BOGGS, Circuit Judge.
The Macomb County Road Commission faced a dilemma. The Freedom From Religion Foundation, an organization dedicated to "protect[ing] the fundamental constitutional principle of separation of church and state," had written a letter objecting to a private citizen's placing a crèche on a sixty-foot-wide median at Christmas time, as the citizen and his family had done for more than sixty years. The county immediately ordered the crèche removed. In response, the Thomas More Law Center, an organization dedicated to "restor[ing] and defend[ing] America's Judeo-Christian heritage," took up the citizen's cause and applied for a formal permit to display the crèche. After seeking legal advice, the county denied the permit because, it stated, the crèche "clearly displays a religious message, [and thus displaying it on the median] would be a violation of the Establishment Clause of the First Amendment." The citizen filed suit, claiming that denial of the permit violated his free-speech rights, the Establishment Clause, and his equal-protection rights. During litigation, the county changed its explanation for denying the citizen's permit, claiming that safety, not the crèche's religious connotation, was — and had always been — the reason for its decision. Relying on this explanation, the district court granted summary judgment for the county. For the reasons outlined below, we affirm the district court's grant of summary judgment on Satawa's Establishment Clause claim, but reverse on all other grounds.
In 1945, Frank Krause and Joseph Satawa built a manger to house a set of statutes donated to St. Anne's Parish in Warren, Michigan. The statues depicted the birth of Jesus Christ. With the Village's permission, Krause and Satawa put the manger, with the statues inside, on a public median at the intersection of Mound Road and Chicago Road.
The median that houses the crèche separates four lanes of northbound traffic from four lanes of southbound traffic on Mound Road.
The crèche is nine-and-one-half feet tall, eight feet wide, and eight feet deep.
On December 10, 2008, the Board received, by fax, a letter from the Freedom From Religion Foundation. The letter, supposedly written on behalf of "a concerned Macomb County resident," argued that the crèche violated the Establishment Clause because "[d]isplaying an inherently Christian message at a busy intersection on County-owned property unmistakably sends the message that Macomb County endorses the religious beliefs embodied in the display." Accordingly, the Freedom From Religion Foundation "ask[ed] that [the Board] immediately ... remove the display to private property."
In response, Macomb County Highway Engineer Robert Hoepfner dispatched Road Commission Permit Inspector Joe Dana. Dana reported back and told Hoepfner that, indeed, the crèche was where the Freedom From Religion Foundation said it was, and that Satawa's phone number was on a plaque attached to the display. Hoepfner called Satawa and explained that, because Satawa did not have a permit, Satawa would have to disassemble the crèche. A formal, written demand to remove the crèche within thirty days followed on December 11, 2008. Satawa complied after the end of the holiday season.
One month later, Satawa went to the Road Commission's office to apply for a permit to display the crèche the following year. Road Commission staff helped him fill out an application. On February 7, 2009, however, the Road Commission returned the application to Satawa, explaining that it was incomplete, and enclosing a new application. With help from the Thomas More Law Center, Satawa filled out the application, explaining in detail — and illustrating with photographs — the crèche's location. In his application, Satawa offered to pay all electrical costs associated
Hoepfner personally reviewed Satawa's application. He sought legal advice from an attorney for the county and brought the issue of Satawa's permit application to the Board's attention during the "new business" portion of a regularly scheduled meeting on March 9, 2009. There, he explained:
This was the only time that the Board formally discussed Satawa's permit application.
Although Hoepfner mentioned only the crèche's religious aspects when he brought Satawa's application to the Board's attention, he claimed in his deposition, thirteen months later, that the primary reason for denying Satawa a permit was that the crèche raised a safety concern. In particular, he claimed to be worried that a vehicle might strike the crèche. Hoepfner made clear: "I didn't deny [the permit] for sight problems. It was an encroachment within the right of way ... that's the reason I denied it."
Hoepfner also insisted in his deposition that he had separate discussions with each of the Road Commissioners about Satawa's application, outside of the Board's regularly scheduled meetings. ("Q: Did you ever have any discussions with any Board member outside of the Board meetings regarding the nativity scene permit? A: All of the Board Members."). These discussions, he claimed, lasted "many, many hours," and focused on his belief that the crèche posed a traffic hazard. The district court apparently took this testimony at face value.
It is true that Board Chairwoman Fran Gillett testified that she understood that Hoepfner was concerned about safety. However, she also indicated that she "first became aware of [the crèche] ... when [the Board] had a complaint the Christmas before last [December 2008], and then at that point [she] didn't hear anything more until 2009 at [the March 6 Board] meeting." (emphasis added). And yet, she claimed that she learned of Hoepfner's
In any event, safety concerns are wholly absent from the letter that Hoepfner sent Satawa on March 9, 2009. There, addressing Satawa's lawyer, Hoepfner wrote:
Satawa filed this lawsuit in the Eastern District of Michigan on October 23, 2009. He claimed that the Board violated his free-speech rights, the Establishment Clause, and the Equal Protection Clause by denying his permit. He sought declaratory and injunctive relief and nominal damages. A Motion for Temporary Restraining Order and Preliminary Injunction soon followed. The district judge, after hearing oral argument and conducting a "lengthy site visit," denied the motion. He first reasoned that, even if the median were a public forum, the state's interest in traffic safety was compelling, and denial of the permit was narrowly tailored to suit that interest because there were other places that Satawa could display
The district court similarly held that Satawa's Establishment Clause claim was not likely to succeed because Satawa could not satisfy the three-part Lemon test — the Board's denial had a secular purpose, traffic safety; the policy of forbidding all temporary structures did not endorse, or convey disapproval of, religion; and there was no entanglement. See Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).
When it denied Satawa's motion, the district court also ordered the parties to show cause why it should not convert its preliminary order to a final judgment on the merits, pursuant to FED. R. CIV. P. 65(a)(2). Satawa requested the opportunity to develop the factual record further, so that he could challenge the veracity of the Board's asserted safety justification, and press his Establishment Clause and equal-protection claims, which he did not brief in his temporary-restraining-order motion. The court granted the request, discovery opened and closed, and the parties cross-moved for summary judgment.
The district court granted summary judgment for the Board on April 19, 2011. It held, first, that the median was not a public forum, since it was not "a place intended for bringing citizens together to exchange ideas." Thus, the court reasoned, the Board could restrict speech, subject to reasonable and viewpoint-neutral
The court also believed that, even if the median were considered a traditional public forum, the Board had a compelling interest in promoting traffic safety, and denying the permit was a narrowly tailored means of achieving that goal. This time, the judge had dueling expert reports to consider in reaching his conclusion. The experts first agreed that the crèche posed no enhanced risk to drivers who obeyed the traffic signals. They also agreed, however, that if a driver traveling northbound on Mound Road ran a red light, and another driver traveling eastbound on Chicago Road at six to ten miles-per-hour below the posted speed limit looked for traffic before coming to the crèche, then passed the crèche and continued through the intersection without again checking for traffic, the Chicago Road driver would not be able to see the Mound Road driver's car running the red light, and therefore might not be able to prevent a collision as effectively as he could without the crèche. The district court acknowledged that this possibility was remote, but reasoned that "the potential for even one tragic accident at a busy intersection clearly constitutes a compelling interest which the State must address." The district court also expressed concern that, if the Board had to permit Satawa to install his crèche, it would be required to allow "all kinds of private installations of all shapes and sizes in medians all over Macomb County." The Board's denying Satawa's permit, the district court reasoned, was narrowly tailored because "the Defendants' action in denying Plaintiff a permit to erect his Nativity display in the Mound Road median does not leave Plaintiff without any comparable viable site for his expression."
The district court also granted summary judgment for the Board on Satawa's Establishment Clause and equal-protection claims. The former, it reasoned, failed because the government had a valid stated purpose of traffic safety; the primary effect of denying the permit did not convey the message that the government endorsed, or disapproved of, religion; and there was no entanglement. Satawa's equal-protection claim failed because the Board's decision to deny the permit was rationally related to the legitimate government interest of traffic safety. Satawa appeals.
Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). We review a district court's grant of summary judgment de novo, construing the facts, and drawing all reasonable inferences, in the non-moving party's favor. ACLU of Ky. v. Mercer Cnty., Ky., 432 F.3d 624, 628 (6th Cir.2005).
Neither the federal government nor the states may "abridg[e] the freedom of speech." U.S. CONST. amend. I; Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) (formally incorporating Free Speech Clause).
We have reduced these general principles to the three-part test that we apply here. First, we decide whether the First Amendment protects the speech or expression at issue. Then, we fix the appropriate level of scrutiny by specifying what kind of forum the speaker wants to use. Finally, we determine whether the government's challenged action was constitutional, in light of the standards that apply to the relevant forum. See Miller v. City of Cincinnati, 622 F.3d 524, 533 (6th Cir.2010).
The Board concedes that the crèche is protected religious expression. Appellees' Br. at 27; see also Allegheny, 492 U.S. at 598, 109 S.Ct. 3086. Our analysis, therefore, begins with the question of how to define the median. The Supreme Court has divided government property into three categories, for forum-analysis purposes. First, property like the "streets and parks which have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions" is considered a traditional public forum. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) (internal quotation marks omitted). In such a forum, the government may prevent expression because of its content only if the government "show[s] that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Ibid. The government may, however, "enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Ibid.
Second, "public property which the state has opened for use by the public as a place for expressive activity," is called a designated public forum. Ibid. Although the government did not have to create the designated public forum in the first place, and "need not indefinitely retain the open character of the facility," once it opens its doors to some expression, it must treat the designated public forum like a traditional public forum until it closes its doors again. Id. at 45-46, 103 S.Ct. 948. Thus, during the time that a designated public forum is open to the public, "[r]easonable time, place and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest." Id. at 46, 103 S.Ct. 948.
Determining what kind of forum a particular piece of property is may seem like an exercise in line-drawing, and in a sense it is: we must decide which of the three categories above best describes the Mound Road median so that we can apply the appropriate level of scrutiny to the Board's denial of Satawa's permit. Still, for purposes of the decision-making process, it is perhaps easier to think of a continuum. "At one end of the spectrum" is the prototypical traditional public forum, a public space "immemorially ... held in trust for the use of the public, and, time out of mind, ... used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Perry, 460 U.S. at 45, 103 S.Ct. 948. Public parks, for instance, fall into this category. At the other end is property that the government owns, has always owned, and does not ordinarily open to the public. In such a forum, "[a]ccess ... can be restricted as long as the restrictions are reasonable and are not an effort to suppress expression merely because public officials oppose the speaker's view." Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). The inside of a government building, used as office space, would fall in this category. Many, if not most, fora fall somewhere between these extremes. We need not determine precisely where on the spectrum the Mound Road median lies, only which broad category describes it best.
Beyond the general principles of forum analysis discussed above, little persuasive, and no binding, authority guides our analysis.
But even if Snowden had decided what kind of forum the grassy area was, its reasoning would be only marginally helpful, since there are critical factual differences between the grassy area and the Mound Road median. Unlike the Mound Road median, the grassy area in Snowden had "no sidewalks, no benches ... and no recreational facilities." Id. at 1184. It made no "apparent invitation to the public[,] [and did] not present the physical characteristics of a park beyond the presence of grass." Id. at 1193. Here, by contrast, the Mound Road median contained two park benches and farm equipment. It was landscaped and housed at least one plaque, which could only be read by someone standing on the median. The Mound Road median, in other words, has features that invite the public to spend time there. It is more like a public park and therefore more likely than the median in Snowden to qualify as a traditional public forum.
Also relatively unhelpful is Warren v. Fairfax County, 196 F.3d 186 (4th Cir. 1999) (en banc). There, Fairfax County denied Warren's request to build a "holiday display," id. at 189, on "a large grassy mall, approximately thirty yards wide and spanning about 200 yards. Sidewalks circumnavigate[d] the mall and amble[d] along a central landscaped strip." Id. at 188. The mall abutted Fairfax County's government center. Ibid. The Fourth Circuit, sitting en banc, held that the mall was a traditional public forum, and that the County's denying Warren's permit was not a narrowly tailored means of achieving a compelling state interest. Id. at 194-96, 197-98. In dicta, the court argued that median strips, because they are part of the street, qualify automatically as traditional public fora. Id. at 196-97.
Warren, like Snowden, is critically different from this case. There, the mall was quite close to the seat of government, and apparently covered by sidewalks. The Mound Road median, unlike the mall in Fairfax, is not "a part of the grounds of a seat of legislative and executive power," id. at 196, and contains only one small strip of sidewalk. It is, in this sense, less likely to qualify as a traditional public forum than the Fairfax County mall.
Nor is ACORN v. City of Phoenix, 798 F.2d 1260 (9th Cir.1986), overruled by Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936 (9th Cir.2011) (en banc), particularly persuasive. In ACORN, the City of Phoenix passed an ordinance prohibiting a person from "stand[ing] on a street or highway and solicit[ing], or attempt[ing] to solicit, employment, business or contributions from the occupants of any vehicle." ACORN, 798 F.2d at 1262. Although the Ninth Circuit upheld the ordinance, it did not decide whether streets qualified as traditional public fora, even when being used by cars. Rather, it explained: "under the circumstances of this case, we need not decide whether public streets are perpetual public fora.... We conclude that the Phoenix ordinance can be justified even under the more rigorous standards applied to the regulation of expression in traditional public fora." Id. at 1267.
But, like Snowden, the ACORN court's reasoning would not have been particularly helpful to us, even if the court had decided what kind of forum was at issue. ACORN involved people who actually went into the streets to solicit contributions from drivers stopped in traffic. Id. at 1262. This is not remotely similar to our case, where the property at issue is not the street itself, but a landscaped median, with adequate space for pedestrians and sojourners, benches, and historical displays.
Hague, 307 U.S. at 515, 59 S.Ct. 954. To determine whether the median is such a place, we examine "the objective characteristics of the property, such as whether, by long tradition or by government fiat, the property has been devoted to assembly and debate." Ark. Educ. Television Com'n v. Forbes, 523 U.S. 666, 677, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998) (internal quotation marks omitted).
The Mound Road median is difficult to define because it has objective characteristics typical of both public and non-public fora. Like a public park, one of the "quintessential public forums," Perry, 460 U.S. at 45, 103 S.Ct. 948, the median is landscaped and has benches for people to use. It also contains "memorial trees and brass memorial plaques affixed to rocks." Appellant's Br. at 12. These plaques are discernable only from the median — they are too small to be read by a passing motorist. Across Chicago Road, in a similar median, is the gazebo, erected by the City of Warren Historical Society, which contains more space for people to assemble.
On the other hand, the median is in the middle of a busy eight-lane road, with a fifty-mile-per-hour speed limit. There does not appear to be any special parking area for the median, nor are there dedicated public restrooms. See Snowden, 358 F.Supp.2d at 1193 (noting lack of "appropriate accommodations facilitating such use, such as public restrooms and public parking"). However, there is pedestrian access from a sidewalk that crosses the median and connects the two sides of Mound Road.
On balance, we hold that the Mound Road median is a traditional public forum. Residents of Warren apparently use the median for a variety of expressive purposes, such as the display of farm equipment (meant to show the historical nature of the village) and memorial plaques. The median, moreover, invites visitors. It contains park benches and is accessible by sidewalk. True, the Mound Road median is not next to a seat of government, nor is there any evidence that it is a place where people discuss politics, in particular. But a public space does not implicate the First Amendment only when it is a forum for political discussion. Rather, "streets and parks ... have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague, 307 U.S. at 515, 59 S.Ct. 954 (emphasis added). Nor does the median's location necessarily preclude its being identified as a public forum. A public sidewalk allows access to the median, and public benches populate it.
The district court argued, and the Board argues, for a contrary conclusion. Their claims are not persuasive. The district
Applying these three factors, the district court held that, "[v]iewed in its totality, the subject median cannot be a place intended for bringing citizens together to exchange ideas." The median, it reasoned, was not a place "used for public discourse and debate," nor was it "property that ... Macomb County has dedicated to commemorating the people, ideals, and events that compose the city's or county's identity." Thus, the court held that the median was not a public forum.
This reasoning is problematic. First, the district court's interpretation was too narrow. Without question, property "intended for bringing citizens together to exchange ideas," "used for public discourse and debate," or "dedicated to commemorating the people, ideals, and events that compose the city's or county's identity" can qualify as a traditional public forum. But to hold that every traditional public forum must display one or more of these particular qualities, as the district court appears to have done, is to misread relevant Supreme Court precedent. A forum is public because it is a place long dedicated, whether by law or tradition, to "assembly, communicating thoughts between citizens, and discussing public questions." Hague, 307 U.S. at 515, 59 S.Ct. 954; see also Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) ("This Court long ago recognized that members of the public retain strong free speech rights when they venture into public streets and parks...."); Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 761, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) ("The right to use government property for one's private expression depends upon whether the property has by law or tradition been given the status of a public forum, or rather has been reserved for specific official uses."). The Mound Road median has been a place where people could gather since at least 1991, when the Village of Warren Historical Commission built the gazebo.
Neither is the Board's claim that the median is a nonpublic forum persuasive. The Board emphasizes that Mound Road carries "over 82,000 cars a day ... in 8 lanes of traffic at speeds near or in excess of 50 mph." Appellees' Br. at 33. It claims that it "does not want people sitting
These claims are unsuccessful. First, the record refutes the Board's contention that, because Mound Road is a high-volume roadway, the Board does not want people on the median. If this were so, it would be strange to provide access to the median via sidewalk, and to allow various groups to erect benches, a gazebo, and plaques that could only be read while standing on the median. The Board replies that it did not know about any of these things before this litigation, and that it has now requested (though not compelled) removal of, at least, the farm equipment.
Nor is the Board's claim that the gazebo has no bearing on our forum analysis correct. It is, of course, true that "[t]he Free Speech Clause restricts government regulation of private speech; it does not regulate government speech," Summum, 555 U.S. at 467, 129 S.Ct. 1125, but the significance of the gazebo is not its message. Rather, the gazebo's presence demonstrates that the median is, like a public park, a place that welcomes visitors.
In sum, the Mound Road median is best categorized as a traditional public forum. To be sure, it is not prototypical. Nevertheless, it is a place where people have long been able to gather, sit, and communicate, even though it separates traffic on a busy street.
Because the median is a traditional public forum, the government may prohibit protected expression based on content only if it "show[s] that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Perry, 460 U.S. at 45, 103 S.Ct. 948. It may, however, "enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Ibid.
"[U]nder strict scrutiny [the government] still must demonstrate that [its] stated justification is the actual purpose for the proposed amendment and not a `rationalization[] for actions in fact differently grounded.'" Awad v. Ziriax, 670 F.3d 1111, 1130 n. 15 (10th Cir.2012) (final alteration in original.) (quoting United States v. Virginia, 518 U.S. 515, 535-36, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996));
The parties first dispute whether religion or traffic safety was the "real" reason that the Board denied Satawa's permit application. The district court held that, as the defendants' litigating papers, suggested, safety was at least part of the Board's motivation for denying the permit. ("In sum, the Court does not find that Plaintiff has demonstrated the existence of any material issue of fact with regard to Defendants' safety reasons for the denial of Mr. Satawa's permit application such that the safety reasons given by Mr. Hoepfner should be discredited."). The district court erred.
Before this lawsuit, there was no indication that safety concerns played any role in the Board's decision. Quite the contrary. Even though Satawa's permit application specifically claimed that the crèche did not obstruct traffic or pose "any other safety concerns," Hoepfner's letter denying the permit only addressed religion. ("The Road Commission of Macomb County cannot permit you to display this nativity scene in the Road Commission's right of way. This undoubtedly would be interpreted as our endorsement of religion, in violation of the Establishment Clause of the U.S. Constitution."). Not once did he use the word "safety;" not once did he use the word "traffic." Likewise, Hoepfner's presentation to the Board made no mention of safety concerns. Rather, he explained: "I've contacted Ben Aloia and asked him to research [whether the Board should grant Satawa's application]. Ben has informed me that we should not allow this nativity scene to be installed, and he has given me some language that I should [sic] respond to this permit. I intend to do that." Ben Aloia is a lawyer,
Contrary evidence in the record is, at best, thin. As discussed above, Hoepfner claimed in his deposition that he had separate discussions with each of the Road Commissioners about Satawa's application, outside of the Board's regularly scheduled meetings. ("Q: Did you ever have any discussions with any Board member outside of the Board meetings regarding the nativity scene permit? A: All of the Board Members."). He insisted that these discussions lasted "many, many hours," and focused on his belief that the crèche posed a traffic hazard. Board Chairwoman Fran Gillett testified that she understood that Hoepfner was concerned about safety. But she also indicated that she "first became aware of [the crèche] ...
This sequence of events casts doubt on the Board's argument that Hoepfner related his safety concerns to Gillett through casual, passing discussions that took "many, many hours." This would be so even if we were not required to construe the facts and draw all reasonable inferences in Satawa's favor. Mercer Cnty., 432 F.3d at 628. Under the summary-judgment standard, the district court should have rejected Hoepfner's claim that he discussed safety concerns with Board members before the meeting, and drawn the reasonable inference that the Board's self-serving (but still questionable) litigation documents were designed to conceal its real reason for denying the permit: the crèche's religious content.
Because, at this stage, we must assume that the Board rejected the permit application based on its religious content, strict scrutiny applies.
"There is no doubt that compliance with the Establishment Clause is a state interest sufficiently compelling to justify content-based restrictions on speech. Whether that interest is implicated here, however, is a different question." Pinette, 515 U.S. at 761-62, 115 S.Ct. 2440 (citing Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394-95, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993)). For the Establishment Clause to serve as a compelling state interest, the speech suppressed must actually violate the Constitution. If the government's "posited fears of an Establishment Clause violation are unfounded," an Establishment Clause defense will not do. Lamb's Chapel, 508 U.S. at 395, 113 S.Ct. 2141.
The question we face, then, is whether Satawa's private expression of religious beliefs on the Mound Road median would violate the Establishment Clause. "And we do not write on a blank slate in answering it." Pinette, 515 U.S. at 762, 115 S.Ct. 2440. Time and again, the Supreme Court and this court have considered cases where
We would reach the same result even if we accepted the Board's proffered traffic-safety justification. To deny the permit based on traffic safety, the Board would have to show that it did no more than enforce compliance with a reasonable, content-neutral time, place, and manner restriction, "narrowly tailored to serve a significant government interest, [which left] open ample alternative channels of communication." Perry, 460 U.S. at 45, 103 S.Ct. 948; Bays v. City of Fairborn, 668 F.3d 814, 822 (6th Cir.2012) ("To be a constitutional time, place, and manner restriction [on protected expression in a traditional public forum], the ... policy must be narrowly tailored to serve a significant government interest."). Of course, traffic safety in general is a significant government interest. The particular concern that the board posits in this case, however, is not. The parties' experts agreed that the crèche could cause an accident in only one scenario: a driver traveling northbound on Mound Road runs a red light, and another driver traveling six to ten miles-per-hour below the posted speed limit, eastbound on Chicago Road, looks for traffic before coming to the crèche, then passes the crèche and continues through the intersection without again checking for traffic. Not only is this scenario extremely improbable — indeed, it rests on one driver flagrantly disobeying traffic laws, while another is grossly inattentive — but the crèche's absence would do little to prevent it. For the crèche to cause the posited collision to take place, the Chicago Road driver would have not to look at Mound Road traffic after he passed the area that houses the crèche, and not have his view obstructed by the pine trees (though the County claims that the trees
Nor, as the Amicus urges, was the decision to deny the permit outright a means narrowly enough tailored to achieve the Board's stated traffic-safety goal. "Although a regulation may satisfy the [narrow-]tailoring requirement even though it is not the least restrictive or least intrusive means of serving the state's goal, it must not be substantially broader than necessary." Bays, 668 F.3d at 823 (internal quotation marks omitted). Here, the Board denied Satawa's permit outright. It made no effort to take a less restrictive course, nor did it explain why it could not have worked with Satawa to allay its safety concerns. It did not tailor its denial at all, much less narrowly, to its stated interest.
Denial of the permit, therefore, would not pass muster even if we accepted the general validity of the Board's proffered traffic-safety justification.
The First Amendment's Establishment Clause prohibits the government from taking action "respecting an establishment of religion." U.S. CONST. amend. I. This, the Supreme Court has explained, means that the government may neither officially promote religion, nor harbor "an official purpose to disapprove of a particular religion or of religion in general." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). "The touchstone for our analysis is the principle that the First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion." McCreary Cnty., 545 U.S. at 860, 125 S.Ct. 2722 (internal quotation marks omitted).
Although it has lost some of its luster, the test from Lemon, 403 U.S. 602, 91 S.Ct. 2105, as refined by later Supreme Court opinions, guides our Establishment Clause analysis. ACLU of Ohio Found., Inc. v. DeWeese, 633 F.3d 424, 430-31 (6th Cir.2011). Under today's Lemon test, we ask: (1) whether the government's predominant purpose was secular;
In the predominant-purpose inquiry, we generally accept the government's stated rationale for its action. Ibid. "But it is nonetheless the duty of the courts to distinguish a sham secular purpose from a sincere one." Santa Fe Ind. Sch. Dist. v. Doe, 530 U.S. 290, 308, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (internal quotation marks and alterations omitted).
Here, as discussed above, an objective examination of the record — especially at the summary-judgment stage — strongly suggests that the Board denied Satawa's permit because it believed that the crèche, if placed on the median, would violate the Establishment Clause. Its later-asserted position that it denied the permit because of safety concerns does not withstand even cursory scrutiny. First, Gillett's testimony casts doubt on Hoepfner's claim that he had extensive discussions with Board members about the safety concerns that the crèche posed. See supra note 9. Second, the Board's asserted safety justification, like the County's explanation for its display in McCreary County, changed over time. See McCreary Cnty., 545 U.S. at 851-58, 125 S.Ct. 2722. In his deposition, Hoepfner specified: "I didn't deny [Satawa's permit] for sight problems. It was an encroachment within the right-of-way... that's the reason I denied it." The Board, however, now relies on the admittedly later-conceived explanation that the crèche could interfere with a driver's line of sight. This shift too casts doubt on the Board's safety explanation. Third, no contemporaneous document gives any reason other than the crèche's religious content for denying Satawa's permit application. Avoiding an Establishment Clause violation, an objective observer would find, was the reason that the Board denied the permit.
Satawa reasons that this premise leads inexorably to the conclusion that the Board's predominant purpose was not secular, but religious. To deny the permit because of the crèche's religious message, he claims, was to express an official policy disfavoring religion. This argument has some intuitive appeal. But it rests on a sleight of hand. The purpose of adhering to the Constitution has nothing to do with religion. The Board's bad guess — or bad legal advice — about the constitutional implications of Satawa's permit, without more, does not show a purpose to favor or disfavor religion.
Nor, by the same token, would a reasonable observer find that the Board's action had the purpose or effect of endorsing or disapproving of religion, or that denying the permit created any kind of entanglement. Rather, on this record, a reasonable observer would take Hoepfner at his written, and spoken (at the board meeting), word: he was trying to obey the law. Fear of violating the Constitution, not Satawa's religion, motivated his decision. Nothing about that fear suggests any view about, or involvement with, religion at all, short of a desire simply to act lawfully. The district court was correct to grant summary judgment for the Board on Satawa's Establishment Clause claim.
The Equal Protection Clause of the Fourteenth Amendment "protects against invidious discrimination among similarly situated individuals or implicating fundamental rights." Miller, 622 F.3d at 538 (quoting Scarbrough v. Morgan Cnty. Bd. of Ed., 470 F.3d 250, 260 (6th Cir. 2006)). "[U]nder the Equal Protection Clause ... government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views." Police Dep't of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972).
"The threshold element of an equal protection claim is disparate treatment; once disparate treatment is shown, the equal protection analysis to be applied is determined by the classification used by the government decision-makers." Miller, 622 F.3d at 538 (quoting Scarbrough, 470 F.3d at 260). The Board claims that it granted a permit for only one item on median: the gazebo across the street from the crèche. Appellees' Br. at 49. It suggests, however, that its granting such a license is irrelevant because "[p]ermanent monuments displayed on public property typically represent government speech." Summum, 555 U.S. at 470, 129 S.Ct. 1125.
The thrust of the Board's claim appears to be that, because the decision to allow the Warren Historical Commission to build a permanent monument is government speech, it is not similar to the Board's decision to deny Satawa's application to erect a temporary display, for purposes of the Equal Protection Clause. Whether this argument succeeds is a close question. Without doubt, a permanent display has a different position under the First Amendment than a temporary display. So, in that sense, the gazebo and the crèche are materially different. On the other hand, it would be strange to hold that Satawa's permit application can be denied because a restriction on a temporary display is more problematic than a restriction on a permanent
We need not resolve this question, however, because of the presence of other objects on the median. As soon as the Board received the Freedom From Religion Foundation's letter, Hoepfner sent an inspector to see the crèche. He immediately called Satawa and told him to remove the display. The record does not show that he took similar steps for the other items on the median until after litigation began. See Appellees' Br. at 49 ("[N]one of the other items placed on the median at issue ... have been permitted by the RCMC.... There are discussions underway at the RCMC regarding the removal of these items and the Warren Historical Commission has been approached to remove the items.").
The crèche, as discussed above, is private religious expression, "fully protected under the Free Speech Clause." Pinette, 515 U.S. at 760, 115 S.Ct. 2440. For the County to have treated it differently than other items on the median, therefore, the decision to ban the crèche would have to advance a compelling governmental interest and be a narrowly tailored means to achieve that interest. Barr v. Lafon, 538 F.3d 554, 576 (6th Cir.2008) ("[W]e apply strict scrutiny under the Equal Protection Clause to a statute infringing on speech protected by the First Amendment...."). As discussed above, the Board cannot meet this standard. See supra part III.B. The district court erred by granting summary judgment to the Board on Satawa's equal-protection claim.
In sum, we AFFIRM the district court's grant of summary judgment to the Board on Satawa's Establishment Clause claim. However, we REVERSE the district court's disposition of Satawa's free-speech and equal-protection claims, and remand for further proceedings consistent with this opinion.