Loading...
HomeMy WebLinkAbout2011 05 09 Regular 603 Holiday BannersCOMMISSION AGENDA ITEM 603 May 9 ,2011 Regular Meeting Consent Informational Public Hearin Regular X Authorization REQUEST: The City Attorney requests that the City Conuniss�on consider the attached legal opinion regarding whether the City is p rn fitted, under the City light pole (traffic mast-arm) banner program adopted by the City Commission under Resolution 2 ("Resolution" , to install temporary banners during the December holiday season that state "Merry Christmas" and "Happy Chanukah." SYNOPSIS: Government displays of religious symbols are frequently challenged as a violation of the Establishment Clause of the United States Constitution. Under certain conditions and pursuant to the terms and conditions of . solution 2009-29, the City can theoretically in t .11 these biers provided that the display is for legitimate secular purposes, such as celebrating the December holiday season, and is not intended to convey any message of endorsement or disapproval o religion. However, the applicable constitutional test adopted by the United States Supreme Court regarding the government's display of religious symbols e.g., creche and menorah) on a temporary basis during the holidays has proven to be a burdensome restriction. Such government displays are heavily scrutinized by the federal courts on a case -by -case basis and are constitutionally judged in the context of their own unique circumstances and physical surroundings in order to determine whether a violation of the st blishrnent Clause exists. In general, the "Three Reindeer Rule" currently requires a government to pl ace a suffi number of secular objects in close enough proximity to the religious symbols in order to render the display sufficiently secular to a reasonable observer of the d isplay. Therefore, because each display would tend to have their own unique attributes and corresponding physical surroundings, it is difficult, if not impossible, to predict whether a federal court would find a particular display constitutional. C�Zkl 11 See attached legal opinion of the City Attorney. REGULAR MEETING MAY 9,2011 REGULAR AGENDA ITEM " II " PAGE 2 OF FISCAL IMPACT: There is no fiscal impact at this tu" ne. COMMUNICATION EFFORTS: This Agenda Item has been electronically forwarded to the Mayor and City Commission, City Manager, City Attorney/Staff, and all eAlert eCiti en recipients; and is available on the City's website, LaserFiche, and the City's server. Additionally, portions of this Agenda Item are typed verbatim on the respective meeting agenda which has also been electronically f t o the individuals noted above; and which is also available on the City's we site, Laseffiche, and the City's server; has been sent to City staff, media /press representatives who have requested agendas /agenda item information, homeowner's associations /representatives on file with the City, and all individuals who have requested such information; and has been posted outside City Hall; posted inside City Hall with additional copies available for the general public; and posted at five different locations around the City. This Agenda Item is also available to any new individual reuestors. City Staff is always willing to discuss this or any Agenda Item with any interested individuals. The City Attorney recom rends that the City Commission consider the attached legal pimon and provide staff such direction that the City Commission may deem necessary. ATTACIlNTS: Legal Opinion of the City Attorney JAIhL 1 9pr B GARGANESE, WEISS & DAGRESTA, P.A. Altomys at La I 11 N. O range Ave., Su 2000 P.O. Pox 2873 Orlando, Flofida 32802-2873 Phone (407) 425 - 9566 F (407) 425 -9596 May 4, 20 11 Honorable Mayor Charles Lacey and Members of the City Commission City of Winter Springs 1126 E. State Road 434 Winter Springs, Florida 32708 Anthony A. Gargaliese Board Certified City, County & Local G overnment Law aga,rgan The City has requested a legal opinion on whether the City is permitted under the Ci lig pole {traffic mast-arm) banner program adopted by the City Conmi ssion under Resolution 2009- 9 ( "Resolution"'), to install temporary banners during the December holiday season that state "M err y Christmas" and Happy Chanukah," Short Answer In short, government display ofreligious symbols are frequently challenged as a violation of the Establishment Clause of the United States Constitution. Under certain conditions and pur suant suant to the terms and conditions of the Resolution, the City a theoretical) install these � � ba n n ers provided that the display is for legitimate secular purposes, such as celebrating the December holida season, and is not intended to convey any message of endorsement or is ro� al o religion. ply g However, the applicable constitutional test adopted by the U nited States Supreme Court regardin p the government's display of religious symbols e.g., creche and menorah on a temporary basi during the holidays has proven to be a burdensome restrietion. Such government d isplays are heavily scrutinized by the federal courts on a case- basis and are constitutionally judged in the context of their own unique circumstances and h p yial surroundings in order to determine whether a violation of the Establishment Clause exists. In general, the "Three Reindeer Rule" currently requires a government to place a sufficient number of secular o b j ects eets n close enough proximity to the religious sy mbols in order to render the displa sufficiently secular to a reasonable observer of the display. Therefore because each disp tend to have their oven unique attributes and corresponding physical surroundings it is difficul not impossible, to predict whether a federal court would find a particular display constitutional. p y F t. Lauderdale (954) 670 --1979 * Kissimmee (321) 402 -0144 * Cocoa 8 425 -9566 W bsit : www.orlandolaw.net • Emal firm@orlandolaw.net w.net P113.RF�J, Mayor Lacey and City Commission May 4, 2011 Page 2 On April 27, Zoo , the City Commission for adopted a light p ole b anner program ( "Program"). It is important to note, the Resolution provides that the intent and purpose of the P rogram is, among other things, to allow the City to beautify the City an its streets by displ ayin g seasonal and non- seasonal decorative banners. In addition, the Resolution provides that the Program a a 1 intended to be construed as "go eminent speech" and not as a public forum under the First A mendment. The pn*mary banner themes and messages pemutted under the Resolution include «seasonal and non - seasonal themes related to - on. -going community-wide beautification efforts." Thus, in preparing this opinion, f have assumed that a court mrould find that the light poles are not a public forum for purposes of constitutional .analysis. Because the light p ol e s are assumed not to b e a public forum, I have also assumed that a person does not have a right to display p a religious banner on the light poles subject to the Resolution. Therefore, the lig p oles are reserved only for the City display of banners consistent with the primary themes authorized under the Resolution including the display of seasonal themes. The display of religious symbols on public property is often challenged on the basis of bein in vio lation of the Establishment Clause in the First Amendment. to the United States Constitution. The Establishment Clause prohibits Co rgre s from making any law "'respecting the establishment of religion., or prohibiting the free exercise thereof...," The prohibition against the establishment of religion applies to the states and municipalities through the Fourteenth Amendment of the United States :onstitution.' The issues presented �n these eases are c n.sti tiona,ll complex and th .. ,� - e court - decisions � are usually .determined n a case-by-case basis depending up the manner in which the religious symbols are displayed on public property. There are numerous federal court eases addressing this issue. For purposes of brevity, I have attempted.to synthesize the ease lave down to a very select few relevant eases in order to convey to the City the curr nt legal framework which a court will likely constitutionally examine a banner display being considered by the City. Arguably the most important religious display or "Christ�� a.s'� case is L g p rich y. Donnelly, 465 U.S. 668 .1954). This United States Supreme Court ease involved the city of Pawtucket et Rhode Island and whether the city's seasonal display during the Christmas season violated the Establishment Clause of the United States Constitution. The- focus of the dispute was the city's annual. display, which had been ongoing for 40 years or more, of a creche or Nativity scene which was erected by the - city in a part owned by a nonprofit organization. Importantly from a constitutional standpoint, the creche was displayed by. the city with hundreds of colored lights and other figures and decorations associated with Christmas including, but not limited to a Santa Claus douse, reindeer pulling Santa's sleigh, candy-striped poles, a Chrlstm as tree c roIers cutout figures such as a clown, an elephant, and a teddy hear. The display also included a banner that read "Seasons greetings." (This display became lanovni as "The Three Reindeer Rule"'). Interestingly, as a backdrop for its holding (5-4 decision). the'el 's display of th creche did not violate the Establishment Clause, the Court first explained the historical purpose of the p p p E stablishment and Free Exercise Clauses of the First Amendment to dispe the notion that the y Constitution requires a complete separation of church and state.:. . This Court has explained that the purpose of the Establishment and Free Exercise Clauses of the First Amendment is "to prevent, as far as ossible the intrusion of either [the church or the state] into the precincts of the other." At the same- time, h owever, the Court has recognized that "t.ofta separation is not p ossible Mayor Lacey and City Commission May 4, 2011 Wage in an absolute sense. Some relationship between government and religious organizations is inevitable, 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. The Court has sometimes described the Religion Clauses as erecting a `wall" between church and state. The concept of a "wall" of separation is a useful figure of speech probably deriving from views of Thomas Jefferson, The metaphor has served as a reminder that the Establishment Clause forbids am established church or anything approaching it. But the metaphor itself is not a wholly accurate description of the practical aspects of the relationship that in fact exists between church and state. No significant segment of our society and no institution within it can exist in a vacuum or in total or absolute isolation from all the other parts, much less from goven lent. "It has never been thought either possible or desirable to enforce a regime of total separation...." for does the Constitution require complete separation of church and state; it affirmatively m andates accommodation, riot merely tolerance, of all religions, and forbids hostility toward any. Anything less would require the "callous indifference" we have said was never intended by the Establishment Clause. Indeed, we have observed, such hostility would bring us into "war with our national tradition as embodied in the First Amendment's guaranty of the free exercise of religion." L y nch v. Donnelly, 465 U.S. 672 - (citations omitted). The Court also noted that there are countless examples of the "Goverrunnt's acknowledgment of our religious heritage and govemmental sponsorship of p r . manifestations festation of that heritage."' Id. at 677. For example, the Court's recognized that its own chamber where oral arguments occur "is decorated with a notable and permanent not seasonal—symbol of religion; Moses with Ten Commandments. [Further,] Congress has long provided chapels in the U.S. Capitol a for religious worship and meditation." Id.. Moreover, the Court stated "[e]qually pervasive is the evidence of accommodation of all faiths and all fornxs of religious expression, and hostility toward none, "' Id. With this backdrop, the Court then applied the three -prong Lemon test, first pronounced b the Court in Lemon v. Kurtzman, 403 U.S. 602 1 970), which is often applied to determine whether a government statute or action violates the Establishment Clause. The three elements of the test are: (1) whether the statute has a secular purpose; 2 whether the principle or primary effect of the statute advances or inhibits religion; and whether the statue fosters an excessive g ov rnm.ent entanglement with religion. Applying this test to analyze the constitutionality of the city's display y p y of the creche, the Court repeatedly focused on the city's actions to include the creche in the holida display in the context of the Christmas season, history, and the - placement of the creche within the context of the secular symbols also in the display. However,, in her concurring opinion, Justice Mayor Lacey and City Commission May 4, 2011 gage 4 O ' Conner suggested a clarification to the purpose prong of the Lemon test and stated the er ro p p inquiry "is w hether the government intends to convey a message of endorsement or disapproval of religion." �� p d. at o. She indicated that [ ocus�ng on the evil of government en or disapproval of religion makes clear that the effect prop of Lemon test is properly interpreted g p y of to require invalidation of a government practice merely because it in fact causes, even as ring effect, advancement or inhibition of religion, Id. a t 691. Consequently, in a rather confusing analy decision the Court reasoned that � � t in the contest of history the creche was merely a symbol o f a traditional holiday and was th erefore no di from the secular symbols recognizing the holiday. Moreover, Justice O' Conner supported the decision pp s on of the Court because the city's display of its creche did not communicate a message that the government intends to endorse the Christian beliefs represented by the creche. Several years after Lynch the United States Supreme Court in County of lle hen v. American Civil Liberties Uni , 492 U.S. 1959) was faced with determining whether two recurring government sponsored holiday displays located on publ is property in downtown Pittsburgh violated the Establishment Clause, In this case, the Court held that a soli creche adorned with a ba iex proclaiming Gloria in Excelsis I eo" placed in a courthouse was in violation of the Establishment Clause, however an eighteen foot menorah and forty-five foot Christmas tree together with a sign saluting liberty" displayed outside a government building were permissible. In reachin this d ecisi on, the Court applied both the Lemon test and endorsement test ad vocated by Justice Conner in and generally explained, above. Moreover, the Court stated that the followin general principles are sound, "the government's use of religious symbolism is unconstitutional if it has the effect of endorsing religious beliefs, and the effect of the government's use of religious symbolism depends upon its context." Id. 597. Therefore, the Court concluded that the g overnment may acknowledge Christmas as a cultural phenomenon, but under the First Amendment it may not observe it as a Christian holy clay by suggesting that eople praise God for the birth of Jesus." Id. a t boo. �. Furthermore, it i's relevant to rote here, the Court also stated'that the mere fact that a ci "displays symbols of both Christmas and Chanukah does not end the constitutional inqui"ry. If the city celebrates Christmas and Chanukah as religious holidays, then it violates the Establishment Clause, The simultaneous endorsement of Judaism, and Chri tianityris no less constitutionally infirm than the endorsement of Christianity alone. Id. 614-615. In Snowden v. Town of B U Harbor Islands, 3 5 8 F.Supp. 2 d 117 S. D Florida 2004 , the court was faced with analyzing whether the Town's placement of two different temporary holida displays violated the Establishment Clause. The displays occurred on light poles along a street and on a grassy area owned by the Town. The displays occurred over the course of several years. The first display included banners placed on light poles which included six, approximately -foot tall blue and white Stars of David, six, -foot tall, blue and white menorahs, and an unknown number of poinsettias.. I also in luded the display of a lighted menorah and colorful sailboats on the gr assy area, The Town eventually replaced the first banner display with eight menorahs, eig Christmas trees and eight snowflakes on the lampposts, and added a large 1 .foot decorated Christmas tree next to the menorah display in the gr ass area. As the basis for evaluating the constitutionally of the Town's b anner displays, the court stated: Mayor Lacey and City Commission May 4, 201 Page 5 " the Lemon analysis, a statute or practice which touches upon religion if i to be permissible under the Establishment Claus must have a secular " `pose. - King, 33 1 P, 3 d at 1 276 ( quoting 'aunty ofAllegheny, 492 U.S. 5 2 1 09 S. fit. 3086, 106 .d.2d 472 (1989) "This does not mean that the law's purpose rp must be unrelated to religion -that would amount to a requirement that the vn show a callous indifference to religious groups, and the Establishment Clause has ever been so interpreted. Rather, Lemon's 'purpose' requirement aims at reventin p g the relevant government decision maker ... from abandoning neutrality and actin g � with the intent of promoting a particular point of view in religious matters.' Benn v. Geor 3 91 F.3d 1299, 1 (11th Cir.2 o4 ). A religious purpose alone 1s not enough to invalidate a governmental act, but the secular r ose must predominate. p See Wallace v. J ff , 472 U.S. 38, 56, 105 S.Ct. 2479 8 6 L. d.2d 29 1 • Lynch, 465 U. S. at 681, n. 6, 104 S.Ct. 1355. In order to determine whether a secular purpose exists; courts analyze the government's stated intent for the disputed law or practice. King, 331 F.3d at 1276, If. there - is no evidence of the government's intent for the ractice then p � the government may propose a possible secular purpose later, Id. `the Supreme Court has generally reviewed the government's stated purpose in E stablishment Clause cases and grants these statements a great deal of deference. See, e.g Committeefor P ublic Education . Nyquist, 413 U. S. 756, 773, 93 S.Ct. 2955, 3 7 L. Ed. 2d 948 1973 ) ("we need touc only briefly on the requirement of a `secular legislative ose.' As the recitation of legislative purposes appended to New York's law indicates eac measure is adequately supported b legitimate, nonsectarian state interests" • Lemon 403 U.S. at 61 3, 91 S.Ct. 2105 ( "the statutes themselves clearl y state they ar intended to enhance the duality of the secular education" - Sloan v. Lemon 4 13 U.S. 825, 829 - 830 5 93 S.Ct. 2982 37 L. 939 (1973). Snowden 3 5 8 F S upp. 2d at 1197 Looking to the content of the first display ` p Mars of David,, and poinsettias) and the Town intent for the display, the court conclud that the intent of the display la. was as prim.rily to celebrate Chanukah and the winter season, Tbus, the court found that the religious . . purpose predominated ov r..any secular purpose in the display. Furthermore the court found th at this banner display, seen in the context of the individual menorah di splayed on the Town' , grass area near the banner display, showed evidence of the 'o n's endorsement ofreli ion. Id. at 11 g . Therefore, the court held that the fiat banner display and the menorah sailboat display violated the Establi p y tabl�hmnt Clause. However. with respect to the second display (eight menorahs eight Christ trees and eight snowflakes), - assumably seen in the context of a revised display on the p y gassy area to now include a 14 foot'' decorated Christmas tree near the lig menorah/sailboats, the court concluded g that the Tow. had demonstrated a secular purpose for the di s p lay, "namel the . y celebration of the holiday season in December." See Id. at 1198. Accordingly, what has emerged from the case law regarding city's ability to initiate g y y the d isplay of religious symbols on public property during he holidays is that the co g y arts will evaluate challenged government practices on a case -by -case basis. In addition each practice will b e j udged Mayor Lacey and City Commission May 4,2011 Page given the uni que circumstances s ofth.e display and the physical setting of the display. Moreover, one religious denomination cannot he officially preferred over another. The goverment must respect religious individuals Pluralism and the freedom of to choose one's own beliefs. The United States Constitution mandates that the government remain secular and must not convey a message of • ■ • # • s a • r * endorsing particular religion) s vie a in order to avoid discriminating among citizens on the basis of their religious faiths. Therefore, should the City Commission desire to install and display "Merry Christmas" and "Happy Chanukah" banners during the December holiday season, the Commission should consider that it is crucial that the overall context of the display be seen by the reasonable observer as bung secular in nature and not as the City's endorsement or disapproval of any religion. 1 look forward to discussing this challenging issue with the Mayor and the City Commission. Since , .f fr Anthony A. Garga es City Attorney g