religion; or (3) fosters an excessive entanglement with religion. Id.
Contrary to the City's suggestion, an equal access policy permitting fixed religious displays in its public parks would not be unconstitutional under the first and third prongs of the Lemon test. A neutral open-forum policy, providing equal access for religious as well as non-religious speech, has the secular purpose of promoting free speech and religious tolerance. See Widmar, 454 U.S. at 271, 102 S. Ct. at 275 ("an open-forum policy, including nondiscrimination against religious speech, would have a secular purpose"); see also Chabad-Lubavitch of Ga., 5 F.3d 1383, 1993 U.S. App. LEXIS 26841 at *16 (allowing menorah display would "advance the secular purpose of providing an arena for . . . [the] citizenry's exercise of the constitutional right to free speech"); McCreary, 739 F.2d at 725 (permitting creche display had secular purpose of providing equal access to public forum for religious speech). That the private speaker seeks to proselytize is irrelevant, for the secular purpose inquiry examines the government's purpose in allowing the speech, not the speaker's goal. See Lynch v. Donnelly, 465 U.S. 668, 681, 104 S. Ct. 1355, 1363, 79 L. Ed. 2d 604 (1984) (examining whether City had secular purpose in sponsoring creche display in private park); cf. Board of Educ. of Westside Community Sch. v. Mergens, 496 U.S. 226, 249, 110 S. Ct. 2356, 2371, 110 L. Ed. 2d 191 (1990) (legislative purpose of statute, "not possibly religious motives of the legislators who enacted the law," is relevant inquiry under secular purpose prong).
Nor would an equal access policy entangle the City with religion, since private religious and secular fixed displays would be on equal footing. The City's evaluation process for requests to erect fixed religious displays would be exactly the same as that used for those involving secular fixed displays. See McCreary, 739 F.2d at 725 (application to display creche would involve the same evaluative process required for any other type of display). By contrast, the Resolution's exclusion of fixed religious displays inextricably entangles the City with religion as it requires the City to determine whether a proposed display contains a "religious" symbol. See Widmar, 454 U.S. at 271-72 n.11, 102 S. Ct. at 275 n.11 (state university would risk greater "entanglement" in attempting to enforce its policy of excluding religious speech).
Thus, I do not find that permitting Rabbi Flamer's display in City parks would violate the first or third prong of the Lemon test.
The City's more compelling Establishment Clause argument is rooted in Lemon's second prong.
The City contends that allowing private free-standing fixed displays of religious symbols in its parks on the same terms as it permits those of a nonreligious nature would create the impression that it endorsed religion. The City bases this argument, in large part, on the divergent outcomes reached by the Supreme Court in Allegheny regarding the constitutionality of two holiday displays on public property.
However, Allegheny, a highly fact-based decision marked by shifting majorities and conflicting approaches, does not support the City's conclusion. In Allegheny, a sharply divided Court held that a creche display on the Allegheny County courthouse steps contravened the Establishment Clause, but a holiday display consisting of 18-foot menorah, a 45-foot Christmas tree and a sign which read "Salute to Liberty" outside a government office building did not. Justices Brennan, Marshall and Stevens believed that both displays violated the Establishment Clause, and reasoned that there should be a strong presumption against publicly supported display of an overtly religious nature. 492 U.S. at 650, 109 S. Ct. at 3131 (Stevens, J., concurring in part, dissenting in part). Justices Blackmun and O'Connor, focusing on the "particular physical settings" of the two displays, deemed the free standing creche display on the county courthouse steps improper, but found no Establishment Clause violation attended the menorah display. 492 U.S. at 598-600, 616-21, 109 S. Ct. at 3103-04, 3113-15 (plurality opinion); 492 U.S. at 626-27, 635, 109 S. Ct. at 3118-19, 3123-24 (O'Connor, J., concurring in part, and concurring in the judgment). Four members of the Court, Chief Justice Rehnquist, and Justices White, Scalia and Kennedy, concluded that both displays should have been permitted, since neither represented an "effort to proselytize" by the local government of Allegheny. 492 U.S. at 664, 109 S. Ct. at 3139 (Kennedy, J., concurring in the judgment in part, dissenting in part).
Given this morass of competing and conflicting rationales, Allegheny does not, as the City contends, lead to the inexorable conclusion that fixed religious displays on all public property, unadorned by secular symbols, violate the Establishment Clause. In fact, the plurality opinion expressly stated that the unattended creche display on county courthouse steps did not raise a public forum issue. 492 U.S. at 600 n.50, 109 S. Ct. at 3104 n.50 ("the creche here does not raise the kind of 'public forum' issue, cf. Widmar v. Vincent,. . . presented by the creche in McCreary v. Stone"); see also Chabad-Lubavitch of Ga., 1993 U.S. App. LEXIS 26841 at *20-21 (Allegheny is not a public forum case and its analysis is not applicable to Establishment Clause questions in public forum cases); cf. Allegheny, 492 U.S. at 626, 109 S. Ct. at 3119 (O'Connor, J., concurring in the judgment, concurring in part) ("display of religious symbol in core government buildings runs a special risk of 'making religion relevant, in reality or public perception, to status in the political community'") (citation omitted). At best, Allegheny suggests that context is highly important in determining whether a religious display on public property contravenes the Establishment Clause.
Guidance in identifying the contextual factors relevant to this inquiry can be found in Supreme Court and Second Circuit decisions analyzing Establishment Clause issues raised by religious speech or expressive activity in public forums. In Widmar, the Court held that the Establishment Clause did not provide a compelling justification for the University's exclusion of registered religious groups from university facilities made generally available to other registered student groups. In reaching this conclusion, the Court found two factors "particularly relevant".
First, recognizing that access was not tantamount to endorsement, the Widmar Court reasoned that an open forum policy that extended to religious speakers did not confer "any imprimatur of state approval on religious sects or practices". 454 U.S. at 274, 102 S. Ct. at 276; 454 U.S. at 272 n.10, 102 S. Ct. at 276 n.10 ("by creating a forum the University does not thereby endorse or promote any of the particular ideas aired there"). Second, the Court noted that a forum's availability to a diverse and broad class of speakers ensured that advancing religion would not be the "primary effect" of a nondiscriminatory open-forum policy. 454 U.S. at 275, 102 S. Ct. at 277. At most, such a policy would provide mere "incidental" benefits to religion. 454 U.S. at 274, 102 S. Ct. at 276; see Committee for Pub. Educ. v. Nyquist, 413 U.S. 756, 771, 93 S. Ct. 2955, 2964, 37 L. Ed. 2d 948 (1973) (religious organization's enjoyment of mere incidental benefits does not result in a primary advancement of religion).
The Supreme Court has reaffirmed Widmar's reasoning in its recent decision in Lamb's Chapel v. Center Moriches Union Free Sch. Dist., U.S. , 124 L. Ed. 2d 352, 113 S. Ct. 2141 (1993). In Lamb's Chapel, the Court held that school district's denial of a church group's request to use public school premises to show a religious-oriented film violated the First Amendment. The Court readily rejected the school district's Establishment Clause defense, stating that it had
no more trouble than did the Widmar Court in disposing of the claimed defense on the ground that the posited fears of an Establishment Clause violation [were] unfounded. The showing of this film would not have been during school hours, would not have been sponsored by the school, and would have been open to the public, not just to church members. The District property had repeatedly been used by a wide variety of private organizations. Under these circumstances, as in Widmar, there would have been no realistic danger that the community would think that the District was endorsing religion or any particular creed, and any benefit to religion or to the Church would have been no more than incidental. As in Widmar,. . . permitting District property to be used to exhibit the film involved in this case would not have been an establishment of religion under the three-part test articulated in Lemon v. Kurtzman.
U.S. at , 113 S. Ct. at 2148.
Though Widmar and Lamb's Chapel involved live speakers, their reasoning applies equally to fixed religious displays in public forums, since their Establishment Clause analyses hinged on the attributes of the forum -- i.e., the diversity of speakers granted access thereto and the perceptual parity accorded speech therein by reasonable observers -- not the speaker. See Chabad-Lubavitch of Ga., 5 F.3d 1383, 1993 U.S. App. LEXIS 26841 at *24-28 (applying public forum analysis outlined in Widmar to assess whether Establishment Clause provided compelling justification for state's refusal to allow religious group to erect a menorah in a limited public forum in core government building); Kreisner, 988 F.2d at 891-92, 894 (applying Widmar principles to determine whether San Diego violated Establishment Clause by permitting overtly religious holiday display in public park); Americans United, 980 F.2d at 1547-48, 1549 (applying Widmar equal access principle in determining that city did not violate Establishment Clause by permitting private group to erect fixed menorah display in traditional public forum); McCreary, 739 F.2d at 726 (applying Widmar public forum principles in determining that creche display in traditional public forum did not have primary effect of advancing religion). But cf. Chabad-Lubavitch of Vt. v. City of Burlington, 936 F.2d 109, 111 (2d Cir. 1991) (situation in Widmar distinguishable from that posed by fixed display in traditional public forum because Widmar "involved an open forum, with live speakers, in a public university").
Widmar and Lamb's Chapel implicitly recognize that, in the mind of the reasonable observer, expressive activities in true public forums are symbolically linked to the public, not the government, and that religious speech in no way alters this deeply-rooted association. Quite the contrary, these decisions make clear that by permitting religious speech on a nondiscriminatory basis, government sends a message of neutrality, not endorsement. See Mergens, 496 U.S. at 248, 110 S. Ct. at 2371 (equal access policy sends a message "of neutrality rather than endorsement; if a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion").
For the reasonable observer, the private religious fixed display should be no different from other fixed displays erected by private speakers. This observer should understand that the public forum is the public's expressive playground, and that private speakers with a religious message, like any other member of the public, will resort to this forum to convey their particular messages. Cf. Americans United, 980 F.2d at 1548 ("public fora exist solely to provide a platform for speakers of all kinds"); Kreisner, 988 F.2d at 891 ("religious speakers have the same right of access to public forums as others"). The reasonable observer also knows that, unless otherwise stated, speech within these arena "belongs and can be attributed to the private speaker only; neither approbation nor condemnation of the private speaker's message may be imputed to the state". Chabad-Lubavitch of Ga., 5 F.3d 1383, 1993 U.S. App. LEXIS 26841 at *27; cf., Mergens, 496 U.S. at 250, 110 S. Ct. at 2372 (failure to censor is not endorsement). Therefore, "instead of concluding that religious zealots have stormed the gates with the city's endorsement, the reasonable observer recognizes the [religious] display as yet another example of free speech". Americans United, 980 F.2d at 1549.
In traditional public fora such as public parks, the absence of governmental sponsorship of private religious displays is strikingly clear. Intimately linked to the free interchange of ideas and traditionally the situs of a wide range of public expressive activity, public parks are viewed and must be viewed as the public's expressive domain. Expressive conduct in these classic public fora thus should be viewed by reasonable observers as that of members of the body politic, not the government. See Kreisner, 988 F.2d at 895 ("it seems axiomatic to the public forum principle that we view messages expressed there as those of the actual speakers").
Hence, the existence or non-existence of accompanying secular symbols should be of little import to the reasonable observer viewing religious displays in these quintessential public forums. In rejecting the argument that a free-standing menorah display in a traditional public forum violates the Establishment Clause, the Sixth Circuit in Americans United reasoned:
The assumption that the menorah constitutes only a religious symbol that remains after Chabad House has finished its speech . . . is wrong; Chabad House's menorah display is no mere remnant of religious speech, it is religious speech and must receive the same respect as a round-the-clock Bible reading. It would be strange for a reasonable observer to find more endorsement in a menorah standing alone than in a menorah accompanied by a Torah reading or by crowds of people celebrating Chanukah with games or feasts. The menorah display constitutes religious speech just as much as a meeting of a school Bible Club . Therefore, this case must be governed by . . . Widmar. . .
980 F.2d at 1549 (emphasis in original).
Thus, for the reasonable observer, the very nature of the forum itself, assuming no affirmative governmental sponsorship of the display, negates any impression of government endorsement of the display's religious message.
The Second Circuit's decision in McCreary v. Stone is illustrative. McCreary involved a First Amendment challenge to the city's denial of a religious group's application to display a free-standing creche in a Scarsdale public park during the holiday season. Not unlike the City in this case, the Village of Scarsdale asserted that the Establishment Clause provided a compelling justification for its denial of the application. The Second Circuit rejected the Village's Establishment Clause defense, holding that "the Village's neutral accommodation . . to permit the display of a creche in a traditional public forum at virtually no expense to it cannot be viewed as a violation of the primary effect prong of the Lemon test." 739 F.2d at 726-27. Relying on Widmar, the McCreary court further held that the Village's pursuit of an equal access policy in this forum, that did not discriminate against religious speech, would not suggest government endorsement of religion. Id. at 727.
McCreary does not stand alone; in recent years, numerous courts have held that private free-standing religious displays in true public forums, open to the public for a wide array of expressive activities, do not contravene the Establishment Clause. Chabad-Lubavitch of Ga., 5 F.3d 1383, 1993 U.S. App. LEXIS 26841 at *28 (no Establishment Clause issues implicated by state allowing religious group to erect menorah display in Rotunda of State Capitol since this arena was a true public forum); Kreisner, 988 F.2d at 898 (city does not violate Establishment Clause by permitting an overtly religious private display in a public park because park was a traditional public forum); Americans United, 980 F.2d at 1549 (privately funded menorah display erected during Chanukah in traditional public forum does not violate Establishment Clause); see Small, 964 F.2d at 619 ("mere presence of religious symbols in a public forum does not violate the Establishment Clause, since the government is not presumed to endorse every speaker it fails to censor in a quintessential public forum far removed from the seat of government").
Under the Supreme Court's public forum Establishment Clause jurisprudence and the Second Circuit's decision in McCreary, it is clear that the Establishment Clause does not proscribe private fixed religious displays in all public parks. The City's argument that the Second Circuit's decision in Kaplan espouses a contrary rule is plainly wrong. In Kaplan, the Second Circuit held that a display of a privately-sponsored menorah conveyed a message of government endorsement because the forum at issue -- City Hall Park -- was closely associated with the seat of city government. 891 F.2d at 1029-30. This close perceptual nexus between the park and city government distinguished the case from McCreary. The Kaplan court expressly noted that "unlike McCreary, the park involved [was] not just any city park, but rather City Hall park." Id. at 1029.
Moreover, the menorah display in Kaplan "was located only some 60 feet away from the westerly steps of City Hall," such that from a certain vantage point, "the menorah appeared superimposed upon City Hall". Id. at 1029-30. Kaplan, therefore, does not hold that the Establishment Clause bars fixed religious displays in all public parks. Rather, Kaplan recognizes that, in rare instances, a public park may, in the mind of the public, be so intimately associated with the seat of government that it is viewed as a mere extension of the government. Thus, it is conceivable that private fixed religious displays in such parks could convey a mistaken impression of government sponsorship.
Kaplan's narrow exception to the public forum rule does not save the Resolution, since the City has proffered no evidence suggesting that any, much less all, of its parks are closely associated with the seat of government. City Hall's mere visibility from certain areas of Tibbits and Main should not, in the mind of reasonable observers, associate these parks with City Hall. To the contrary, a reasonable observer understands, and should understand, that public spaces located near government buildings are prime free speech arenas. As the Ninth Circuit in Kreisner noted:
The proximity of buildings of unmistakably governmental character is a patently imperfect proxy for attributing speech that goes on there to the government. The White House, perhaps the most visible structural symbol of our government, borders Lafayette Square in Washington, D.C., yet the square has consistently been upheld as a public forum. Places that are near government buildings -- where many people pass and have occasion to hear the speaker -- are prime territory for the exercise of First Amendment rights.