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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2010
- **Citation:** 559 U.S. 971

## Text

, WS.

FILED

0°-608 NOV 17 2009

RK
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?

ii
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.

1V

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

1X

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

xl

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.

3

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.

4

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

5

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

7

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

8

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

9

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

10

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.

ll

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

12

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.

13

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.

14

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

15

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.,

16

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).

17

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

18

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.

19

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

20

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,

21

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

22

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.

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.

24

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

25

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

26

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

27

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.

28

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),

29

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

30

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

31

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

32

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.

33

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).

34

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.

35

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

36

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.

37

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

la

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.

2a

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)

3a

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).

4a

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.

I
(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

5a

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.

6a

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.

(C) Postal Regulations

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’.

Ta

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.

8a

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.

i
‘

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.

9a

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

II

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.

IV

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.

V

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.

lb

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

2b

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.

3b

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.

Ab

a postal unit that is a subordinate unit
within the service area of a main post office.
It is usually located in a store

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1265%3A1. Public record. Not legal advice.