995). The unimpeachable

Postal Service standards that leave uniformly

unregulated all private speech by CPU operators on

their own properties present no constitutional defect,

nor does the self-generated speech of those private

contractors. The problematic maneuvers required of

the Second Circuit to achieve its result only further

emphasize the departure of its ruling from

constitutional standards.

If not corrected, the decision below leaves at risk

the rights of those innumerable private religious

speakers whose expression arises in the context of a

contract or cther mutually beneficial relationship

with the government.

CONCLUSION

This Court should grant review.

Respectfully submitted,

JORDAN W. LORENCE GARY MCCALEB

JEFFREY A. SHAFER ALLIANCE DEFENSE FUND

ALLIANCE DEFENSE FUND 15100 N. 90th Street

801 G Street N.W. Scottsdale, AZ 85260

Washington, D.C. 20001 (480) 444-0020

(202) 393-8690

JOSEPH P. SECOLA

SECOLA LAW OFFICES

P.O. Box 5122

Brookfield, CT 06804

(203) 740-2350

November 17, 2009

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BERTRAM COOPER,

Plaintiff-Appellee,

v. No. 07-4825

U.S. POSTAL SERVICE, JOHN E. No. 07-4826

POTTER, as Postmaster

General, RONALD G. BOYNE, as

Postmaster, Manchester,

Connecticut Post Office,

Defendants-Appellants,

FULL GOSPEL

INTERDENOMINATIONAL

CHURCH INC., DR. PHILIP

SAUNDERS HERITAGE

ASSOCIATION, INC., SINCERELY

YOURS INC.,

Intervenors-Defendants-

Appellants,

GARY CHIPMAN, KIMON

KARATH, LESLIE STRONG,

Intervenors.

Appeal from the United States District Court

for the District of Connecticut.

No. 3:03-cv-01694~— Dominic Squatrito, District

Judge.

Argued: March 20, 2009.

Decided and Filed: August 20, 2009

Before: JACOBS, Chief Judge WESLEY, Circuit

Judge, and CROTTY’, District Judge.

This case raises an Establishment Clause

challenge to religious displays at a contract postal

unit operated by a church in Manchester,

Connecticut. Contract postal units, or “CPUs,” are

postal facilities operated by private entities on

private property (such as general stores or private

homes) pursuant to contracts with the United States

Postal Service. Plaintiff Bertram Cooper (“Cooper”),

a Manchester resident, alleged discomfort with

encountering religious materials displayed at the

Manchester CPU and sued the United States Postal

Service (“USPS”), the Postmaster General of the

United States (John E. Potter (“Potter”)), and the

Postmaster of Manchester, Connecticut (Ronald G.

Boyne (“Boyne”)) for declaratory and injunctive

relief. The Full Gospel Interdenominational Church

(the “Church”), which »perates the CPU pursuant to

a revenue-sharing contract with the United States

government, intervened as a Defendant.!

* The Honorable Paul A. Crotty of the United States District

Court for the Southern District of New York, sitting by

designation.

' The term “Church” refers collectively to the intervenor.

defendants who consist of: (1) the Full Gospel

Interdenominational Church; (2) the “Dr. Phillip Saunders

Heritage Association” (a Connecticut not-for-profit created by

the Church to hold and manage its real estate); and (3)

The Manchester CPU is a_ purpose-built

storefront with postal facilities on one side and the

Church's outreach and ministry efforts on the other,

with some spillover.

On cross-motions for summary judgment, the

U.S. District Court for the District of Connecticut

(Squatrito, J.) initially decided that the religious

displays at the CPU violated the Establishment

Clause, ordered removal of the religious displays

from the premises, and issued a permanent

injunction preventing the Church-and proprietors of

other CPUs-from displaying religious materials in

contract postal units. On a motion to amend the

judgment, the district court concluded that Cooper

lacked standing to challenge Postal Service policies

as to other CPUs and the decision was amended to

apply only to the Manchester CPU. The injunction is

stayed pending this appeal.

On appeal, the Church argues that the grant of

partial summary judgment to Cooper was error

because the displays: (i) were erected without

involvement or encouragement by the USPS, (ii) do

not violate regulations governing the appearance of

CPUs, and (iii) constitute private speech.

Cooper, in turn, contends that the CPU is a state

actor because (i) the USPS delegated to it an

exclusively public function and (ii) the extensive and

detailed contracts which accompany participation in

the CPU program sufficiently involve the state in the

CPU's activities. Cooper argues that as state action,

the religious displays violate the Establishment

Sincerely Yours, Inc. (the not-for-profit entity incorporated to

operate the CPU).

Clause. Cooper stopped using the CPU when he

entered a nursing home, but the suit has continued

on behalf of three intervenors who are similarly

aggrieved.

We now affirm in part and reverse in part. We

conclude that Cooper had standing to raise an

Establishment Clause challenge and that an

Establishment Clause violation occurred at the

Manchester CPU, but that any such violation is

limited to the area of the CPU performing the public

function; all other areas of the CPU remain the

province of the private entity. Accordingly, by way of

remedy, we require that the postal counter be free of

religious material, and that visual cues distinguish

the space operating as a postal facility from the

space functioning as the private property of the

Church.

(A) The Post Office

Article I, Section 8 of the Constitution provides

that “Congress shall have power ... [tlo establish

Post Offices and post Roads.” Congress has delegated

the power to create Post Offices to the USPS, 39

U.S.C. § 404(a\(3), awarded the USPS a monopoly

over the carriage of letter mail, see Private Express

Statutes, 18 U.S.C. §§ 1693-1699; Ai» Courier Conf.

of Am. v. Am. Postal Workers Uniox AFL-CIO, 498

U.S. 517, 519, 111 S.Ct. 913, 112 L.Ed.2d 1125

(1991), and forbidden the establishment of post

offices without authority from the Postal Service, 18

U.S.C. § 1729.2 Congress has also directed the Postal

2 Services like UPS and Federal Express operate pursuant to

an exception to the monopoly which allows private carriers to

Service to “serve as nearly as practicable the entire

population of the United States.” 39 U.S.C. § 403(a).

That directive includes ‘“establishfing] and

maintainling] postal facilities of such character and

in such locations, that postal patrons throughout the

Nation will, consistent with reasonable economies of

postal operations, have ready access to essential

postal services.” 39 U.S.C. § 403(bX3). This entails “a

maximum degree of effective and regular postal

services to rural areas, communities, and small

towns [even] where post offices are not self-

sustaining.” 39 U.S.C. § 101(b).

(B) CPUs

In order to comply with the Congressional

mandate, the USPS uses both traditional post offices

(or “classified” post offices) as well as CPUs, postal

facilities operated by private parties on private

property pursuant to revenue-sharing contracts with

the government. The CPUs furnish postal services to

places where it is not otherwise geographically or

economically feasible to build and operate official

“classified” post offices. Originally called “contract

stations,” CPUs have been used by the Postal

Service since the 1880s.

The “Glossary of Postal Terms” defines a CPU

as:

A postal unit that is a subordinate unit

within the service area of a main post office.

provide services for “extremely urgent letters.” See 39 C.F.R. §

320.6.

3 See USPS Postal History, Post Offices and Facilities, Stations

and Branches, available at:

http://www.usps.comy/postalhistory/_ rtf/StationsBranches. rtf.

It is usually located in a store or place of

business and is operated by a contractor who

accepts mail from the public, sells postage

and supplies, and provides selected special

services (for example, postal money order or

registered mail)....

United States Postal Service Glossary of Postal

Terms, Publication 32, May 1997 (Updated With

Revisions Through July 5, 2007) at 27.4 Five

thousand CPUs across the country are in locations

as diverse as private homes, gas _ stations,

seminaries, groceries, gift shops, and hardware

stores. See Defendants' Statement Pursuant to Local

Rule 56 of the Southern District of New York (“Local

Rule 56(a)1 Statement”), 7 6, December 27, 2004;

Postal Accountability and Enhancement Act § 302

Network Plan, June 2008, at 42-43.5 Several are

operated by faith-based entities. See Defendants’

Local Rule 56(a)1 Statement, { 16.

According to postal regulations, a CPU “must

not be located in, or directly connected to, a room

where’ intoxicating beverages are _ sold _ for

consumption on the premises.” Standard Operating

Procedures for Contract Postal Units. Beyond that,

instruction is provided by the Contract Postal Unit

Operations Guide, a training and operations manual

for proprietors of CPUs:

‘ The Glossary is available at: http://

www.usps com/cpim/ftp/pubs/pub32. pdf

$6 The Network Plan is7- available at: http:/

www.usps com/postallaw/_pdf/PostalServiceNetworkPlan.pdf#

search= post offices cpu’.

The appearance of your [CPU] reflects not only

on you as a businessperson, but also on the Postal

Service. Your unit should be organized and clean,

conveying a professional image to your customers. It

is very important to the success of your unit that our

customers can recognize you as an official United

States Post Office contract unit. The Postal Service

has dedicated exterior and interior signage that will

help you establish this identity.

CPUs are regulated by these few guidelines,

which are mainly words of encouragement.

Classified post offices, on the other hand, are

governed by exacting regulations. Among them are

limitations on the presence of religious displays,

messages and symbols. For example, the Postal

Operations Manual (“POM”) provides that “[e]xcept

for official postal and other governmental notices

and announcements, no handbills, flyers, pamphlets,

signs, posters, placards, or other literature may be

deposited on the grounds, walks, driveways, parking

and maneuvering areas; exteriors of buildings and

other structures; or on the floors, walks, stairs,

racks, counters, desks, writing tables, window

ledges, or furnishings in interior public areas on

postal premises [of classified post offices].” POM §

124.55.6 “Bulletin boards and other posting space in

Post Office lobbies and other public access areas may

not be used for posting or display of ... [rleligious

symbols....” Jd. Seasonal holiday displays are tightly

6 This section of the POM is available at: http:/

www.nalc.org/depart/cau/pdf/manuals/POM/pomcl1.pdf.

regulated (as set out in the margin 7), No such

regulations govern CPUs.

(D) The Manchester CPU

For more than 15 years, the Postal Service has

relied on CPUs to supplement postal service in

Manchester, Connecticut. Prior to 2001, the CPU

was located in the “Community Place,” an outreach

organization. When Community Place suspended

operation in 2001, the USPS solicited bids. There

were two bidders: Manchester Hardware, Inc., and

the Full Gospel Interdenominational Church. The

Postal Service assigned scores to cach based on

location, premises, and ability to provide services.

The Church earned a suitability score of “97” to

Manchester Hardware's “91,” and the CPU contract

was awarded to the Church on November 21, 2001.

The Church then incorporated a_ not-for-profit

business, Sincerely Yours, Inc. (“SYI”), for the

purpose of operating the CPU. The sole business of

SYI is the operation of the CPU; other than offering

USPS products and services, it serves no commercial

function.

‘

a. [Seasonal] Displays should relate to the business of

the Postal Service, such as promoting the use of postal

products and services and encouraging customers to

send greetings and gifts.

b. The Postal Service must avoid the appearance of

favoring any particular religion or religion itself.

ce. Symbols identified with a particular religion,

including but not limited to nativity scenes, crosses, or

the Star of David, shall not be displayed on postal

property...

d. Printed expressions “Season's Greetings” and “Happy

Holidays” should be used in lieu of “Merry Christmas”

or “Happy Hannukkah.”

POM § 124.57 (emphasis added); see also POM § 124.56.

The standard CPU contract requires that “all

Contract Postal Units ... reflect a uniform image.”

For example, the contract specifies that “[aJmbient

lighting shall be at least 80 footcandles anywhere at

the service and/or work counter areas,” and

individual CPU owners/entities must “[c]learly

indicate any [and] all deviations from [the] noted ...

requirements on submitted drawings/documents so

they may be evaluated along with the balance of the

proposal.” In order to achieve the desired “uniform

image,” the USPS-per the CPU contract-agrees to

pay for (among other things) the construction of

postal service counters and other build-out

requirements, all according to detailed

specifications. The USPS paid for the construction of

such items at SYI.

All money collected at the CPU is the property of

the Postal Service, and SYI is paid for its share of

contractual earnings at the end of the relevant

accounting period: 18% of sales of USPS products

and services, and 33% of post office box rental fees.

Employees of SYI are trained by the USPS, and

“must be professionally attired, wear name tags, and

project a favorable image of the supplier as the

operator of the Contract Postal Unit,” but SYI

retains the authority to hire and fire all SYI

employees.

The USPS “reserves the right, without prior

notice, to conduct audits and customer surveys and

to review and inspect the supplier's performance and

the quality of service at any time during the

operating hours of the [CPU].” The USPS also

appoints a “Contracting Officer's Representative” (or

“COR”) as a liaison between the USPS and the CPU,

10a

to ensure compliance with the CPU contract and

governing regulations, and to provide general

oversight. Defendant Ronald Boyne-the Manchester

Postmaster (and a Church member)-was appointed

to this position at SYI. At his deposition, he testified

that one of his responsibilities was to ensure that

SYI projected a “positive image” of the USPS and

complied with all postal regulations. When asked to

name items which would not present a “positive

image” or were not permitted to be displayed or sold

in a CPU, Boyne replied that through his COR

training he learned that only two items were

prohibited by regulation: alcohol and pornography.

As for the displays at the CPU, the contract

states that SYI “will be posting advertisements for

local nonprofit community outreach agencies such as

MARC, Inc., Heart Association, Flu Clinics, Cancer

Agencies, etc.” Religious displays are not mentioned.

SYI opened in June 2002. It is located on Main

Street in Manchester and is marked with various

signs identifying it as the “Sincerely Yours, Inc.

Contract Postal Unit.” The exterior of the building

(which faces the street) has one such sign along with

the familiar eagle logo of the Postal Service.

The interior of the CPU contains (among other

things) a postal counter manned by SYI employees, a

waiting area for customers, post office boxes, and a

shelving unit containing official USPS postal

supplies, paperwork, and mailing boxes. SYI offers a

variety of postal services including Express, Priority,

and First Class domestic mail; international mail;

insurance, certification, and delivery confirmation

services; Post Office Box rentals; and sales of

stamps, stationery, and other packaging products.

lia

The prices for these products and services are set by

the USPS.

(E) The Religious Displays

Also located in the CPU are religious materials:

displays informing customers about prayer requests;

prayer cards; a box-located on the postal counter-into

which postal service customers can deposit prayer

requests; a framed advertisement for “World-Wide

Lighthouse Missions” (the missionary organization

to which the SYI CPU's profits are donated); a

donation box for the World-Wide organization;

pamphlets and flyers advertising the mission, which

include biblical passages and religious messages; a

World-Wide Lighthouse Missions donation jar on the

postal counter; a television monitor displaying

Church-related videos on one side of the postal

counter; various 8 1/2" x 14" photographs of Church

events; and pictures of “Wally”-a cartoon character

who conveys religious messages.

A sign in the middle of the postal counter bears

the official USPS logo and a disclaimer:

The United States Postal Service does not

endorse the religious viewpoint expressed in the

materials posted at this Contract Postal Unit.

(F) Cooper's Objections to the CPU

Plaintiff Bertram Cooper is a _ 77-year-old

(former) resident of Manchester, Connecticut.8

8 While this appeal was pending, Mr. Cooper moved out of

Manchester and into a nursing home in West Hartford,

Connecticut. Because the move created potential jurisdictional

problems, this Court's June 18, 2008 order allowed other

Manchester residents to intervene as appellees. They are Gary

Chipman, Kimon Karath, and Leslie Strong.

12a

Cooper used the SYI CPU because it was closer to

his home than the next available post office. As

Cooper's affidavit recounts, the religious displays at

SYI made him “very uncomfortable,” and when he

registered a complaint, he “was told that [he] could

go somewhere else if [he didn't] like it.” The

complaint alleges that he “reasonably perceiveld]

SYI's religious expression to be governmentally-

sponsored and supported religious activity.”

(G) The Lawsuit

Cooper filed his complaint on October 3, 2003,

seeking declaratory and injunctive relief against the

USPS, the Postmaster General, and the Postmaster

of Manchester, Connecticut. The Church intervened

as a defendant. The district court's Memorandum

and Order deciding the parties’ cross-motions for

summary judgment (issued April 18, 2007),

concluded that:

(1) for the purposes of First Amendment and

Establishment Clause jurisprudence, the SYI

CPU is a state actor;

(2) the contractual relationship between the

USPS and the Church does not violate the

Establishment Clause; and

(3) the religious displays at the SYI CPU

violate the Establishment Clause.

Imitially, the District Court granted Cooper's request

for a declaratory judgment covering all CPUs

nationwide:

To the extent that [SYIJ, and all other

individuals or entities, in the course of

operating [CPUs] ... act in a manner that

proselytizes or advances religion, including,

13a

but not limited to, the posting of religious

displays that proselytize or advance religion,

such conduct violates the First Amendment

to the United States Constitution.

On Cooper's request for an injunction, the district

court directed that: (i) SYI remove all religious

displays and “cease from acting in a manner that

proselytizes or advances religion”; (ii) the USPS

provide notice to all CPUs that “they shall not act in

a manner that proselytizes or advances religion”;

and (iii) the USPS institute adequate monitoring

procedures to ensure compliance with the order.

Both the Postal Service and the Church moved

to alter or amend the judgment. By order dated

August 28, 2007, the district court rejected the

Church's offer to cure the Establishment Clause

violation by removing the two large signs and one

small sign containing the words “United States Post

Office,” and by adding a sign indicating that SYI was

a “private entity.”

The Postal Service argued that the findings were

insufficient to support relief against the USPS

generally and to any CPU other than SYI. The

district court amended its decision, commenting that

it could “find[{ ] nothing in the record indicating the

Plaintiff has suffered a concrete and particularized

injury that is either actual or imminent at any CPU

other than the SYI CPU.” The relief was narrowed

accordingly.

All Defendants appealed, but the USPS dropped

out, leaving the Church alone as Appellant.

l4a

Article III of the Constitution limits the judicial

power of the United States to the resolution of cases

and controversies. U.S. Const. art. III, § 2. This

limitation is effectuated through the requirement of

standing. Valley Forge Christian Coll. v. Ams.

United for Separation of Church & State, Inc.

(“Valley Forge ”), 454 U.S. 464, 471-72, 102 S.Ct.

752, 70 L.Ed.2d 700 (1982). “The question of

standing is not subject to waiver ...: “We are required

to address the issue even if the courts below have not

passed on it, and even if the parties fail to raise the

issue before us.’ ” United States v. Hays, 515 U.S.

737, 742, 115 S.Ct. 2431, 1382 L.Ed.2d 635 (1995)

(quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 230-

31, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990)). It is

axiomatic that “[tl]here are three Article III standing

requirements: (1) the plaintiff must have suffered an

injury-in-fact; (2) there must be a causal connection

between the injury and the conduct at issue; and (3)

the injury must be likely to be redressed by a

favorable decision.” Kendall v. Employees Ret. Plan

of Avon Prods., 561 F.3d 112, 118 (2d Cir.2009), The

injury requirement is the linchpin in Establishment

Clause cases: “[A]t an irreducible minimum, Art. III

requires the party who invokes the court's authority

to ‘show that he personally has suffered some actual

or threatened injury as a result of the putatively

illegal conduct of the defendant.’ ” Valley Forge ,454

U.S. at 472, 102 S.Ct. 752 (quoting Gladstone,

Realtors v. Vill. of Bellwood, 441 U.S. 91, 99, 99 S.Ct.

1601, 60 L.Ed.2d 66 (1979)). A demonstration of a

“generalized grievance” is insufficient; the plaintiff

must demonstrate a “ ‘distinct and palpable injury’ ...

15a

that is likely to be redressed if the requested relief is

granted.” Id. at 475, 102 S.Ct. 752 (quoting

Gladstone, 441 U.S. at 100, 99 S.Ct. 1601).

Standing is often a tough question in the

Establishment Clause context, where the injuries

alleged are to the feelings alone.’ This is often the

case in religious display cases where the fact of

exposure becomes the basis for injury and

jurisdiction. As the Eighth Circuit has observed,

“[nJo governing precedent describes the injury in fact

required to establish standing in a religious display

case...... ACLU Nebraska Found. vu. City of

Plattsmouth, 358 F.3d 1020, 1028 (8th Cir.2004).

Several times, the Supreme Court has

considered the problem of standing in_ the

Establishment Clause context, but so far the Court

has announced no reliable and handy principles of

analysis. For example, in Valley Forge, the Supreme

Court concluded that plaintiffs lacked standing to

bring their Establishment Clause claim challenging

the conveyance, at no cost, of 77 acres of federal

property to a Christian college. The Third Circuit

had earlier concluded that the challengers “had

standing merely as ‘citizens,’ claiming ‘injury in fact’

to their shared individuated right to a government

that ‘shall make no law respecting the establishment

of religion.’ ” 454 U.S. at 470, 102 S.Ct. 752 (quoting

9 A broad swath of litigants can demonstrate standing under

Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947

(1968), which permits litigants to raise claims on the ground

that their “tax money is being extracted and spent in violation

of specific constitutional protections.” Jd. at 106. The issue is

far ore difficult where, as here, the alleged injuries are non-

economic and taxpayer status is not the basis for jurisdiction.

16a

619 F.2d 252, 261 (3d Cir.1980)). But the Supreme

Court reversed because:

They fail[ed}] to identify any personal injury

suffered by them as a consequence of the

alleged constitutional error, other than the

psychological consequence presumably

produced by observation of conduct with

which one disagrees. That is not an injury

sufficient to confer standing under Art. III,

even though the disagreement is phrased in

constitutional terms. It is evident that

respondents are firmly committed to the

constitutional principle of separation of

church and State, but standing is not

measured by the intensity of the litigant's

interest or the fervor of his advocacy. That

concrete adverseness which sharpens the

presentation of issues, is the anticipated

consequence of proceedings commenced by

one who has been injured in fact; it is not a

permissible substitute for the showing of

injury itself.

Valley Forge, 454 U.S. at 485-86, 102 S.Ct. 752

(quotations, citation, and emphasis omitted), This

passage explains what standing is not, without

saying what standing is in these kinds of cases.

Lower courts are left to find a threshold for injury

and determine somewhat arbitrarily whether that

threshold has been reached. Chief Justice Rehnquist

recognized that the question of standing in the

Establishment Clause context is vexed: “[TJhere are

serious arguments on both sides of this question, the

Courts of Appeals have divided on the issue, and the

issue determines the reach of federal courts’ power of

17a

judicial review of state actions.” City of Edmond uv.

Robinson, 517 U.S. 1201, 1203, 116 S.Ct. 1702, 134

L.Ed.2d 801 (1996) (dissenting in the denial of

certiorari; joined by Justices Scalia and Thomas). In

short, there is uncertainty concerning how to apply

the injury in fact requirement in the Establishment

Clause context.

Cooper alleged that the discomfort he suffered

when he viewed the religious displays at SYI was so

great that he was inclined to drive to another postal

unit. The initial question is whether that amounts to

a sufficiently “distinct and palpable” injury for

standing purposes. Our leading case on

Establishment Clause standing is Sullivan uv.

Syracuse Housing Authority, 962 F.2d 1101 (2d

Cir.1992), in which the Syracuse Housing Authority

(the “Authority”) contracted for a faith-based entity

to operate a religious after-school program in the

community center of the public housing development

where the plaintiff lived. The district court dismissed

the case for lack of standing, but the Second Circuit

found a cognizable “spiritual First Amendment

injury” and reversed. Jd. at 1108. The touchstone of

the analysis was whether Sullivan had a “direct and

personal stake” in the controversy. Jd. Relying on

Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361,

31 L.Ed.2d 636 (1972), and Valley Forge, we

concluded that the Authority's conduct deprived

Sullivan of his right to use and enjoy the community

center, that Sullivan ‘“[found] the alleged

establishment of religion offensive,” and that the

Authority's actions essentially established religion

“in a place functionally analogous to Sullivan's own

18a

home.” Sullivan, 962 F.2d at 1108. 1° Under those

circumstances, Sullivan's allegations amounted to a

sufficiently “direct and personal stake” in the

dispute to confer standing, and the case was

reinstated and remanded to the district court.

Applying Sullivan, we must conclude that

Cooper has alleged a sufficiently “direct and personal

stake” in the controversy to confer standing. Cooper

claims that he was made uncomfortable by direct

contact with religious displays that were made a

part of his experience using the postal facility

nearest his home, and that upon complaint, he was

advised to alter his behavior. Under Sullivan, these

allegations state an injury in fact sufficient to

support standing.

Ill

(A) State Action

The Due Process Clause of the Fourteenth

Amendment provides: “[NJor shall any State deprive

any person of life, liberty, or property, without due

process of law.” U.S. Const. amend. XIV, § 1. By its

terms, “private action is immune from. the

restrictions of the Fourteenth Amendment,” and the

Amendment “offers no shield” against private

conduct, “ ‘however discriminatory or wrongful.’ ”

Jackson v. Metro. Edison Co., 419 U.S. 345, 349, 95

S.Ct. 449, 42 L.Ed.2d 477 (1974) (quoting Shelley v.

Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161

10 Separately, the Circuit also concluded that Sullivan's status

as a parent whose child had been taught religious songs in the

after-school program gave him an additional, independent

ground sufficient to support standing. Sullivan, 962 F.2d at

1109.

19a

(1948)). The Amendment applies only to state action.

Id.; see also Civil Rights Cases, 109 U.S. 3, 3 S.Ct.

18, 27 L.Ed. 835 (1883). The Fourteenth

Amendment, in turn, incorporates the First

Amendment, so “(t]he Fourteenth Amendment, and,

through it, the First ... Amendment[ ], do not apply

to private parties unless those parties are engaged in

activity deemed to be ‘state action.’ ” Nat'l Broad.

Co., Inc. vu. Commc'ns Workers of Am., AFL-CIO, 860

F.2d 1022, 1024 (11th Cir.1988).

“Actions of a private entity are attributable to

the State if ‘there is a sufficiently close nexus

between the State and the challenged action of the ...

entity so that the action of the latter may be fairly

treated as that of the State itself.’ ” United States v.

Stein, 541 F.3d 130, 146 (2d Cir.2008) (quoting

Jackson, 419 U.S. at 351, 95 S.Ct. 449). The “close

nexus” test “ ‘assure[s] that constitutional standards

are invoked only when it can be said that the State

is responsible for the specific conduct of which the

plaintiff complains.’ ” Jd. at 146-47 (quoting Blum uv.

Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73

L.Ed.2d 534 (1982)). However, “Supreme Court cases

on this issue ‘have not been a model of consistency.’ ”

Id. at 147 (quoting Edmonson v. Leesville Concrete

Co., 500 U.S. 614, 632, 111 S.Ct. 2077, 114 L.Ed.2d

660 (1991) (O'Connor, J., dissenting)). “Not

surprisingly, therefore, there is no single test to

identify state actions and state actors. Rather, there

are a host of facts that can bear on the fairness of an

attribution of a challenged action to the State.”

Horvath vu. Westport Library Ass’n, 362 F.3d 147, 151

(2d Cir.2004) (quotations and citations omitted).

20a

“A nexus of state action exists ... when the state

exercises coercive power, is entwined in the

management or control of the private actor, ... or

when the private actor operates as a_ willful

participant in joint activity with the State or its

agents, is controlled by an agency of the State, has

been delegated a public function by the state, or is

entwined with governmental policies.” Stein, 541

F.3d at 147 (quotations, citations, and emphases

omitted). However, “conduct by a private entity is

not fairly attributable to the state merely because

the private entity is a business subject to extensive

state regulation or ‘affected with the public

interest.” Cranley v. Nat'l Life Ins. Co. of Vermont,

318 F.3d 105, 112 (2d Cir.2003) (quoting Jackson,

419 U.S. at 350, 95 S.Ct. 449). “A finding of state

action may not be premised solely on the private

entity's creation, funding, licensing, or regulation by

the government.” Id.

1. Government Contracts

SYI's contract with the government does not

convert its conduct into state action. The

government enters into contracts for all kinds of

goods and services without converting its contractors

into state actors; architects designing federal

buildings or engineers building bridges do not

thereby become government actors. See Rendell-

Baker v. Kohn, 457 U.S. 830, 841, 102 S.Ct. 2764, 73

L.Ed.2d 418 (1982) (the “[alcts of ... private

contractors do not become acts of the government by

reason of their significant or even total engagement

in performing public contracts”). The fact that “a

private entity performs a function which serves the

public does not make its acts state action.” Jd. at

21la

842, 102 S.Ct. 2764. The contract itself is insufficient

to render all of the contractor's conduct state action,

and the CPU contract here is not enough by itself to

make SYI1 a state actor. See id.

2. The “Public Function” Test

Since the contract alone does not convert the

CPU into a state actor, we must explore whether and

to what extent the CPU is a “state actor” while

performing its contractual tasks. One way that a

private entity may be considered a state actor for

constitutional purposes is by “exercis[ing] powers

that are ‘traditionally the exclusive prerogative of

the State.’ ” Blum v. Yaretsky,_457 U.S. 991, 1005,

102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (quoting

Jackson, 419 U.S. at 353, 95 S.Ct. 449). “State action

may be found in situations where an activity that

traditionally has been the exclusive, or near

exclusive, function of the State has been contracted

out to a private entity. For example, only the State

may legitimately imprison ’§ individuals’ as

punishment for the commission of crimes.” Horvath,

362 F.3d at 151.

In West v. Atkins, the Supreme Court concluded

that the conduct of a private medical doctor

attending to prison inmates pursuant to a

government contract was “fairly attributable to the

State” for the purposes of 42 U.S.C. § 1983. 487 U.S.

42, 57, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). !! The

approach is functional:

‘1! The inmate brought a § 1983 action against the doctor

alleging an Eighth Amendment violation on the ground that

the doctor failed to provide adequate treatment for an ankle

injury.

22a

The fact that the State employed [the doctor]

pursuant to a contractual arrangement that

did not generate the same benefits or

obligations applicable to other ‘state

employees does not. alter the [state action]

analysis. It is the physician's function within

the state system, not the precise terms of his

employment, that determines whether his

actions can fairly be attributed to the State.

Id. at 55-56, 108 S.Ct. 2250 (emphasis added). State

action analysis is thus guided by the nature of the

services supplied.

SYI is a state actor under this public function

test. Congress granted to the USPS the exclusive

duty to create and operate Post Offices with

responsibility to accept and process mail, sell postal

products, and, of course, participate in the safe

carriage of mail. See 39 U.S.C. § 404(a)(3). As to safe

carriage, Congress has conferred to the Postal

Service a complete monopoly. See, e.g., 18 U.S.C. §

1693. That monopoly entails the sale of postage for

letters, acceptance of mail for transmission, and the

marking and processing of mail for delivery: all

functions performed by SYI and other CPUs.

Accordingly, we conclude that SYI is a state actor

under the public function test because it performs-at

least in some parts of the facility-“activit[ies] that

traditionally hafve] been the exclusive, or near

exclusive, function of the State.” Horvath, 362 F.3d

at 151.

That is not to say, however, that all of SYI

serves a public function, any more than selling

shovels becomes a public function when a CPU is

located in a hardware store. SYI is an independent,

23a

separate and distinct not-for-profit entity

incorporated for the Church's private use and

purposes. The extent of state action correlates

directly with the performance of the public function,

which here is limited to those areas where the

business of the CPU is conducted. This is so

notwithstanding that signage at the portal identifies

the shop (or home or seminary) as a place where

federal postal services are rendered. In sum, SYI is a

state actor pursuant to the public function test, but

only as to those areas of its facility where the public

function takes place, namely the postal counter, the

postal boxes, and the shelving unit that stores and

displays postal materials.

Having determined that at least part of SYI is

operating as a state actor under the public function

test, we consider whether that state action violated

the Establishment Clause. We conclude that it does.

The Establishment Clause of the First

Amendment provides that “Congress shall make no

law respecting an establishment of religion.” U.S.

Const. amend. I. But the “Amendment contains no

textual definition of ‘establishment’ and the term is

certainly not self-defining.” McCreary County, Ky. v.

ACLU of Ky., 545 U.S. 844, 874-75, 125 S.Ct. 2722,

162 L.Ed.2d 729 (2005). “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.’ ” Lemon v. Kurtzman, 403 U.S. 602, 612, 91

S.Ct. 2105, 29 L.Ed.2d 745 (1971) (quoting Walz v.

24a

Tax Comm'n, 397 U.S. 664, 668, 90 S.Ct. 1409, 25

L.Ed.2d 697 (1970)). One ‘ ‘significant factor in

upholding governmental programs in the face of

Establishment Clause attack is their. neutrality

towards religion.’ ” Good News Club vu. Milford Cent.

School, 533 U.S. 98, 114, 121 S.Ct. 2093, 150

L.Ed.2d 151 (2001) (quoting Rosenberger v. Rector &

Visitors of Univ. of Va., 515 U.S. 819, 839, 115 S.Ct.

2510, 132 L.Ed.2d 700 (1995)). “ ‘In distinguishing

between indoctrination that is attributable to the

State and indoctrination that is not, [the Court has]

consistently turned to the principle of neutrality,

upholding aid that is offered to a broad range of

groups or persons without regard to their religion.’ ”

Id. (quoting Mitchell v. Helms, 530 U.S. 793, 809,

120 S.Ct. 2530, 147 L.Ed.2d 660 (2000) (plurality

Opinion)).

Did the presence of the religious displays here

violate the Establishment Clause? It is clear that for

certain displays, in certain places, the government's

“religious object is unmistakable” and a violation

apparent. McCreary, 545 U.S. at 869, 125 S.Ct.

2722. We conclude that an Establishment Clause

violation occurred, but given the fact that the state

action is limited to a part of the premises, the

violation-and the remedy-are limited in the same

way and to the same extent.

(A) The Government Contract

The Supreme Court “has never held that

religious institutions are disabled by the First

Amendment from participating in publicly sponsored

social welfare programs.” Bowen v. Kendrick, 487

U.S. 589, 609, 108 S.Ct. 2562, 101 L.Ed.2d 520

(1988). “It long has been established ... that the State

25a

may send a cleric ... to perform a wholly secular

task.” Roemer v. Bd. of Pub. Works of Md., 426 U.S.

736, 746, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976). The

analysis is governed by the principle of neutrality:

“the government may not favor one religion over

another, or religion over irreligion, religious choice

being the prerogative of individuals.” McCreary, 545

U.S. at 875-76, 125 S.Ct. 2722.

With respect to the CPU program, the

government has espoused a neutral position: it will

contract for CPU services with both religious and

secular entities; and, as to religious entities, the

government makes no distinctions between faiths or

sects. The fact that a CPU is located in a religious

facility, or sponsored by a religious entity, or that its

revenues benefit a particular faith, does not offend

the Establishment Clause. Any violation must arise

from the specific conditions of SYI's structure and

space, and its religious displays.

(B) The Lemon Test

The primary means of _ evaluating an

Establishment Clause challenge to a _ religious

display remains the beleaguered Lemon test,

articulated by the Supreme Court in Lemon uv.

Kurtzman, 403 U.S. 602, 91 S.Ct. 2105 (1971).

“Under [the] Lemon [test], government action that

interacts with religion must: (1) have a secular

purpose, (2) have a principal effect that neither

advances nor inhibits religion, and (3) not bring

about an excessive government entanglement with

religion.” Westchester Day School v. Vill. of

Mamaroneck, 504 F.3d 338, 355 (2d Cir.2007) (citing

Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105); see also

26a

Agostini v. Felton, 521 U.S. 203, 218, 117 S.Ct. 1997,

138 L.Ed.2d 391 (1997).

Both parties submit that the Lemon test is the

appropriate test for evaluating the Establishment

Clause challenge here (and the District Court

agreed), though a review of relevant case law

demonstrates that Lemon is difficult to apply and

not a particularly useful test in determining what is

permissible under the Establishment Clause.!? Still,

“it is not our role to provoke the Supreme Court into

reconsidering its precedent by an aggressive (or

fanciful) ruling on a vital subject.” Landell v. Sorrell,

406 F.3d 159, 177 (2d Cir.2005) (Jacobs, J.,

dissenting from the denial of rehearing en banc ).

#22 In 2000, the Supreme Court denied certiorari in an

Establishment Clause case, but Justice Scalia, joined by Chief

Justice Rehnquist and Justice Thomas, dissented from the

denial, expressing frustration with the Lemon test. See

Tangipahoa Parish Bd. of Educ. v. Freiler, 530 U.S. 1251, 120

S.Ct. 2706, 147 L.Ed.2d 974 (2000) (Scalia, J., dissenting from

the denial of certiorari) (“Like a majyonty of the Members of this

Court, I have previously expressed my disapproval of the

Lemon test. I would grant certioran in this case if only to take

the opportunity to inter the Lemon test once for all.”) (citations

omitted). Other Justices and courts have expressed simular

frustrations. See Comm. for Pub. Educ. & Religious Liberty v.

Regan, 444 U.S. 646, 671, 100 S.Ct. 840, 63 L.Ed.2d 94 (1980)

(Stevens, J., dissenting) (lamenting “the sisyphean task of

trying to patch together the blurred, indistinct, and variable

barrier described in Lemon uv. Kurtzman ”) (quotations omitted);

Roark v. S. Iron R-1 School Dist., 573 F.3d 556, 563 (8th

Cir.2009) (observing that “the Lemon test has had a ‘checkered

career’ ”) (quoting Van Orden vu. Perry, 545 U.S. 677, 700, 125

S.Ct. 2854, 162 L.Ed.2d 607 (2005)); Access Fund v. U.S. Dep't

of Agric., 499 F.3d 1036, 1042 (9th Cir.2007) (“We recognize

that the Lemon test has hardly been sanctified by the Supreme

Court.”).

27a

Accordingly, we proceed to a_ straightforward

application of the Lemon test.

We first ask whether there is a secular purpose

for displaying religious material on the postal

counter. We cannot think of one. The express and

admitted purpose of the religious material is to raise

awareness for the mission sponsored by the Church

and to spread the Church's Christian message. We

have no trouble concluding that the displays on the

postal counter soliciting prayer requests and

advertising the mission express a distinctly religious

purpose, and that they fail spectacularly under the

first inquiry of Lemon. Having failed at the first

juncture, there is no need to proceed further in the

Lemon test, although it is no great stretch to say

that the religious materials on the postal counter

would also have a principal effect of advancing

religion (and might arguably entangle’ the

government excessively with religion). The religious

displays on the postal counter clearly fail the Lemon

test.

Nevertheless, the analysis is complicated by a

disclaimer on the postal counter:

The United States Postal Service does not

endorse the religious viewpoint expressed in

the materials posted at this Contract Postal

Unit.

While the presence of this disclaimer informs our

review, the precise impact of a disclaimer on

Establishment Clause analysis is not at all clear,

and this Circuit has not directly addressed the issue.

Supreme Court jurisprudence on disclaimers is

not determinative. In County of Allegheny v. ACLU,

28a

492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472

(1989), the Supreme Court’ reviewed’ the

constitutionality of [iJ a créche inside of a

courthouse, and [ii] a menorah and Christmas tree

displayed outside of a city building. It was a split

decision: the créche was unconstitutional, but the

menorah/Christmas tree display was not. The

presence of a disclaimer, however, did not save the

créche:

The fact that the créche bears a sign

disclosing its ownership by a Roman Catholic

organization does not alter [the] conclusion

[that the display violates the Establishment

Clause]. On the contrary, the sign simply

demonstrates that the government is

endorsing the religious message of [the]

organization....

Id. at 600, 109 S.Ct. 3086. However, in Rosenberger

v. Rector and Visitors of Univ. of Va., 515 U.S. 819,

115 S.Ct. 2510, 182 L.Ed.2d 700 (1995), the Supreme

Court permitted the use of public university student-

activity funds to print a newspaper for a religious

student group. Justice O'Connor's concurrence took

note of an “explicit disclaimer” as a justification for

the outcome. Jd. at 852, 115 S.Ct. 2510 (O'Connor,

J., concurring). The Ninth Circuit has likewise noted

that the perception of impermissible religious

endorsement was “less likely ... because of the

[presence of] express disclaimers that [a religious]

activity [was] not school-sponsored.” Hills _ vu.

Scottsdale Unified School Dist. No. 48, 329 F.3d

1044, 1056 (9th Cir.2003). “[A] disclaimer arguably

distances [government] officials from ‘sponsoring’

[religious] speech....” Lassonde v. Pleasanton Unified

29a

School Dist., 320 F.3d 979, 984 (9th Cir.2003). The

Sixth Circuit has also cited the presence of a

disclaimer as a basis for permitting the display of a

Latin cross in a public square during the Christmas

season. Pinette v. Capitol Square Review & Advisory

Bd., 30 F.3d 675, 679 (6th Cir.1994) (“Of course, the

display at issue here is not a government sponsored

display; it is, in fact, privately funded and privately

maintained, and carries an express disclaimer of any

government support.”). Jd.

However useful the disclaimer is, the law does

not unambiguously allow us to draw the conclusion

that the disclaimer prevents or cures a violation.

As a general matter, federal courts have leeway

to fashion appropriate relief, and “[a]ppellate

tribunals have accorded district courts broad

discretion to frame equitable remedies _ [for

constitutional violations] so long as the relief

granted is commensurate with the scope of the

constitutional infraction.” Todaro v. Ward, 565 F.2d

48, 54 n. 7 (2d Cir.1977). Especially in the

Establishment Clause context, courts must endeavor

to craft remedies that correspond to the violations.

See Bowen v. Kendrick, 487 U.S. 589, 620, 108 S.Ct.

2562, 101 L.Ed.2d 520 (1988) (“The District Court ...

identiflied] certain instances in which it felt [federal]

funds were used for constitutionally improper

purposes [under the Establishment Clause], but ...

the court did not adequately design its remedy to

address the specific problems it found ....”); see also

Mitchell v. Helms, 530 U.S. 793, 865, 120 S.Ct. 2530,

147 L.Ed.2d 660 (2000) (O'Connor, J., concurring)

(“[E]xtensive violations ... will be highly relevant in

30a

shaping an appropriate remedy.... 1 know of no case

in which we have declared an entire aid program

unconstitutional on Establishment Clause grounds

solely because of violations on [a] minuscule

scale....”) (quotations and citations omitted).

Here, the district court ordered SYI to “remove.

any and aill religious displays, prayer cards,

advertisements, donation _ solicitations, and

telecommunication videos or broadcasts’ that

proselytize or advance the religion of the [Church].”

The Postal Service was also directed to prohibit SY!

from posting such materials as long as it was “in the

course of operating the [CPU].” However, the

removal of all religious messages would render the

premises a single-use post office, and would prevent

the second legitimate use to which the premises are

dedicated. This remedy does not correspond to the

scope of the violation and the resulting harm.

The gravamen of the complaint is that Mr.

Cooper was made to feel that he was an unwilling

participant in a faith not his own when he entered a

space dedicated to two separate functions, only one

of which was apparent from the outside. Ordinarily,

when CPUs are housed in churches or synagogues or

monasteries or mosques, customers are alerted to

the facility's religious status by cues such as

ecclesiastical architecture, schedules of religious

services, and religious iconography or statuary. SYI

gives no visual cues to alert its customers to its

function as a Christian outreach facility. So a

customer walking into SYI might become bewildered

as to whether a chapel has been made into a post

office, or a post office has been made into a chapel.

3la

The district court erred by extending the

violation-and then the remedy-to the entire facility.

The Manchester CPU is not a classified post office

and need not be regulated as such, but the public

function it performs is in tension with its (otherwise

permissible) sectarian message. A direct, effective

and complete remedy for the violation is one that

limits the public function to designated public spaces

and returns the remainder of the facility to SYI's

private purposes. This can be accomplished short of

frustrating either the postal function or the other

lawful purposes which the Church pursues on the

premises.

Since the extent of the state action (and the

extent of the Establishment Clause violation) is

limited to that part of the CPU fulfilling the Postal

Service's mandated public function, a_ sufficient

remedy need extend no further or elsewhere. Here,

the public functions include the acceptance of mail,

the processing of mail and packages for delivery, and

the sale of postal goods and services. These are

performed or fulfilled at the postal counter, in the

post office boxes, and on the shelving housing postal

products; so the postal counter and the surfaces of

the post office boxes and shelving units are zones in

which the function of religious outreach is out of

place. The postal counter, post office boxes and

shelving units must therefore be free of prayer cards

and messages and must be cleared of religious

material. Since the disclaimer is helpful in

differentiating the public space and function from

the private one, it should remain.

In order to differentiate the prmary area

serving the public function from the remainder of the

32a

space operating as a private ministry, SYI is directed

to create and install a barrier in front of the postal

counter that is a visual cue and gives a sense of

passage from one area of the space into another,

thereby delineating space exclusively dedicated to

the public function from space dedicated to other

things. Separation and visual cues will not keep the

video from being seen and overheard by postal

patrons, but the source will unambiguously emanate

from a zone distinct from the post office functions.

We need not prescribe the specifications of the

barrier, but it would do to use such things as

stanchions with hanging ropes (of the kind used in a

theater), or a low railing. Once the postal counter is

cleared and visual cues installed, no more is required

to cure the Establishment Clause violation.

CONCLUSION

For the foregoing reasons, the judgment of the

district court is vacated and the case remanded for

the creation of an injunction consistent with this

opinion.

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF CONNECTICUT

BERTRAM COOPER,

Plaintiff,

we No. 3:083CV01694

U.S. PosTAL SERVICE, ET AL., (DJS)

Defendants.

Decided and Filed: April 18, 2007

Entered: April 20, 2007

D ECISI

Dominic Squatrito, District Judge.

Plaintiff, Bertram Cooper (“Cooper”) brings this

action for declaratory and injunctive relief against

Defendants United States Postal Service (“the Postal

Service”), John E. Potter (“Potter”), and Ronald G.

Boyne (“Boyne”) (collectively, “the Defendants”), and

against Intervenor Defendants Full Gospel

Interdenominational Church, Inc. (“the Church”),

Dr. Philip Saunders Heritage Association, Inc. (“the

Association”), and Sincerely Yours, Inc. (“SYI”)

(collectively, “the Intervenor Defendants”), alleging

violations of his rights, and the rights of all citizens,

under the Establishment Clause of the First

Amendment to the United States Constitution. Now

pending are the Defendants’ Motion for Summary

Judgment (dkt.# 38) and Cooper's Motion for

Summary Judgment (dkt.# 41).! For the reasons

stated herein, the Defendants’ motion (dkt.# 38) is

GRANTED in part and DENIED in part, and

Cooper's motion (dkt.# 41) is GRANTED in part

and DENIED in part.

I. FACTS2

This case involves whether, and to what extent,

it is constitutional for the Postal Service to allow a

religious organization to operate a business known

as a contract postal unit (“CPU”), which, pursuant to

a contract with the Postal Service, provides certain

postal services to the public. At all times relevant to

this case, the following information applies: Cooper

is a natural person residing in Manchester,

Connecticut. Defendant Potter is Postmaster

General of the United States, which is the chief

executive officer of the Postal Service. See 39 U.S.C.

§§ 202(c), 203. Defendant Boyne is the Postmaster of

the Manchester, Connecticut post office. Intervenor

Defendant the Church, a religious organization,

originally signed the contract with the Postal Service

for a CPU to be located on private property at 1009

Main Street in Manchester, Connecticut; this

contract was subsequenily transferred to Intervenor

Defendant SYI, a Connecticut not-for-profit

corporation that operates the CPU on private

property in Manchester. The Association, also a

1 The court notes that the Intervenor Defendants have joined

and adopted both the Defendants’ motion for summary

judgment and the Defendants’ opposition to Cooper's motion for

summary judgment. (See dkt. # s 59 & 60.)

* Based upon the parties’ submissions to the court, there

appear to be no genuine issues of material fact requiring trial.

Instead, the parties indicate that this case presents a purely

legal issue that should be decided on summary judgment.

Connecticut not-for-profit corporation, was organized

to hold the real estate of the Church, and is the

titleholder and landlord to the real estate located at

1009 Main Street in Manchester, Connecticut.3

A. THE POSTAL SERVICE AND CONTRACT

POSTAL UNITS

The Postal Service, which derives its authority

from the Constitution of the United States, see U.S.

Const. art. I, § 8, cl. 7, acts as an independent

establishment of the executive branch of the federal

government, see 39 U.S.C. § 201. The general duties

of the Postal Service are to plan, develop, promote,

and provide adequate and efficient postal services at

fair and reasonable rates and fees, and to receive,

transmit, and deliver written and printed matter

and parcels throughout the United States and the

world. See 39 U.S.C. § 403. Congress has bestowed

the Postal Service with the power “to provide and

sell postage stamps and other stamped paper, cards,

and envelopes and to provide such other evidences of

payment of postage and fees as may be necessary or

desirable.” Id. § 404(a)(4).

In certain circumstances, the Postal Service

enters into contracts establishing CPUs, which are

distinguishable from traditional, government-run

“official” post offices (also known as “classified

units”) staffed and operated by Postal Service

employees. The Postal Service's Glossary of Postal

Terms defines a CPU as

3 The sole incorporator of both SYI and the Association was the

Reverend Eleanor Kalinsky (“Reverend Kalinsky”) of the Full

Gospel Interdenominational Church, Inc.

a postal unit that is a subordinate unit

within the service area of a main post office.

It is usually located in a store or place of

business and is operated by a contractor who

accepts mail from the public, sells postage

and supplies, and provides selected special

services (for example, postal money order or

registered mail).

(Dkt.# 49-B, Ex. 16.) CPUs are operated by persons

who are not postal employees. (See id., Ex. 20.) CPUs

are not permitted to provide products from

competing services such as Federai Express or the

United Parcel Service, but they may conduct non-

postal business on the premises in an area that is

separate and distinct from the postal products. All

postal funds must be kept separate from the non-

postal funds.

The Postal Service relies upon CPUs to bring

postal services to areas in which the Postal Service

has determined that the establishment of a classified

unit would be unfeasible. There are approximately

5,200 CPUs nationwide, and they are currently

operated in, among other places, colleges, grocery

stores, pharmacies, quilting shops, and private

residences. The Postal Service has represented that

there are several CPUs being operated by

institutions and groups with religious affiliations.

The Postal Service asserts that CPUs are more

cost-effective than classified units because CPUs

offer the same products as classified units, but

without the costs (e.g., employee salaries and

benefits) associated with classified units. Contracts

for CPUs usually come in_ two varieties,

performance-based contracts and fixed-price

contracts. A performance-based contract is a contract

in which the supplier is paid in relationship to how

much revenue the CPU generates. Some factors for

determining the percentage that a supplier will

receive under a performance-based contract are: the

competition in the area; the need in the community;

and the cost for operating that particular CPU. A

fixed-price contract is a contract in which the

supplier receives twelve monthly payments per year

to reflect the annual rate, regardless of the amount

of revenue the CPU generates. The Postal Service

prefers performance-based CPU contracts.

The decision to open a CPU starts at the local

level, where issues such as the length of the wait

lines at classified units, area need, cost, and

competition are considered. Once it has _ been

determined that a particular area is in need of a

CPU, there is an approval process from the local

level to the Postal Service's district office. The Postal

Service then engages in a solicitation and evaluation

process whereby the Postal Service solicits bids from

the community for CPU locations. The Postal Service

receives and evaluates the bids. Selection for the

awarding of a CPU contract is based on a formula

regarding a “business score” and a “price score,” and

the standard criteria used in evaluating CPU

proposals are: suitability of location, suitability of

the facility, and ability to provide services.

Each CPU has a_e contracting officer

representative appointed to oversee that CPU. The

contracting officer representative is responsible for

administering the contract. Once a CPU contract has

been awarded, the contracting officer representative

has the responsibilities of conducting on-site

reviews, performing an annual review of the CPU's

bond, conducting periodic financial reviews with an

annual audit, and reviewing the operating/service

hours at the CPU. There is no required schedule that

a contracting officer representative must keep with

regard to a CPU, although he must conduct on-site

reviews “periodically.”

B. THE SINCERELY YOURS, INC. CONTRACT

POSTAL UNIT

Boyne, who is a member of the Church, has been

the Postmaster for the Town of Manchester since

1998. Boyne has been trained to oversee CPUs and

has acted as a contracting officer representative on

several occasions at various CPUs; however, he has

testified that he spends minimal time on CPU

matters. Before the CPU contract was awarded to

the Church (which was later transferred to SYI), the

Town of Manchester had two prior CPUs in

operation, the Weston Pharmacy CPU and the

Community Place CPU, which provided postal

services to a large contingent of the Manchester

community for whom the trek to the classified

Manchester Post Office was too burdensome or

inconvenient. Boyne was the contracting officer

representative for the Community Place CPU from

1998 through October 2001, when the Community

Place CPU closed.

Eight months prior to closing, the Community

Place CPU gave the Postal Service notice of its

closing. There was substantial community interest

generated by this closing, as the community sought

to find a suitable replacement. Although the Postal

Service considered establishing a second classified

unit in Manchester, it ultimately decided to contract

for a new CPU. The Postal Service immediately

began a search to find a site that would replace the

Community Place CPU. This search included the

solicitation of proposals for a new CPU, and the

Postal Service sent solicitations throughout the

Manchester community. Boyne states that he met

with the mayor of Manchester, “two congressmen

and the senator,” 4 the board of directors for the

Town of Manchester, and the Manchester Downtown

Council regarding the replacement CPU. Two

organizations submitted bids to operate’ the

replacement CPU: Manchester Hardware, Inc.

(“Manchester Hardware”) and the Church.

Apparently, before the Church and Manchester

Hardware submitted their competing bids,

Manchester Hardware had submitted previous bids,

which the Postal Service rejected. The Postal Service

evaluation committee for the CPU bids submitted by

Manchester Hardware and the Church consisted of

Denise Adessa, Tony Impronto, and Mark Kielbasa.

This committee gave the Church a higher suitability

score than Manchester Hardware,® and on November

20, 2001, the Postal Service awarded the CPU

contract to the Church. Boyne was not involved in

the evaluation, selection, or award of the CPU

contract to the Church. On October 9, 2003, the

Church and the Postal Service modified the CPU

contract by replacing the Church with SYI, a

corporation set up by the Church for the purpose of

‘ In the portions of Boyne's deposition testimony that were

submitted to the court, Boyne does not identify these three

legislators by name. (See dkt. # 40, Ex. 4, Boyne Dep. at 29:11-

12.)

5 Cooper admits that Manchester Hardware's bid was higher

than the Church's bid.

establishing the CPU, and SYI began to run the

CPU (“the SYI CPU”).

Pursuant to the terms of the SYI CPU contract,

the interior and exterior of the SYI CPU premises

are to be kept clean, neat, uncluttered, and in good

repair. The SYI CPU must contain signage

indicating that the establishment is a contract postal

unit and providing the address of the nearest Postal

Service Administrative Office. All money collected at

the SYI CPU is the property of the Postal Service,

and all payments to SYI by the Postal Service are

made in arrears after each Postal Service accounting

period. As part of the SYI CPU contract, the Postal

Service was required to pay for, among other things,

the build-out of the SYI CPU counter and the

construction of post office boxes at the SYI CPU. SYI

was to pay for all other renovations to the building

that housed the SYI CPU. Under the terms of the

SYI CPU contract, SYI receives, as compensation,

18% of all sales made at the SYI CPU and 33% of all

post office box rental proceeds. As the contracting

officer representative, Boyne (or one of his

supervisors) conducts periodic on-site reviews of the

SYI CPU to ensure that SYI is in compliance with

the contract; Boyne's contact and oversight of the

SYI CPU is, however, minimal. SYI runs the day-to-

day operations of the SYI CPU, and SYI has the

authority to hire and fire its CPU employees. SYI

pays for its employees to receive training from the

Postal Service with regard to running a CPU; this

training includes learning about accounting

procedures and equipment operation. SYI employees

do not, however, wear Postal Service uniforms.

C. DISPLAYS IN THE SYI CPU

As stated above, the Church is a religious

organization. Pursuant to the Church's charter, the

Church's mission is to “engage in the preaching of

the Gospel of Jesus Christ in the State of

Connecticut[,] ... the United States and ... foreign

lands.” In addition, “It shall be the object of [the

Church] to establish[,] among other thingsf[,]

Churches, whenever and wherever possible, for the

advancement of the kingdom of Jesus Christ” and to

“send forth preachers and workers whose principle

[sic] objective shall be to promote the Kingdom of the

Lord Jesus Christ....” (Dkt. # 49-B, Ex. 2 | 1(b).)

The SYI CPU contains both religious and non-

religious displays. The exterior wall of the SYI CPU,

which faces the street, has a label with the stylized

eagle of the Postal Service indicating that the

premises contains a Postal Service contract postal

unit. The sign over the threshold to the building

reads “Sincerely Yours.” Another sign on the outside

of the SYIJ CPU reads, in cursive type, “Sincerely

Yours, Inc.” and, in print type, “United States

Contract Post Office.”

The intenor of the SYI CPU contains evangelical

dicplays, including posters, advertisements, artwork,

and photography, which change at various times

during the year. Upon entering the SYI CPU, a

postal counter, built by the Postal Service, sits

immediately to the customer's right; behind the

counter is a slat wali, also built by the Postal

Service. In their submissions to the court, the parties

describe the religious displays in the SYI CPU as

follows:

(1) On the wall directly to the right of the postal

counter and slat wall is a large religious display that

10b

informs customers about Jesus Christ and invites

them to submit a request if they “need prayer in

their lives.” Specifically, this display states:

Do you or someone you know need

prayer? At this very moment someone is

praying in our 24 hour Prayer Tower and we

would love to pray for you. Please drop your

request into our confidential prayer box, or if

you would prefer to speak to someone

personally, call our Church office.

Once your need has been answered, we'd

be so happy to hear from you. Please call our

Church office ... and let our receptionist

know that God has answered your prayer.

“Trust in him at all times; ye people pour

out your heart before him; God is a refuge for

us.” Psalm 62:8

“When you feel you're all alone, and your

heart would break in two, remember,

someone is praying for you.”

(Id., Ex. 8.)

(2) Directly on the postal counter adjacent to this

display sits a pile of “prayer cards” and a box into

which postal service customers can put their prayer

requests. The message on the front of the prayer

cards reads:

Twenty-four hours a day, someone is on their

[sic] knees praying for the needs of others. If

you have a need or prayer request, you can

fill out this prayer card or call our Church

Office at anytime. If you receive an

answering machine, leave a message. Your

11b

call will be received and someone will be

praying on your behalf.

(Id., Ex. 9.) The reverse side of the prayer cards

reads: “Let us Join with You in Prayer. We have a

24-hour Prayer Tower at the Full Gospel

Interdenominational Church, Inc., continually

praying on the behalf of others.” (/d.)

(3) There is another display in the SYI CPU

containing a framed advertisement for World-Wide

Lighthouse Missions, the missionary organization

incorporated by the Church to which the SYI CPU's

profits are donated. This display, which sits directly

opposite a shelving unit containing official USPS

postal supplies and forms and above a table used by

customers filling out USPS paperwork, offers biblical

quotations and explains that the organization is

“Endeavoring to Reach the World with the Love of

Jesus Christ, one life at a time.” (/Jd., Ex. 2

9(cvii).)

(4) Directly to the right of the World-Wide

Lighthouse Missions display is yet another display

that provides additional information about World-

Wide Lighthouse Missions, including pamphlets

describing various “hands of ministry” trips and

envelopes and “appeal flyers” soliciting donations. To

the right of this display, immediately to the left of

the Postal Service postal boxes, is a donation box,

decorated with World-Wide Lighthouse Missions

mission photographs.

(5) A “World-Wide Lighthouse Missions” coin

donation jar, decorated with mission photographs,

sits on the postal counter.

12b

(6) To the left of the postal counter, a television

monitor displays Church-related religious videos

directly ahead, and in plain view, of customers

waiting in line at the postal counter. These television

displays have included: videotaped talks by

Reverend Kalinsky on various Christian topics;

videos explaining the mission of World-Wide

Lighthouse Missions, Inc.; a video highlighting the

activities of the Church's Sunday School program; a

video of performances from several of the Church's

choirs; a video entitled “God's Thoughts Toward Us,”

which promotes the Church's Vacation Bible School;

and other videos of television broadcasts that include

audible soundtracks with scripture messages and

gospel songs.

(7) Above the official Postal Service rental post

boxes and on the wall across from the transaction

counter are various 8 1/2 " x 14" photographs of a

number of the Church's events. Among these

photographs is a picture of “Wally,” a character who

delivers Bibles, and conveys religious messages

through puppets acting out skits, to children in the

community. Wally is depicted standing beside

George Washington and Abraham Lincoln.

(8) In addition to the above-listed displays, the

SYI CPU features additional seasonal displays,

including a large extended créche, which is displayed

in the SYI CPU's storefront window during the

Christmas holiday season. In addition, there are, at

various times, video presentations displayed on a

television set inside the SYI CPU.

For its part, the Postal Service states that it

does not encourage or induce SYI to display the

religious materials in the SYI CPU. On the SYI CPU

13b

transaction counter, there is a sign, provided by the

Postal Service, which reads: “The United States

Postal Service does not endorse the religious

viewpoint expressed in the materials posted at this

Contract Postal Unit.” (Dkt. # 52-2, Ex. 8 7 12(a)(1)

& attached pictures.) To the right of this disclaimer

is another sign, which reads: “[The SYI] United

States Contract Postal Unit is operated by the Full

Gospel Interdenominational Church. Thank you for

your patronage.” (/d., Ex. 8 4 12(a)(2).) The

Intervenor Defendants maintain that SYI does not

permit its employees to proselytize at the SYI CPU,

and that, if a SYI CPU customer requests a prayer,

SYI employees are instructed to refer such

customers to the Church itself.

D. THE PLAINTIFF'S CONTACT WITH THE SYI

CPU

Cooper, a Manchester, Connecticut resident,

maintains that he lived “considerably closer” to the

SYI CPU than to the Manchester Post Office. The

Defendants deny this assertion, claiming that

Cooper lived approximately three miles from both

the SYI CPU and the Manchester Post Office.

Cooper visited the SYI CPU on a number of

occasions, and states that the religious displays

there made him “very uncomfortable.” On one

occasion, Cooper complained about these religious

dispiays to the employees in the SYI CPU. In

response to his concerns, Cooper was told that if he

did not like the religious displays, he could go

somewhere else. Cooper claims that he subsequently

did go to the Manchester Post Office to satisfy his

postal needs, but the travel involved in doing so is

more difficult for him than the travel to the SYI

14b

CPU. The Defendants deny that Cooper endured a

greater difficulty by traveling to the Manchester

Post Office rather than to the SYI CPU. Cooper

asserts the circumstances surrounding the SYI CPU

violate the Establishment Clause of the First

Amendment to the United States Constitution.

II. DISCUSSION

There are two motions for summary judgment

pending before the court, the Defendants’ and

Cooper's. The parties do not contend that there are

issues of fact that need to be resolved. Rather, both

claim that, based on the facts the court described

above, each is, as a matter of law, entitled to

summary judgment. In his Complaint, Cooper seeks:

(1) a judgment, entered pursuant to 28 U.S.C. §

2201, declaring that the Defendants have violated

his First Amendment rights insofar the Defendants’

actions have delegated a “governmental power to a

pervasively sectarian institution that exercises such

power in a manner inextricably entangled with

religious symbolism and expression” and distributed

“public funds to a pervasively sectarian institution

that uses said funds for the advancement of

religion”; and (2) a permanent injunction ordering

the Defendants, and their agents, representatives,

successors, and those acting in concert with them, to:

(a) cease and desist from delegating governmental

power to SYI, to the extent that SYI exercises that

power in manner inextricably entangled with

religious symbolism and expression; (b) cease and

desist from distributing public funds to SYI, to the

extent that SYI uses such funds for the advancement

of religion; (c) take all necessary action to ensure

that SYI, in the course of providing postal services,

15b

ceases acting in a manner that proselytizes or

advances religion; (d) provide adequate and ongoing

notice to all CPUs that religious messages may not

be conveyed, or religion otherwise advanced, in a

manner entangled with the exercise of the CPU's

authority pursuant to its contract with the Postal

Service; (e) institute adequate and ongoing

procedures for the monitoring of CPUs to ensure

compliance with any injunction the court may issues;

and (f) adopt adequate and ongoing procedures for

correcting violations of any injunction the court may

issue. The Defendants, for their part, ask that the

court reject Cooper's First Amendment claims and

grant summary judgment in their favor on all of

Cooper's claims.

A. SUMMARY JUDGMENT STANDARD

A motion for summary judgment may be granted

“if the pleadings, depositions, answers’ to

interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine

issue of material fact and that the moving party is

entitled to judgment as a matter of law.”

Fed.R.Civ.P. 56(c).

Summary judgment is appropriate if, after

discovery, the nonmoving party “has failed to make a

sufficient showing on an essential element of [its]

case with respect to which [it] has the burden of

proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323,

106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “The burden

is on the moving party ‘to demonstrate the absence

® Cooper also asks that the court grant him his costs and

attorney's fees and “lolrder such other relief as justice may

require.”

16b

of any materiai factual issue genuinely in dispute.’ ”

Am. Int'l Group, Inc. v. London Am. Int'l Corp., 664

F.2d 348, 351 (2d Cir.1981) (quoting Heyman uv.

Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319-20

(2d Cir.1975)).

A dispute concerning a material fact is genuine “

af evidence is such that a reasonable jury could

return a verdict for the nonmoving party.’ ” Aldrich

v. Randolph Cent. Sch. Dist., 963 ¥.2d 520, 523 (2d

Cir.1992) (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202

(1986)). The Court must view all inferences and

ambiguities in a light most favorable to the

nonmoving party. See Bryant v. Maffucci, 923 F.2d

979, 982 (2d Cir.1991). “Only when reasonable minds

could not differ as to the import of the evidence is

summary judgment proper.” Jd.

B. ANALYSIS

The First Amendment to the U.S. Constitution

states that “Congress shall make no law respecting

an establishment of religion, or prohibiting the free

exercise thereof.” U.S. Const. amend. I. Cooper

maintains that the Defendants are violating the

First Amendment because the SYI CPU is a state

actor whose religious displays and_ religious

affiliation are prohibited under the _ First

Amendment. Cooper bases his claim that the SYI

CPU is a state actor under two theories: (1) the

Postal Service has delegated “a uniquely public

function to the Church”; and (2) the Postal Service is

“deeply entwined in the management and control of

the SYI CPU.” Cooper claims that the religious

displays at the SY!I CPU would thus constitute

speech by a state actor that is prohibited under the

17b

First Amendment. Cooper further maintains that,

even if the SYI CPU were not a government actor, its

actions would still violate the First Amendment as

constituting governmental support and promotion of

religious communications. The Defendants reject all

of Cooper's claims. The court shall analyze Cooper's

claims seriatim.

1. State Action 7

It is a fundamental principle of constitutional

law that the First Amendment applies only to state

actors. See Gorman-Bakos v. Cornell Co-op Extension

of Schenectady County, 252 F.3d 545, 551 (2d

Cir.2001). The purpose of this “state action”

requirement is not only to “preserv[e] an area of

individual freedom by limiting the reach of federal

law and avoi[d] the imposition of responsibility on a

State for conduct it could not control ..., but also to

assure that constitutional standards are invoked

when it can be said that the State is responsible for

the specific conduct of which the plaintiff complains.”

Brentwood Acad. v. Tenn. Secondary Sch. Athletic

Ass'n, 531 U.S. 288, 295, 121 S.Ct. 924, 148 L.Ed.2d

807 (2001) (internal quotation marks and citations

omitted) (alterations in onginal). The court must

first determine whether the conduct alleged here

meets the “state action” requirement.

7 The court points out that much of the case law regarding

“state action” addresses the relation of the Fourteenth

Amendment, which applies to the individual States and not the

federal government, to private entities. Nevertheless, “The

standards utilized to find federal action, necessary to sustain a

claim under the Constitution, have been held to be identical to

those employed to detect ‘state action.’ ” Wenzer v. Consol. Rail

Corp., 464 F.Supp. 643, 647 (D.Pa.1979).

18b

“For the conduct of a private entity to be fairly

attributable to the state, there must be such a close

nexus between the State and the challenged action

that seemingly private behavior may be fairly

treated as that of the State itself.” Flagg v. Yonkers

Sav. and Loan Ass‘n, 396 F.3d 178, 187 (2d Cir.2005)

(internal quotation marks omitted). “What is fairly

attributable [as state action] is a matter of

normative judgment, and the criteria lack rigid

simplicity.” Brentwood Acad., 531 U.S. at 295, 121

S.Ct. 924. Indeed, “no one fact can function as a

necessary condition across the board for finding state

action; nor is any set of circumstances absolutely

sufficient, for there may be some countervailing

reason against attributing activity to the

government.” Jd. at 295-96, 121 S.Ct. 924. There are

“a host of facts that can bear on the fairness of such

an attribution.” Jd. at 296, 121 S.Ct. 924. As the

Supreme Court has noted,

[A] challenged activity may be state action

when it results from the State's exercise of

coercive power, ... when the State provides

significant encouragement, either overt or

covert, ... when a private actor operates as a

willful participant in joint activity with the

State or its agents, .... when [the private

actor] is controlled by an agency of the State,

when [the private actor] has been delegated

a public function by the State, when [the

private actor] is entwined with governmental

policies, or when government is entwined in

[the private actor's] management or control.

Id. (internal quotation marks and citations omitted);

see Gorman-Bakos, 252 F.3d at 552.

19b

a. Delegation of Public Function to Private Actor

“State action may be found in situations where

an activity that traditionally has been the exclusive,

or near exclusive, function of the State has been

contracted out to a private entity.” Horvath uv.

Westport Library Ass'n, 362 F.3d 147, 151 (2d

Cir.2004); see Jackson v. Metro. Edison Co., 419 U.S.

345, 352, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)

(finding “state action present in the exercise by a

private entity of powers traditionally exclusively

reserved to the State”). The Supreme Court has

applied this test strictly. “The fact ‘[t]hat a private

entity performs a function which serves the public

does not make its acts [governmental] action.’ ” San

Francisco Arts & Athletics, Inc. v. U.S. Olympic

Comm., 483 U.S. 522, 544, 107 S.Ct. 2971, 97

L.Ed.2d 427 (1987) (quoting Rendell-Baker v. Kohn,

457 U.S. 830, 842, 102 S.Ct. 2764, 73 L.Ed.2d 418

(1982)). In addition, the acts of private contractors

“do not become acts of the government by reason of

their significant or even total engagement in

performing public contracts.” Rendell-Baker, 457

U.S. at 841, 102 S.Ct. 2764. Rather, as this district

has noted, “to constitute state action under the

public function doctrine, private conduct must not

only be something the government traditionally

does, but it also must be something that only the

government’ traditionally does.” Szekeres uv.

Schaeffer, 304 F.Supp.2d 296, 311 (D.Conn.2004)

(emphasis in original).

There is no question that the function performed

by the Postal Service is a public one. Indeed, the

Postal Services's very raison d’‘étre, see supra Part

I.A., is to provide services to the public. Thus, insofar

20b

as the SYI CPU operates under its contract with the

Postal Service, it also provides a public function. As

noted above, however, the performance of a function

that serves the public is not, by itself, dispositive of

the issue here. In addition, the fact that the SYI

CPU performs its public services pursuant to a

contract with the Postal Service does not render its

conduct as state action. Rather, the question is

whether the Postal Service has delegated to the SYI

CPU a function that is traditionally the exclusive

prerogative of the government.

The function of postal services, and hence the

function delegated to the SYI CPU, is one that has

traditionally been performed by the government. In

England, the sovereign has provided postal services

since, at least, the early sixteenth century, when

King Henry VII “instituted [a] ... permanent letter

carriage on specified routes.” Christina M. Bates,

From 34 Cents to 37 Cents: The Unconstitutionality

of the Postal Monopoly, 68 Mo. L.Rev. 123, 126

(Winter 2003). “By the early 18th century, the posts

were made a sovereign function in almost all nations

because they were considered a sovereign necessity.”

U.S. Postal Serv. uv. Council of Greenburgh Civic

Ass‘ns, 453 U.S. 114, 121, 101 S.Ct. 2676, 69 L.Ed.2d

517 (1981). The English postal system was

eventually brought to the British colonies in North

America. At first, the “individual colonial assemblies

organized postal systems of their own.... [In 1707,

however,] the English Post Office ... established a

postal system within the American colonies.” Bates,

supra, at 128. In July of 1775, after the American

colonists began to resist English management of the

postal system, “the Continental Congress, compelled

21b

by the need for a dependable channel of

communication to the army and to state assemblies

upon which it relied for financial support,

established its own government-managed postal

operation.” Jd. at 129. The Articles of Confederation,

enacted after the American Revolution, “granted the

Congress the ‘power of ... exacting such postage ... as

may be requisite to defray the expences [sic] of the

said office ... (conferring upom Congress) the sole and

exclusive right (of) establishing and regulating post

offices.” ” Id. at 130 (quoting Articles of

Confederation, art. IX, in 9 Journals of the

Continental Congress 919 (Worthington C. Ford, ed.

U.S. Government Printing Office, 1907)). Finally, the

U.S. Constitution itself authorizes Congress “[t]o

establish Post Offices and post Roads,” U.S. Const.

art. I, § 8, cl. 7, and the Postal Service has operated

throughout nearly the entire history of the United

States, see generally Bates, supra. Therefore, it is

clear to the court that the performance of postal

services is a traditional function of the government.

The issue here, though, is not only whether the

government has traditionally performed postal

services, but whether’ such_ services’ have

traditionally been the exclusive function of the

government. The Supreme Court has found very few

activities qualify under the “public function” test. To

date, the Supreme Court has found only the

operation of a company town, see Marsh v. Alabama,

326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), the

management of a municipal park, see Evans uv.

Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373

(1966), the running of an election, see Nixon uv.

Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984

22b

(1932); Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809,

97 L.Ed. 1152 (1953), and the furnishing of medical

treatment to injured prison inmates, see West v.

Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40

(1988), to constitute public functions that are

traditionally the exclusive prerogative of the

government. In addition, the Supreme Court has

declined to find an exclusive state function in a wide

variety of circumstances. See, e.g., Blum v. Yaretsky,

457 U.S. 991, 1011-12, 102 S.Ct. 2777, 73 L.Ed.2d

534 (1982) (nursing home care); Rendell-Baker, 457

U.S. at 842, 102 S.Ct. 2764 (education of children);

Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 161-64, 98

S.Ct. 1729, 56 L.Ed.2d 185 (1978) (enforcement of

statutory lien by a private warehouse); Jackson, 419

U.S. 345, 352-538, 95 S.Ct. 449, 42 L.Ed.2d 477

(furnishing of utility services). The court must

therefore examine whether the services at issue here

would qualify under the Supreme Court's “public

function” test.

“Since its establishment, the United States

Postal Service has exercised a monopoly over the

carriage of letters in and from the United States.

The postal monopoly is codified in the [Private

Express Statutes], 18 U.S.C. §§ 1693-1699 and 39

U.S.C. §§ 601-606.” Air Courier Conference of Am. v.

Am. Postal Workers Union AFL-CIO, 498 U.S. 517,

519, 111 S.Ct. 913, 112 L.Ed.2d 1125 (1991); see U.S.

Postal Serv. v. Flamingo Indus. (USA) Ltd., 540 U.S.

736, 741, 124 S.Ct. 13821, 158 L.Ed.2d 19 (2004)

(“[Tlhe Postal Service retains [a] monopoly over the

carniage of letters.”). In fact, aside from a few

exceptions, Congress, through the Private Express

Statutes, has made it a crime for private entities to

23b

establish[ ] any private express for the

conveyance of letters or packets,® or in any

manner causes or. provides for’ the

conveyance of the same by regular trips or at

stated periods over any post route which is or

may be established by law, or from any city,

town, or place to any other city, town, or

place, between which the mail is regularly

carried....

18 U.S.C. § 1696(a). Indeed, as the Code of Federal

Regulations states,

It is generally unlawful under the Private

Express Statutes for any person other than

the Postal Service in any manner to send or

carry a letter on a post route or in any

manner to cause or assist such activity.

Violation may result in injunction, fine or

8 The Eighth Circuit has pointed out that “[t]he expression

‘letters’ or ‘packets’ occurs in the postal laws of our county from

the beginning and was intended to include communications in

writing conveyed from one person to another.” Williams uv.

Wells Fargo & Co. Express, 177 F. 352, 357 (8th Cir.1910).

“Thus a correspondence limited to a single sheet was formerly

called a single letter; two sheets a double letter; and three

sheets a triple letter. All such communications composed of four

or more sheets were called a packet.” Jd. Historically, the term

“packet” has not been construed to mean “parcels or packages

of merchandise,” and the government “has neither attempted to

reserve to [the Postal Service] a monopoly of the transportation

of merchandise in parcels or packages weighing less than four

pounds, nor ... prohibited private express companies or others

making regular trips over established post roads or between

cities where mails are regularly carned, from engaging in the

business of carrying such parcels of merchandise for hire” Jd. at

358.

24b

imprisonment or both and payment of

postage lost as a result of the illegal activity.

39 C.F.R. § 310.2(a).

Nevertheless, although the sending and carrying

of letters via postal routes have traditionally been

monopolized by the state and not performed by

private entities, cf. Kann Corp. v. Monroe, 425

F.Supp. 169, 171 (D.D.C.1977), Congress, in certain

circumstances, has allowed private entities to

perform such postal services. As the Supreme Court

has noted, “In 1979, the Postal Service suspended

the [Private Express Statutes] restrictions for

‘extremely urgent letters,’ thereby allowing

overnight delivery of letters by private courier

services.” Air Courier Conference of Am., 498 U.S. at

519, 111 S.Ct. 913 (quoting 39 C.F.R. § 320.6). In

addition, “the provisions of 18 U.S.C. § 1696(c)[ ]

allow[ ] private conveyance of letters if done on a

one-time basis or without compensation, and [the

provisions of] 39 U.S.C. § 601(a)[ ] allow[ } letters to

be carried out of the mails if certain procedures are

followed....” Jd. at 525, 111 S.Ct. 913. Furthermore,

“A provision of the [Private Express Statutes] allows

the Postal Service to ‘suspend [the Private Express

Statutes restrictions] upon any mail route where the

public interest requires the suspension.’ ” Jd. at 519,

111 S.Ct. 913 (quoting 39 U.S.C. § 601(b)).

In addition, despite the Postal Service's

monopoly over the carriage of letters, not all public

services performed by the Postal Service are

traditionally the exclusive function of the

government. For example, the delivery of packages

of merchandise has not traditionally been the

25b

exclusive prerogative of the state. As the Eighth

Circuit stated in 1910:

While from [case law] it will be seen many

questions arose touching the right of the

government to be protected in its monopoly

in the business of receiving, transporting,

and delivering the mail matter of the

country, consisting of letters or packets of

letters, and touching the construction of

penal laws designed to prohibit all others

than the Post Office Department of the

government from engaging in the business of

carrying letters or packets for hire over post

roads, yet in [no case] has it been decided or

even contended the word “packet” ... was

designed or intended by Congress to be

construed as granting the Post Office

Department a monopoly of the right to

receive, transport, and deliver parcels or

packages of merchandise. On the contrary,

the entire history of the legislation on this

subject from the beginning, and the many

adjudicated cases as well, show the

legislative intent to have been to maintain

for the government a monopoly only of the

carriage of its mails, consisting of letters and

packets of letters, and the like mailable

matter. While it is true parcels or packages

of merchandise ... may be received and

carried through the mails, yet that the

government has neither attempted to reserve

to its Post Office Department a monopoly of

the transportation of merchandise in

packages weighing less than four pounds,

26b

nor has_ prohibited private express

companies or others making regular trips

over established post roads or between cities

where mails are regularly carried, from

engaging in the business of carrying such

parcels of merchandise for hire, is evident

from the language employed in the opinion of

the Supreme Court in Express Cases, 117

U.S. 1, 6 S.Ct. 542, 29 L.Ed. 791 [1886]....

And that it has not reserved such right of

monopoly in the carriage of merchandise

such as was carried in this case by

defendant, and perhaps lacks _ the

constitutional power to so do, is clearly

stated in the opinion delivered by Mr. Justice

Field in Ex parte Jackson, 96 U.S. 727, 6

Otto 727, 24 L.Ed. 877 [1877], wherein it is

said:

“But we do not think that Congress

possesses the power to prevent’ the

transportation in other ways, as

merchandise, of matter which it excludes

from the mails. To give efficiency to its

regulations and prevent rival postal systems,

it may perhaps prohibit the carriage by

others for hire, over postal routes, of articles

which legitimately constitute mail matter, in

the sense in which those terms were used

when the Constitution was adopted,

consisting of letters, and of newspapers and

pamphlets, when not sent as merchandise;

but further than this its power of prohibition

cannot extend.”

27b

Williams, 177 F. at 358-59. Indeed, when discussing

“state action” as it relates to a private parcel delivery

service, one district court has stated that, although

“[oJne normally associates parcel delivery with

government action,” there “is not a_ sufficient

similarity [between

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.