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
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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
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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
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