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August 27, 1990


The opinion of the court was delivered by: Munson, District Judge.


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 judgment.


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 of activities.

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.

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 ...

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