Freethought Today, March 2000

7th U.S. Circuit Appeals Court Decision

Park "Continuing Violation Of Establishment Clause"

In the United States Court of Appeals For the Seventh Circuit
No. 99-1639
Freedom From Religion Foundation, Inc., and Clarence Reinders,
Plaintiffs-Appellants,
v.
City of Marshfield, Wisconsin and Henry Praschak Memorial Fund, Inc.,
Defendants-Appellees

Appeal from the United States District Court for the Western District of Wisconsin. No. 98 C 270--John C. Shabaz, Chief Judge.

Argued October 1, 1999--Decided February 4, 2000
Before Cudahy, Easterbrook and Kanne, Circuit Judges.

By Circuit Judge Kanne

In 1959, the City of Marshfield, Wisconsin ("City"), accepted a gift of a statue of Jesus Christ from the John Eisen Assembly, Fourth Degree Knights of Columbus. The City placed the statue in what was then known as Wildwood Park--undeveloped property owned by the City.

The white marble statue rises fifteen feet in height. It depicts Christ, arms open in prayer, standing atop a large sphere, which in turn rests atop a base bearing the inscription in twelve- inch block letters, "Christ Guide Us On Our Way." The statue faces State Highway 13 (Roddis Ave.), the main thoroughfare into Marshfield from the south, and is clearly visible to travelers from the road. In 1964, Henry Praschak, a member of the Knights of Columbus, offered to construct a comfort station at the site where the statue was located, adding signs, picnic tables and outdoor grills. In response, the City specifically reserved the area for city park purposes and agreed to build the infrastructure necessary to support a public park. The City also agreed to provide electrical service and to maintain the park. In recognition of Praschak's contribution, the Wildwood Park area was renamed Praschak Wayside Park.

Thirty-nine years later a Marshfield businessman, Clarence Reinders, objected to the presence of the statue on public property. Reinders, a member of the Freedom From Religion Foundation, Inc. ("FFRF"), stated that he avoids using the park because of the statue's presence. In addition, Reinders claimed to take alternate travel routes to avoid viewing the statue of Christ from Highway 13. In March 1998, FFRF asked that the City move the statue to private property. The City did not act on that request, so on April 15, 1998, Reinders and FFRF filed suit in federal court seeking declaratory and injunctive relief.

Soon after the lawsuit was filed, the City erected a disclaimer that states, in part, "[t]he location of this statue . . . does not reflect an endorsement of a religious sect or belief by the city of Marshfield." Also, a newly-formed organization of Marshfield citizens, the Henry Praschak Memorial Fund, Inc. ("Fund"), offered to purchase the statue and the section of the park on which the statue stands. The City accepted the Fund's offer and sold 0.15 acres of land, a portion of which accesses a public road. The Fund paid the City $21,560 ($3.30 per square foot), which is the highest price per square foot that the City has received for a sale of its land. The bid process met all Wisconsin statutory requirements for the sale of public land. In addition, the City separated the electrical service required to light the statue from the street lighting system that serves the park. The Fund's warranty deed, dated July 2, 1998, includes a covenant running with the land that restricts the use of the parcel to public park purposes.

Following the sale, the parties conducted limited discovery, then both sides moved for summary judgment. On November 5, 1998, the district court issued a memorandum of law denying all parties' motions for summary judgment. The district court found that the sale of land to the Fund rendered moot the plaintiffs' claim that the statue's placement in Praschak Wayside Park constituted an endorsement of religion. In addition, the court found that the plaintiffs' alternative claim that the sale itself constituted a government endorsement of religion lacked merit because the sale met all relevant Wisconsin statutes. . . .

Presently, the statue remains on Fund property, but this 0.15 acres is not visibly differentiated from the city park. The statue and property are maintained by the Fund, and the Fund pays for the electrical service required to light the statue. The disclaimer erected by the City remains in front of the statue on Fund property.

I. Analysis

Reinders and FFRF challenge the district court's grant of summary judgment on two grounds. First, they contend that the land sale was a sham transaction undertaken merely to circumvent the "government action" requirement, and as such, the sale itself should constitute "government action." Second, they contend that the district court erred in determining that the sale of land to the Fund ended the government endorsement of religion, because the continued presence of the statue in proximity to a public park may still reasonably be perceived as the City's endorsement of religion.

A. Sale of Land

. . . The district court found that the sale of the property from the City to the Fund ended any "government action" endorsing religion, precluding a claim that the City continues to endorse religion. Appellants Reinders and FFRF maintain that this sale was a "sweetheart deal," a sham transaction concocted to circumvent the government action requirement of the Establishment Clause. For this reason, they contend that the sale is conduct that constitutes an endorsement of religion by the City.

. . . [W]e find no extraordinary circumstances that justify disregarding the sale for the purposes of endorsing religion, and we find that the City did not engage in government action endorsing religion by selling the property at issue to a religious organization.

B. Continuing Endorsement of Religion

Reinders and FFRF also contend that a violation of the Establishment Clause persists because the layout of the park and the location and orientation of the statue would cause a reasonable observer to perceive that the statue was still a part of the city park and thus continues to constitute government endorsement of religion. In Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), the Supreme Court established a three-part test to determine whether government action constitutes an endorsement of religion. According to Lemon, government action does not violate the Establishment Clause if (1) the action has a secular purpose; (2) the principal or primary effect of the action neither advances nor inhibits religion; and (3) the action does not foster excessive government entanglement with religion. See id. Before applying the Lemon test, we note that there is no doubt as to the obvious religious message imparted by the statue. On the statue's base in large letters are the words, "Christ Guide Us On Our Way." The City does not contend, nor could it reasonably do so, that the statue serves any secular purpose other than to "beautify" the park. For this reason, we find that the statue serves no secular purpose. See Gonzales, 4 F.3d at 1421 (finding that purpose of beautifying public park does not supersede monument's primary religious purpose).

In addition, the statue violates the Establishment Clause if it has the effect of advancing religion. Following the Court's formal acceptance in County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 595 (1989), the effect prong of this test has been analyzed under the "perception of endorsement" test developed in Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O'Connor, J., concurring). Under this test, "[t]he effect prong asks whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval." Id. When we find that a reasonable person could perceive that a government action conveys the message that religion or a particular religious belief is favored or preferred, the Establishment Clause has been violated. See Capitol Square, 515 U.S. at 778-79 (O'Connor, J., concurring); Gonzales, 4 F.3d at 1418.

. . . Finally, the Fund's 0.15 acre site is not physically differentiated from the surrounding public park, and no visual boundaries currently exist that would inform the reasonable but unknowledgeable observer that the Fund property should be distinguished from the public park. In addition to the fact that no barrier exists between the City's park and the Fund property, the statue's positioning and orientation combine with the other physical features to convey the impression that the statue is on city park property.[1]

The Fund owns the property on which the statue rests, so the expression made by the statue is now private religious speech. Thus we confront a case, albeit convoluted, of private religious speech made at a traditional public forum, where the analysis of Capitol Square applies. Under Capitol Square, when private religious expression is made at a traditional public forum, the government's condonation of such expression may be government action endorsing religion, even if the government makes no overt act in furtherance of religion. See Capitol Square, 515 U.S. at 787 (Souter, J., concurring) ("Allegheny's endorsement test cannot be dismissed . . . as applying only to situations in which there is an allegation that the Establishment Clause has been violated through 'expression by the government itself' or 'government action . . . discriminat[ing] in favor of private religious expression.'"). According to the per se rule advocated by the plurality in Capitol Square, to find a violation of the Establishment Clause we must determine either that the speaker is not a purely private person or that the forum is not open equally. See Capitol Square, 515 U.S. at 770. Under the endorsement test, we look to the unique facts and circumstances before us to determine whether a reasonable person would perceive the existence of the statue to promote or disfavor religion or a particular religious belief. See id. at 778.

Taking into account the unique facts and circumstances as they would affect the reasonable person, we find that the presence of the statue would create the perception of government endorsement in a reasonable observer. In Capitol Square, Justice O'Connor explained that in a traditional public forum a reasonable observer would be aware that "a multiplicity of groups, both secular and religious, engage in expressive conduct." Id. at 782. In this regard, the history of Praschak Wayside Park differs dramatically from other public fora. Since its creation in 1964, the park has expressed only one message, which is the religious message conveyed by the statue. The park was created to display the statue, and the City presents no evidence that other groups have ever used the park to present alternative messages. For this reason, a reasonable observer familiar with the history of the park would have no reason to be aware of non-sectarian reasons for the government's endorsement of religion. The current physical state of the park also leads a reasonable person to conclude that the statue is a part of the public park and that the government, rather than a private entity, endorses religion. As we have noted, Fund land is visually indistinguishable from City land, especially when viewed from Highway 13. Finally, we are mindful that secular circumstances may serve to neutralize the religious message of an unattended monument. See Gonzales, 4 F.3d at 1422. The City argues that the duration of the statue's stay in the park has made it a non-sectarian landmark. However, we rejected this argument in similar circumstances in Gonzales, noting that such an argument "smacks of bootstrapping," id., because it would allow a violation of the Establishment Clause to become permissible merely by remaining in violation of the clause without complaint. In addition, the disclaimer is insufficient as currently constructed to dispel this perception. For these reasons, we believe that a reasonable observer, without regard to a reasonable observer's degree of understanding,[2] would perceive the statue to constitute a City endorsement of religion.

We find that, even under the more permissive per se rule endorsed by the plurality in Capitol Square, the present layout of the park invites a perception of a government endorsement of religion. The sale transferred the statue from City ownership to private ownership, and the Fund, a purely private entity, is responsible for any expression inferred from the statue. Had the sale of the property been conducted in such a manner as to remove the impression that the statue remained part of the public forum, there would be no question that the city ended its Establishment Clause troubles. Nonetheless, because the park is a traditional public forum, the park must remain "open to all on equal terms," Capitol Square, 515 U.S. at 770, under the Capitol Square per se rule to avoid an Establishment Clause violation. In his plurality opinion, Justice Scalia noted that "giving sectarian religious speech preferential access to a forum close to the seat of government (or anywhere else for that matter)" would violate both the Establishment Clause and the Free Exercise Clause, because by so doing, the government exercises favoritism of one sect or religion over another based on the content of the expression. See id. at 766. In this case, the statue, which serves no secular purpose and portrays a figure of particular importance to one religious group, undisputedly expresses a sectarian religious message ("Christ Guide Us On Our Way").

Although the sale of the land to the Fund ended any direct government action that would constitute endorsement, the sale has given this sectarian message preferential access to Praschak Wayside Park, a public forum. The statue is an unattended object fifteen feet in height and made of marble. For this reason alone, citizens who wish to endorse other religions or sects on "equal terms" would find it exceedingly difficult to erect an object of equal expressive power or to maintain it on government property. In addition, the sale of a parcel of land where the statue permanently resides, previously within the bounds of the park, provides the Fund with a preferential location from which they may express their message. . . . For these reasons, we find that by failing to distinguish the Fund's land from the remainder of the park, the City has granted the Fund preferential access to a public forum, which violates the Establishment Clause. Thus, under either the traditional reasonable perception test or the per se test advocated in Capitol Square, we find that the proximity of the statue to City property and the lack of visual definition between City and Fund property creates a perception of improper endorsement of religion by the City and constitutes a violation of the Establishment Clause. . . .

C. Remedy

The inability to distinguish between City park and Fund property affects both the Fund-owned property's status as a public forum and the perceived endorsement of religion. Therefore, should the City (on City property) construct some defining structure, such as a permanent gated fence or wall, to separate City property from Fund property accompanied by a clearly visible disclaimer, on City property,[3] we doubt that a reasonable person would confuse speech made on Fund property with expressive endorsement made by the City.

II. Conclusion

We find that the sale by the City to the Fund did not constitute government action in violation of the Establishment Clause. However, because the sale does not relieve the continued perception of government endorsement and grants the Fund preferential access to express its views in Praschak Wayside Park, we find that the current visual condition of the park constitutes a continuing violation of the Establishment Clause. For this reason, we VACATE the summary judgment issued in favor of the City and the Fund and REMAND this case to the district court for further consideration in light of this opinion.

  1. To complicate matters further, although the City has erected a disclaimer, it is placed on Fund property, increasing the risk of confusion over whether it still controls this land.
  2. We allude to the unresolved dispute which exists within various circuits and within the Supreme Court as to the proper level of understanding to impute onto our mythical reasonable observer. Compare Capitol Square, 515 U.S. at 778-79 (O'Connor, J., concurring) (favoring reasonable person who is "a personification of a community ideal of reasonable behavior") with Capitol Square, 515 U.S. at 799 (Stevens, J., dissenting) (arguing that any reasonable person who "could perceive a government endorsement of religion" is a reasonable observer); see also Doe v. Small, 964 F.2d at 629-30 (Easterbrook, J., concurring) (noting that an "obtuse" observer cannot force religious speech to be excluded from public forums); Americans United For Separation of Church and State v. City of Grand Rapids, 980 F.2d 1538, 1543-44, 1557-58 (6th Cir. 1992) (Lively, J., dissenting) (disputing proper degree of local knowledge to impute on reasonable observer). Because we find that even a reasonable observer under these circumstances would perceive endorsement of religion, we need not determine the exact degree of knowledge to apply to a reasonable observer.
  3. In Capitol Square, Justice O'Connor also suggested that a sign or disclaimer would also prove helpful in a public forum to "make the State's role clear to the community." Capitol Square, 515 U.S. at 776 (O'Connor, J., concurring). We agree that a disclaimer still would be helpful to make clear the City's disavowal of any endorsement of religion. However, unless the disclaimer currently resting on Fund property is moved or replaced with one on Fund property, its presence creates the very impression that the disclaimer seeks to dispel.

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