BEATY, District Judge.
On November 2, 2012, Plaintiff Steven Hewett ("Plaintiff") filed his Complaint in this case against Defendant City of King ("Defendant City of King" or "the City") seeking declaratory and injunctive relief under 42 U.S.C. § 1983, the First Amendment of the United States Constitution, and Article I, §§ 13 and 19 of the North Carolina Constitution. This matter is before the Court on Motions for Summary Judgment [Docs. #68, #70, #72] filed by (1) Defendant City of King, (2) the American
The following is a presentation of the undisputed facts in this case. However, to the extent any disputed facts must be resolved in the light most favorable to the nonmoving party, the Court will address those additional facts in the relevant and appropriate context below.
Plaintiff, a resident of King, North Carolina initiated the instant action by filing a Complaint [Doc. #1] with the Court on November 2, 2012. Plaintiff alleges that Defendant City of King violated his First Amendment rights by promoting religion, specifically Christianity, by (1) allowing the Christian flag to fly in the City's Central Park at the Veterans Memorial
In 2003, Defendant City of King initiated plans to build a Veterans Memorial in the City's Central Park and designated five members
From 2004 until 2010, the Christian flag was consistently flown at the Veterans Memorial, without complaint, until the City took it down in the fall of 2010. The decision to remove the Christian flag from the Veterans Memorial was prompted by Plaintiff's anonymous call to City Manager John Cater ("Cater") to voice his concern about the Christian flag being flown at the Veterans Memorial. (Video Recording KK5, available at http://tinyurl.com/ExhibitKK5). In discussing his concern with Cater, Plaintiff's essential complaint was that he believed the display of the Christian flag at the Veterans Memorial was a misrepresentation of veterans and that the City was likely "in violation of separation of church and state." (Id. at 4:55-5:03). Cater noted that Plaintiff was the only person to complain of the Christian flag aspect of the Memorial and Cater told Plaintiff that he, Plaintiff, was ashamed of his complaint because he would not give Cater his full name. However, Cater also acknowledged that he heard arguments similar to Plaintiff's and that "legally speaking [Plaintiff is] probably correct." (Id. at 12:00-12:32). Subsequent to the phone call between Cater and Plaintiff, Cater informed the City Council about Plaintiff's phone call and the city attorney recommended that the City remove the flag. On August 2, 2010, the City Council held a council meeting and discussed, among other things, Plaintiff's phone call to Cater and the city attorney's recommendation. (Aug. 2, 2010 City Council Minutes [Doc. #74-11], at 5.) The City Council voted 3 to 0 to keep the Christian flag at the Veterans Memorial. (Id.) Mayor Pro Tempore Dillard Burnette ("Burnette"), in referring to the anonymity
After the City voted to remove the Christian flag, it received phone calls (approximately fifty to one hundred), letters, emails, and a petition with hundreds of signatures, the bulk of which expressed grievances with removal of the Christian flag from the Veterans Memorial. (Petition [Doc. #76]; Letters and Emails [Doc. #76-1]; Cater Email [Doc. 76-2], at 43 (stating that the City received fifty to one hundred phone calls regarding the removal of the Christian flag).) Plaintiff also alleged that he faced repercussions after it was determined that he lodged the complaint regarding the Christian flag. In Plaintiff's deposition testimony, he states that such repercussions included (1) being assaulted by a neighbor; (2) having an abnormal amount of traffic in front of his home; and (3) internet blogs threatening his life. (Pl.'s Dep. [Doc. #81-6], at 14-15.) To some, it appeared that the community was angry with the City Council for taking down the Christian flag. (Hatley Dep. [Doc. #73-3], at 344.) Additionally, protest vigils were held outside of the Veterans Memorial. (Cater Dep. [Doc. #73-4], at 239.) Cater gave the protesters permission to hold the vigil because the protest had gained so much public support that Cater was concerned that if he made them leave, that the City would risk negative media exposure and fights. (Id. at 240.) However, at least one King resident expressed that she was upset about the "protest taking over of [sic] a public memorial by Christians" via email to the City Clerk, Tammy Hatley ("City Clerk Hatley" or "Hatley") (October 26, 2010 Email [Doc. #76-5].) On October 23, 2010, a rally was held regarding the removal of the Christian flag from the Veterans Memorial, which drew a crowd of thousands of people, where many who spoke at the rally expressed their opposition to the removal of the Christian flag.
At a November 1, 2010 City Council meeting, members of the City Council voted unanimously 4 to 0 to approve Resolution 2010-21, "a resolution to approve a `Limited Public Forum Approach for the City of King's Veteran's Memorial at Central Park'" subject to the review of the City's attorneys and the approval of the Council. (November 1, 2010 City Council Minutes [Doc. #96-5], at 3.) Thus, the City Council opted to move forward with the purported limited public forum option to address the ongoing issues with the Christian flag at the Memorial. At that meeting, Mayor Warren stated that he wanted to move forward with the limited public forum approach because it "would give citizens of King access to the Veterans' Memorial for the express and limited purpose of honoring their veterans and the faith traditions that inspired and sustained the service and sacrifice made by their veteran, that they have represented at the Memorial." (Id. at 2.) Councilmen Fowler and Carter stated that the public forum option would be the best way to "honor our veterans." (Id.) Mayor Pro Tempore Burnette agreed with the statements of Councilmen Fowler and Carter and stated that "[w]e have to remember that this memorial is to honor veterans. Some other issues have gotten in the way and we're going to work through those the best we can." (Id.) The Limited Public Forum Flag Policy ("Flag Policy") was formally adopted on December 6, 2010. (December 6, 2010 City Council Minutes [Doc. #74-19], at 4.) Relevantly, the Flag Policy states that "the eleventh flag pole [of the Veterans Memorial] shall be designated as a limited public forum for the purpose of flying, on a rotating basis ..., flags which represent the faith traditions of men and women who have served in the U.S. military." (Flag Policy [Doc. #1-2], at ¶ 2.) An "eligible person"
(Id. at ¶¶ 4, 10.h.) Finally, the policy states that neither the City Council nor its city representatives or employee "shall participate in their official capacity in the selection of flags chosen by requesters." (Id. at ¶ 11.) However, the policy does allow such representatives or employees to participate in the forum in their "private or individual capacity." (Id.) Members of the King community have been participating in the Flag Policy since January 2011. In 2011, 2012, and 2013 the Christian flag has flown on the eleventh flagpole for 47 weeks out of 52 weeks of the year. (See 2011-2013 Limited Public Forum Schedules [Docs. #76-7, #76-8, #76-9].) In 2011, Plaintiff was selected, pursuant to the lottery, to participate in the limited forum four times and decided not to fly a flag each time. One other person decided not to fly a flag in 2011. (2011 Limited Public Forum Schedule [Docs. #76-7].) In 2012, Plaintiff was again selected to participate in the forum four times and his wife was selected to participate once. (2012 Limited Public Forum Schedule [Docs. #76-8].) Plaintiff decided not to fly a flag three times in 2012 and the Buddhist flag one time in 2012. (Id.) Plaintiff's wife decided not to fly a flag when she was selected to participate in the forum in 2012. (Id.) In 2013, Plaintiff was selected to participate in the forum five times and decided not to fly a flag each time. (2013 Limited Public Forum Schedule [Docs. #76-9].) In 2014, the Christian flag is slated to fly 46 weeks out of 52 weeks of the year, with Plaintiff being selected to participate in the forum four times and his wife being selected to participate twice. (2014 Limited Public Forum Schedule [Docs. #83-12].) Each time, Plaintiff and his wife are scheduled to fly a flag in 2014, they have chosen to fly no flag.
In March 2010, the City's Community Appearance Advisory Commission (CAAC) recommended that "a yard shadow figure of a praying soldier made out of metal be commissioned and placed at the King Veteran's Memorial." (March 18, 2010 Commission Minutes [Doc. #74-2], at 5.) On April 5, 2010, the City Council unanimously "approve[d] the construction and placement of a metal Yard Shadow Figure at the Veteran's Memorial." (April 5, 2010 City Council Minutes [Doc. #75], at 3-4.)
Plaintiff also complains about the annual ceremonies held in the King Central Park to commemorate Memorial Day, Veterans Day, and September 11. From 2004 until 2012, the City co-sponsored the Veterans Day and Memorial Day annual events with the American Legion, and the Stokes County Arts Council ("Arts Council"). (Def.'s Supplemental Answers to Pl.'s First Interrogs. [Doc. #74-8], at 4.) It appears from the record, that the City also hosted the September 11 annual event until 2010. (Compl. at ¶ 54; Def.'s Answer [Doc. #13], ¶ 54; Hatley Dep. [Doc. #73-3], at 253-55.) Three days after Plaintiff initiated this lawsuit, the City Council voted "to designate all Arts Council events be held at City of King facilities as City sponsored." (November 5, 2012 Council Meeting Minutes [Doc. #75-3], at 6.) A few months after Plaintiff initiated this lawsuit, the City prepared a memorandum, which transferred the "sponsorship, planning, and organization" of the Veterans Day and Memorial Day ceremonies to the American Legion Post 290 and the Arts Council. (April 2013 Mem. [Doc. #79].) Prior to 2013, the event programs have included the City of King as a host of the Veterans Day and Memorial Day events, but the City of King's name is no longer included as a host or sponsor for the programs. (See Event Programs [Doc. #78-7].)
The Veterans Day and Memorial Day ceremonies in the past, specifically, ceremonies that were hosted by the City, have contained prayers by chaplains and speakers that invoke the name of Christ, have asked the audience to bow their heads in prayer and discussed "the selfless sacrifice of Your Son, Jesus Christ", have stated that fallen soldiers have "followed in the footstep of your Son", and have stated that the fallen soldiers are an "image, reflection, and extension of [God's] love and grace." (Video Recording MM2, available at http://tinyurl.com/ExhibitMM2.) At the more recent 2013 Memorial Day event, after the City purported to transfer sponsorship of the events to third parties, Mayor Warren and the guest speaker acknowledged that the event was put on by the Arts Council and the American Legion; Mayor Warren also thanked both organizations for inviting him to speak at the event and for inviting him "to help the commander lay the wreath." (Video Recording OO3, available at http://tinyurl.com/ExhibitOO3 (5:20-5:48, 30:30-31:15).) The
Despite the City's purported transfer of sponsorship of the annual commemorative events to third-party organizations, the City is still involved, to some degree, with these events. For the 2013 Memorial Day ceremony, the Arts Council requested that several news outlets, organizations, and local municipalities — including the City of King — advertise the event flyer on their websites and electronic bulletin boards. (May 13, 2013 Email [Doc. #79-4], at 1.) The 2013 Memorial Day ceremony flyer only included the names of the Arts Council and the American Legion Post #290 as the hosts of the event. For the 2013 Veterans Day ceremony, the advertisement the City posted on its website stated "[c]ome join us as we honor and pay our respect to the brave men and women of our armed forces and dedicate the new tiles for the Veterans Memorial." (King Website Advertisement [Doc. #79-8].) However, that flyer also stated that the event was sponsored by the American Legion Post #290 and the Arts Council.
The City has a Special Events Application packet that it requires those requesting to hold special events to fill out and submit for final approval. (See Special Events Packet [Doc. #83-6].) However, Defendant has not presented evidence that the Arts Council has previously submitted applications for its interest in using Defendant City of King's property or facilities for these commemorative events. Given that the Arts Council provides many community and public programs at the King Central Park, the City of King does not require the Arts Council to submit an application for these events. (Doc. Requests [Doc. 79-6], ¶ 4.) The Arts Council is only required to call to reserve the Central Park to hold events. (Id.) Additionally, the Arts Council is also not required to request permits for these events. (Id. at ¶ 5.) From the perspective of Mayor Warren, the City's transfer of the ceremonial events to the Arts Council and American Legion serves as a perpetual reservation for all future Memorial Day and Veterans Day services at the park. (Warren Dep. [Doc. #73-7], at 124-125.) Plaintiff asserts that the City's involvement is further evidenced by the fact that the members of the Fire Department displayed a large American flag from one of its fire trucks during the 2013 Memorial Day ceremony. However, the City did not charge the American Legion or the Arts Council for that service and the fire truck was provided without a prior request from the American Legion or the Arts Council. (Holland Dep. [Doc. #73-7], at 121-22; American Legion Post 290 Interrog. Resps. [Doc. #74-5], at 4.) However, the City's Special Events Application Packet includes a request to the have the City of King Fire Department available, but this request also requires an associated fee. (Special Events Application [Doc. #83-6], at 10.) Furthermore, City Clerk Hatley has also assisted the Arts Council by providing its members with contact lists, a planning checklist, and program templates from past ceremonies for the 2013 Memorial Day ceremony. (See Email [Doc. #79-4]; Hatley Dep. [Doc. #73-3], at 455-56; Warren Dep. [Doc. #73-5], at 84-85.)
Mayor Warren has participated in the annual commemorative events in the past, (see Event Programs [Doc. #78-7] (listing Mayor as a participant in the ceremonies for various events)), and he has participated in the events in 2013, even after the
In light of the above factual events, Plaintiff filed his Complaint [Doc. #1] with this Court on November 2, 2012. In his Complaint, Plaintiff seeks the following relief: (1) a "declaratory judgment that the City's practices of displaying the Christian flag and the Cross Statue, and sponsoring prayers and religious activities at official City events are unconstitutional" under the United States and North Carolina Constitutions; (2) a permanent injunction "barring the City from displaying or allowing the display of the Christian flag at the Veterans' Memorial, from displaying the Cross Statue at the Veterans' Memorial, and from sponsoring, directing, or otherwise facilitating prayers and other religious activities at City memorial events"; (3) nominal damages of one dollar; (4) attorneys' fees and costs pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 2412; and (5) "any other relief that the Court deems just and proper." (Compl. at ¶¶ 72-77.)
When the district court is presented with cross-motions for summary judgment "[t]he court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard." 10A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2720, at 335 (3d ed.1998). "When considering each individual motion, the court must take care to `resolve all factual disputes and any competing, rational inferences in the light most favorable' to the party opposing that motion." Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.2003) (quoting Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996)). As such, the Court will consider the City's Motion for Summary Judgment and Plaintiff's Motion for Summary Judgment separately. However, as Defendant-Intervenors have filed a Motion for Summary Judgment only to assist the City in defending the Cross Statue, the Court will consider the City and Defendant-Intervenors' Motions for Summary Judgment together.
Federal Rule of Civil Procedure 56(a) states that "[t]he court shall grant summary judgment if 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). Once a party moves for summary judgment and the movant properly supports its motion, the opposing party has the burden of showing that a genuine dispute exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Specifically, the nonmovant must convince the Court that evidence exists creating a genuine dispute for the fact finder. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). If no rational trier of fact could find for the
In Defendant City of King's Motion for Summary Judgment, it raises three primary issues: (1) that Plaintiff lacks standing to bring this action; (2) that, to the extent Plaintiff challenges invocations at the annual commemorative events, that Plaintiff's claims are moot because Defendant City of King no longer hosts those events; and (3) that the Veterans Memorial complies with the Establishment Clause. Furthermore, in Defendant-Intervenors' Motion for Summary Judgment, Defendant-Intervenors request that the Court find that the Cross Statue does not violate the Establishment Clause and the North Carolina Constitution as a matter of law. The Court will address each issue in turn, starting with the City's assertion that Plaintiff lacks standing to bring his claims.
Defendant City of King primarily contends that Plaintiff lacks standing to bring the present action by primarily asserting that Plaintiff has not suffered the requisite injury to bring the instant action.
683 F.3d 599, 607 (4th Cir.2012) (quoting McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 860, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005) (emphasis added in Moss)). With this foundation in mind, the Court will address the standing issue.
Defendant City of King first asserts that Plaintiff lacks standing to challenge the constitutionality of the City's Flag Policy because it alleges that Plaintiff has not sustained an injury-in-fact. Specifically, the City argues that Plaintiff has not provided evidence that he was injured by the text of the Flag Policy and that the Flag Policy creates a limited public forum for private speech. In addressing Defendant City of King's argument that Plaintiff does not have standing to challenge the Flag Policy by its terms because the City claims that the Flag Policy is a "neutral policy [that] creates a limited public forum for private speech honoring veterans", (Def. Br. in Supp. of Mot. for Summ. J. [Doc. #69], at 8 (emphasis removed)), the Court notes that such an argument is essentially an argument on the merits of Plaintiff's claim, which should be properly reserved for the Court's analysis only after it determines that Plaintiff has standing. See Miller v. Brown, 462 F.3d 312, 316 (4th Cir.2006) ("It is well established that before a federal court can decide the merits of a claim, the claim must invoke the jurisdiction of the court."). Indeed, the Court must be careful in confusing the merits of Plaintiff's challenge with the threshold standing inquiry. Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) ("Our threshold inquiry into standing `in no way depends on the merits of the [petitioner's] contention that particular conduct is illegal.'" (quoting Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975))). This is particularly true as Plaintiff argues that Defendant City of King's Flag Policy has the purpose and effect of endorsing Christianity within the City of King, and essentially argues that the speech involved in this case is government speech. Furthermore, as it relates to his alleged injury, Plaintiff asserts that he is unwillingly exposed to the Christian flag when he visits the Veterans Memorial and that he is "offended by a perceived government expression of religion...." (Pl.'s Br. in Opp'n to Def.'s Mot. for Summ. J. [Doc. #80], at 24 (quoting Lambeth v. Bd. of Comm'rs of Davidson Cnty. (Lambeth I), 321 F.Supp.2d 688, 693 (M.D.N.C.2004), aff'd, 407 F.3d 266 (4th Cir.2005)); see
However, Defendant City of King also asserts that Plaintiff lacks standing to challenge the policy as applied to him, because he was never denied an opportunity to fly a flag, or to choose to fly no flag at all. In making such an argument, Defendant City of King cites to ACLU Student Chapter-Univ. of Md. College Park v. Mote, 321 F.Supp.2d 670, 675 (D.Md.2004), aff'd on other grounds, 423 F.3d 438 (4th Cir.2005). In Mote, the district court declined to extend standing to a plaintiff who challenged a university policy to set limits on university outsiders' abilities to engage in public speech on the university campus. In concluding that the plaintiffs lacked standing, the district court determined
Id. at 675. Indeed, the facts of the instant case bear some resemblance to the facts in Mote, to the extent that the complaining parties in both cases challenged policies, which, as applied, do not appear to injure them. Specifically, in this case, Plaintiff has been able to participate in the lottery under the Flag Policy multiple times, in fact, every year since the Flag Policy was put into effect Plaintiff was able to fly a flag of his own choosing, or he could choose to fly no flag at all, without interference from Defendant City of King. Additionally, the Court notes that Plaintiff states, in his Reply Brief regarding his Motion for Summary Judgment [Doc. #94], that he "challenges the City's unlawful promotion of Christianity, not the denial of access to a public forum." (Id. at 4 (citing to Compl. at ¶¶ 61-70)); see Doe v. Va. Dep't of State Police, 713 F.3d 745, 762 (4th Cir.2013) ("An as-applied challenge attacks the constitutionality of a statute `based on a developed factual record and the application of a statute to a specific person.'" (quoting Richmond Med. Ctr. for Women v. Herring, 570 F.3d 165, 172 (4th Cir.2009) (en banc))). Therefore, because Plaintiff does not challenge the Flag Policy as applied to him, and because in the alternative, the Court finds that Plaintiff would not have standing to assert an as-applied challenge to the Flag Policy based on the facts and cases cited above, the Court will not address any issues relating to the application of the Flag Policy to Plaintiff.
Defendant City of King also implies that because Plaintiff once displayed a Christian flag in his own yard and opted to fly a flag with a Buddhist emblem on the flag pole at issue in this case, it makes Plaintiff's "alleged distaste for religious symbols ... specious at best." (Def.'s Br. in Supp. of Mot. for Summ. J. [Doc. #69],
In addressing the City's argument that Plaintiff has not suffered an injury because Plaintiff briefly displayed the Christian flag on his yard, Plaintiff attempts to rebut the City's argument by citing to three cases in which religious leaders were allowed to bring Establishment Clause claims against a government entity or public official for advancing religious beliefs. See, e.g., Adland v. Russ, 307 F.3d 471, 477-78 (6th Cir.2002) (standing satisfied for Rabbi and reverends, among others, to challenge Ten Commandment monument on state capitol grounds); Smith v. Cnty. of Albemarle, Va., 895 F.2d 953, 954-55 (4th Cir.1990) (allowing Christian ministers, among other religious officials, to challenge a county display of a nativity scene); Kaplan v. City of Burlington, 891 F.2d 1024 (2d Cir.1989) (allowing the Rabbi, among others, to bring an Establishment Clause claim for displaying a menorah on public property). However, the Court notes that in two cases cited by Plaintiff, Adland and Smith, the circuit courts, in their discussion of standing, did not address the specific question of whether a person of a certain religious belief can bring a claim alleging that the government has violated the Establishment Clause by endorsing or establishing the religion that the claimant also adheres to. Furthermore, Kaplan does not even address the standing inquiry. Nevertheless, the Court finds that Plaintiff's personal display of the Christian flag on his private property does not prevent a finding that Plaintiff has standing. First, Plaintiff has maintained, on the record, that he is not Christian, (Hewett Dep. [Doc. #81-6], at 19), and Defendant City of King does not argue that Plaintiff is Christian. The Court finds Plaintiff's lack of belief in Christianity important, as Plaintiff argues that the City's endorsement of Christianity has the effect of treating others, that are not Christian, as "second-class citizens." (Compl. [Doc. #1], at 26.) Second, the Court finds instructive the Ninth Circuit's decision in Buono v. Norton, 371 F.3d 543, 548 (9th Cir.2004), in which the court noted that standing could be maintained by plaintiffs who "are members of religious sects but nonetheless are offended by religious displays on government property." Id. (citing Ellis v. City of La Mesa, 990 F.2d 1518, 1523 (9th Cir.1993) where the Ninth Circuit affirmed the district court's decision in finding that members of Catholic and Episcopalian faiths had standing to challenge the government's alleged endorsement
Additionally, Defendant City of King argues that Plaintiff lacks standing to challenge the Flag Policy because of prudential concerns. Specifically, Defendant City of King asserts that Plaintiff, in objecting to the Flag Policy, is raising the legal rights of others because Plaintiff was given several opportunities to display a flag of his choice through the Flag Policy lottery system. As a general proposition, a person may lack standing if he or she seeks to raise the rights of others. See Moss, 683 F.3d at 606 (citing Barrows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953)). However, as the Court noted above that Plaintiff argues that the City's perceived endorsement of Christianity, specifically through a display of the Christian flag, has injured him, the Court does not find that the City's prudential argument affects the Court's determination that Plaintiff has standing regarding the flying of the Christian flag.
Defendant City of King also asserts that Plaintiff does not have standing to challenge the invocations at City events. Specifically, in its Reply Brief, Defendant City of King points to an audio recording of Plaintiff at the City's former National Day of Prayer Ceremony, where Plaintiff himself addressed the crowd and offered a Buddhist prayer and also invoked the name of Jesus. (Audio Recording of National Day of Prayer Service, App. 11, 1:13:00-1:17:02 (on file with Court).) Thus, it appears that Defendant City of King argues that because Plaintiff participated in past ceremonial events by offering an invocation, Plaintiff cannot show that he has been injured by Christian invocations and other Christian content involved at ceremonial events. However, in reviewing the audio recording offered by Defendant
Defendant City of King also points to Plaintiff's deposition testimony where he acknowledged that he liked "f* *king with these people", which based upon the related video recording was referencing his recitation of a Buddhist prayer at the National Day of Prayer Ceremony. (Hewett Dep. [Doc. #86-13]; Audio Recording of National Day of Prayer Service, 1:32:30-1:35:00.) Thus, Defendant City of King challenges the sincerity of Plaintiff's injury. Although the Court acknowledges Plaintiff's off-color remark, the Court does not find that such a remark diminishes Plaintiff's asserted injury, that is, that he was unwillingly exposed to what he perceives as a government endorsement of religion.
Defendant City of King also argues that Plaintiff lacks standing because he does not have "frequent, unwelcome contact" with the Cross Statue, the Christian flag display, and the Veterans Memorial in general. (Def.'s Reply Br. [Doc. #86], at 15.) Specifically, Defendant City of King appears to argue that because Plaintiff "must make a special trip to the Central Park to view the Memorial, especially the statue, which he cannot see from the road", Plaintiff lacks the requisite "unwelcome direct contact" required to show standing. (Def.'s Br. in Supp. of Mot. for Summ. J. [Doc. #69], at 10.) However, the Fourth Circuit has pointed out that "where there is a personal connection between the plaintiff and the challenged display in his or her home community, standing is more likely to lie." Suhre II, 131 F.3d at 1087. Additionally, in Suhre II, the Fourth Circuit noted that "personal contact with state-sponsored religious symbolism is precisely the injury that was sufficient to confer standing in School District of Abington v. Schempp." Id. at 1086. In this case, Plaintiff argues that he "challenges the promotion of Christianity by the City in which he lives, through displays and ceremonies to which he is repeatedly directly exposed." (Pl.'s Br. in Opp'n to Def.'s Mot. for Summ. J. [Doc. #80], at 24.) Additionally, Defendant City of King cites to Suhre II for its
Next, Defendant City of King argues that Plaintiff has too much contact with the Christian flag and the Cross Statue to confer standing. Specifically, the City argues that because Plaintiff voluntarily visits the Memorial, he cannot show that the contact with the Christian flag and Cross Statue is unwelcomed. However, as the Fourth Circuit noted in Suhre II, Plaintiff is not required to "take affirmative steps to avoid contact with challenged displays or religious exercises." Suhre II, 131 F.3d at 1088. Also noted by the Fourth Circuit, "[a]bsent Supreme Court direction, we are unwilling to craft a rule of standing for religious display cases that would effectively add `insult' to the existing `injury' requirement.... Rules of standing that require plaintiffs to avoid public places would make religious minorities
Additionally, the Court notes the inherent conflict with the arguments asserted by the City. The City first asserts that Plaintiff does not have enough contacts with the Memorial to confer standing because he visits the Memorial for commemorative events only and Plaintiff is not required to visit the Memorial. However, the City subsequently argues that because Plaintiff voluntarily visits the Memorial during these ceremonies, that his contacts with the displays at the Veterans Memorial are not unwelcomed. However, the Fourth Circuit in Suhre II gives guidance on such a position. Specifically, the Suhre II court stated that "[a] stringent requirement that plaintiffs take steps to cure their own injury would create mootness problems in many an Establishment clause case." Suhre II, 131 F.3d at 1089. Thus, the Fourth Circuit in Suhre II stated that it was "unwilling to put potential Establishment Clause plaintiffs to the task of precisely calibrating their reactions to offensive state-sponsored religious symbolism at the peril of either reacting too little to have standing or reacting so much that their constitutional claims are deemed moot." Id. Thus, the Court is unwilling to credit the City's argument that Plaintiff visits the Memorial too much to show that his contact is unwelcome for the purposes of standing, but that Plaintiff has visited the Memorial too little to show that his contacts were frequent for the purposes of standing.
Defendant City of King also asserts that Plaintiff fails to prove that he will experience future harm from the Memorial. Specifically, Defendant City of King argues that because Plaintiff "has [not] proved any facts showing regular and repetitive requirements for him to be present in Central Park and near the Memorial" and because he "cannot see the soldier statue from the road" when he drives past Central Park every day, he cannot show any threat of a future injury. (Def.'s Br. in Supp. of Mot. for Summ. J. [Doc. #69], at 10.) Indeed, "the Supreme Court [has] held that standing to seek injunctive relief does not exist unless the plaintiff can show a substantial likelihood of future harm." Payne v. TR Assocs., LLC, 880 F.Supp.2d 702, 705 (E.D.N.C.2012) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). However, as noted above, the Fourth Circuit has determined that standing is more likely for a plaintiff when there is "a personal connection between the plaintiff and the challenged display in his or her home community." Suhre II, 131 F.3d at 1087. Plaintiff is a veteran of the United States Army and has served his country in Afghanistan. (Compl. at ¶ 1; Def.'s Answer at ¶ 1.) Plaintiff has stated that he intends
Furthermore, Defendant City of King asserts that because it no longer hosts the commemorative events that include invocations, as they are currently hosted by third-party organizations, that Plaintiff will never suffer any future harm because of the City's asserted practice of engaging in prayer at public events. However, the Court notes that Plaintiff has stated that he intends to continue attending the events at the Veterans Memorial that commemorate veterans, even though the he believes that the "prayers and other Christian content at these ceremonies serve to honor only veterans who are Christian." (Pl.'s Decl. [Doc. #73-2], ¶ 10); see Suhre II, 131 F.3d at 1091. Additionally, to the extent Defendant City of King also asserts that it no longer hosts these events and thus Plaintiff will no longer suffer harm as caused by Defendant City of King, the Court notes that Plaintiff asserts, and has provided evidence of what appears to be Defendant City of King's continued involvement in the most recent commemorative events, such that Plaintiff argues that the City's involvement still has the effect of endorsing these events. Cf. Chambers v. City of Frederick, 292 F.Supp.2d 766, 770 (D.Md.2003) (finding that the plaintiff had standing, in part, when the plaintiff argued that the city's sale of property to a third party was a sham "intended to remove [the city's] legal responsibility for the [Ten Commandments] monument"). Furthermore, to the extent Defendant City of King's argument is an attempt to assert that Plaintiff's claim regarding the commemorative events is moot, as it argues that those events are now hosted by third parties, the Court will address such an argument in its discussion of the mootness doctrine.
Therefore, in light of the foregoing, the Court finds that Plaintiff has suffered a sufficient injury-in-fact to confer standing to him to challenge the City's asserted display of the Christian flag, the City's erecting of the cross statue, and the City's alleged practice of engaging in Christian prayer and other Christian content at the annual commemorative events that are at issue in this case. Additionally, the Court finds that the injuries Plaintiff has asserted are fairly traceable to the actions of the City and because Plaintiff will likely suffer future harm, these injuries can be redressed by Plaintiff's requested injunctive relief. Thus, the Court finds that Plaintiff has Article III standing.
Defendant City of King also contends, to the extent Plaintiff brings claims against it for violating the Establishment Clause and the North Carolina Constitution for hosting commemorative events that involve Christian content, that such an issue is moot because Defendant City of King no
"A case becomes moot — and therefore no longer a `Case' or `Controversy' for purposes of Article III — `when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.'" Already, LLC v. Nike, Inc., ___ U.S. ___, 133 S.Ct. 721, 726-27, 184 L.Ed.2d 553 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (per curiam) (some internal quotation marks omitted)). The Supreme Court has "recognized, however, that a defendant cannot automatically moot a case simply by ending its unlawful conduct once sued." Id. at 727 (quoting City of Mesquite v. Aladdin's Castle Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982)); see Knox v. Serv. Emps. Intern'l Union, Local 1000, ___ U.S. ___, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012) ("The voluntary cessation of challenged conduct does not ordinarily render a case moot because dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed."). Thus, when a defendant argues that its voluntary compliance moots a case, such a defendant "`bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.'" Already, LLC, 133 S.Ct. at 727 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). In this case, Defendant City of King argues that it transferred the sponsorship of the Memorial and Veterans Day ceremonies to the Arts Council and the American Legion in April 2013, several months after Plaintiff filed his Complaint with the Court — alleging, in part, that Defendant City of King's conduct of hosting Memorial and Veterans Day ceremonies violated the Establishment Clause —, and ceased hosting those events. Although Defendant City of King has offered a memorandum, which memorializes the transfer of the sponsorship of these two events to private parties, and witness testimony that the City did transfer such tasks to third parties, the Court finds that such evidence does not satisfy Defendant City of King's burden under the stringent "absolutely clear" standard discussed in Already, LLC. Specifically, in Already, LLC, the Court found that the defendant's trademark counterclaim was properly mooted only after the plaintiff entered into an "unconditional and irrevocable covenant" which prohibited it from filing suit or making any claim or demand against the defendant, its affiliates, or any of the defendant's future designs. Already, LLC, 133 S.Ct. at 728. The Supreme Court determined that the challenged action
The City argues that its burden to show that its behavior could not reasonably be expected to recur is "exceptionally light for government actors that this Court can presumptively trust." (Def.'s Br. in Response to Pl.'s Mot. for Summ. J. [Doc. #83], at 10.) Indeed, the City cites to two cases, America Cargo Transport, Inc. v. United States, 625 F.3d 1176, 1180 (9th Cir.2010) and Troiano v. Supervisor of Elections in Palm Beach Cnty., 382 F.3d 1276, 1282-83 (11th Cir.2004), where those courts determined that there was a presumption that the government acted in good faith and that the voluntary cessation exception to the mootness doctrine would be applied less stringently to government actors. Thus, the City argues that because the "record is absent of any intent by the City to re-initiate sponsorship in the future" the Court should "accept its representation about stopping sponsorship in the past and not re-initiating it in the future." (Def.'s Br. in Response to Pl.'s Mot. for Summ. J. [Doc. #83], at 10.) However, the Court notes that the Fourth Circuit, in Wall v. Wade, 741 F.3d 492, 497-498 (4th Cir. 2014), expressly declined to decide whether it would adopt an approach "employed by several of [its] sister circuits, in which governmental defendants are held to a less demanding burden of proof than private defendants," regarding the voluntary cessation doctrine. In Wall, the Fourth Circuit still applied the Already, LLC and Laidlaw "absolutely clear" standard to the government defendant in that case and maintained that the court "ha[s] previously held that when a defendant retains the authority and capacity to repeat an alleged harm, a plaintiff's claim should not be dismissed as moot." Id. at 497. Still, Defendant City of King argues that its past practices of discontinuing previous acts that presented questions of constitutionality under the Establishment Clause "demonstrates that the City is willing to evaluate it laws and practices, and change [them] where it deems appropriate." (Def.'s Reply Br. [Doc. #86], at 12-13 n. 6.) Specifically, Defendant City of King points to its past practice of delivering Christian prayer at city council meetings, which it later made more inclusive by giving nondenominational invocations at the city council meetings. (Id.; see Warren Dep. [Doc. #86-8].) Defendant City of King also points to the display of the Ten Commandments in the King Police Department, which it maintains has "been addressed by the City." (Def.'s Reply Br. [Doc. #86], at 12-13 n. 6.) Based on the evidence cited by the City and its Answer [Doc. #13] to the Complaint, it appears that the City "addressed" the issue of having a Ten Commandments display in its Police Department by adding other documents, such as the Magna Carta and the Constitution, to the wall bearing the Ten Commandments display based on the advice of counsel. (Def.'s Reply Br. [Doc. #86], at 12 n. 6 (citing Warren Dep. [Doc. #86-9] and Cater Dep. [Doc. #86-10]); Def.'s Answer [Doc. #13], ¶ 58.) However, based on the evidence before the Court, the City appears to have continued to engage in conduct, or at least acknowledged its ability to engage in such conduct, that it previously declared that it ceased. Specifically, Plaintiff has pointed to evidence that in April 19, 2010, in a letter addressing the Americans United for Separation of Church and State inquiry regarding the annual September 11 memorial event, Mayor Warren told the organization that such an event in the City of King would "be sponsored and organized by private organizations." (April 19, 2010 Letter [Doc. #69-12].) However, in a subsequent September 4, 2012 City of King Council meeting, a meeting held two years
The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion." U.S. Const. amend. I. "Although applicable originally only against the federal government, the Establishment Clause has been incorporated against the states by the Fourteenth Amendment." Myers v. Loudoun Cnty. Pub. Sch., 418 F.3d 395, 402 (4th Cir.2005) (citing Everson v. Bd. of Educ., 330 U.S. 1, 8, 67 S.Ct. 504, 91 L.Ed. 711 (1947)). As such, the Court will analyze Plaintiff's claims of the City's alleged violations under the Establishment Clause. The Court will address the purported violations in the following order (1) the Cross Statue, (2) the Christian Flag Display, and (3) the Annual Memorial Events.
Defendant City of King, and Defendant-Intervenors, argue in their respective Motions for Summary Judgment [Docs. #68, #70] that summary judgment should be granted in their favor with respect to the Cross Statue, by arguing that the presence of the Cross Statue at the Veterans Memorial does not violate the Establishment Clause. As an initial matter, the Court notes that the parties do not dispute that placing the Cross Statue in the City of King Central Park was a government action, which is required to maintain an Establishment Clause action. Cf. Lynch v. Donnelly, 465 U.S. 668, 672, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) ("In every Establishment Clause case, we must reconcile the inescapable tension between the objective of preventing unnecessary intrusion of either the church or the state upon the other, and the reality that, as the Court has so often noted, total separation of the two is not possible."). However, it appears that the parties request that the Court apply two different tests in determining whether it should grant summary judgment as it relates to their arguments regarding the constitutionality of the Cross Statue under the Establishment
Under the Lemon framework, the Supreme Court assessed the constitutionality of a statute by examining whether it satisfied three conditions: (1) "whether there was a secular purpose behind the statute"; (2) "whether the statute's principal or primary effect was one that neither advanced nor inhibited religion"; and (3) "whether the statute fostered an `excessive government entanglement with religion.'" Lambeth v. Board of Comm'rs of Davidson Cnty., N.C. (Lambeth II), 407 F.3d 266, 269 (4th Cir.2005) (quoting Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105). "State action violates the Establishment Clause if it fails to satisfy any of these prongs." Edwards v. Aguillard, 482 U.S. 578, 583, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987). With this framework in mind, the Court will address each prong in turn as it relates to the Cross Statue.
Plaintiff argues that Defendant City of King's purpose in adding the Cross Statue to the Veterans Memorial was to honor only Christian veterans and, thus, such a purpose is impermissible under the Establishment Clause. The City asserts that its purpose in adding the Cross Statue was consistent with the purpose of the entire Veterans Memorial, which is to honor "the memory of fallen veterans." (Def.'s Br. in Supp. of Mot. for Summ. J. [Doc. #69], at 23.) As discussed in the Fourth Circuit's opinion in Lambeth, "a `legitimate secular purpose' supporting a challenged governmental action will suffice to satisfy the Lemon test's first prong." Lambeth II, 407 F.3d at 270 (citing Lynch, 465 U.S. at 681, 104 S.Ct. 1355). As such, "the demonstration of such a legitimate secular purpose is `a fairly low hurdle.'" Id. (quoting Brown v. Gilmore, 258 F.3d 265, 276 (4th Cir.2001)). In fact, the Fourth Circuit has stated that it will only find that the purpose prong has been violated if the action is "`entirely motivated by a purpose to advance religion.'" Id. (citing Mellen v. Bunting, 327 F.3d 355, 372 (4th Cir.2003) (quoting Wallace v. Jaffree, 472 U.S. 38, 56, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985))). Lynch, 465 U.S. at 680, 104 S.Ct. 1355 ("The Court has invalidated legislation or governmental action on the ground that a secular purpose was lacking, but only when it has concluded there was no question that the statute or activity was motivated wholly by religious considerations."). Plaintiff points out that the Cross Statue was built the same year that the controversy arose surrounding the City's display of the Christian flag, in which the Mayor and several other City Council members defended the flag in "overtly" Christian terms. (Pl.'s Brief in Opp'n to Am. Legion's Mot. for Summ. J. [Doc. #84], at 20.) Thus, it appears that
Plaintiff, however, points to the fact that when the CAAC initially decided to recommend that the Cross Statue be added to the Veterans Memorial, the Commission voted "to recommend to the City Council that a yard shadow figure of a praying soldier" be placed at the King's Veterans Memorial. (March 18, 2010 Commission Minutes [Doc. #74-2], at 5.) Thus, it appears that Plaintiff asserts that because the recommendation included the term "praying soldier", the City had a religious purpose for selecting the Cross Statue. However, there has been acknowledgment by certain members of the Supreme Court that "[i]n determining whether a secular purpose exists, we have simply required that the display[] not be `motivated wholly by religious considerations.' The fact that the monument conveys some religious meaning does not cast doubt on the city's valid secular purposes for its display." City of Elkhart v. Books, 532 U.S. 1058, 1062, 121 S.Ct. 2209, 149 L.Ed.2d 1036 (2001) (denial of certiorari) (Rehnquist, C.J., dissenting) (internal citation omitted); see also ACLU of Ky. v. Grayson Cnty., 591 F.3d 837, 851-52 (6th Cir.2010) (finding that "references to avowedly religious acts such as `prayer'" does not show religious purpose (quoting Croft v. Governor of Texas, 562 F.3d 735, 740-41 (5th Cir. 2009))). The Court also notes that Barbara Hunsucker, a member of the CAAC, who voted to recommend to the City Council that it should implement the Cross Statue into the Memorial, stated that when she saw the Cross Statue that she thought it was appropriate for the Memorial because "it was paying tribute to our fallen soldiers." (Hunsucker Dep. [Doc. #71-8], at 11.) She also stated that the religious aspect of the Cross Statue, when presented to her, "wasn't in [her] overall thought process when [she] saw [it]." (Id. at 13.) Furthermore, Mayor Warren stated that he believed that, in his opinion, the statue was "a good addition to the memorial memorializing our troops." (Warren Dep. [Doc. #71-9], at 60.) And contrary to Plaintiff's contention that the City Council voted to approve the addition of the "praying soldier" statue to the Veterans Memorial, the Court notes that on April 5, 2010, the City Council unanimously "approve[d] the construction and placement of a metal Yard Shadow Figure at the Veteran's Memorial." (April 5, 2010 Minutes [Doc. #75], at 3-4.) Thus, the Court "`will not lightly attribute unconstitutional motives to the government, particularly where [it] can discern a plausible secular purpose.'" American Atheists, Inc. v. Davenport, 637 F.3d 1095, 1118 (10th Cir.2010) (quoting Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1031 (10th Cir.2008)). Therefore, the Court does not find that the City had an entirely religious purpose in erecting the Cross Statue and accepts Defendant City of King's argument that it erected the Cross Statue to honor fallen soldiers.
The Court will next inquire into whether the Cross Statue has the
First, the history of the cross, at least as it is supposed to be depicted in the Cross Statue, and its purpose in American war cemeteries is unclear based on the evidence provided in the record. Plaintiff argues that the Cross Statue only honors Christian soldiers because the Latin cross was used to mark the graves of Christian soldiers in America's twentieth century wars. However, Defendant-Intervenors argue that the Latin cross had a significant, historical presence in American wars, specifically, World War I, World War II, and the Korean War, particularly overseas. Plaintiff's expert, Dr. Kurt Piehler ("Dr. Piehler") gave the opinion that the Latin cross is a religious symbol that honors only Christian soldiers and that "[e]ven if the
Second, this lack of clarity, relating to the historical significance of the Latin cross, is significant to the Court's determination that a genuine dispute of material fact exists, particularly as there is a dispute as to the time period that the Cross Statue is supposed to represent. Such a dispute is material because, based on the evidence discussed above relating to the historical significance of the Latin cross, the cross could potentially convey different symbolic messages depending on which American war the Cross Statue depicts. Defendant-Intervenors have represented that the Cross Statue depicts "a soldier, likely from World War II or the Korean War." (Def.-Intervenors Br. in Supp. of Summ. J. [Doc. #71], at 2.) Plaintiff, however, cites to American Humanist Ass'n v. City of Lake Elsinore (Lake Elsinore I), where the district court rejected a similar argument that the Christian cross in that case were supposed to honor veterans of World War II because, based on the evidence available, there was no prior showing that the city intended that the display to represent World War II veterans in particular. No. 5:13cv-989-SVW-OP, slip op. at 26-29 (C.D.Cal. July 16, 2013) Plaintiff also points to evidence in the record where City of King officials and a member of the American Legion stated that the Cross Statue is supposed to honor all veterans. (Hatley Dep. [Doc. #73-3], at 297-298, 305; Warren Dep. [Doc. #73-5], at 59; Hunsucker Dep. [Doc. #73-6], at 35; Holland Dep. [Doc. #73-7], at 55.) However, the Court notes that there are other indicators in the record that the
Third, in support of the City's position, Defendant-Intervenors discuss "the ubiquity of cross headstones in United States permanent overseas cemeteries." (Def.-Intervenors Br. in Supp. of Summ. J. [Doc. #71], at 12.) Plaintiff responds that American Legion does not maintain that the Cross Statue "depicts a permanent cemetery, because the kneeling soldier in the Cross Statue is holding a rifle." (see Holland Dep. [Doc. #73-7], at 52-53.) However, the evidence that Plaintiff cites also reveals that Holland further stated that the cross marked a permanent grave in the statue because the "soldier was coming back to pay his respects." (Id. at 52.) However, after making this statement, Holland also stated that the cross grave depicted could have been on a battlefield or "buried someplace else very hastily." (Id. at 52-53.) Additionally, the Court notes that Plaintiff's expert also states that the Cross Statue could depict a "grave in a temporary cemetery, it could also be a grave in a battlefield burial possibly, or it could even be a symbolic representation of those buried in the Battle Monuments Commission", which as discussed previously, included permanent cemeteries. (Piehler Dep. [Doc. #71-6], at 65.)
Fourth, Plaintiff cites to cases hailing from other circuits that have held that the cross symbol, even when represented in a larger display,
Furthermore, the Court notes that in the Supreme Court case Salazar, the plurality admonished the district court in that case for concentrating "solely on the religious aspect of the cross, divorced from its background and context."
Id. at 721, 130 S.Ct. 1803. The Court notes that the "Establishment Clause jurisprudence remains a delicate and fact-sensitive one." Lee v. Weisman, 505 U.S. 577, 597, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). In this case, the Court has already acknowledged that there are materially inconsistent facts regarding the history of the Cross Statue that preclude the Court, at this time, from determining the effect the Cross Statue would have on a reasonable observer. Additionally, the Court notes that there is also a material dispute regarding the effect of the Cross Statue, in its context of the larger Veterans Memorial display. Plaintiff points to evidence in the record, particular a photograph of the Cross Statue, and argues that the Cross Statue is "just feet" away from the Veterans Memorial, particularly the Christian flag that flies for most of the year. (Pl.'s Br. in Opp'n to Def.'s Mot. for Summ. J. [Doc. #80], at 37; see Compl. at ¶ 45.) However, the City also argues that based on the position of the Cross Statue, someone walking towards the front of the Veterans Memorial would not see the Cross Statue. (Def.'s Br. in Supp. Mot. for Summ. J. [Doc. #69], at 4.) Indeed the Cross Statue does appear to be at least within the vicinity of the larger Memorial display; however, it also appears to be isolated by bushes and trees that may separate it from the rest of the display, which may affect whether a reasonable observer would associate the Cross Statue with the rest of the Memorial. Furthermore, the City and Defendant-Intervenors argue that even if one would view the Cross Statue and the rest of the Memorial together, they would connect the statue with the large statement in the front of the Memorial, "ALL GAVE SOME ... AND SOME GAVE ALL." (Def.-Intervenors' Br. in Supp. of Mot. for Summ. J. [Doc. #71], at 14 (quoting text from Memorial
Therefore, the Court acknowledges that it must look to the historical context of the cross; however, the parties dispute what part of history and what aspect of history the Cross Statue is supposed to depict, and the Cross Statue's association with the larger Veterans Memorial display in this case.
Additionally, notwithstanding the request made by Defendant-Intervenors, the Court need not conduct a second inquiry under Van Orden. In Van Orden, the Supreme Court upheld the display of the Ten Commandments in the Texas State Capitol grounds based on the "nature of the monument and by our Nation's history." 545 U.S. at 686, 125 S.Ct. 2854. As the Court has already discussed such bases in the context of its Lemon analysis, it will not repeat its analysis here.
Although the Court has determined that there is a material dispute regarding the second prong of the Lemon test, the Court must still look to see if the third prong has been violated because, as previously mentioned, a violation of any one part of the tripartite test is sufficient to conclude that the Establishment Clause has been violated. The Supreme Court has noted that "[e]ntanglement is a question of kind and degree." Lynch, 465 U.S. at 684, 104 S.Ct. 1355. "Because entanglement between church and state `becomes constitutionally "excessive" only when it has the "effect of advancing or inhibiting religion,'" the third prong is `properly treated as "an aspect'" of the second." American Atheists, Inc. v. Port Authority of N.Y. and NJ, 936 F.Supp.2d 321, 335 (S.D.N.Y.2013) (quoting Skoros v. City of New York, 437 F.3d 1, 36 (2d. Cir.2006) (quoting Agostini v. Felton, 521 U.S. 203, 233, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997))); Suhre v. Haywood Cnty. (Suhre
However, the Court notes that the kind of excessive entanglement of government and religion precluded by Lemon is characterized by "`comprehensive, discriminating, and continuing state surveillance' of religious exercise." Lambeth II, 407 F.3d at 271 (quoting Lemon, 403 U.S. at 619, 91 S.Ct. 2105). Given the genuine dispute that exists, this issue will be reserved for the trial court which will likely consider certain factors in determining whether the City has excessively entangled in religion as it relates to the Cross Statue. First, the Court may consider whether or not the use of City funds to erect the Cross Statue constitutes excessive entanglement. Cf. Lynch, 465 U.S. at 684, 104 S.Ct. 1355 ("No expenditures for maintenance of the crèche have been necessary, and, since the city owns the crèche, now valued at $200, the tangible material it contributes is de minimis." (emphasis in the original)) Second, the trial court, in addressing the excessive entanglement issue, will also likely consider the fact that the Cross Statue involves a religious symbol, specifically, a Latin cross. See Lambeth I, 321 F.Supp.2d at 705 (acknowledging that the "Fourth Circuit has consistently applied the Lemon test more stringently when evaluating government action that involved inherently religious acts or symbols" and citing cases). Third, among other things, the trial court will also likely consider whether the Cross Statue requires "pervasive monitoring or other maintenance" by the City or any "repeated government involvement with religion."
Thus, in light of the Supreme Court's more recent jurisprudence requiring courts to conduct intensive, fact-specific inquiries on policies and displays that invoke Establishment Clause challenges, the Court will deny summary judgment to all parties as it relates to the Cross Statue. This is because of the disputes surrounding the message conveyed by the Cross Statue, which time period the Cross Statue is meant to represent, and the physical contours and setting of the statue, which the Court finds material to the disposition of this issue. However, this is by no means any suggestion by the Court that Defendant City of King and Defendant-Intervenors will ultimately prevail on the merits of their claim as it relates to the Cross Statue. Indeed, most of the current jurisprudence analyzing the Latin cross, in light of asserted Establishment Clause violations, is all but decidedly against the City and Defendant-Intervenors' position. Nevertheless, the Court will allow the issue to proceed to trial as the Court finds there are genuine issues of material fact that preclude entering summary judgment
Defendant City of King also argues that the Christian flag display at the Veterans Memorial does not offend the Establishment Clause because the flag is flown as a part of a limited public forum, in which the purported forum allows private parties to fly the flag of their choice on the eleventh flagpole in the City's Veterans Memorial. Plaintiff argues that the display of the Christian flag is an action that is attributable to the City and such an action violates the Establishment Clause. As an initial matter, the Court notes that the issue before the Court is not whether the City's initial display of the Christian flag
Sons of Confederate Veterans, Inc. v. Comm'n of Dep't of Motor Vehicles, 288 F.3d 610, 618 (4th Cir.2002) ("SCV"); see
In regards to the first factor, the City first argues that the purpose of the program in which the question occurs is private because it allows "private individuals to commemorate veterans." (Def.'s Br. in Supp. of Mot. for Summ. J. [Doc. #69], at 12.) Additionally, the City asserts that the policy allows private citizens to display different flags, while it explicitly prohibits the City of King to utilize the forum. While Plaintiff does not respond to the City's argument addressing the speech inquiry, Plaintiff generally argues that the Flag Policy was created to "address overwhelming public opposition to removal of the Christian flag" and that the Veterans Memorial, which includes the flag display, serves as "one of [the City's] proudest attractions." (Pl.'s Br. in Opp'n to Def.'s Mot. for Summ. J. [Doc. #80], at 30, 32 (quoting City of King Website [Doc. #81], at 1).) Although the City appears to use the Veterans Memorial as an attraction feature, the record does not show that the City's purpose in implementing the Flag Policy was to attract outside visitors. Cf. SCV, 288 F.3d at 619 (finding that the specialty license plate program could support a finding of government speech because of its revenue raising purpose). Thus, to the extent that the policy allows individuals to fly different flags in honor of veterans of their choosing, this factor favors a finding of private speech.
As to the second factor, the City argues that private parties exercise editorial control in the forum because individuals are allowed to "choose which flag to erect on the eleventh flagpole and which veteran to commemorate on the temporary sign nearby." (Def.'s Br. in Supp. of Mot. for Summ. J. [Doc. #69], at 15.) However, the Court notes that the City exercises some degree of control, as it provides the original pool of faith emblems that individuals may choose from for the purposes of flying a particular flag. The City addresses such an issue by citing to Planned Parenthood of South Carolina Inc. v. Rose, in which the Fourth Circuit stated, based on the facts in that case, that an "array of choices makes the license plate forum appear increasingly like a forum for private speech." 361 F.3d 786, 799 (4th Cir.2004). In this case, the City has provided participants with a choice of at least 47 emblems to choose from in considering which flag they would fly in the forum. However, the Court notes that in SCV, the Fourth Circuit also considered the fact that the specialty license plate design criteria contains instruction related to size and space restrictions but did not contain "guidelines regarding the substantive content of the plates or any indication of reasons, other than failure to comply with size and space restrictions, that a special plate design might be rejected." SCV, 288 F.3d at 621; but see Robb v. Hungerbeeler, 370 F.3d 735, 745 (8th Cir.2004) (finding that some state speech, including limiting signs to using adopter's name, "does not eviscerate the expressive element of the adopters' election to participate in the program" but that the "underlying purpose of the program is unrelated to the dissemination of the governmental messages"). The City also argues that private parties exercise primary editorial control because, per the Flag Policy and the City cannot reject an individual's choice of flag so long as it complies with the policy. The Court agrees that the City's inability, per the Flag Policy, to exercise its discretion to
Third, the City argues that the literal speaker is completely private because the speaker is the flag, which is selected, paid for, erected, and removed by a private person. However, the Court notes that per the Flag Policy, the City may designate a group or individual to "provide reasonable accommodation to the requester for access to the Memorial for the purpose of requester raising and lowering the flag that has been selected by such requester." (Flag Policy [Doc. #1-2], at ¶ 10.f.) Thus, per the Flag Policy, a private party could seek help from a city employee or city designee to assist in gaining access to the Memorial to erect or remove their flag from the eleventh flagpole. However, the Court notes that such an issue is not dispositive on this factor because the City's ability to help a person erect or remove the flag does not change the fact that a private individual is speaking, conveying a message through the forum. Thus, the Court finds that the literal speaker in this case is indeed a private party.
Fourth, the City argues that a private party bears ultimate responsibility over the speech because private parties ultimately select which commemorative flag to erect on the eleventh flag pole. However, the Court notes that "this litigation is itself an indication that the City bears the ultimate responsibility for the content of the display." Wells v. City & Cnty. of Denver, 257 F.3d 1132, 1142 (10th Cir.2001); see also Sons of Confederate Veterans, Va. Div. v. City of Lexington, Va., 894 F.Supp.2d 768, 776 (W.D.Va.2012), aff'd, 722 F.3d 224 (4th Cir.2013) ("[P]rivate expression might eventually so dominate city flag poles as to swallow whole the flag poles' actual, official purposes.") Also, as Plaintiff points out, this is not the case where a message is "mounted on vehicles owned by private persons", SCV, 288 F.3d at 621, which could be readily attributed to a private party. In this case, as Plaintiff argues, the flag is mounted in a public park and the flag, on government property, and the disclaimer attributing the flag to a private party may not, necessarily, be readily noticeable by those initially viewing the Memorial. Additionally, as stated in Lexington, "allowing a city-owned flag pole to serve as a public forum could suggest the government has placed its imprimatur on private expression." Lexington, 894 F.Supp.2d at 776. Thus, the Court finds that this factor weighs in favor of a finding that the City bears ultimate responsibility for the speech in the flag forum. However, a finding that one factor of the four-factor test favors a finding of government speech is not dispositive on the issue of what type of speech is involved. Tata, 742 F.3d at 574 (finding three out of the four factors indicated that private speech was involved and affirming the district court's conclusion that "`sufficient private speech interests [we]re implicated by the specialty license plates to preclude a finding of purely government speech.'" (quoting ACLU of N.C. v. Conti, 912 F.Supp.2d 363, 375 (E.D.N.C.2012))).
Finally, the City also requests that the Court consider the fact that the flag is flown on the eleventh flagpole by different private individuals as an acknowledgment that the Flag Policy creates a temporary display. In advancing such an argument, the City cites to Pleasant Grove City,
Pinette, 515 U.S. at 777, 115 S.Ct. 2440 (O'Connor, J., concurring in part and concurring in judgment) (emphasis in the original) (internal citation omitted).
The Court notes that the question of whether the government has endorsed religion is seen through the eyes of the reasonable observer. See Marshfield, 203 F.3d at 493. In this case, the reasonable observer would be aware of the history of the City of King and its community, the circumstances surrounding the enactment of the Flag Policy, the location of the flag forum in relation to the other objects in the Veterans Memorial, that the Christian
However, taking the City's perspective into account, it does appear that although the City enacted the Flag Policy as a way to alleviate public opposition to the removal of the Christian flag and that, arguably, there may have been religious motivation in implementing the Flag Policy, it also appears that the City enacted the policy in an effort to comply with the law. The Court also notes that the Flag Policy does appear to have the effect of honoring veterans, to the extent it allows members of the community to fly a flag attributed to an individual veteran. This position is reflected in the November 2010 meeting minutes when the City Council members announced that the Flag Policy would allow individuals in the community to honor veterans. (See November 1, 2010 City Council Minutes [Doc. #96-5], at 2.) This is something a reasonable observer would also take into account. (see, e.g., Hunsucker Dep. [Doc. #73-6], at 60 (stating that she understood the Flag Policy to allow private citizens to submit the names of loved ones and honor them with the flag of their choice).) Nevertheless, in reviewing the record, which addresses the history of the King Community, the divisive history regarding the original Christian flag display, and the decision to implement the Flag Policy, which unsurprisingly created a forum in which the Christian flag is flown 46 to 47 weeks out of the year, the Court finds that a reasonable observer could find that the flag forum has the effect of the endorsing the Christian flag and Christianity. Nevertheless, the Court notes that perceived government endorsement of religion also relies on the size of the flag display and its relation to the disclaimer that attributes the flag display to private parties. See Pinette, 515 U.S. at 776, 115 S.Ct. 2440 (O'Connor, J., concurring in part and concurring in judgment) (stating that a disclaimer could have the effect of "disclaiming government sponsorship or endorsement" of a religious display on government property); Peck, 155 F.3d at 278 (noting that disclaimer could "negate any appearance of endorsement"); cf. Demmon, 342 F.Supp.2d at 493 (noting that the Latin crosses on some bricks in a public school walkway would not have the effect of an "unmistakable endorsement" of Christian faith because each brick that "bore the name of a student or faculty member"). But see Smith v. Cnty. of Albemarle, 895 F.2d 953, 958 (4th Cir.1990) (finding that disclaimer could not "eliminate the patent aura of government endorsement of religion"). In this case, Plaintiff argues that the disclaimer attached to the flag forum, which purports to attribute the forum to private parties, is "printed on a small piece of paper that must be read up close." (Pl.'s Br. in Opp'n to Def.'s Mot. for Summ. J. [Doc. #80], at 33 (citing Picture of Flag [Doc. #81-3]). Plaintiff has also argued that
Plaintiff's final challenge is to the City of King's memorial events. Plaintiff contends that Defendant City of King "unlawfully promotes religion and Christianity at its annual memorial ceremonies held at Central Park" in violation of the Establishment Clause. (Pl.'s Br. in Opp'n to City of King's Mot. for Summ. J. [Doc. #80], at 38.) Specifically, Plaintiff objects to the prayers delivered by the chaplains and other Christian content at the annual ceremonies, which Plaintiff argues are "overtly Christian ... [and] have expressly proselytized Christianity." (Id. at 32.)
As a preliminary matter, Defendant City of King argues that the Supreme Court's very recent ruling on legislative prayer in Galloway, 134 S.Ct. 1811, governs the issue
Furthermore, the Court notes that many courts, including the Fourth Circuit, have considered and generally refused to extend the rule of Marsh, which like Galloway upheld legislative prayer practices, beyond its specific context. Wynne v. Town of Great Falls, 376 F.3d 292, 302 (4th Cir. 2004)
The Court first finds, as Plaintiff asserts, that there is no question that prayer is a religious practice. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 313, 120 S.Ct. 2266, 2281, 147 L.Ed.2d 295 (2000) ("But the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer."); Constangy, 947 F.2d at 1150 ("[C]ontrolling caselaw suggests that an act so intrinsically religious as prayer cannot meet, or at least would have difficulty meeting the secular purpose prong of the Lemon test."). But see Galloway, 134 S.Ct. at 1818 ("[L]egislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause.") The Court also notes that the prayers involved in this case, specifically prayers that have discussed "the selfless sacrifice of Your Son, Jesus Christ", and statements that have requested that the people in the audience should "teach your children to respect God, older folks, and the military" and regular invocations of Jesus Christ would have the effect of showing that the speaker endorses Christianity as a particular belief and proselytizing the Christian faith.
As previously noted, the purpose of the Establishment Clause is "`to prevent, as far as possible, the intrusion of either [the church or the state] into the precincts of the other.'" Lynch, 465 U.S. at 672, 104 S.Ct. 1355
Under the first prong of the Lemon test, Plaintiff must show that the City engaged in the annual ceremonial events for a religious purpose. Plaintiff has failed to do so. Plaintiff, in responding to the City's Motion, has not pointed to evidence to show that the City's primary purpose in planning the Veterans Day and Memorial Day ceremonies, whether in the past or present, was to advance religion. Harris, 218 F.Supp.2d at 994 (finding that the September 11th ceremony, which included a planned prayer, had a "plainly secular purpose" and noting that the ceremonies "allow people to show their patriotism and national pride"). Based on the record before the Court, it is clear that these annual events have a secular purpose, and that is to honor veterans.
Plaintiff asserts that the City "unlawfully promotes religion and Christianity at its annual memorial ceremonies held at Central Park." (Pl.'s Br. in Opp'n Def.'s Mot. for Summ. J. [Doc. #80], at 38.) Plaintiff also contends that even if the City transferred the events to third parties, "[c]ourts have prohibited government entities from sponsoring, organizing, or participating in religious ceremonies", (id. at 38-39), and Plaintiff cites to two cases for this proposition.
However, "`a religious service under government auspices ... would run afoul of the Establishment Clause even if it occurred in conjunction with secular activities.'" Harris, 218 F.Supp.2d at 995 (quoting Village of Crestwood, 917 F.2d at 1478). In determining whether the City's practices have the effect of endorsing Christianity in violation of the Establishment Clause, the Court must specifically determine whether a reasonable observer would find that the City has actually endorsed the religious aspects of the ceremonies at issue in this matter. See id. at 994 (noting that the "context of governmental involvement in religious messages is important" in determining whether the ceremony amounts to an endorsement of religion). In this case, Plaintiff has pointed to aspects of the annual ceremonies that have overt religious overtones — particularly, many references to God or Jesus Christ, requesting that the audience bow their heads for prayer, other messages discussing "the selfless sacrifice of Your Son, Jesus Christ", stating that the fallen soldiers have "followed in the footstep of your Son", and the fallen soldiers are an "image, reflection, and extension of [God's] love and grace", (Video Recording MM2, available at http://tinyurl.com/ExhibitMM2), and other statements asking that the audience "to teach your children to respect God, older folks, and the military", (Video Recording, available at http://tinyurl.com/ExhibitPP4 (18:10-18:54)), and stating that "there are two that died for you: the U.S. soldier [and] the Son of God, Jesus Christ", (Video Recording, available at http://tinyurl.com/ExhibitPP4 (00:59-1:07).) Such prayers and statements may have the effect of proselytizing the Christian faith and a reasonable observer may find that they have the effect of religious endorsement. Additionally, the Court notes that city officials, specifically Mayor Warren, are still involved in these events, as they have been in the past. Furthermore, Plaintiff points to Mayor Warren's deposition testimony where the Mayor
Additionally, Plaintiff argues that certain actions by the City in this case convey a message of government sponsorship of the religious activities at issue in this case. As previously stated, "the government cannot sponsor religious ceremonies." Harris, 218 F.Supp.2d at 995. The Court does take note of the City's advertisement of the 2013 Veterans Day ceremony. In particular, the City placed an advertisement on its website stating "[c]ome join us as we honor and pay our respect to the brave men and women of our armed forces and dedicate the new tiles for the Veterans Memorial." (King Website Advertisement [Doc. #79-8] (emphasis added).) In Village of Crestwood, the Court noted that the use of the word "our" that was used to advertise the village festival and the Catholic mass "implie[d] that the mass and Festival alike are under the Village's sponsorship." Village of Crestwood, 917 F.2d at 1479. Thus, the Court finds that the use of the word "us" as it relates to the City's advertisement of the 2013 Veterans Day ceremony has the effect of conveying sponsorship of the ceremonies, and to a further extent, the religious aspects of the ceremonies.
Plaintiff also appears to challenge Mayor Warren's participation in the commemorative events at issue in this case. Plaintiff points to evidence that even after the City purported to transfer its sponsorship of the events to private parties, Mayor Warren still participates in the ceremonies by "welcom[ing] the crowd, thank[ing] the event sponsors, ask[ing] God to bless America
The Court finds that such activities (i.e. the City's organization and arrangement of the religious speakers; the City's advertisement of the annual commemorative events by using words such as "us"; the City conveying disclosing religious messages, through its City officials, as part of the prayer practices at the annual commemorative events) convey a message of endorsement of the religious activities involved in these events and alternatively, excessively entangle the City with the religious messages conveyed at the events.
However, the Court finds unpersuasive, Plaintiffs other arguments that certain activities show impermissible sponsorship or participation by the City in the annual commemorative events that would constitute the City's endorsement or entanglement with the religious aspects of the annual ceremonies. Plaintiff argues that the presence of the city fire truck, without a previous request from the American Legion or the Arts Council, and the City's perpetual allowance of permits to the third parties hosting the annual ceremonies, sends a message of the City's impermissible sponsorship, and as an extension, endorsement, of the religious practices held at the Veterans Memorial ceremonies. However, the Court finds Plaintiff's implication to be unpersuasive. To the extent Plaintiff argues that the City favored the religious aspects of the annual ceremonies by providing a perpetual permit, by waiving the formal permit request submission or fee application, or by allowing the fire truck to be present (which hoisted an American flag), without charge or a prior request, to the Arts Council and American Legion, the Court does not find such actions to be an impermissible sponsorship of the religious aspects of the events. This is because Plaintiff has not shown how such actions have any perceived endorsement, or any excessive government entanglement with the religious aspects of the annual ceremonies. Indeed, as the Court has previously noted, it appears, based on the evidence currently before the Court, that the annual ceremonies are primarily secular and hosted for the purpose of commemorating veterans and loved ones.
Furthermore, Plaintiff appears to argue that because the brick pavers installed in the Veterans Memorial are dedicated to veterans at these ceremonies, that it implies some sort of government endorsement of these events, and as an extension, government endorsement of religion. However, the Court notes that the evidence Plaintiff points to in making such an argument shows that the pavers are actually
The Court also finds that to the extent City Clerk Hatley has transferred various files and folders relating to past ceremonies to the Arts Council or the American Legion or the fact that Hatley has reviewed the flyers for the 2013 Memorial Day ceremony, such an activity does not convey a message of sponsorship of the annual ceremonies, let alone the religious aspects of those ceremonies. Specifically, Plaintiff has not argued or pointed to any evidence showing that Hatley, in her capacity as City Clerk, has contributed to or organized any of the religious aspects of the annual ceremonies in transferring such files, lists, and folders to the Arts Council and the American Legion. At most, the evidence shows that Hatley was transferring the files to members of the Arts Council to effectuate the City's promise to discontinue its sponsorship of the annual ceremonies. As such, the Court does not find such a practice to be an impermissible sponsorship of the religious activities at issue in this case and, as such, Hatley's actions do not violate the Establishment Clause.
Finally, to the extent Plaintiff asserts that Mayor Warren, in his official capacity as a representative of the City, should not be able to participate in activities such as introducing speakers, laying the ceremonial wreath, or thanking event speakers, the Court notes that the City has referenced memorial events held at the Arlington National Cemetery where the President of the United States (or his designee) "lays a wreath to mark the national observance of Veterans Day, Memorial Day or some other special occasion." The Official Website of Arlington National Cemetery, http://www.arlingtoncemetery.mil/events/Ceremonies/WreathLayings.aspx. As Plaintiff makes no argument that persuades the Court to the contrary, the Court does not find such activities to be an impermissible religious participation and thus do not violate the Establishment Clause.
Thus, based on the above evidence cited by Plaintiff, the Court finds that the following activities by the City do not constitute the City's endorsement or, alternatively, excessive entanglement in the religious aspects of the annual ceremonies in violation of the Establishment Clause: (1) the presence of the fire truck at the annual commemorative events, even without a prior request for the presence of the fire truck by the third parties now hosting the annual events; (2) the City's transfer of a perpetual permit to the Arts Council and American Legion to hold the events at the King Central Park; (3) the City's practice of waiving the requirement for the Arts Council to submit a formal application or request a permit to use the King Central Park for the annual commemorative events; (4) the City's installation of the pavers that are dedicated at the annual ceremonies; (5) City Clerk Hatley's transfer of various files and folders relating to past ceremonies to the Arts Council or the American Legion nor City Clerk Hatley's review of flyers for the 2013 Memorial Day ceremony; and (6) the Mayor's actions, specifically when acting in his official capacity as a representative of the City, of participating in the annual ceremonial events by engaging
Plaintiff also contends that the City's practices of promoting Christianity are unlawfully coercive and in violation of the Establishment Clause. Under the coercion test of the Establishment Clause, the "`government may not coerce anyone to support or participate in religion or its exercise.'" Mellen, 327 F.3d at 370 (quoting Weisman, 505 U.S. at 587, 112 S.Ct. 2649). In this case, Plaintiff asserts that to avoid the City's display of religious messages, he "must stay away" and "he visits the Memorial less often that he otherwise would as a result of the City's sponsorship of religious displays." (Pl.'s Br. in Opp'n to City of King's Mot. for Summ. J. [Doc. #80], at 42.) In arguing that the City's practices are unduly coercive, Plaintiff cites to two cases, Weisman and Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). However, the Court notes that both cases involve prayer in the school education context. As noted by the Supreme Court in Van Orden, the Court has "`been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools.'" Van Orden, 545 U.S. at 691, 125 S.Ct. 2854 (quoting Edwards, 482 U.S. at 583-84, 107 S.Ct. 2573). This is supported by the Supreme Court's analysis of Weisman, where the Court found that although the school district did not require attendance at the middle school graduation, attendance was "in a fair and real sense obligatory" and the Court found that "subtle coercive pressures exist[ed]" in the secondary school environment "where the student had no real alternative which would have allowed her to avoid the fact or appearance of participation." Weisman, 505 U.S. at 586, 588, 112 S.Ct. 2649; see Galloway, 134 S.Ct. at 1827 (noting that the choice to acquiesce to prayer practices or to leave during such practices does not "represent[] an unconstitutional imposition to mature adults, who `presumably' are `not readily susceptible to religious indoctrination or peer pressure.'" (quoting Marsh, 463 U.S. at 792, 103 S.Ct. 3330 (internal quotation marks and citations omitted))); Mellen, 327 F.3d at 371 (finding that the "adversative method of education emphasiz[ing] detailed regulation of conduct and indoctrination of a strict moral code" and intimidating atmosphere supported position that students in Virginia Military Institute were coerced in participating in religious exercises). Based on the above cited case law, the Court finds that it does not appear the Plaintiff has pointed to any evidence showing that he was particularly susceptible to the "religious indoctrination or peer pressure" of the City's promotion of Christianity in this case. The record shows that Plaintiff has stood up against some of the alleged Christian practices in this case, specifically, when he offered a Buddhist Prayer at the City's National Day of Prayer ceremony, and such prayer promoted multi-religious tolerance by asking the King community to accept other religious and cultural creeds. Thus, the Court will decline to extend the coercion doctrine to the practices and actions Plaintiff points to in this case, as Plaintiff has not pointed to evidence to enable the Court to find that he was susceptible to being pressured to submit to the City's alleged promotion of Christianity.
For the reasons set forth above and herein, the Court will grant in part and deny in part Plaintiff's Motion for Summary Judgment [Doc. #72].
First, the Court will deny Plaintiff's Motion for Summary Judgment as it relates to his claim requesting injunctive relief as it relates to the Cross Statue. As the Court has determined that there are genuine disputes of material fact relating to what the Cross Statue purports to depict, and as a result, a dispute remains regarding the history of the Latin cross that is part of the Cross Statue, the Court finds that those issues should proceed to trial.
Second, as it relates to the flag forum, the Court will deny Plaintiff's Motion for Summary Judgment as it relates to the flag forum, for the reasons set forth in the Court's analysis of Defendant City of King's Motion for Summary Judgment on the same issue. However, the Court will allow such an issue to proceed to trial to determine whether the flag forum, as currently erected, has the effect of showing the City's endorsement of the Christian flag, which flies 46 to 47 weeks out of the year. Specifically, the trial court should determine whether the physical aspects of the flag forum (i.e. its size in relation to the disclaimer, which purports to attribute the flag to private parties) has the effect of showing the City's endorsement of Christianity.
However, both parties also argue, in addressing Plaintiff's Motion for Summary Judgment, that the Flag Policy itself is subject to scrutiny under the Lemon test and both parties argue that it can be upheld or invalidated based on a determination of the City's purpose for implementing the Flag Policy. (See Br. in Support of Pl.'s Mot. for Summ. J. [Doc. #73], at 25-31; Def.'s Br. in Resp. to Pl.'s Mot. for Summ. J. [Doc. #83], at 12.) Thus, the Court notes that the City's Flag Policy may be invalidated if it were enacted for the purposes of advancing religion. Widmar, 454 U.S. at 271, 102 S.Ct. 269 ("[A] policy will not offend the Establishment Clause if it can pass [the] three-pronged [Lemon] test"); see Chambers II, 373 F.Supp.2d at 572 (applying Lemon test to determine whether the city had a sham purpose in selling land on which a Ten Commandments monument sat to a private third); see also McCreary Cnty., 545 U.S. at 864, 125 S.Ct. 2722 (stating that under Lemon secular purpose prong, it is the duty of the courts to distinguish a "sham secular purpose from a sincere one" (citations omitted)).
Based on the statements of Mayor Warren and City Council members before and after the City originally removed the Christian flag from the Veterans Memorial, which were cited and discussed above in
The Court notes that generally, demonstrating a secular purpose for government action presents a "fairly low hurdle" and a secular purpose will be upheld unless the government's action is "entirely motivated by a purpose to advance religion." Lambeth II, 407 F.3d at 270 (internal quotation marks and citations omitted). However, the Court also notes that it is the duty of the courts to distinguish between a "sham" secular purpose and a "sincere" purpose. McCreary Cnty., 545 U.S. at 864, 125 S.Ct. 2722. Although the City argues that the Court should not consider the statements by the City officials as evidence of the City's purpose in enacting the Flag Policy, the Court notes, as previously stated, that "`[r]easonable observers have reasonable memories" and are aware of "the context in which the policy arose.'" Green, 568 F.3d at 800 (quoting McCreary, 545 U.S. at 866, 125 S.Ct. 2722 (alteration and internal quotation marks omitted)). Additionally, although the City argues that the enactment of the Flag Policy was a "genuine change[]" that may shake the "taint" of any previous conceived advancement of Christianity through the City's original display of the Christian flag, see ACLU of Ky. v. Rowan County, 513 F.Supp.2d 889, 897, 904 (E.D.Ky.2007), the Court finds that the evidence set forth by Plaintiff calls into question the sincerity of the City's actions in creating the Flag Policy. As the facts surrounding the City's purpose for enacting the Flag Policy is a close call and as some facts regarding the City's purpose in enacting the Flag Policy are materially disputed, the Court will also allow the limited question of whether the Flag Policy was primarily motivated by a religious purpose or a primarily secular purpose to proceed to trial. If the trial court determines that the City's purposes in enacting the policy were for the purpose of advancing Christianity, the Court may find that the policy is invalid under the current Establishment Clause jurisprudence.
As it relates to the annual commemorative events, the Court will grant in part and deny in part Plaintiff's Motion for Summary Judgment for the reasons stated in the Court's discussion of City's Motion for Summary Judgment on this issue. Therefore, based on the above evidence in the Court's discussion of the City's Motion for Summary Judgment, the Court finds that the following activities by the City violate the Establishment Clause: (1) the City's past involvement, through its city officials acting in their official capacity as city employees, in arranging for speakers or chaplains to speak at the annual commemorative events and those speakers or chaplains have advanced overtly Christian messages at the events; (2) the City's promotion of the commemorative events, that involve religious aspects, but only to the extent the City uses inclusive words such as "us" that reflect the City's involvement in the annual events, and to a further extent, the religious aspects of those events; (3) the City's actions, through the acts of the Mayor or any other city official acting in their official capacity as a representative of the City and only to the extent the officials are required to participate in the ceremonies as part of their official duties, of conveying religious messages as part of the prayer practices that take place at the annual commemorative events, and such prayer practices have primarily advanced or proselytized Christianity. As to these activities, the Court will grant Plaintiff's Motion for Summary Judgment because the Court finds that Plaintiff is entitled to judgment as a matter of law as the Court has determined that such activities violate the Establishment Clause.
However, based on the Court's discussion of the City's Motion for Summary Judgment, the Court finds that the following activities by the City do not violate the Establishment Clause: (1) the presence of the fire truck at the annual commemorative events, even without a prior request for the presence of the fire truck by the third parties now hosting the annual events; (2) the City's transfer of a perpetual permit to the Arts Council and American Legion to hold the events at the King Central Park; (3) the City's practice of waiving the requirement for the Arts Council to submit of an application or permit to use the King Central Park for the annual commemorative events and instead allowing the Arts Council to call to reserve the events; (4) the City's installation of the pavers that are dedicated at the annual ceremonies; (5) City Clerk Hatley's transfer of various files and folders relating to past ceremonies to the Arts Council or the American Legion nor City Clerk Hatley's review of flyers for the 2013 Memorial Day ceremony; and (6) the Mayor's actions, specifically when acting in his official capacity
Plaintiff also brings a claim for the above asserted violations under North Carolina constitution Articles I, §§ 13, 19. Section 13 states, "All persons have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences, and no human authority shall, in any case whatever, control or interfere with the rights of conscience." N.C. Const. art. I, § 13. Section 19 states,
N.C. Const. art. I, § 19. However, the Court notes that to the extent Plaintiff alleges that Defendant City of King's conduct violates the North Carolina Constitution, neither party meaningfully cites to North Carolina law as to the constitutionality of the issues raised, with the exception of stating that violation of the religious clauses under the North Carolina Constitution is interpreted in the same manner as a similar violation under the Establishment Clause of the federal Constitution. The Supreme Court of North Carolina has "previously stated that `[t]aken together, these provisions ... coalesce into a singular guarantee or freedom of religious profession and worship, "as well as an equally firm established separation of church and state."'" Appeal of Springmoor, 348 N.C. 1, 5, 498 S.E.2d 177, 180 (1998) (quoting Heritage Vill. Church & Missionary Fellowship, Inc. v. North Carolina, 299 N.C. 399, 406, 263 S.E.2d 726, 730 (1980) (quoting Braswell v. Purser, 282 N.C. 388, 393, 193 S.E.2d 90, 93 (1972))). Thus, the court has "recognized that while the religious 104 clause of the state and federal Constitutions are not identical, they secure similar rights and demand the same neutrality on the part of the state" and thus, "[courts] may utilize the Establishment Clause jurisprudence to examine legislation for `aspects of religious partiality' prohibited by both constitutions." Id. (quoting Heritage Vill., 299 N.C. at 406, 406 n. 1, 263 S.E.2d at 730, 730 n. 1). Therefore, to the extent the Court has found that the conduct violated the Establishment Clause, the Court will not address the North Carolina Constitutional claims. However, to the extent the Court has allowed any aspect of Plaintiff's Establishment Clause claim to proceed to trial, the Court will also allow Plaintiff's claims under the North Carolina constitution to proceed to trial.
Defendant City of King has filed a Motion to File Supplemental Brief [Doc. #113]. Plaintiff has filed a Response in Opposition to Defendant City of King's Motion for Supplemental Briefing [Doc. #117] and Defendant City of King has filed its Reply Brief [Doc. #118]. In its Motion for Supplemental Briefing [Doc. #113], Defendant City of King has requested
IT IS THEREFORE ORDERED that Plaintiff's Motion for Summary Judgment [Doc. #72] is GRANTED IN PART AND DENIED IN PART. Plaintiff's Motion is GRANTED to the extent the Court has found that the City's actions have the effect of endorsing the religious aspects of the annual ceremonies or such actions constitute excessive government entanglement in violation of the Establishment Clause, as declared below. THEREFORE IT IS DECLARED that the following activities violate the Establishment Clause: (1) the City's past involvement, through its city officials acting in their official capacity as city employees, in arranging for speakers or chaplains to speak at the annual commemorative events and those speakers or chaplains have advanced overtly Christian messages at the events; (2) the City's promotion of the commemorative events, that involve religious aspects, but only to the extent the City uses inclusive words such as "us" that reflect the City's involvement in the annual events, and to a further extent, the religious aspects of those events; (3) the City's actions, through the acts of the Mayor or any other city official acting in their official capacity as a representative of the City and only to the extent the officials are required to participate in the ceremonies as part of their official duties, of conveying religious messages as part of the prayer practices that take place at the annual commemorative events, and such prayer practices have primarily advanced or proselytized Christianity. Thus, the City is hereby ENJOINED from engaging in such practices.
Plaintiff's Motion is DENIED to the extent the Court has found that the City's actions do not have the effect of endorsing the religious aspects of the annual ceremonies or such actions constitute excessive government entanglement and, thus, do not violate the Establishment Clause. The denial of Plaintiff's Motion for Summary Judgment extends to the following activities or actions: (1) the presence of the fire truck at the annual commemorative events, even without a prior request for the presence of the fire truck by the third parties now hosting the annual events; (2) the City's transfer of a perpetual permit to the Arts Council and American Legion to hold the events at the King Central Park; (3) the City's practice of waiving the requirement for the Arts Council to submit of an application or permit to use the King Central Park for the annual commemorative events and instead allowing the Arts Council to call to reserve the events; (4) the City's installation of the pavers that are dedicated at the annual ceremonies; (5) City Clerk Hatley's transfer of various files and folders relating to past ceremonies to the Arts Council or the American Legion nor City Clerk Hatley's review of
IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment is DENIED as it relates to the issue of whether the Christian flag impermissibly dominates the flag forum. The Court will allow that limited issue to proceed to trial as set forth herein. IT IS FURTHER ORDERED that Plaintiff's Motion is DENIED as it relates to the limited issue of whether the Flag Policy was enacted for a impermissible or permissible purpose. The Court will allow that limited issue to proceed to trial. IT IS FURTHER ORDERED that Plaintiff's Motion is DENIED as it relates to the issues of whether the City's erection of the Cross Statue violates the primary effect/endorsement and excessive entanglement prongs of the Lemon test or, alternatively, the standard set forth in Van Orden, as discussed herein. The Court will also allow that issue to proceed to trial.
IT IS FURTHER ORDERED that Defendant City of King's Motion for Summary Judgment [Doc. #68] is GRANTED IN PART AND DENIED IN PART as set forth herein. The City's Motion is GRANTED as it relates to the ceremonial events, to the extent the Court has determined that the City's actions regarding the annual ceremonial events do not violate the Establishment Clause, as fully stated in the Court's order language addressing Plaintiff's Motion for Summary Judgment. However, the City's Motion is DENIED as it relates to the ceremonial events, to the extent the Court has determined that the City's actions regarding the annual ceremonial events do violate the Establishment Clause, as fully stated in the Court's order language addressing Plaintiff's Motion for Summary Judgment. IT IS FURTHER ORDERED that the City's Motion is DENIED as it relates to the issue of whether the Christian flag impermissibly dominates the flag forum. The Court will allow that limited issue to proceed to trial as set forth herein. IT IS FURTHER ORDERED that the City's Motion is also DENIED as it relates to the limited issue of whether the Flag Policy was enacted for a impermissible or permissible purpose. The Court will allow that limited issue to proceed to trial. IT IS FURTHER ORDERED that City's Motion is DENIED as it relates to the issues of whether the City's erection of the Cross Statue violates the primary effect/endorsement and excessive entanglement prongs of the Lemon test or, alternatively, the standard set forth in Van Orden, as discussed herein. The Court will also allow that issue to proceed to trial.
IT IS FURTHER ORDERED that Defendant-Intervenor's Motion for Summary Judgment [Doc. #70] is DENIED, as the Court will allow the issue of the Cross Statue to proceed to trial. Specifically, the issues of whether the City's erection of the Cross Statue violates the primary effect/endorsement and excessive entanglement prongs of the Lemon test or, alternatively, the standard set forth in Van Orden, as discussed herein, will proceed to trial.
IT IS FURTHER ORDERED that Plaintiff's Motion in Limine to Exclude Expert Testimony [Doc. #88] is reserved for review by the trial court.
IT IS FINALLY ORDERED that Defendant City of King's Motion for Leave to File Supplemental Brief [Doc. #113] is DENIED.
346 U.S. at 255, 73 S.Ct. 1031. As Plaintiff has acknowledged that he is not contesting that he was denied access to the purported Flag Policy forum and the Court alternatively concludes that Plaintiff does not have standing to do so, the Court will not address Plaintiff's arguments, to the extent he suggests that the Flag Policy was applied to other individuals in an unconstitutionally manner.
