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
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................_ --
WinterSPA. ,M
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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
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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
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