SARAH EVANS BARKER, District Judge.
This matter is before the Court on Plaintiffs' request for injunctive relief seeking an order enjoining Defendant, the City of Evansville ("the City"), from permitting the erection on public property of a display of up to thirty-one, six-foot-tall crosses ("the Crosses") to remain in place over a two-week period sponsored by and scheduled to be decorated by a group of local churches. On June 20, 2013, the City's Board of Public Works approved by a 2-0 vote the permit application filed by West Side Christian Church ("the Church") on behalf of itself and several other private religious organizations. The
On June 25, 2013, Plaintiffs Chris Cabral and Nancy Tarsitano filed this lawsuit including their motion for preliminary injunction to enjoin the above described display, arguing that the City's approval of it constitutes an endorsement of religion, in violation of the Establishment Clause of the First Amendment. The parties thereafter filed a joint motion to consolidate the preliminary injunction hearing with the final trial on the merits, which the Court granted. A hearing was conducted by the Court on Wednesday, July 18, 2013, prior to which West Side Christian Church and nine other private religious organizations who intend to participate in the event by decorating the respective crosses moved to intervene in the litigation on the grounds that their intervention is necessary to allow them to protect their constitutional right to express their private viewpoint in a public forum pursuant to the Free Exercise and Free Speech Clauses of the First Amendment. At the July 18th hearing, the Court granted West Side Christian Church's request to intervene, but denied the requests of the other nine religious organizations, ruling that West Side Christian Church had been the only applicant for the original permit and only permittee to receive the City's authorization to erect the display.
This dispute highlights the tension that often arises between the Establishment Clause and the Free Exercise and Free Speech Clauses of the First Amendment to the Constitution, which provides in relevant part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech ...." U.S. CONST. amend. I. The Court, attempting to resolve this tension here, seeks to strike a proper balance between the private religious speech of the churches scheduled to play out in the public forum known as the Riverfront located in Evansville. The important legal distinction that underlies the "crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect," is well established. Board of Educ. of Westside Community Schs. v. Mergens, 496 U.S. 226, 250, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (O'Connor, J., concurring) (emphasis in original). But, as the Tenth Circuit recently recognized in American Atheists, Inc. v. Duncan, 637 F.3d 1095 (10th Cir.2010): "[C]ourts have struggled mightily to articulate when government action has crossed the constitutional line." Id. at 1117 (citing Bauchman ex. rel. Bauchman v. W. High Sch., 132 F.3d 542, 551 (10th Cir.1997) (observing the Supreme Court's failure to "prescribe a general analytic framework within which to evaluate Establishment Clause claims," as well as the fact that "many believe the Court's modern Establishment Clause jurisprudence is in hopeless disarray") (citation and quotation omitted)). The acknowledged ambiguity infusing the precedential decisions which this Court must interpret and apply relating to the legal standards in First Amendment jurisprudence leaves us and other government policymakers "in a vise between the Establishment Clause on one side and the Free Speech and Free Exercise Clauses on the other." Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 768, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (plurality opinion).
In applying First Amendment principles, every decision is highly fact sensitive; but applying those facts to the established precedent is neither straightforward nor
The City of Evansville is a sizeable, thriving municipality located in Vanderburgh County in the southwest corner of Indiana. Its population numbers approximately 120,000 persons. The City's riverfront area ("the Riverfront") extends over approximately a mile and a half of park-like public space contiguous to the Ohio River which directly overlooks the River's scenic vistas. The Riverfront encompasses and surrounds a large and busy thoroughfare referred to as Riverside Drive (also known as Veterans Memorial Parkway) and extends generally from its northwest boundary which adjoins the Tropicana Evansville (a casino that until recently was called "Casino Aztar") and Court Street to its southeast boundary at Sunrise Park and Shawnee Drive. Affidavit of Chris Cabral ("Cabral Aff.") ¶ 3; Affidavit of Nancy Tarsitano ("Tarsitano Aff.") ¶ 3. The Riverfront is a popular gathering spot in Evansville offering recreational space and picturesque views of the Ohio River and the City's skyline. It is home to a number of popular civic and cultural venues, including the Evansville Museum of Art, History and Science; the Evansville Pagoda, Convention, and Visitor Bureau; the Four Freedoms Monument; Dress Plaza; Sunrise Park; and a trail and greenway located between Riverside Drive and the Ohio River. Compl. ¶ 12. The parties agree that thousands of people traverse the Riverfront on a daily basis.
The portion of the Riverfront where the Crosses are to be displayed extends over four contiguous blocks that directly abuts the stretch of Riverside Drive
The following three City departments share responsibility for controlling the use of the Riverfront area: the Department of Parks and Recreation ("the Parks Department"), the Board of Public Safety ("the Safety Board"), and the Board of Public Works ("the Works Board"). The Parks Department oversees use of the Four Freedoms Monument, which is located next to and to the southeast of the area in which the Crosses will be displayed. Since at least 2007, the Parks Department has
The Safety Board is responsible for traffic flow along the Riverfront. At least since the beginning of 2010, the Safety Board has approved a number of special event applications from both secular and non-secular organizations requiring closures or traffic curtailments on Riverside Drive for various events, including, inter alia: marathons and races, a "March for Jesus," fireworks, the Shriners Fest, and parades. See Dkt. No. 20-27.
The Works Board has exclusive authority over activities occurring in the public rights of way within the City, including the streets, sidewalks, and alleys. It is responsible for approving permit applications by groups and individuals to make private use of the Riverfront and its esplanade, including the four-block stretch at issue in this litigation. The Works Board is established by Section 2.70.010 of the Evansville Municipal Code, which provides in pertinent part that the Board "shall have such authority as is necessary for the control and direction of the departments within the Division of Transportation and Services... and such authority as is necessary to effectuate the responsibilities of the Division of Transportation and Services. § 2.70.010(E). The Works Board is comprised of three members (unless a temporary vacancy occurs) appointed by and who serve at the pleasure of the City's Mayor. However, the Works Board possesses complete autonomy with regard to decisions within its area of lawful authority; the Mayor does not direct or otherwise intervene in specific issues before the Board. Nix Dep. at 9, 55-56. Currently, the members of the Works Board include Marty Amsler, Anthony Brooks, and Bill Nix. Mr. Nix serves as the Board's president, the position he has held since his appointment to the Board in January 2012. Id. at 4, 9-10.
When any entity wishes to secure permission to use the Riverfront for a display that threatens to encroach upon a public right of way, an application titled an "Application for Right-Of-Way-Permit" ("right of way application") must be filed. Id. at 37-39. Right of way application forms are available from the City Engineer. Upon completion of the required form by an applicant(s), the City's Engineer conducts a review of the permit application focusing on the safety concerns implicated by the request. The application is also reviewed by the City's legal counsel to identify and address any issues of a legal sort. After these reviews, the application is considered at a public hearing by the Works Board, at the conclusion of which the Board votes to approve or reject the permit application. Id. at 39. A majority of the three-member Works Board is required to approve an application. Id. at 10-11.
According to Mr. Nix, the Works Board uniformly approves permit applications that have received safety approval from the City's Engineer and approval by the City's legal counsel; the Board has never denied any permit application satisfying those requirements. Id. at 42, 57. Mr. Nix also testified that the Works Board has complete and full discretion to make these decisions, and, beyond complying with any applicable requirements set out in various municipal ordinances,
On April 30, 2013, West Side Christian Church submitted a permit application for its "Cross the River" project. In the permit, the Church requested permission to erect thirty-one (31) large plastic crosses within the Riverfront area between Court Street and Locust Street which, when finally in place will extend over four city blocks where they will remain for a two-week period, from August 4, 2013 to August 18, 2013. The permit references the fact that each cross will measure six feet in height and forty-two (42) inches in width and be anchored to a forty-four (44) inch square base. Each cross will be sponsored and decorated by separate Christian churches in the Evansville area. Dkt. Nos. 20-17; 20-18 (Permit Applications).
West Side Christian Church's permit application was first presented to the Works Board on June 6, 2013, at a regularly scheduled meeting. At that time, the proposed display was introduced to the Works Board as "just a [means to] show [the] faith throughout the community." Dkt. No. 20-19 (6/6/2013 Board Minutes) at 4. The Works Board tabled discussion of the permit application at the June 6 meeting without making a final decision, requesting that the proposal be brought back before the Board at a future meeting, both because the request was not officially on the agenda for that meeting and because the permit application was being submitted to the Board by the manufacturer of the Crosses, rather than by a representative of West Side Christian Church.
There was limited discussion of the proposal at the first meeting before the issue was tabled, specifically, insurance issues as well as safety concerns associated with the placement of the Crosses were raised and discussed. The City's legal counsel, Ted Ziemer, also addressed the Board, opining that because West Side Christian Church's original proposal included the words "Jesus Saves" being printed on each of the Crosses, the City's legal department viewed such writing to run afoul of Section 12.05.210(E)(7) of the Evansville Municipal Code, which prohibits so-called "First Amendment signs."
Dkt. No. 20-19 at 9-10.
On June 20, 2013, West Side Christian Church's permit application was resubmitted to the Works Board. Roger Lehman, a representative of the Church, made the oral presentation. Following Mr. Lehman's presentation, the Works Board approved the permit application by a 2-0 vote.
As approved by the Works Board, up to thirty-one, six-foot-tall Crosses would be erected and displayed over a two-week period in an area extending over the previously described four block stretch of the Riverfront between August 4, 2013 and August 18, 2013. The precise location of each of the Crosses was yet to be determined. Nix Dep. at 22. Three proposals existed for the orientation of the Crosses: first, perpendicular to Riverside Drive directly abutting the street; second, perpendicular to Riverside Drive overlooking the Ohio River on the furthest side of the sidewalk from the street; or, third, parallel to Riverside Drive overlooking the Ohio River on the far side of the sidewalk away from the street. According to the City's legal counsel, the decision regarding the final orientation of the Crosses would be made by the Works Board with input from the participating churches. See Dkt. No. 20-10 at 5-7 (photographs depicting each proposal).
The City is not decorating the Crosses; rather each of the Crosses are to be decorated by Sunday School children affiliated with each individual church participating in the project.
The City has no financial stake in the display of the Crosses, having provided no financial support for the Cross the River project and expecting to receive no financial contributions for the use of the space. It will not be responsible for and will provide no manpower for the construction, transportation, erection or removal of the Crosses. Id. at 54. The City is being indemnified as to any liability resulting from the display of the Crosses as the Church, upon direction from the Works Board, through the Church's acquisition of appropriate liability insurance. Id. at 52. Approximately three weeks after the Works Board gave its approval of the display of the Crosses, the Board decided during its July 11, 2013 meeting that a disclaimer should be erected both at the front and back of the display, of a size equal to that of one of the Crosses, which will state: "The City of Evansville does not endorse the display or its message. The display is sponsored by and funded by a private entity." Dkt. No. 23-3 at 6.
Plaintiffs are both residents of the City. Cabral Aff. ¶ 1; Tarsitano Aff. ¶ 1. Ms. Tarsitano lives in downtown Evansville and Mr. Cabral works in that same area. Both Plaintiffs regularly pass by the area where the Crosses will be erected; indeed, they traverse it on a daily basis. Cabral Aff. ¶ 10; Tarsitano Aff. ¶ 13. Ms. Tarsitano's residence is located on Riverside Drive, and thus, she will also likely be able to see the Crosses from her window. Tarsitano Aff. ¶ 2, ¶ 13. Her daily travels require her to drive up and down Riverside Drive and she also routinely walks her dog on the Riverfront's greenway, including the area immediately past the space where the Crosses are to be displayed. She has averred that she passes the area where the Crosses are to be displayed multiple times a day. Mr. Cabral passes by the Riverfront area on his way to his work each day. However, he has testified that if the display is erected he intends to find an alternate route to and from work
The Establishment Clause of the First Amendment to the Constitution of the United States, which was made applicable to state and municipal governments by the Fourteenth Amendment, Doe ex rel. Doe v. Elmbrook Sch. Dist., 687 F.3d 840, 849 (7th Cir.2012) (en banc), cert. pending, No. 12-755 (citing Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 8, 67 S.Ct. 504, 91 L.Ed. 711 (1947)), provides that "Congress shall make no law respecting an establishment of religion," U.S. CONST. amend. I, cl. 1. The Seventh Circuit Court of Appeals has recognized that, although often criticized, the three-pronged test set forth by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), "`remains the prevailing analytical tool for the analysis of Establishment Clause claims.'" Elmbrook Sch. Dist., 687 F.3d at 849 (quoting Books v. City of Elkhart (Books I), 235 F.3d 292, 301 (7th Cir.2000)). Under the Lemon test, government action fails constitutional muster if it: (1) lacks a legitimate secular purpose; (2) has the primary effect of advancing or inhibiting religion; or (3) fosters an excessive governmental entanglement with religion. See 403 U.S. at 612-13, 91 S.Ct. 2105.
In cases involving religious displays on public property, courts often apply a slightly modified version of the Lemon test to determine whether a violation of the Establishment Clause is threatened. Under this approach, the primary question under Lemon's "primary effect" prong focuses on whether a government practice has "the effect of communicating a message of government endorsement or disapproval of religion." Lynch v. Donnelly, 465 U.S. 668, 692, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O'Connor, J., concurring); see also Cnty. of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 592-93, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (opinion of Blackmun, J.) ("[W]e have paid particularly close attention to whether the challenged governmental practice either has the purpose or effect of `endorsing' religion, a concern that has long had a place in our Establishment Clause jurisprudence."). The endorsement approach requires the Court to "assess[] the totality of the circumstances surrounding the display to determine whether a reasonable person would believe that the display amounts to an endorsement of religion." Books I, 235 F.3d at 304 (citation omitted). In other words, the question the Court must resolve is "whether an objective, reasonable observer, `aware of the history and context of the community and forum in which the religious display appears,' would fairly understand the display to be a government endorsement of religion." Books v. Elkhart County, Ind. (Books II), 401 F.3d 857, 867 (7th Cir.2005) (quoting Pinette, 515 U.S. at 780, 115 S.Ct. 2440 (O'Conner, J., concurring)).
After careful review of the specific facts before us, we conclude that based on the size and scope of the project, this planned display of crosses would convey a message of the City's endorsement of Christianity to the reasonable observer, and thus, would violate the Establishment Clause. The Latin cross is widely recognized as "the principal symbol of Christianity around the world," Pinette, 515 U.S. at 792, 115 S.Ct. 2440 (Souter, J., concurring in part and concurring in judgment). It "carries deeply significant meaning for those who adhere to the Christian faith" and "acts as a `short cut from mind to mind,' for adherents who draw strength from it and for those who do not ascribe to Christian beliefs." Elmbrook Sch. Dist., 687 F.3d at 852 (quoting West Virginia State Bd. of Educ. v. Barnette,
In defense of this use, the City and the Church emphasize the history of the Riverfront as a public forum, contending that a reasonable observer of the exhibit would not view it as an endorsement of religion by the City, rather simply as consistent with the City's longstanding practice of allowing a wide variety of types of expression to occur in this place thereby establishing the traditional accommodation of free speech.
As Justice O'Connor wrote in her concurrence in Pinette,
The City's previous approvals of other uses of the Riverfront for an overtly religious purpose, such as for sunrise services, prayer vigils, and a March for Prayer, are easily distinguishable from its approval of the proposed display of the Crosses. These prior uses all involved in-person events of short duration, usually lasting only a few hours. In contrast, the display of the Crosses, while not permanent, will extend over a two week period, thereby strengthening the message of endorsement by the City. More significantly, unlike in-person events where the identity of the individual speaker(s) is clearly associated with the message, "an unattended display (and any message it conveys) can naturally be viewed as belonging to the owner of the land on which it stands." Id. at 786, 115 S.Ct. 2440 (Souter, J., concurring). Here, because the Crosses will constitute an unattended display, a reasonable observer is likely to conclude that the City supports it as well as the message it conveys. Such an endorsement is prohibited by the First Amendment Establishment Clause.
The City's attempts to dilute the religious impact of the display by prohibiting written messages on the Crosses and by requiring disclaimers, while generally commendable, no doubt reflect its own recognition of and sensitivity to the magnitude of the display and the constitutional concerns it raises.
In reaching this decision, we are keenly aware that "[w]hen federal courts deal with entanglements between government function and private religious faith, we confront some of the most sensitive aspects of our Nation's public life" and that
Accordingly, the City is hereby PERMANENTLY ENJOINED from permitting the erection of the display as described and referred to herein as "Cross the River" within the Riverfront area.
IT IS SO ORDERED.
