intertwined white lines containing red highlighting which appears to be a
crown of thorns. Id. Further, a shell burst of yellow light surrounds the
cross upon which the central figure is hanging. Id. at Exhibit B. Other
figures in the painting include two other men nailed to crosses, a man
tossing a net into the water, a woman mourning, two men fighting and a
man carrying two engraved stone tablets. Id. at Exhibit A. The man
carrying the tablets has a long gray beard and is situated directly to
the left of the central cross. Id. The tablets have the Roman numerals I
through X inscribed on them. Id. at Exhibit C.
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.
DISCUSSION
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.
While difficult to interpret and replete with concurring and dissenting
opinions
Allegheny stands as the Court's latest attempt to interpret the "effects"
element of the Lemon inquiry. Id. at 3101 n. 45 (opinion of Blackmun,
J.). In Allegheny, the Court examined two displays on public property in
downtown Pittsburgh — one of a creche standing alone in a
courthouse staircase and the other of a menorah displayed as part of a
larger winter holiday exhibit in front of the City-County Building.*fn5
A sharply divided Court issued five separate opinions joined in whole or
in part by various Members of the Court. Indeed, gleaning an
understanding of the Allegheny decision is further complicated by the
fact that the two holdings in the case resulted from shifting Court
majorities.
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 judgment) ("every
government practice must be judged in its unique circumstances to
determine whether it constitutes an endorsement or disapproval of
religion").*fn6
On the other hand, the Court found the display of the menorah
permissible. Id. at 3115-3116. Six Members agreed on this result but not
on its rationale. Id. at 3115 (opinion of Blackmun, J.); see id. at 3122
(O'Connor, J., concurring in part and concurring in the judgment); see
also id. at 3134 (Kennedy, J., concurring in the judgment in part and
dissenting in part in which the Chief Justice and Justices White and
Scalia join). As will be explained in greater detail below, Justices
Blackmun and O'Connor, with respect to the menorah, reiterated their
positions regarding the establishment clause. In permitting the display,
Justice Blackmun focused upon the secularizing effect of the Christmas
tree and the winter-holiday season, id. at 3113 (opinion of Blackmun,
J.), while Justice O'Connor concentrated on the presence of the tree and
the sign saluting liberty as negating any endorsement of religion. Id. at
3122 (O'Connor, J., concurring in part and concurring in the judgment).
However, four Members concurred in this judgment on broader grounds by
construing the establishment clause as only banning those displays which
represent an effort to proselytize. Id. at 3134 (Kennedy, J., concurring
in the judgment in part and dissenting in part).
The Second Circuit has recently engaged in an analysis of Allegheny.
See Kaplan v. City of Burlington, 891 F.2d 1024 (2d Cir. 1989), cert.
denied, ___ U.S. ___, 110 S.Ct. 2619, 110 L.Ed.2d 640 (1990). In Kaplan,
the Second Circuit was faced with the issue of whether the display of a
menorah, standing alone in a city hall park, violated the establishment
clause. Id. at 1028. In order to reach a decision on the
constitutionality of the menorah, the Second Circuit set forth its
understanding of the opinions in Allegheny:
[T]hree members of the Court (Justices Brennan,
Marshall and Stevens) would not allow, or would create
a strong presumption against, the publicly supported
display of obviously religious symbols; . . . Two
members of the Court (Justices Blackmun and O'Connor)
would regard the physical context of the display as
most significant; . . . Four members of the Court
(Chief Justice Rehnquist and Justices White, Scalia
and Kennedy) would allow display of a religious symbol
so long as it did not represent an effort to
proselytize. . . .
Kaplan, 891 F.2d at 1028. Ultimately, the Second Circuit focused upon the
analyses of Justices Blackmun and O'Connor in holding that the display of
the menorah conveyed a message of government endorsement of Judaism. Id.
at 1028-1030.
With regard to the constitutionality of Martin's painting, this court,
in keeping with Marks and Kaplan, will focus on the rationales set forth
in Justice Blackmun's and Justice O'Connor's opinions in Allegheny. While
engaging in fact-specific analyses, they interpret the establishment
clause as banning those displays which have the effect of endorsing
religion. See County of Allegheny, 109 S.Ct. at 3103 (opinion of
Blackmun, J.); School District of Grand Rapids v. Ball, 473 U.S. 373,
390, 105 S.Ct. 3216, 3226, 87 L.Ed.2d 267 (1985); see also Board of
Education v. Mergens, ___ U.S. ___, 110 S.Ct. 2356, 2372-73, 110 L.Ed.2d
191 (1990) (plurality opinion); Kaplan, 891 F.2d at 1028. Whether the
operative word is "effect" as used in Lemon or "endorsement," the
underlying principle remains the same. County of Allegheny 109 S.Ct. at
3101. At the very least, the establishment clause prohibits the
government from appearing to take a position on questions of religious
belief. Id.; Lynch v. Donnelly, 465 U.S. 668, 687, 104 S.Ct. 1355, 1366,
79 L.Ed.2d 604 (1983) (O'Connor, J., concurring). Accordingly, when
evaluating the effect of defendants display in this instance, the court
must determine whether, taking into account the content and context of
the painting, a reasonable observer would likely perceive the government
action as an endorsement of Christianity. See County of Allegheny, 109
S.Ct. at 3102 (opinion of Blackmun, J.); see id. at 3123 (O'Connor, J.,
concurring in part and concurring in the judgment); see also Foremaster
v. City of St. George, 882 F.2d 1485, 1491 (10th Cir. 1989) (finding
issue of material fact with regard to what an average observer would
perceive when viewing the City logo), cert. denied, ___ U.S. ___, 110
S.Ct. 1937, 109 L.Ed.2d 300 (1990).
Here, defendants display a painting in a high school auditorium. The
figures contained in the painting range from three men being crucified to
a man casting a net over water. See Exhibit A to Susan Affidavit.
Plaintiffs contend that the central figure in the painting depicts the
Crucifixion of Jesus Christ and is an "obvious religious symbol." See
Susan Affidavit, Doc. 7 at ¶ 7. In support of this contention,
plaintiffs offer the affidavits of several clergy members and one art
history professor indicating several features of the painting identical
to the Crucifixion scene as depicted in the Holy Bible. See generally,
Minister De Velder Affidavit, Rabbi Alpern Affidavit, Reverend Borden
Affidavit,
and Professor Kettlewell Affidavit, Doc. 7.*fn7 Specifically, these
features include a man, wearing a crown of thorns and bleeding from the
left side of his chest, who is nailed to a cross and flanked on either
side by two other men nailed to crosses. Plaintiffs cite: Matthew 27:29,
31; Mark 15:17, 27; and, John 19:34 to support their contention that this
individual is Jesus Christ at his crucifixion. Further, plaintiffs argue
that the shell burst of light surrounding the central figure removes the
portrayed event from merely an earthly context. Kettlewell Affidavit,
Doc. 7 at ¶ 13.
Moreover, plaintiffs assert that the presence of four other
identifiable religious figures in the painting bolsters plaintiffs'
position that the central figure is indeed a scene depicting the
Crucifixion. Specifically, plaintiffs argue that the man tossing the net
represents Peter the Fisherman, the woman mourning represents either Mary
Magdalene or Mary Mother of Christ, the man carrying the stone tablets
represents Moses and the figure immersed in water represents John the
Baptist. See, e.g., Borden Affidavit, Doc. 7 at ¶ 9. Plaintiffs do
not attempt to identify the religious significance of the remaining
figures in the painting.*fn8 However, plaintiffs do contend that other
figures, such as the two men fighting, serve to set the time frame
identical to the historical time of the Crucifixion of Christ. Kettlewell
Affidavit, Doc. 7 at ¶ 14. Specifically, plaintiffs' expert argues
that these two figures are Roman gladiators, circa the time of the
Crucifixion of Jesus Christ. Id. Finally, plaintiffs contend that since
the children viewing this painting are at an impressionable age,
including two of her own aged five and six, the religious effect is far
greater than it would be were the painting located elsewhere and viewed
by a more mature audience. Susan Affidavit, Doc. 7 at ¶ 4 and 13; See
also Scherer Affidavit, Doc. 7 at ¶ 13-23.
Defendants advance two principal arguments in opposition to plaintiffs'
motion for summary judgment. First, defendants submit that the painting
is merely "community art work" and in no way provokes religious
reflections, even to devout Christians. Reynolds Affidavit, Doc. 10 at
¶ 20; see Forbes Affidavit, Doc. 10 at ¶ 21. Rather, defendants
argue that the central figure merely serves as a particularly appropriate
example of "man's inhumanity to man" consistent with the alleged theme of
the artist.*fn9 Moreover, defendants contend that the other figures
plaintiffs purport to identify are similarly non-religious. Id. Second,
defendants argue that, even if the purported figures are religious, the
display in this instance contains certain features which neutralize the
religious effect and negate any government endorsement of a religious
message.
With respect to defendants' argument that the painting does not portray
any religious symbols, neither party disputes the fact that the central
figure in the painting depicts, at least, a man nailed to a Latin cross,
i.e., a crucifixion. See Exhibit B to Susan Affidavit, Doc. 7.; see also
Defendants' Memorandum of Law, Doc. 12 at 3. Notwithstanding defendants'
contentions, the Latin cross symbolizes central Christian themes and
represents the key
Christian concept of the Crucifixion. Allegheny, 109 S.Ct. at 3137
(Kennedy, J., concurring in judgment in part and dissenting in part) (the
year round display of a large Latin cross violates the establishment
clause); ACLU v. City of St. Charles, 794 F.2d 265, 271 (7th Cir. 1986)
(the cross "is indeed the principal symbol of Christianity as practiced
in this country today"), cert. denied, 479 U.S. 961, 107 S.Ct. 458, 93
L.Ed.2d 403 (1986); Hewitt v. Joyner, 705 F. Supp. 1443, 1449 (C.D.Cal.
1989) (the Latin cross represents the key Christian concept of the
Crucifixion). Moreover, the central figure in the painting bears a
remarkable resemblance to the crucified Jesus as depicted in the Holy
Bible. See Matthew 27:29 (Revised Standard Version ("RSV")) ("and
plaiting a crown of thorns, they put it on his head"); Mark 15:27 (RSV)
("and with him they crucified two robbers, one on his right and one on
his left"); John 19:34 (RSV) ("one of the soldiers pierced his side with
a spear").
In addition to presenting affirmative evidence that Martin's painting
depicts the Crucifixion, plaintiffs challenged defendants to come forward
with colorable evidence disputing the fact that an average observer would
perceive the Crucifixion of Jesus Christ when viewing the painting.
Defendants' suggestions, that the artist painted this crucifixion with no
specific historical incidence in mind and that the crucifixion is merely
congruous with the artist's alleged theme of "man's inhumanity to man,"
are insufficient to withstand their burden on summary judgment. Although
two of the artist's classmates and his teacher view the painting as only
representing "man's inhumanity to man," see, e.g., Forbes Affidavit,
Doc. 10 at ¶ 12, these facts do not raise a material issue of fact. Their
views stem from interaction with the artist, and hence, they are not the
views of average observers. Tracy Affidavit, Doc. 10 at ¶ 16;
Reynolds Affidavit, Doc. 10 at ¶ 16; Forbes Affidavit, Doc. 10 at
¶¶ 11, 12. The school displays the painting with nothing to explain
its significance or meaning. The court cannot impute complete knowledge
of the artist's theme to the average observer of the painting. See Harris
v. City of Zion, 729 F. Supp. 1242, 1250 (N.D. Ill. 1990) (refusing to
impute knowledge of the city's history to the average observer in
declaring unconstitutional the city's seal displaying the cross). The
court, therefore, finds that an average observer would perceive the
central figure in Martin's painting to represent the Crucifixion of Jesus
Christ.
Were this a case of the Crucifixion standing alone, the inquiry would
end here. There is abundant case law holding unconstitutional the
prominent display of a cross without any detracting features. See, e.g.,
City of St. Charles, 794 F.2d 265 (holding impermissible the prominent
display of a cross on a public building); see also Friedman v. Bd. of
County Comm'rs of Bernalillo, 781 F.2d 777, 782 (10th Cir. 1985) (the
presence of a Latin cross in a city logo violates the establishment
clause), cert. denied, 476 U.S. 1169, 106 S.Ct. 2890, 90 L.Ed.2d 978
(1986); cf. Kaplan v. City of Burlington, 891 F.2d 1024 (2d Cir. 1989),
cert. denied, ___ U.S. ___, 110 S.Ct. 2619, 110 L.Ed.2d 640 (1990)
(declaring unconstitutional a city display of a menorah standing alone
during Chanukah). However, this is not such a case.
As noted above, defendants further argue that, even if the identified
figures are whom plaintiff maintains them to be, the presence of
unidentifiable secular characters and the context in which the school
displays the painting negate any message of government endorsement of
Christianity and neutralize the effect of the Crucifixion. Defendants'
Memorandum of Law in Opposition to Plaintiffs' Motion for Summary
Judgment, Doc. 12 at 20. This poses a much closer constitutional
question. However, it is one which remains appropriate for resolution on
summary judgment. In the instant case, the court has before it the
undisputed context in which the painting appears. See Harris, 729 F.
Supp. at 1248 (considering only the context in which the religious symbol
appeared). The question of whether the display constitutes government
endorsement of Christianity is a question of law. See Lynch, 465 U.S. at
694, 104 S.Ct. at 1370 (O'Connor, J., concurring)
(whether a government activity communicates an endorsement of religion is
in large part a question of law).
Defendants indicate several contextual features of the painting that
might negate any government endorsement of a religious message. First,
defendants contend that the religious effect is reduced since the
painting is technically "not great art" and located in a poorly lit corner
of the auditorium. See Reynolds Affidavit at ¶¶ 18 and 22. These
claims are simply without merit. Even-or especially-from a distance, the
central figure of the painting is clear to the average observer, without
regard to the quality of the art work and without regard to the
lighting. Exhibit D to Susan Affidavit, Doc. 7. From viewing plaintiffs'
exhibits, the area of the auditorium in which the school displays the
painting is not poorly lit. Id. Further, the shell burst of yellow light
behind the central cross focuses one's attention directly on that
figure. Finally, as indicated, there are two spotlights directed at the
painting which are not consistent with the remainder of the auditorium's
lighting system. Id. Although neither works, their presence could
reasonably be construed to indicate the school's desire to draw attention
to the painting. In short, the quality of the painting and its location
are features which do not negate endorsement of the religious message.
Second, defendants maintain that the neighboring relationship of the
American Flag and the picture of the Revolutionary War scene further
negate endorsement or neutralize the effect of the Crucifixion. Here, the
school displays the painting permanently on a side wall of the
auditorium. The Flag and the other picture are displayed on the front
wall. These two objects are too far removed from the display of Martin's
painting and are dwarfed in size by comparison. These features neither
negate endorsement nor neutralize the effect of the painting.
Finally, defendants contend that the presence of the clearly
unidentifiable religious figures neutralize any religious effect of the
painting. Taken in isolation, the figures other than the Crucifixion are
difficult to identify, even to the trained observer. Supra note 8.
Considering the evidence in the light most favorable to defendants, the
court concludes that an average observer might not perceive the presence
of John the Baptist, Mary Magdalene, Peter the Fisherman or Moses in the
painting. However, with regard to the stone tablets, the court finds that
an average observer would perceive them to represent the Ten
Commandments. The Roman numerals I through X are inscribed in the tablets
and defendants provide no alternative with regard to what these tablets
might represent.*fn10
Defendants assert that the unidentifiable secular figures serve to
neutralize the effect of the painting. This argument merits careful
consideration. In Lynch, the Court found permissible the government's
display of a creche as part of its annual Christmas display. Lynch, 465
U.S. at 687, 104 S.Ct. at 1366. There, the display celebrated a public
holiday having strong secular components. Id. at 692, 104 S.Ct. at 1369
(O'Connor, J., concurring). Justice O'Connor, although recognizing the
religious significance of the creche, believed that the overall holiday
setting of the display helped negate any message of endorsement of
Christianity by altering what viewers perceived to be the purpose of the
display. Id. Similarly, in Allegheny, the court found permissible the
government's display of a menorah as part of its winter holiday
decorations. Allegheny, 109 S.Ct. at 3105. Justice Blackmun believed the
presence of the menorah, combined with the presence of the Christmas tree
and a sign saluting liberty, endorsed neither Christianity nor Judaism.
Id. at 3111-3114 (opinion of Blackmun, J.). For Justice Blackmun, the
secular history of the Christmas tree and the evolvement of Christmas and
Chanukah into one winter holiday season neutralized the effect of the
menorah. Id. Justice O'Connor, however, found nothing in the display to
neutralize the religious effect of the menorah but believed that the
inclusion of the Christmas tree and the sign saluting liberty in the
Christmas display endorsed merely a sense of "pluralism" and "freedom of
belief," and not, either Judaism or Christianity. Id. at 3122-3124
(O'Connor, J., concurring in part and concurring in the judgment).
Despite the possible neutralizing effect of — or negation of
endorsement by — the unidentifiable figures in the painting, this
court remains wary of sectarian messages displayed in public schools as
they transmit basic and fundamental values to our youth. Edwards v.
Aguillard, 482 U.S. 578, 583-584, 107 S.Ct. 2573, 2577-2578, 96 L.Ed.2d
510 (1987) (establishment clause must be applied with special sensitivity
in the public school context); see Grand Rapids, 473 U.S. at 384 n. 6,
105 S.Ct. at 3223 n. 6. "To an impressionable student, even the mere
appearance of secular involvement in religious activities might indicate
that the state has placed its imprimatur on a particular religious
creed. This symbolic inference is too dangerous to permit." Brandon v.
Board of Ed. of Guilderland Cent. School District, 635 F.2d 971, 978 (2d
Cir. 1980); see Roemer v. Board of Public Works, 426 U.S. 736, 750, 764,
96 S.Ct. 2337, 2346, 2353, 49 L.Ed.2d 179 (1976). Here, since defendants
display Martin's painting in a high school auditorium, students view the
painting each time they enter the auditorium. Further, defendant School
District uses the auditorium for numerous events at which elementary
students are required to attend. Susan Affidavit, Doc. 7 at ¶ 4.*fn11
Accordingly, this court's scrutiny of the painting and its placement must
be all the more discriminating. See Grand Rapids, 473 U.S. at 390, 105
S.Ct. at 3226 (holding that the inquiry into endorsement test "must be
conducted with particular care when many of the citizens perceiving the
governmental message are children in their formative years").
Taking into account the significant message behind the Crucifixion and
the skeptical way in which the Court views sectarian messages in public
schools, this court concludes as a matter of law that the painting has
the primary effect of endorsing Christianity. First, the school displays
the painting permanently and not part of any holiday setting. Further,
the school's display contains no placards to explain the paintings
meaning or reason for being there. Cf. Allegheny, 109 S.Ct. at 3123
(O'Connor, J., concurring in part and concurring in the judgment)
(presence of sign saluting liberty in Christmas display sends message of
freedom rather than endorsement of religion); id. at 3114-3115 (opinion
of Blackmun, J.). Moreover, this is not a case where the school displays
the painting as part of a student art exhibit.*fn12 Finally, the
presence of the non-religious figures, rather than neutralizing the
religious effect of the painting, blend into the scene of the Crucifixion
and complete the picture as an average observer would perceive it to be.
Though some negating features may be present, the cross occupies a highly
prominent place in the painting and draws the attention of the eye.
The court concludes that the display of Martin's painting in the
auditorium of Schuylerville High School violates the
second prong of the Lemon test. The instant painting prominently displays
a figure whom the average observer would believe to be Jesus Christ at
his crucifixion. The painting lacks any meaningful neutralizing or
negating features. Thus, it has the effect of conveying a message of
government endorsement of Christianity.
CONCLUSION
For the foregoing reasons, the court grants plaintiff's motion for
summary judgment. The court directs defendant Board of Education of the
Schuylerville Central School District to remove the painting within
thirty days of the date on which this Memorandum-Decision and Order is
filed by the clerk of the court. The clerk is directed to enter judgment
for plaintiffs.
It is So Ordered.