The opinion of the court was delivered by: Munson, District Judge.
MEMORANDUM-DECISION AND ORDER
Plaintiffs Robert and Susan Joki commenced this action on September
19, 1989. Plaintiffs seek to permanently enjoin defendants from
displaying a particular painting in the Schuylerville High School
auditorium. Presently before the court is plaintiffs' motion for summary
Plaintiffs Robert and Susan Joki, after attending a function in
Schuylerville High School's auditorium in April 1988, contacted defendant
Peter M. Brenner, Superintendent of Schools of the Schuylerville Central
School District, regarding what they felt to be "an inappropriate display
of a religious painting in a public high school."*fn1 At that time, they
requested that the school remove the painting. The school, however,
refused to acquiesce to plaintiffs' request believing that the painting
was merely student art and served as an example of what high school
students were capable of doing. As a result of plaintiffs' repeated
efforts to have the painting removed, defendant Board of Education held
an executive session on June 9, 1989 at which time it decided to continue
displaying the painting.
The art work in question was donated to the school in 1965 by Craig
Martin, then a senior student at Schuylerville High School. The school
permitted Martin to paint the picture directly onto masonite secured to
the inside left wall of the school's main auditorium as part of a plan to
have students decorate the school with original art work. The school
initiated this program in the early 1960's to provide senior students,
planning careers in art, with the opportunity to create original works
from original themes without interference from supervision. Tracy
Affidavit, Doc. 10 at ¶ 8. This program, however, lasted only seven
years until the departure of Thomas Tracy, then the art teacher at
Schuylerville High School.
The painting itself is ten feet by twelve feet. See Robert Joki
("Robert") Affidavit, Docket 7 at ¶ 12; Exhibit D to Susan Joki
("Susan") Affidavit, Doc. 7. Two spotlights face the painting, although
neither works at this time. Exhibit D to Susan Affidavit, Doc. 7. The
only other notable objects located in the auditorium are an American Flag
and two pictures, all smaller than the painting in issue and located on
different walls.*fn2 See Susan Affidavit, Doc. 7 at ¶ 8. While
untitled, the painting contains a variety of figures engaged in a variety
Plaintiffs claim the central figure depicts the scene of the
Crucifixion of Jesus Christ and supports this claim by supplying the
affidavits of several clergy members. See, e.g., Borden Affidavit, Doc. 7
at ¶ 8. Defendants, on the other hand, claim that the painting
represents various examples of "man's inhumanity to man" rather than
having any religious significance. Tracy Affidavit, Doc. 10 at ¶ 9.
In support of this contention, defendants supply the affidavits of two of
Martin's classmates stating that they are familiar with the alleged theme
of the painting and that the painting in no way provokes religious
thoughts. Reynolds Affidavit, Doc. 10 at ¶ 20*fn3; Forbes
Affidavit, Doc. 10 at ¶ 21.
Before addressing any particular argument plaintiffs raise, the court
will briefly review the burdens as assigned on a motion for summary
judgment. In order to grant plaintiffs' motion, the court must find that
"there is no genuine issue of material fact and that the [plaintiffs are]
entitled to judgment as a matter of law." Anderson v. Liberty Lobby,
477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Lopez v.
S.B. Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir. 1987). The burden rests
on the moving party to demonstrate the lack of a genuine issue of fact,
id., while the non-moving party need only establish a basis for a jury to
find in its favor. Sussex Leasing Corp. v. US West Financial Services,
Inc., 877 F.2d 200, 202 (2d Cir. 1989).
This case involves a question concerning the separation of church and
state. The first amendment to the Constitution prohibits Congress from
making laws "respecting an establishment of religion, or prohibiting the
free exercise thereof." U.S. Const. amend. I. Although several recent
Supreme Court decisions analyze the establishment clause, this area of
the law is anything but settled. In Lemon v. Kurtzman, 403 U.S. 602, 91
S.Ct. 2105, 29 L.Ed.2d 745 (1971), the Court held that a state practice
which touches upon religion is permissible only if it has a secular
purpose, neither advances nor inhibits religion in principal or primary
effect and does not foster excessive entanglement with religion. Id. at
612-613, 91 S.Ct. at 2111-12. The Court seemed to depart from the Lemon
approach in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d
604 (1984), where the Court focused primarily upon the context of the
state practice. Id. at 679, 104 S.Ct. at 1362. However, in County of
Allegheny v. ACLU, ___ U.S. ___, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989),
the Court appeared to return to the Lemon three-step analysis. See id.
109 S.Ct. at 3100.
For purposes of plaintiffs' motion for summary judgment, plaintiffs
style their argument in terms of the "effects" prong of the Lemon test*fn4
as follows: The painting conveys a religious message. Defendants' display
of the painting has the effect of placing the imprimatur of state
authority upon that religious message. Thus, the defendants' display of
the painting runs contrary to the establishment clause of the first
amendment to the United States Constitution.
When analyzing the decisions of a fragmented Supreme Court in which no
single decisional rationale gained the approval of five Justices, the
Supreme Court instructs lower federal courts to view the Court's holding
"`as that position taken by those Members who concurred in the judgments
on the narrowest grounds.'" Marks v. United States, 430 U.S. 188, 193, 97
S.Ct. 990, 993, 51 L.Ed.2d 260 (1977) (quoting Gregg v. Georgia,
428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 2923 n. 15, 49 L.Ed.2d 859 (1976)).
In Allegheny, several portions of Justice Blackmun's opinion obtained a
majority of the Court. of course, those portions where Justice Blackmun
spoke for the majority must be followed by this court. Moreover, for
reasons more fully illustrated below, this court will generally follow
the approaches taken by Justices Blackmun and O'Connor as their
positions, which are similar although somewhat different, best fulfill the
criteria of constituting the positions "taken by those Members who
concurred in the judgments on the narrowest grounds."
The Allegheny Court arrived at two results. On one hand, the Allegheny
Court found the display of the creche impermissible. Id. 109 S.Ct. at
3105. Here, Justice Blackmun's opinion represented the majority of the
Court. Id. (opinion of the Court written by Blackmun, J., in which
Justices Brennan, Marshall, O'Connor and Stevens joined). In banning the
display of the creche, the Court engaged in a fact-specific analysis
while construing the establishment clause as prohibiting those displays
which have the effect of endorsing religion. Id.; see id. at 3118
(O'Connor, J., concurring in part and concurring in the ...