November 11, 2011
Re: cross located on Town water tower
Dear City Attorney,
You have asked me to opine about the legality of a Christian cross located on the top of a water
tower owned by the Town. The cross was placed on the tower approximately 14 years ago by a
Bank & Trust Company. The bank entered into a long term lease with the Town for the water
tower space, for which the rent is $1 per year. The cross has always been maintained at the
bank’s expense. You have informed me that letters have been sent to the Town expressing
opposition to the cross. The existence of the lease, and comparison to antennas placed on the
tower by local radio stations which also lease the space, has been relied upon to justify the
continued presence of the cross. You have now asked if this arrangement is legal.
The U.S. Supreme Court and lower courts have rendered conflicting opinions on whether or not
such privately-funded displays violate the Establishment Clause of the U.S. Constitution, by
providing a perceived governmental endorsement of the religious message. Supreme Court
Justice Clarence Thomas very recently made the following statements on this issue:
Since the inception of the endorsement test, we have learned that a creche displayed on
government property violates the Establishment Clause, except when it doesn't….
Likewise, a menorah displayed on government property violates the Establishment
Clause, except when it doesn't…..
A display of the Ten Commandments on government property also violates the
Establishment Clause, except when it doesn't….
Finally, a cross displayed on government property violates the Establishment Clause, as
the Tenth Circuit held here, except when it doesn't.
Utah Highway Patrol Ass'n v. Am. Atheists, Inc., 10-1276, 2011 WL 5118909 (U.S. Oct.
31, 2011)
Many inconsistent opinions have been rendered on whether or not a privately-funded religious
display located on public property is unconstitutional. Cases examining the right of an
organization to erect their own symbol, when Christian symbols exist in a public park, have
largely resulted in judgments for the organization or religion seeking equal status, based on free
speech rights. In short, if a city is going to permit a privately funded Christian display on public
property, they must also permit a Jewish, Muslim or other religion’s symbols and displays to be
erected in the same place and manner. If this cross is permitted to remain on the water tower, the
Town must adopt a policy governing the display of religious symbols on public property, and
make the opportunity to erect such displays available to all religious organizations.
But that is not the issue for your Town. The Town’s issue is rather whether or not the
Establishment Clause of the U.S. Constitution is violated by this privately-funded cross
maintained on the Town’s water tower under a lease agreement. As Justice Thomas’ statements
above express, court opinions on this issue, as opposed to the free speech cases, are almost
equally divided in their holdings.
Publicly-owned property is usually considered a public forum for free speech. When a public
park or structures such as court houses contain religious displays, it is natural for people to
assume that the government endorses that religion or the values of the group by which the
display was erected. Following is language from a U. S. Supreme Court opinion which explains
the impact of such displays:
Just as government-commissioned and government-financed monuments speak for the
government, so do privately financed and donated monuments that the government
accepts and displays to the public on government land. It certainly is not common for
property owners to open up their property for the installation of permanent monuments
that convey a message with which they do not wish to be associated. And because
property owners typically do not permit the construction of such monuments on their
land, persons who observe donated monuments routinely—and reasonably—interpret
them as conveying some message on the property owner's behalf. In this context, there is
little chance that observers will fail to appreciate the identity of the speaker. This is true
whether the monument is located on private property or on public property, such as
national, state, or city park land.
Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 470-71, 129 S. Ct. 1125, 1133, 172
L. Ed. 2d 853 (2009).
In your Town’s situation, the public property at issue is not a typical “public forum” for free
speech, such as a park or the front lawn of city hall. It is rather a water tower, an instrument of
public utility rather than a traditional forum for free expression. The statements of Justice
Thomas quoted above lamenting the lack of cohesive court opinions on this issue are contained
in the U. S. Supreme Court’s denial of certiorari, or review, of the Tenth Circuit case Am.
Atheists, Inc. v. Davenport, 637 F.3d 1095 (10th Cir. 2010) cert. denied, 10-1276, 2011 WL
5118909 (U.S. Oct. 31, 2011). Justice Thomas clearly disagreed with the decision of the
Supreme Court not to review this lower court decision, due to such apparent conflicts in court
opinions. In any event, examining this Tenth Circuit opinion is helpful, as the location of the
displays at issue is public right of ways, which like water towers, are not typical public forums.
In the American Atheist, Inc. v. Davenport case, an atheist organization brought suit against Utah
challenging the placement of memorial crosses beside public streets and roadways by the state
highway patrol association. The lower court granted summary judgment to the defendants,
finding no Establishment Clause violation. The Tenth Circuit Court of Appeals disagreed, and
reversed the lower court’s findings. Following is a summary of the facts of the case:
In 1998 the Utah Highway Patrol Association, a private organization that supports Utah
Highway Patrol (“UHP”) officers and their families, began a project to memorialize UHP
troopers killed in the line of duty. Am. Atheists, 616 F.3d at 1150. The UHPA decided to
honor the fallen troopers by placing large, white crosses near the locations of their deaths.
Id. at 1150–51. The UHPA chose crosses because in the UHPA's opinion, “only a white
cross could effectively convey the simultaneous message[s] of death, honor,
remembrance, gratitude, sacrifice, and safety.” Id. at 1151 (internal quotation marks and
citation omitted). The crosses are approximately twelve feet tall. Id. at 1150. The
deceased officer's name and badge number are painted on the six-foot crossbar in large,
black lettering. Id. The crosses also bear the UHP's beehive symbol, the deceased
trooper's picture, and a plaque containing the officer's biographical information. Id. The
State of Utah permitted the UHPA to erect approximately thirteen crosses on public
property, but explicitly stated that it “neither approves or disapproves the memorial
marker[s].” Id. at 1151 (internal quotation marks omitted).
Am. Atheists, Inc. v. Davenport, 637 F.3d 1095, 1102 (10th Cir. 2010) cert. denied, 101276, 2011 WL 5118909 (U.S. Oct. 31, 2011)
In the opinion which split the Tenth Circuit judicial panel, the Court first points out that the
Establishment Clause analysis used by the lower court is flawed, but laments the lack of
guidance or authority to apply any other legal analysis or test:
The court's holding does and must rest on the view that anything a putatively “reasonable
observer” could think “endorses” religion is constitutionally problematic. Indeed, the
result in this case could hardly be achieved under any different test. It is undisputed that
the state actors here did not act with any religious purpose; there is no suggestion in this
case that Utah's monuments establish a religion or coerce anyone to participate in any
religious exercise; and the court does not even render a judgment that it thinks Utah's
memorials actually endorse religion. Most Utahans, the record shows, don't even revere
the cross. Thus it is that the court strikes down Utah's policy only because it is able to
imagine a hypothetical “reasonable observer” who could think Utah means to endorse
religion—even when it doesn't….
So it is that our opinions in this field continue to apply (or misapply) a reasonable
observer/endorsement test that has come under much recent scrutiny—and, worse, our
opinions do so without stopping to acknowledge, let alone grapple with, the questions
others have raised about the test. It is a rare thing for this court to perpetuate a circuit split
without giving due consideration to, or even acknowledging, the competing views of
other courts or recent direction from the High Court. But that's the path we have taken.
Neither is this any humdrum disagreement where uniformity of federal law may not be a
pressing concern. Where other courts permit state laws and actions to stand, we strike
them down. And the test we use to do so rests on an uncertain premise—that this court
possesses the constitutional authority to invalidate not only duly enacted laws and
policies that actually “respect[ ] the establishment of religion,” U.S. Const. amend. I, but
also laws and policies a reasonable hypothetical observer could think do so.
Am. Atheists, Inc. v. Davenport, 637 F.3d 1095, 1110 (10th Cir. 2010) cert. denied, 101276, 2011 WL 5118909 (U.S. Oct. 31, 2011)
The Court states that it does not matter that these memorial crosses are owned by an organization
not affiliated with the government: “unlike the displays at issue in Pleasant Grove City, these
displays are not really permanent because both Utah and the UHPA retain the right to remove the
display at any time. These distinctions are unpersuasive….the fact that the UHPA, not Utah,
owns the memorial crosses does not affect our determination of whether they are government
speech.” Id., at 1115.
The Court concludes the presence of these crosses in public right of ways violate the
Establishment Clause, finding for the plaintiff atheist organization:
Here, we conclude that the cross memorials would convey to a reasonable observer that
the state of Utah is endorsing Christianity. The memorials use the preeminent symbol of
Christianity, and they do so standing alone (as opposed to it being part of some sort of
display involving other symbols). That cross conspicuously bears the imprimatur of a
state entity, the UHP, and is found primarily on public land… These factors that
Defendants point to as secularizing the memorials do not sufficiently diminish the
crosses's message of government's endorsement of Christianity that would be conveyed to
a reasonable observer. Therefore, the memorials violate the Establishment Clause. Id., at
1124.
Due to the U. S. Supreme Court’s denial of certiorari of this Tenth Circuit opinion, the decision
stands and it is currently the latest federal appellate court opinion on this issue.
Although Tennessee is not located within the region covered by the Tenth Circuit Court of
Appeals, in my opinion the Sixth Circuit would reach a similar conclusion if your Town is sued
in federal court. It does not appear to me, based on my review of case law, that the existence of a
lease between the bank and Town would result in any different analysis or conclusion. Yes, a $1
rental payment does qualify as consideration under contract law, but it would not withstand
scrutiny under Establishment Clause analysis in my opinion. Perhaps if the rent paid was actual
market value the lease would be more persuasive. However, when combined with the fact that
no other religious symbols are erected on this water tower, the significance of the lease is largely
nullified.
In my opinion, the presence of the privately-funded cross on a water tower owned by the Town is
a violation of the Establishment Clause of the U.S. Constitution. I predict the Town would lose a
court battle if it is sued for this display. If the Town decides to permit the cross to remain, a
policy should be adopted permitting other religious displays to be mounted on the tower, to avoid
a free speech challenge. In short, if the Town is going to permit a display symbolic of one
religion, it must permit displays to be erected which symbolize other religions.
I hope this information is helpful.
Sincerely,
Melissa A. Ashburn
Legal Consultant