FOX v. CITY OF LOS ANGELES (1977)

Facts

On December 18, 1975, the Los Angeles City Council passed a resolution authorizing the special nighttime lighting of the windows of City Hall, in the configuration of a cross, on Christmas eve and on Christmas day. It had been the custom of the city council to adopt such a resolution every year for approximately the last 30 years. Since at least 1970 the city council has adopted similar resolutions authorizing the selective illumination of a cross on Easter Sunday and, in response to a request in a letter from a member of the Greek Orthodox faith, on Greek Orthodox Easter. The city council has extended a similar courtesy to institutions of charitable and humanitarian concerns, authorizing the selective illumination of windows in configurations representing the symbols of the Heart Fund and the Easter Seal Society. The Public Works Committee estimated the cost of selectively illuminating the windows of City Hall to be approximately $103.00.

On December 23, 1975, respondent, a taxpayer of the City of Los Angeles, brought an action in Los Angeles Superior Court seeking to enjoin the city and its Board of Public Works from practicing its usual custom of illuminating the windows of City Hall in the cross configuration, alleging violation of her rights as protected by article 1, section 4 of the California Constitution and the establishment clause of the First Amendment of the United States Constitution. Denying an application for a temporary restraining order, the superior court issued an order to show cause for preliminary injunction. After hearing argument and admitting the verified pleadings and declarations into evidence, the court found for respondent, restraining and enjoining appellants from ‘Displaying a lighted, single barred cross on the Los Angeles City Hall by any means whatsoever, including, but not limited to, displaying through selective illumination of lamps or the arrangement of window blinds.’ In so concluding, the court was satisfied that the threat of irreparable injury had been sufficiently shown and that there was a reasonable probability that respondent would be successful at trial in establishing that the challenged practice violated the establishment clause of the First Amendment, as incorporated in the Fourteenth Amendment.

Respondent brought forth no facts relative to the visual impact of the illuminated cross, either on respondent personally, or on members of the public in general. Furthermore, it was neither alleged nor was any evidence introduced that appellants had at any time denied requests for illumination of any other symbols on the City Hall tower. Appellants allege on appeal that the lower court's granting of a preliminary injunction amounted to an abuse of discretion, contending that respondent failed to prove by any probative facts that immediate and irreparable injury, loss, or damage would result, and that the preliminary injunction was improperly granted because it was doubtful that respondent will ultimately prevail upon the merits at trial. Since our resolution of the constitutional issue compels reversal on that ground alone, we do not inquire into the sufficiency of respondent's allegation of irreparable injury.

Discussion

We note at the outset the sensitive and difficult task confronting any court called upon to reach a determination as to whether a challenged government activity runs afoul of the Establishment Clause of the First Amendment. The First Amendment provides in pertinent part: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .’ It has been acknowledged by Justice Powell, writing for the court in Committee for Public Education v. Nyquist, 413 U.S. 756, 760, 93 S.Ct. 2955, 2959, 37 L.Ed.2d 948, that ‘this Nation's history has not been one of entirely sanitized separation between Church and State. It has never been thought either possible or desirable to enforce a regime of total separation, and as a consequence cases arising under these Clauses [establishment and free exercise] have presented some of the most perplexing questions to come before this Court.’ The establishment clause encompasses more than the promotion of a state religion (Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 29 L.Ed.2d 745), yet not all interaction between government and religion is or can be prohibited, and activity which confers ‘indirect, remote, or incidental’ benefits upon religious institutions is not for that reason alone constitutionally defective (Committee for Public Education v. Nyquist, supra, 413 U.S. at pp. 771–772, 93 S.Ct. 2955).

At the heart of any challenge to government activity on establishment clause grounds is a determination as to whether that activity furthers any of the evils against which that clause was erected to protect. It is now well settled that primary among those evils have been ‘sponsorship, financial support, and active involvement of the sovereign in religious activity.” (Committee for Public Education v. Nyquist, supra, at 772, 93 S.Ct. at 2965, quoting from Walz v. Tax Commission, 397 U.S. 664, 668, 90 S.Ct. 1409, 25 L.Ed.2d 697.)

Emerging from the line of establishment clause cases that have come before the Supreme Court is a tripartite test ‘that has been clearly stated, if not easily applied.’ (Meek v. Pittenger, 421 U.S. 349, 358, 95 S.Ct. 1753, 1759, 44 L.Ed.2d 217; see, e. g., Committee for Public Education v. Nyquist, supra, 413 U.S. at 772–773, 93 S.Ct. 2955, and Lemon v. Kurtzman, supra, 403 U.S. at 612–613, 91 S.Ct. 2105.) First, the government activity must have a secular legislative purpose (Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228.) Second, it must have a primary effect that neither advances nor inhibits religion (Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844.) Third, the activity must not foster an excessive government entanglement with religion (Walz v. Tax Commission, supra). Failure of any prong of the test renders the challenged activity unconstitutional. Application of the tests should be tempered with the caveat issued in Meek, supra (421 U.S. at pp. 358–359, 95 S.Ct. at p. 1760): ‘It is well to emphasize . . . that the tests must not be viewed as setting the precise limits to the necessary constitutional inquiry, but serve only as guidelines with which to identify instances in which the objectives of the establishment clause have been impaired.’ Thus, the central inquiry is at all times directed toward determining whether the challenged activity truly results in furtherance of the prohibited establishment clause evils.

Our task today is further complicated by the fact that neither the United States Supreme Court nor the California Supreme Court has ever adjudicated a challenge to the establishment clause arising out of the public display of a religious symbol. Most of the establishment clause cases that have come before the United States Supreme Court have involed the relationship between religion and education, concerning themselves with either religious activities within the public schools, or with some form of public aid to sectarian educational institutions. (See Committee for Public Education v. Nyquist, supra (413 U.S. p. 772, fns. 29–30, 93 S.Ct. 2955.) Although cases involving public display of religious symbols have come before the courts in other jurisdictions (e. g., Allen v. Morton, 161 U.S. App.D.C. 239, 495 F.2d 65 (creche in Christmas pageant); Lowe v. City of Eugene, 254 Or. 518, 463 P.2d 360 (permanent cross on hilltop); Paul v. Dade County, 202 So.2d 833 (Fla.App.) (temporary string of lights forming cross on side of courthouse during Christmas), we approach the case here presented as one of first impression in this jurisdiction.

In granting the issuance of a preliminary injunction the lower court concluded to its satisfaction that there was a reasonable probability that respondent would be successful at trial in establishing that the challenged practice failed all three tests. We are of the opinion that in so concluding the lower court erred at every prong.

Evidence introduced by appellants indicated that the illumination of the windows in City Hall in the form of a cross on Christmas and Easter was authorized ‘not in religious tribute but more in a spirit of peace and good fellowship toward all mankind.’ The illumination of the cross on Greek Orthodox Easter was approved ‘predicated upon the display being a further symbol of the spirit of peace and good fellowship toward all mankind on an interfaith basis, particularly toward the eastern nations in Europe.’ These statements of purpose were characterized by the lower court as ‘self-serving recitals,’ and on the basis of ‘other evidence including matters of common knowledge of which the court can and does take judicial notice,’ determined that the ‘real purpose’ of the city council was religious. In reaching this determination, the lower court was especially influenced by the fact that the practice of lighting the cross on Greek Orthodox Easter originated in response to a letter from a member of that faith requesting equal accommodation.

State action that has as its purpose accommodation of the religious nature of our people is not for that reason alone impermissible. In Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954, a New York education law authorizing a ‘released time’ program whereby public schools were permitted to release students during the school day so that they might leave the school premises and go to religious centers for religious instruction or devotional exercises was challenged as violative of the First Amendment. In upholding its constitutionality, the court commented: ‘When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs.’ (Id., at pp. 313–314, 72 S.Ct. at p. 684.) One could hardly maintain that the legislation in Zorach had a wholly secular purpose. In fact, its purpose was quite clearly to enable school children to receive religious instruction in a manner that involved neither the use of public facilities nor the expenditure of public funds. Since the impact of the legislation as a whole did not violate the establishment clause through furtherance of the primary evils of sponsorship, financial aid, or active involvement of the sovereign in religious activities, the fact that its purpose involved a recognition and accommodation of religion did not mandate constitutional rejection.

Since the practice challenged in the instant case does involve a minimal expenditure of tax dollars, the inquiry becomes crucial as to whether the practical effect is one that advances or inhibits religion, or achieves the impermissible status of sponsorship, financial support, or active government involvement in religious activities.

The lower court's finding that the challenged practice has the effect of promoting religion is unsupported by the record. In the 30 years during which the custom has been practiced, we have received evidence of only one request having been made of the city council for similar recognition. The conclusion is inescapable that if the challenged custom really conferred a measurable benefit upon religion, members of various sects and faiths would either have expressed a desire for equal recognition and aid, or in the alternative, lodged their objection to practice of prejudicial sovereign endorsement. And yet the record is wholly devoid of any complaint registered as to the practice, other than that of respondent alone. We recognize, of course, that mere longevity of custom does not in itself insulate a practice from constitutional scrutiny. However, when a longstanding custom is challenged on establishment grounds as impermissibly benefiting religion—against a 30 year backdrop of near total passivity and disinterest within a metropolis as religiously and philosophically diverse as Los Angeles—, we are convinced that whatever benefits conferred by that custom are so remote and inconsequential that any threat posed to the First Amendment is hypothetical at best.

In the realm of pure theory, many widely accepted and long-standing practices run afoul of the establishment clause. Our national motto, ‘IN GOD WE TRUST,’ inscribed on currency and coin, theoretically has both the purpose and effect of promoting theism over polytheism and atheism. The prayers that traditionally issue forth from our legislative halls, and the supplication, ‘God save the United States and this Honorable Court,’ that open each session of the United States Supreme Court, similarly lend themselves to theoretical constitutional attack. (Zorach v. Clauson, supra, at p. 313, 72 S.Ct. 679.) Even the official seal of Los Angeles County bears the representation of the cross in its composite design. The simple fact of the matter is that despite the theoretical implications, none of the above practices achieves or even realistically approaches the impermissible threshold effect of sponsorship, financial support, or active involvement of the sovereign in religious activities. Nor does the practice here challenged. We do not here tread the treacherous waters of public aid to parochial educational institutions as in Lemon or Nyquist wherein government runs the risk of becoming party to the programmed transmission of sectarian tenets to the next generation. No such threat of state indoctrination or religious interference accompanies the temporary, static gesture of acknowledgment here challenged.

In determining whether government entanglement with religion is excessive, the court must consider ‘the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority’ (Lemon v. Kurtzman, supra, 403 U.S. at 615, 91 S.Ct. at 2112), as well as the accompanying ‘divisive political potential’ (id., at 622, 91 S.Ct. 2105). Since no material benefit of constitutional significance has by this practice been conferred upon a religious institution, we are not convinced that the minimal expenditure of tax dollars here involved comprises state aid to religion. Nor has the city council involved itself in the ‘day-to-day’ financial and policy decisions of a religious institution (California Educational Facilities Authority v. Priest, 12 Cal.3d 593, 602, 116 Cal.Rptr. 361, 526 P.2d 513). Considering the negligible impact of the practice and its uneventful history, no real danger of divisive political potential is herein presented.

We are not here concerned with the level of government interference presented in Mandel v. Hodges, 54 Cal.App.3d 596, 127 Cal.Rptr. 244, where the designation of a three hour period of Good Friday as a paid state holiday was held unconstitutional. In that case, countless members of the public were affected by the closure of state offices at a substantial cost to the taxpayer that in effect amounted to state subsidization of an opportunity for members of a particular religious sect to actively worship. The city council has not here involved itself in an undertaking even faintly approaching the impermissible purpose, impact, and involvement present in Mandel.

Nor does the present activity violate the First Amendment mandate of government neutrality between religious sects, and between religion and nonreligion. (Epperson v. Arkansas, supra, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228.) The courtesy of selectively illuminating the windows of City Hall has likewise been extended to secular organizations of humanitarian concern, such as the Heart Fund and the Easter Seals Society. The record reflects that the lone request for similar recognition through the illumination of a religious symbol on a day of special significance to members of the Greek Orthodox faith was accommodated. There has been no indication that requests by members of other sects of faiths have or would be accorded anything less than equal treatment. The fact that up to now no interest has been shown by members of other faiths cannot in itself render an otherwise neutral practice unconstitutional.

We therefore hold that the practice of temporarily illuminating the windows in City Hall in the form of a cross in the manner and on the days heretofore authorized by appellants does not violate the establishment clause of the First Amendment, offending neither in its purpose, nor its effect, nor resulting in excessive entanglement of the government in religious activities. The decision herein reached compels reversal of the judgment in the lower court enjoining the practice of appellants. We are today reminded of the sentiments expressed in Justice Goldberg's concurring opinion in Abington Sch. Dist. v. Schempp, supra, 374 U.S. 203, 308, 83 S.Ct. 1560, 10 L.Ed.2d 844: ‘The First Amendment does not prohibit practices which by any realistic measure create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercises or in the favoring of religion as to have meaningful and practical impact. It is of course true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow.’

Accordingly, the judgment is reversed.

No useful purpose would be served by my paraphrasing the opinions of the United States Supreme Court which, I believe, compelled the granting of the preliminary injunction appealed from. The trial court's opinion, which I adopt as my own, correctly disposes of the issues.

‘The evidence establishes that the City of Los Angeles has for approximately 30 years expended funds derived from taxation to display, either through the selective illumination of lamps or the arrangement of window blinds, on the Los Angeles City Hall a single-barred ‘Latin’ cross on and about Christmas and Easter (including, on some occasions, the Greek Orthodox Easter Day). Plaintiff seeks a preliminary injunction barring this expenditure on the ground that it violates the First Amendment of the Constitution of the United States (actually the First Amendment as incorporated in the Fourteenth Amendment; see Abington School District v. Schempp, 374 U.S. 203, 215, 83 S.Ct. 1560, 10 L.Ed.2d 844) and Article I, Section 4, of the California Constitution. Both provisions prohibit governmental action respecting the establishment of religion.

‘Although the 1975 Christmas season is past, it would not be realistic to find that the issue has become moot. In view of the length of time that the practice complained of has been consistently performed, there is every likelihood that it will, if permitted, continue during succeeding Easters and Christmases. The United States Court of Appeals for the District of Columbia took a similar position in Allen v. Hickel [138 U.S. App.D.C. 31], 424 F.2d 944 (1970) in respect of a long-continued practice of displaying a creche on the Elipse adjacent to the White House.

‘As noted above, the Fourteenth Amendment concerns itself only with governmental action. The question, then, is not whether religion, or a particular religion, should be promoted, but whether a governmental unit has become impermissibly involved with religion. Throughout history, states have taken a wide variety of positions on the relationship of Church and State and, in some times and places, have permitted, and indeed required, a very extensive involvement by the state in matters of religion. Examples include Calvin-like cheocracies and the established Church of England. Our nation, from the time of the adoption of the Bill of Rights, has chosen a different course and has elected that, while giving full credit to the value of religion to the country and its citizens, the cost of permitting the government to be involved in its promotion exceeds the benefits to be derived therefrom, and our basic governmental charters command that matters respecting religion be left to the private sector.

‘The application of this doctrine to a particular set of facts is not easy. Some of the best judicial minds our country has produced have wrestled with the problem over many years. Perhaps the results have not always been consistent, but a common thread can be found in the long series of cases on this subject. The test for determining whether a given governmental action violates the establishment clause has been enunciated in different ways, but since Lemon v. Kurtzman, 403 U.S. 602 [91 S.Ct. 2105, 29 L.Ed.2d 745] (1971), the three-pronged test enunciated by Chief Justice Burger in that case has been recognized as the standard by which all such governmental action must be judged. According to the Supreme Court of United States in the Lemon case, in order to pass muster the governmental action must have all of three attributes: first, it must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, and, finally, the action must not foster an excessive governmental entanglement with religion.

‘An argument can be made that the amount of tax funds expended is so minimal that it cannot be viewed as the establishment of religion. Plaintiff points out that the accumulation of the funds expended over the 30-year period that the practice has been in effect results in a rather substantial aggregate sum. Furthermore, it must be recognized that the founding fathers did not prohibit merely the establishment of religion but also, perhaps realizing that the longest journey commences with but a single step, the enactment of any law respecting the establishment of religion. Addressing this problem, the United States Supreme Court in Everson v. Board of Education, 330 U.S. 1 [67 S.Ct. 504, 91 L.Ed. 711] (1946), through Justice Hugo Black has stated ‘No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.’

‘Although the practice complained of need only fail one prong of the three-pronged test in order to be proscribed by the establishment-of-religion clause, the Court is satisfied that there is a reasonable probability that the plaintiff at trial will be successful in establishing that the practice fails all three tests. While some of the resolutions adopted by the City Council contain self-serving recitals, such as that included in the resolution of March 21, 1973, that the display of the cross is predicated upon it being a symbol of the spirit of peace and good fellowship toward all mankind on an inter-faith basis, other evidence, including matters of common knowledge of which the Court can and does take judicial notice, makes it clear that the real purpose is a religious one. The letters and reports upon which the City Council's resolutions have been adopted, and particularly the practice of illuminating the cross to commemorate the eastern orthodox Easter in response to demands from members of that faith, and the nature of the symbol displayed, convince the Court that the purpose of the resolutions is a religious one, notwithstanding some protestations to the contrary. Again, the Court emphasizes that it does not suggest that religious purposes are not wholly admirable ones; the question being only whether it is a permissible purpose for a governmental body.

‘In argument, counsel have referred to other cases in which use of a religious symbol, particularly in connection with a Christmas celebration, have been determined not to involve a religious purpose. Reference is particularly made to cases involving reproduction of a famous painting of Madonna and Child on a postage stamp, permitting a creche to be displayed along with other symbols in a pageant, and maintenance of a monument including a representation of the Ten Commandments along with other symbols. In this connection, the Court bears in mind the evidence which defendant has presented that Christmas trees and other symbols of Christmas are displayed in government buildings and elsewhere during the Christmas season. The Court is satisfied from the evidence, including matters of common knowledge of which it may and does take judicial notice, that the single-barred cross is a symbol particularly pertinent to the Christian religion, and that while citizens of other religions or no religion may celebrate Christmas as a secular holiday, they do not customarily, if at all, use the symbol of the cross in such celebrations. It carries quite different connotations from the symbols of the Christmas tree and Santa Claus. In addition, the lighted cross on the City Hall is visible for many miles in many directions, and can be and is viewed by persons driving the freeways who do not see it in the context of other Christmas decorations and who may not participate in such celebrations at all. Furthermore, this evidence has no application to the practice of displaying the cross at Easter. Accordingly this case is distinguishable from others in which a religious symbol is displayed in a secular manner among other symbols.

‘Likewise, the practice has the effect of promoting religion. That the effect may be minor in comparison with other influences at work is not, under the cases, significant when constitutional issues are involved.

‘Certainly, the government of the City of Los Angeles has become entangled with religion in the adoption of these resolutions and in the authorization of the payment of the expenses of the practice. The question of whether such entanglement is excessive was considered by the United States Court of Appeals for the District of Columbia in Allen v. Morton, [161 U.S.App.D.C. 239], 495 Fed.2d 65 (1973), in which the maintenance of a creche in a Christmas pageant on federal park land adjacent to the White House was enjoined on the ground that it failed the entanglement test under the establishment clause of the First Amendment. While examples of greater entanglement with religion could no doubt be found, the amount here involved exceeds the permissible limits. Perhaps as an aside, the wisdom of the founding fathers in proscribing governmental entanglement is illustrated by the difficulty the City Council found itself in when it was called to its attention that certain Christian groups celebrated Easter on a different date from other denominations. What would it do in response to demands for illumination of various symbols on other days of religious observance?

‘Finally, taking into consideration the constitutional issues involved and the lack of any meaningful and adequate remedy at law, the Court is satisfied that plaintiff has established the threat of irreparable injury. It is, of course, troubled by the fact that this practice has continued for many years, apparently without challenge. Nevertheless, there have been many examples in the past where customary practices have been challenged after many years and have been obliged to yield to constitutional principles.’

I therefore respectfully dissent.

STEPHENS, Associate Justice.

ASHBY, J., concurs.