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HomeMy WebLinkAbout2011 09 12 Regular 601 December Seasonal Banner DisplayCOMMISSION AGENDA I Consent I I ITEM 601 informational Public Hearin Reeular X September 12, 2011 MUR. /QEY v Regular Meeting Authorization j a 19 REQUEST: The City Manager and City Attorney request that the City Commission consider approving a December seasonal banner display on City light poles (traffic mast -arms) pursuant to Resolution 2009 -29 ( "Resolution ") to "Celebrate the Season." SYNOPSIS: The City Commission has established a banner display policy for City light poles pursuant to Resolution 2009 -29. In recent years, the City has installed temporary holiday seasonal banners on the light poles during the month of December. The City Commission expressed a desire to incorporate Merry Christmas and Happy Hanukkah banners into the temporary seasonal display. Given the Commission's desire, City staff is proposing, this December, a "Celebrate the Season" seasonal display on City light poles consisting of 104 banners which will be installed City wide. Celebrate the Season recognizes that there are many holiday traditions celebrated annually in the United States during the month of December. The display will consist of eight different banners of equal number including "Celebrate the Season," "Happy New Year," "Merry Christmas," "Happy Hanukkah," and four other secular, seasonal displays stating "Winter Springs" and depicting either Santa, a peace dove, candy cane with bow, and a ribbon tree with stars. One of each banner will be placed at each designated location. CONSIDERATIONS: 1. The City Commission established a banner program for City light poles (traffic mast - arms) pursuant to Resolution 2009 -29. 2. In recent years, the City has installed seasonal holiday banners during the month of December. 3. The City Commission directed that the City Attorney provide a legal opinion as to whether it would be legally permissible for the City to include banners during the December seasonal display that state "Merry Christmas" and "Happy Hanukkah." 4. At the May 9, 2011 City Commission meeting, the City Attorney provided the City Commission with a detailed written legal opinion regarding the constitutional REGULAR MEETING September 12, 2011 REGULAR AGENDA ITEM "601" PAGE 2 OF 3 restrictions and limitations imposed on municipalities regarding the display of religious symbols. See attached legal opinion of the City Attorney, dated May 4, 2011. 5. At the May 9, 2011 City Commission meeting, the City Commission directed that City staff bring back a specific recommendation on purchasing additional banners that address incorporating "Merry Christmas" and "Happy Hanukkah" into the City's December seasonal banner display. 6. After consultation with the City Attorney regarding the legal issues presented in the City Attorney's May 4, 2011 opinion, City staff is recommending the December seasonal display outlined in Attachment I of this Agenda item. 7. The secular theme of the temporary December seasonal display will be "Celebrate the Season," which recognizes that there are many holiday traditions celebrated annually in the United States during the month of December. The temporary display is not intended to convey any message of endorsement or disapproval of religion. 8. As part of the "Celebrate the Season" theme, Staff proposes displaying 104 total banners which are itemized in Attachment 1 including 13 new "Happy Hanukkah" banners and 13 new "Merry Christmas" banners. 9. The display will also include 13 new "Happy New Year" banners and 13 new `Celebrate the Season" banners. Further, the City will display 52 existing secular, seasonal banners itemized on Attachment 1 that are still in suitable condition. These banners state "Winter Springs" and depict either Santa, a peace dove, candy cane with bow, and a ribbon tree with stars. 10. The various locations of the banners are set forth in the Attachment 1. Each location will consist of 8 banner mounts and one of each banner will be displayed at each location denoting the Celebrate the Season theme. FISCAL IMPACT: In order to implement the "Celebrate the Season" banner display, the City will need to purchase 26 additional banners {13 Merry Christmas and 13 Happy Hanukkah. The cost of the 26 banners is estimated not to exceed $2,500.00. Funding is available in the City Manager's contingency account. This expenditure is contingent upon the City Commission's approval of this Agenda Item. The City Manager has already authorized the purchase of 13 Happy New Year and 13 Celebrate the Season banners to replace existing worn out December seasonal banners. Funds for this purchase had already been budgeted. COMM[1NICATION EFFORTS: This Agenda Item has been electronically forwarded to the Mayor and City Commission, City Manager, City Attorney /Staff, and all eAlertleCitizen 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 forwarded to REGULAR MEETING September 12, 2011 REGULAR AGENDA ITEM "601" PAGE 3 OF 3 the individuals noted above; and which is also available on the City's website, LaserFiche, and the City's server; has been sent to applicable City staff, eAlert/eCitizen Recipients, media/press representatives who have requested agendas /agenda item information, homeowner's associations /representatives who have requested Agendas /Agenda Item Information, Home Owner's Associations /Representatives on file with the City, and all individuals who have requested such information. The information has also been posted outside City Hall; posted inside City Hall with additional copies available for the general public; and posted at five (5) different locations around the City. Furthermore, this information is also available to any individual requesters. City Staff is always willing to discuss this or any Agenda Item with any interested individuals. RECOMMENDATIONS: If the City Commission desires to proceed with its previous direction to incorporate "Merry Christmas" and "Happy Hanukkah" banners into the December seasonal banner display, the City Manager and City Attorney recommend that the City Commission approve the "Celebrate the Season" banner display program set forth in Attachment 1. ATTACHMENTS: 1. Attachment 1 — proposed "Celebrate the Season" banner display program. 2. Legal Opinion of the City Attorney, dated May 4, 2011. City of Winter Springs Celebrate The Season Banner Display Location Poles Mounts Banners @ Location SR 434 Description % of Total G H Sheoah Blvd 4 8 A,B,C,D,E,F,G,H Edgemon Ave 4 8 A,B,C,D,E,F,G,H Moss Rd 4 8 A,B,C,D,E,F,G,H Hayes Rd 4 8 A,B,C,D,E,F,G,H SR 419 4 8 A,B,C,D,E,F,G,H Parkstone Blvd 4 8 A,B,C,D,E,F,G,H Central Winds Blvd 4 8 A,B,C,D,E,F,G,H Doran Dr 4 8 A,B,C,D,E,F,G,H Tuskawilla Road 2 8 A,B,C,D,E,F,G,H Vistawilla Dr 4 8 A,B,C,D,E,F,G,H Tuskawilla Rd TOTALS 100% Trotwood Blvd 4 8 A,B,C,D,E,F,G,H Winter Springs Blvd 4 8 A,B,C,D,E,F,G,H SR 419 Edgemon Ave 4 8 A,B,C,D,E,F,G,H .�.. „r xe. .. ................_ -- WinterSPA. ,M F➢li 3 8I_6/�o � � -- � � �xx� xis. �n ��rvr�. ... ..a..xn n -. ��.. � _ �.3._ Christmas Banners uantit Letter Description % of Total G H 13 D Santa 12.5% (15 IN STOCK) 13 C Gold Tree 12.5% (15 IN STOCK) 13 A Peace /Dove 125% (15 IN STOCK) 13 B Candy Canes 12.5% (15 IN STOCK) 13 E New Year 12.5% (13 IN ORDERED) 13 F Celebrate 12.5% (13 IN ORDERED) 13 G Hanukkah 12.5% 13 H Christmas 12.5% 104 TOTALS 100% A B C D E F .�.. „r xe. .. ................_ -- WinterSPA. ,M F➢li 3 8I_6/�o � � -- � � �xx� xis. �n ��rvr�. ... ..a..xn n -. ��.. � _ �.3._ IE W GD BROWN, GARGANESE, WEISS & D'AGRESTA, P.A. Attom ys at Law 111 N. Orange Ave., Suite 2000 P.O. Box 2873 Orlando, Florida 32802 -2873 Phone (407) 425- -9566 Fax (407) 425 -9596 May 4, 2011 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. Garganese Board Certified City, County & Local Government Law agarganesegorlandolaw net The City has requested a legal opinion on whether the City is permitted, under the City light pole (traffic mast -arm) banner program adopted by the City Commission under Resolution 2009 -29 ( "Resolution "), to install temporary banners during the December holiday season that state "Merry Christmas" and "Happy Chanukah." Short Answer In short, government display 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 the Resolution, the City can theoretically install these banners 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 of religion. However, the applicable constitutional test adopted by the United States Supreme Court regarding the governinent'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 Establishment Clause exists. In general, the "Three Reindeer Rule" currently requires a government to place a sufficient 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 display. 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. Ft. Lauderdale (954) 670 -1979 • Kissimmee (321) 402 -0144 • Cocoa (866) 425 -9566 Website: www.orlandolaw.net • Email firm @orlandolaw.net Mayor Lacey and City Commission May 4, 2011 Page 2 Analysis On April 27, 2009, the City Commission formally adopted a light pole banner program ( "Program "). It is important to note, the Resolution provides that the intent and purpose of the Program is, among other things, to allow the City to beautify the City and its streets by displaying seasonal and non - seasonal decorative banners. In addition, the Resolution provides that the Program is intended to be construed as "government speech" and not as a public forum under the First Amendment. The primary banner themes and messages permitted under the Resolution include "seasonal and non - seasonal themes related to on -going community -wide beautification efforts." Thus, in preparing this opinion, I have assumed that a court would find that the light poles are not a public forum for purposes of constitutional analysis. Because the light poles are assumed not to be a public forum, I have also assumed that a person does not have aright to display a religious banner on the light poles subject to the Resolution. Therefore, the light poles are reserved only for the City's 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 being in violation of the Establishment Clause in the First Amendment-to the United States Constitution, The Establishment Clause prohibits Congress 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 Constitution: The issues presented in these cases are constitutionally complex and the court decisions are usually determined on a case -by -case basis depending upon the manner in which the religious symbols are displayed on public property. There are numerous federal court cases addressing this issue. For purposes of brevity, I have attempted to synthesize the case law down to a very select few relevant cases in order to convey to the City the current legal framework by which a court will likely constitutionally examine a banner display being considered by the City. Arguably the most important religious display or "Christmas" case is Lynch v. Donnelly 465 U.S. 668 (1984). This United States Supreme Court case involved the city of Pawtucket, Rhode Island and whether the city's seasonal display during th��. 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 park 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 house, reindeer pulling sleigh, candy - striped poles, a Christmas tree, carolers, cutout figures such as a clown, an elephant, and a teddy bear. The display also included a banner that read "Seasons Greetings." (This display became known as "The Three Reindeer Rule "). Interestingly, as a backdrop for its holding (5 -4 decision) that the city's display of the creche did not violate the Establishment Clause, the Court first explained the historical purpose of the Establishment and Free Exercise Clauses of the First Amendment to dispel the notion that the Constitution requires a complete separation of church and state: This Court has explained that the purpose of {'he Establishment and Free Exercise Clauses of the first Amendment is "to prevent, as far as possible, the intrusion of either [the church or the state] into the precincts of the other." At the same time, however, the Court has recognized that "to separation is not possible Mayor Lacey and City Commission May 4, 2011 Page 3 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 an 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 government. "It has never been thought either possible or desirable to enforce a regime of total separation...." Nor does the Constitution require complete separation of church and state; it affirmatively mandates accommodation, not 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." Lynch v. Donnelly, 465 U.S. 672 -73 (citations omitted). The Court also noted that there are countless examples of the "Government's acknowledgment of our religious heritage and governmental sponsorship of graphic manifestations 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 for religious worship and meditation." Id. Moreover, the Court stated "[e]qually pervasive is the evidence of accommodation of all faiths and all forms of religious expression, and hostility toward none." Id. With this backdrop, the Court then applied the three -prong Lemon test, first pronounced by the Court in Lemon v. Kurtzman 403 U.S. 602 (1970), 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 (3) whether the statue fosters an excessive government entanglement with religion. Applying this test to analyze the constitutionality of the city's display of the creche, the Court repeatedly focused on the city's actions to include the creche in the holiday 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 Page 4 O'Conner suggested a clarification to the purpose prong of the Lemon test and stated the proper inquiry "is whether the government intends to convey a message of endorsement or disapproval of religion." Id. at 690. She indicated that "[f]ocusing on the evil of government endorsement or disapproval of religion makes clear that the effect prong of the Lemon test is properly interpreted not to require invalidation of a government practice merely because it in fact causes, even as a primary effect, advancement or inhibition of religion." Id. at 691. Consequently, in a rather confusing analytical decision, the Court reasoned that in the context of history the creche was merely a symbol of a traditional holiday and was, therefore, no different from the secular symbols recognizing the holiday. Moreover, Justice O'Conner supported the decision 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 L nch the United States Supreme Court in Coum of AllegheLly Allegheny v. American Civil Liberties Union 492 U.S. 573 (1989) was faced with determining whether two recurring government sponsored holiday displays located on public property in downtown Pittsburgh violated the Establishment Clause. In this case, the Court held that a solitary creche adorned with a banner proclaiming "Gloria in Excelsis Deo" 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 reaching this decision, the Court applied both the Lemon test and endorsement test advocated by Justice Lyn O'Conner in ch and generally explained above. Moreover, the Court stated that the following 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 government may acknowledge Christmas as a cultural phenomenon, but under the First Amendment it may not observe it as a Christian holy day by suggesting that people praise God for the birth of Jesus." Id. at 600. Furthermore, it is relevant to note here, the Court also stated that the mere fact that a city "displays symbols of both Christmas and Chanukah does not end the constitutional inquiry. If the city celebrates Christmas and Chanukah. as religious holidays, then it violates the Establishment Clause. The simultaneous endorsement of Judaism and Christianity is no less constitutionally infirm than the endorsement of Christianity alone." id. 614 -615. In S nowde n v. Town of Bav Harbor Islands, 358 F.Supp.2d 1178 (S.D. Florida 2004), the court was faced with analyzing whether the Town's placement of two different temporary holiday 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 6 -foot tall, blue and white Stars of David, six, 8 -foot tall, blue and white menorahs, and an unknown number of poinsettias. It also included the display of a lighted menorah and colorful sailboats on the grassy area. The Town eventually replaced the first banner display with eight menorahs, eight Christmas trees and eight snowflakes on the lampposts, and added a large 14 foot decorated Christmas tree next to the menorah/sailboat display in the grass area.. As the basis for evaluating the constitutionally of the Town's banner displays, the court stated: Mayor Lacey and City Commission May 4, 2011 Page 5 "Under the Lemon analysis, a statute or practice which touches upon religion, if it is to be permissible under the Establishment Clause, must have a secular purpose." King, 331 F.3d at 1276 (quoting County ofAllegheny, 492 U.S. 573, 592,109 S.Ct, 3086, 106 L.Ed.2d 472 (1989)). "This does not mean that the law's purpose must be unrelated to religion -that would amount to a requirement that the government show a callous indifference to religious groups, and the Establishment Clause has never been so interpreted. Rather, Lemon's `purpose' requirement aims at preventing the relevant government decision maker... from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters." Benning v. Georgia, 391 F.3d 1299, 1309 (11th Cir.2004). A religious purpose alone is not enough to invalidate a governmental act, but the secular purpose must predominate. See Wallace v. dafft-ee, 472 U.S. 38, 56, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985); 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 practice, then the government may propose apossible secular purpose later. Id. The Supreme Court has generally reviewed the government's stated purpose in Establishment Clause cases and grants these statements a great deal of deference. See, e.g., Committee for Public Education v. Nyquist, 413 U.S. 756, 773, 93 S.Ct. 2955, 37 L.Ed.2d 948, (1973) ( "we need touch only briefly on the requirement of a `secular legislative purpose.' As the recitation of legislative purposes appended to New York's law indicates, each measure is adequately supported by legitimate, nonsectarian state interests "); Lemon, 403 U.S. at 613, 91 S.Ct. 2105 ( "the statutes themselves clearly state they are intended to enhance the quality of the secular education "); Sloan v. Lemon, 413 U.S. 825, 829 -830, 93 S.Ct. 2982, 37 L.Ed.2d 939 (1973). Snowden. 358 F. Supp. 2d at 1197 Looking to the content of the first display (menorahs, Stars of David, and poinsettias) and the Town's intent for the display, the court concluded that the intent of the display was primarily to celebrate Chanukah and the winter season. Thus, the court found that the religious purpose predominated over any secular purpose in the display. Furthermore, the court found that this banner display, seen in the context of the individual menorah displayed on the Town's grass area near the banner display, showed evidence of the Town's endorsement of religion. Id. at 1199. Therefore, the court held that the first banner display and the menorah/sailboat display violated the Establishment Clause. However, with respect to the second display (eight menorahs, eight Christmas trees and eight snowflakes), assumably seen in the context of a revised display on the grassy area to now include a 14 foot decorated Christmas tree near the Iighted menorah/sailboats, the court concluded that the Town had demonstrated a secular purpose for the display, "namely the celebration of the holiday season in December." See Id. at 1198. Accordingly, what has emerged from the case law regarding a city's ability to initiate the display of religious symbols on public property during the holidays is that the courts will evaluate challenged government practices on a case -by -case basis. In addition, each practice will be judged Mayor Lacey and City Commission May 4, 2011 Page 6 given the unique circumstances of the display and the physical setting of the display. Moreover, one religious denomination cannot be officially preferred over another. The government must respect religious pluralism and the freedom of individuals to choose one's own beliefs. The United States Constitution mandates that the government remain secular and must not convey a message of endorsing a particular religion's view 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 being secular in nature and not as the City's endorsement or disapproval of any religion. I look forward to discussing this challenging issue with the Mayor and the City Commission. Since , Anthony A. Garganese City Attorney aagl