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December 8, 1983


The opinion of the court was delivered by: STEWART

STEWART, District Judge:

In these cases we are asked to decide whether defendants, the Village of Scarsdale (the "Village"), its governing board of trustees (the "board of trustees" or the "trustees" or the "board") and, in 83 Civ. 987, two individual trustees, *fn1" acted within the bounds of the Constitution in denying access to a Village-owned park for the purpose of displaying a privately owned "creche" or nativity scene. There are two groups of plaintiffs (collectively they will be referred to as the "plaintiffs") in this consolidated action. The plaintiffs are known as the Scarsdale Creche Committee (the "Creche Committee") and the Citizens Group. Plaintiffs bring their claims pursuant to 28 U.S.C. § 2201 and 42 U.S.C. § 1983 asserting a denial of free speech and free exercise rights as guaranteed by the First and Fourteenth Amendments. The Creche Committee also alleges a denial of equal protection. Plaintiffs seek both a declaration that their rights have been denied and a permanent injunction against further denials. The case was tried on July 20, 1983 and the record consists exclusively of stipulations of fact, depositions, answers to interrogatories, and exhibits. The parties do not dispute the authenticity of any documents submitted as exhibits, and have agreed that the depositions and answers to interrogatories may be received in evidence as if given as testimony at trial. Jurisdiction is premised on 28 U.S.C. §§ 1331 and 1343(3). This opinion sets forth the court's findings of fact and conclusions of law.


 The Village of Scarsdale is a municipal corporation located north of New York City in the County of Westchester. It has a population of about 17,000 people, Tooley dep. at 38, and its residents include persons of varying religious faiths. *fn2"

 In 1931 a small plot of land, which has come to be known as Boniface Circle, was deeded to the Village of Scarsdale. Boniface Circle is one of a number of parks in the Village. It has a dimension of 3,255 square feet, is bounded on all sides by roadways and is surrounded by both residential and commercial property, the latter including professional offices, a restaurant, and sporting goods, clothing (for men, women and children), grocery, and other stores. The park is oval in shape, largely grass-covered, and is considered to lie in the center of the retail business district of the Village.

 Located in the park are a large evergreen tree, various hedges, two benches, two lamp posts, a walkway and a flagpole. Also located in the park is a war memorial to the veterans of World War II. The war memorial, built in 1949, consists of a stone wall on which plaques recalling the names of war dead are mounted. In front of the wall is a small terrace of flagstones and some steps leading up to the slightly higher ground level of the rest of the park. The entire memorial occupies about one-sixth of the park. Boniface Circle is visited year round by persons of "all stripes", id. at 84, for what appear to be varying reasons, among them as a way-through for pedestrians from one street in the business district to another. Parking meters surround about half of the park.

 Over the years access to Boniface Circle for assembly or speech purposes has been somewhat limited. A detailed description of such uses is set out below in the portion of this opinion discussing Boniface Circle's status as a "public forum." Suffice it to say here that applications for its use for First Amendment purposes have historically been passed upon by the board of trustees, the Village's governing body, that there are no statutes or regulations setting forth guidelines upon which the board bases its decision to grant of deny access, and that there are no statutes or ordinances which otherwise set forth guidelines as to how and when Village property may be used for such purposes.

 One of the primary uses to which Boniface Circle has been put is as a locus for Christmas celebration. Every year the Village has allowed the Chamber of Commerce to decorate the two lamp posts in the park and the lamp posts surrounding it with ornaments of various kinds. The Town Club, a private organization, has been granted access to Boniface Circle in 1959, 1962 through 1965, 1968 through 1971 and in 1982 to hold a Christmas Carol Sing. On other Occasions the Town Club has met on other Village-owned property for caroling.In 1982 the Village itself installed Christmas ornaments on the large evergreen tree in Boniface Circle, and displayed them for two and one-half weeks. And, beginning in 1956 and continuing through December 1980, Boniface Circle has been the site of a privately owned creche, displayed for about two weeks each year.

 From 1957 through 1980 the sponsor of the creche display has been the Creche Committee. The Creche Committee is a private unincorporated association of seven Protestant and Catholic churches. Five of the churches are located in the Village of Scarsdale and two are located outside the Village but have a "Scarsdale, N.Y." post office address. Each church is represented on the Committee by one person and each pays a small annual donation to defray the cost of maintaining and displaying the creche. Except for a period prior to 1977 when the Village paid for the electricity to light a small light bulb in the creche, the entire cost of displaying and maintaining the creche has been borne by the Creche Committee. Since 1977 the creche has been unlit altogether.

 The creche which since 1957 the Creche Committee has displayed at Boniface Circle consists of a wooden frame, appproximately six feet high at the tallest point, and dropping off on both sides to about three and a half feet. The frame is nine feet long, three feet deep, and is covered on the inside by an oil painting. Placed inside the frame are nine hand-carved wooden figures ranging in size from six and one-half inches to three and a half feet. The creche is intended to portray the birth of Jesus Christ.

 In each year from 1957 through 1983 the Creche Committee has submitted a written application to the board seeking permission to display the creche at Boniface Circle. In 1981 and 1982, for the first time, the trustees denied permission. In 1981 the Creche Committe accepted an offer to display the creche across the street from Boniface Circle on private property belonging to the Frog Prince Proper restaurant. In 1982, the Creche Committee elected not to display the creche at all when its application for Boniface Circle was denied. The board vote to deny permission to erect the creche was 4-3 in both 1981 and 1982. The 1983 application is still pending. Also pending is an application to display a creche by the Citizens Group, a private unincorporated association of persons not representing churches. The Citizens Group first applied to display their creche in December 1982 *fn3" after the Creche Committee's request for that year was turned down. The Group reapplied in early 1983 to display their creche the following December with the apparent intention of bringing this suit if the application was not approved. The board of trustees has taken the position that it should not act on the pending applications for 1983 while this lawsuit is under submission.

 In recent times the question of whether the board should permit the displaying of the creche at Boniface Circle has been hotly contested, but it has not always been so.The original application by the Creche Committee in 1957, which expressed a desire to display the creche in order to convey "the real significance of Christmas" (Stipulation of Fact, hereafter "Stip.", 8, Ex. 3), was unanimously approved by the board as were all subsequent applications through 1972. However, as early as 1960 events began to transpire which made what had been a routine approval by the board, not routine at all. In 1960 the American Jewish Congress, prompted by members of its Scarsdale chapter, wrote the board expressing concern over the placement of a "religious display on public property." The letter stated, "We, as members of the Jewish faith, find religious display natural and acceptable on Church property, but are distressed by them [sic] when they appear in a public place which is shared by all residents of our community." The letter asked the board to "safeguard the neighborly feeling in our community by arriving at a decision which will strengthen the American principle of separation of Church and State." (Ex. 6).

 The board, as it had in the past, unanimously approved the creche application for 1960, but the next year it appointed a "Special Committee" to study and report on the issue. In 1962 the Special Committee recommended after meeting with persons of differing views, including those with legal opinions, that there be "no change" in the board's policy of allowing the creche (Ex. 8).

 In January of 1963 the Scarsdale Chapter of the American Jewish Congress again appealed to the board to change its policy adding that "many members of the Jewish Community believed that their feelings . . . have been disregarded . . . [in] an area involving a great deal of emotion" (Ex. 9). In response, the Special Committee arranged a meeting between those with divergent views on the creche and a professor at New York Univeristy in the field of Human Relations. No recommendation resulted and the board continued its unanimous approval of the creche over the next ten years.

 In 1973 unanimity of board voting ended. For the first time of the seven Village trustees abstained on the creche issue, and the following year the same trustee again abstained. In 1975 the trustee again abstained and on this occasion, for the first time, one trustee voted to deny the creche application. At least one negative vote was cast in every succeeding year thereafter through 1979. In 1980, three trustees voted no, and in 1981 and 1982 four trustees, constituting a majority, voted to deny permission for display of the creche. A review of the statements made by trustees abstaining or voting to deny the creche application, discussed in more detail below, indicates that these trustees were concerned with violating either the letter or spirit of the constitutional prescription that there be a separation of church and state.

 The voting record of the trustees after 1972 reflected a growing division both on the board and also in the community over the creche. In 1975 the board considered the letter of (apparently) a resident who opined that the creche's placement on public property was unconstitutional. The board directed its Village Attorney to look into the matter. In 1976 another Scarsdale resident advised the Village Attorney that if the Village Attorney concluded that the display was lawful, the resident would commence litigation. Shortly thereafter, a lawsuit was brought challenging the Board's annual approval of the creche application, but the suit was dismissed for procedural reasons. See Rubin v. Village of Scarsdale, 440 F. Supp. 607 (S.D.N.Y. 1976).

 In response to the escalating division, a group of ten members of the clergy from five Scarsdale churches wrote to the board offering their respective church properties, on an annually rotating basis, for display of the creche. With their proposal the clergymen offered the following "statement":

 The symbols of religion say different things to different people. A Creche, for example, symbolically makes a particular religious statement which is not held by all.

 In keeping with our respect for one another's beliefs and in keeping with our government's position to protect religious freedom without promoting or restricting particular religious views, we believe that it is inappropriate to use public property to make a religious statement. The freedom here involved is the right of each individual within the community to be assured that no certain religious symbol is presumed to represent him on the property which belongs to him in common with the fellow members of his community.

 This is not to say that religious symbols should not be seen in a community. Homes, media announcements and places of worship can be used by those wishing to call attention to their beliefs. In this way, the religious pluralism and freedom which we enjoy in this country are best served.

 Our proposal, therefore, is not to remove the Creche from public view but rather to move the Creche to a location which is not public property. (Ex. 62, pp. 3-4).

 In the same year, 1976, the clergy of yet another church wrote the Village Mayor to express opposition to moving the creche to church property. This letter expressed the view that an "overwhelming majority" of the church's "more than 1000" parishioners believed that the "tradition of eighteen years" of displaying the creche at Boniface Circle should not be changed. The letter suggested that "if the creche is excluded from town property quite logically the scheduled singing of Christmas carols . . . [and the displays of] Christmas trees and wreaths [should not] be permitted on public property." (Ex. 42).

 The Village board responded to the growing controversy in 1976 by asking the board-appointed Human Relations Advisory Council ("Advisory Council") to make an appraisal of community attitudes regarding the creche. From 1976 to 1978 the Advisory Council recommended that "in the interests of community relations" permission to erect the creche be granted (Stip. 29(a)). The Advisory Council was of the view that the creche's presence at Boniface Circle was "accepted by a majority in the Scarsdale community" (Ex. 44). In 1980, "[d]ue to increased and diverse comments over the approval of the creche's placement in Boniface Circle during the 1979 Christmas season "the board again asked the Council to render a report on the issue (Ex.46). On this occasion, the Advisory Council advised the board:

 All members of the Council feel that the Creche would be placed more appropriately on non-public property. All possible avenues have been explored. Church sites are not acceptable to the Creche Committee and suitable private property locations are not available. After consultation with the Village Attorney, the Council sees no legal problem as no public time or money is involved. The Council agrees unanimoulsy that it is less devisive [sic] to good ...

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