however tenuous its status might be at the Supreme Court level. Of the Justices in Allegheny who applied the endorsement test, however, only two (Blackmun and O'Connor) found the combination Christmas tree and menorah to pass, and given Justice Kennedy's attack on the endorsement test as invalidating practices which he believed permissible under the Establishment Clause, it is not clear that Justice Kennedy would have reached the same result had he applied the test. However, the specific holding of Allegheny -- that at least in some instances the state-sponsored display of a Christmas tree and menorah together does not violate the Establishment Clause -- garnered a majority of the Court and is therefore binding precedent.
That holding is sufficient to defeat the plaintiffs' claim in this case. The Postal Service seasonal display policy in question allows postmasters to display, inter alia, "evergreen trees bearing nonreligious ornaments" and "menorahs (when displayed in conjunction with other seasonal matter)." POM 124.57(c). This policy was no doubt crafted by the Postal Service with Allegheny in mind. Whether the policy is in all cases constitutional is impossible to determine; one can certainly imagine a case in which the "other seasonal matter" displayed with a menorah served to enhance the religious aspects of the menorah rather than diminish them. The Court need not decide that issue, however, because the facial nature of the plaintiffs' challenge requires only that the Court find some applications of the policy to be constitutional, and Allegheny forecloses a finding to the contrary. The plaintiffs' claim under the Establishment Clause must therefore also fail.
III. Equal Protection
Finally, the plaintiffs assert an Equal Protection claim -- namely, that the Postal Service policy impermissibly discriminates against Muslims and/or Arabs. The Court first notes that a claim that the Postal Service is discriminating against Muslims by refusing to display the Crescent and Star would seem to collapse into the Establishment Clause claim. The plaintiffs have asserted, and adduced evidence to the Court, that the Crescent and Star are not themselves part of Islam, and for purposes of this summary judgment motion the Court must accept that as true. Plaintiffs assert, however, that they are symbols of the Muslim people. "Muslim" is defined as "an adherent of or believer in Islam," Webster's Third New International Dictionary (1986), and plaintiffs have not suggested to this court an alternative definition. To discriminate against Muslims qua Muslims would thus seem to fall squarely within the Establishment Clause's injunction that "government . . . may not discriminate among persons on the basis of their religious beliefs and practices." Allegheny, 492 U.S. at 590, 109 S. Ct. at 3099. The Court, however, has already rejected a claim that the Postal Service policy violates the Establishment Clause.
However, the Court is willing, for purposes of this motion, to accept that Muslims could be considered a cultural or quasi-ethnic group that is defined other than by adherence to Islam, much as one might (although this is subject to debate) consider being Jewish as an ethnic or quasi-ethnic identity distinct from Jews as adherents of Judaism Cf. Allegheny, 492 U.S. at 585, 109 S. Ct. at 3097 (noting that "some nonreligious American Jews celebrate Chanukah as an expression of ethnic identity, and 'as a cultural or national event, rather than as a specifically religious event.'"). The Court will thus assume that discrimination against Muslims is distinct from government disapproval of Islam, and that therefore the Establishment Clause analysis is not dispositive of this claim.
Like the First Amendment claims already addressed, this Equal Protection claim can be viewed in two lights. First, the plaintiffs could be claiming that the Postal Service is preventing the plaintiffs from putting up the Crescent and Star in post offices while allowing other groups to display their symbols. However, this claim fails because, as noted, the Postal Service prohibits all displays by the public of seasonal symbols, and plaintiffs have not produced any evidence suggesting the contrary. In order to prove a claim of discrimination in violation of Equal Protection, " a plaintiff must show not only that the state action complained of had a disproportionate or discriminatory impact but that also the defendant acted with the intent to discriminate." United States v. Yonkers Bd. of Educ., 837 F.2d 1181 (2d Cir. 1987). At the very least, to survive summary judgment on this claim, plaintiffs would have to produce evidence suggesting that the Postal Service has allowed other, non-Muslim or non-Arab members of the public to erect seasonal displays in post offices. Plaintiffs have not even alleged these facts in their complaint, and thus summary judgment for defendants is appropriate.
Alternatively, plaintiffs claim could be that the Postal Service, by erecting displays celebrating non-Muslim cultural traditions but failing to similarly treat Muslim heritage, is implicitly making a statement that Muslims are, in the plaintiffs' words, "second-class citizens." (Complaint P 29.) It is important to distinguish this injury from that constituted by the previous characterization. In the former claim, the plaintiffs seek to proclaim and celebrate their heritage yet are prevented from doing so by act of the government. The harm is palpable, direct and concrete -- plaintiffs lose the opportunity to speak in their chosen forum and to add their voices to the holiday celebrations of others.
The alternative reading -- i.e., the Postal Service is refusing to celebrate Muslim heritage on equal footing with non-Muslim -- asserts a very different claim. The harm alleged flows from the fact that the voice of the government -- uniquely authoritative as the voice of the people -- is expressing the idea that Muslim heritage is less worthy of celebration, or that Muslims are somehow inferior persons. It is a purely dignitary injury.
The Court does not for a moment suggest that such a harm is not every bit as serious as the more "concrete" injury asserted by the first Equal Protection claim. On the contrary, to the plaintiffs, who have clearly worked extensively to promote the inclusion of Muslim heritage and culture at many different public venues where non-Muslim holidays are celebrated, this dignitary harm is no doubt precisely what troubles them most. Nevertheless, Supreme Court precedent compels the conclusion that the plaintiffs lack standing to raise this claim.
Standing is essentially an inquiry into whether a plaintiff is the proper party to invoke the jurisdiction of the federal courts. See Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975) ("In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute . . . ."). "Standing is not merely a prudential inquiry into whether a court should exercise jurisdiction, but is rooted in Article III's 'case' or 'controversy' requirement and reflects separation of powers principles." In re U.S. Catholic Conference, 885 F.2d 1020, 1023 (2d. Cir. 1989). To have standing, a plaintiff must demonstrate that (1) " they have suffered an injury in fact that is both concrete in nature and particularized to them," (2) "the injury [is] fairly traceable to the defendants' conduct," and (3) the injury [is] redressable by the removal of defendants' conduct." Id. at 1023-24. The plaintiffs in this case fail to satisfy the first prong of this test.
In Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984), the parents of African-American school children whose districts were undergoing desegregation sued the Internal Revenue Service for failing to carry out the IRS's obligation to deny tax-exempt status to private schools which discriminated on the basis of race. The Court distinguished between two claims made by the parents: (1) that plaintiffs were "harmed directly by the mere fact of government financial aid to discriminatory private schools," id. at 752, 104 S. Ct. at 3325, a claim characterized by the Court as "a claim of stigmatic injury, or denigration, suffered by all members of a racial group when the Government discriminates on the basis of race," id. at 754, 104 S. Ct. at 3326, and (2) that the federal tax exemptions "impaired their ability to have their public schools desegregated." Id. at 752-53. The latter claim was held to satisfy the injury prong of standing, while the former did not.
Addressing the first claim, the Court asserted that while the stigmatizing injury caused by discrimination "is one of the most serious consequences of discriminatory government action and is sufficient in some circumstances to support standing," id. at 755, 104 S. Ct. at 3326, "such injury accords a basis for standing only to 'those persons who are personally denied equal treatment' by the challenged discriminatory conduct." Id. (quoting Heckler v. Mathews, 465 U.S. 728, 739-40, 79 L. Ed. 2d 646, 104 S. Ct. 1387 (1984)). Like the plaintiffs in Allen, the plaintiffs in this case "do not allege a stigmatic injury suffered as a direct result of having personally been denied equal treatment," Id. at 755, 104 S. Ct. at 3327, and thus have not stated a judicially cognizable injury.
The Court noted in Allen that "if the abstract stigmatic injury were cognizable, standing would extend nationwide to all members of the particular racial groups against which the Government was alleged to be discriminating . . . . All such persons could claim the same sort of abstract stigmatic injury . . . ." Id. at 755-56, 104 S. Ct. at 3327. Plaintiffs' claim in this case is precisely the same: if the harm of having the Postal Service refuse to display the star and crescent is cognizable, every Muslim in the nation would have standing to sue. No less so than in Allen, "recognition of standing in such circumstances would transform the federal courts into 'no more than a vehicle for the vindication of the value interests of concerned bystanders.'" Id. at 756, 104 S. Ct. at 3327 (quoting United States v. SCRAP, 412 U.S. 669, 687, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973)).
The Supreme Court recently reaffirmed this principle in United States v. Hays, 515 U.S. 737, 115 S. Ct. 2431, 132 L. Ed. 2d 635 (1995). In Hays, the plaintiffs were citizens of Louisiana who alleged that the state legislature had violated the Equal Protection clause by creating a majority-minority congressional district -- but, critically, not the district in which plaintiffs resided. The Court dismissed their complaint for lack of standing, relying on Allen, and specifically rejecting the contention that all voters in the state had standing. 115 S. Ct. at 2435-36. The Court reiterated that to have standing, a plaintiff must assert more than "a generalized grievance against government conduct of which he or she does not approve," id. at 2436, but rather must allege injury "'as a direct result of having personally been denied equal treatment.'" Id. at 2437 (quoting Allen, 468 U.S. at 755, 104 S. Ct. at 3327). Plaintiffs in this case have not alleged a personal denial of equal treatment, and thus any claim that the Postal Service has denied the plaintiffs equal protection by refusing to put up the Muslim Crescent and Star must be dismissed for want of standing.
For the reasons discussed above, defendants' motion to dismiss is GRANTED. The Clerk of the Court is directed to enter judgment dismissing this action in its entirety in accordance with this Opinion and Order.
Dated: New York, New York
December 23, 1997