No. VU-SUPP 2011
In the Supreme Court of the United States
––––––
THE CITY OF WAITSBURG AND MAYOR EDWARD HURLEY, in his official capacity,
Petitioners,
v.
SARAH GONZALEZ AND THE WASHTONIA ASSOCIATION OF HUMANIST LIBERTIES,
Respondents.
––––––
ON WRIT OF CERTIORARI TO THE UNITES STATES COURT OF APPEALS FOR THE THIRTEENTH
CIRCUIT
––––––
BRIEF FOR RESPONDENTS
TEAM Z
Counsel for Respondents
STATEMENT OF ISSUES
1. Whether a monument approved by the city council, publically endorsed by multiple
government officials, and erected in a public park for an indefinite period of time is
government speech.
2. Whether a city violates the Establishment Clause by erecting a twelve-foot Latin cross in
a thirty-two-acre public park with two other monuments when that Cross is flanked by
two smaller displays of a religious and non-religious nature.
i
TABLE OF CONTENTS
Statement of Issues .......................................................................................................................... i
Table of Contents ............................................................................................................................ ii
Table of Authorities ....................................................................................................................... iii
Statement of Jurisdiction................................................................................................................. v
Statement of the Case..................................................................................................................... vi
Statement of the Facts .................................................................................................................. viii
Summary of the Argument.............................................................................................................. 1
Argument ........................................................................................................................................ 3
I. Rebirth is Government Speech ..................................................................................................3
A. Rebirth is Public Speech under Summum. ...........................................................................5
B. Rebirth is Public Speech under the Four-Factor Test ..........................................................6
C. Rebirth is Public Speech under the Reasonable Observer Approach ..................................8
II. Government Display of Rebirth Violates the Establishment Clause .......................................10
A. The Lemon Test..................................................................................................................11
1. Purpose...................................................................................................................12
2. Effect ......................................................................................................................17
3. Excessive Entanglement ........................................................................................19
B. The Endorsement Test. ......................................................................................................20
III. Conclusion ...............................................................................................................................22
ii
TABLE OF AUTHORITIES
Cases
ACLU Neb. Found. v. City of Plattsmouth, 419 F.3d 772 (8th Cir. 2005) ................................... 11
ACLU of Ky. v. Mercer Cnty., 432 F.3d 624 (6th Cir. 2005)........................................................ 17
Agostini v. Felton, 521 U.S. 203 (1997) ....................................................................................... 19
Am. Atheists, Inc. v. Davenport, 637 F.3d 1095 (10th Cir. 2010) ................................................ 14
Ariz. Life Coal v. Stanton, 515 F.3d 956 (9th Cir. 2008) ............................................................. 7, 8
Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666 (1998) .................................................... 4
Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994) ............................... 10
Buono v. Norton, 212 F. Supp. 2d 1202 (C.D. Cal. 2002) ............................................................ 15
Buono v. Norton, 371 F.3d 543 (9th Cir. 2004) ............................................................................ 15
Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995) ............................ 2, 6, 9
Card v. City of Everett, 520 F.3d 1009 (9th Cir. 2008) .......................................................... 11, 12
Choose Life Ill., Inc. v. White, 547 F.3d 853 (7th Cir. 2008) ................................................. 2, 8, 9
Cnty. of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989) ............. 10, 16, 17
Columbia Broad. Sys., Inc. v. Democratic Nat. Comm., 412 U.S. 94 (1973) ................................. 5
Corp. of the Presiding Bishop v. Amos, 483 U.S. 327 (1987) ...................................................... 17
Edwards v. Aguillard, 482 U.S. 578 (1987) ........................................................................... 12, 13
Epperson v. State of Ark., 393 U.S. 97 (1968) ................................................................................ 3
Green v. Haskell Cnty. Bd. of Comm’rs, 568 F. 3d 784 (10th Cir. 2009) ....................................... 4
Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550 (2005) ............................................................ 4, 7
Knights of the Ku Klux Klan v. Curators of the Univ. of Mo., 203 F.3d 1085 (8th Cir. 2001)....... 7
Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993) ............................ 11
Larson v. Valente, 456 U.S. 228 (1982) ....................................................................................... 10
Lemon v. Kurtzman, 403 U.S. 602 (1971) ............................................................................. passim
Lynch v. Donnelly, 465 U.S. 668 (1984) .................................................................................. 2, 20
McCreary County v. ACLU of Ky., 545 U.S. 844 (2005) ...................................................... passim
Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009) .................................................. 1, 5, 6, 9
R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992) ................................................................... 5
Robb v. Hungerbeeler, 370 F.3d 735 (8th Cir. 2004) ..................................................................... 7
Salazar v. Buono, 130 S. Ct. 1803 (2010) .................................................................................... 15
Sons of Confederate Veterans, Inc. v. Comm’r of Va. Dept. of Motor Vehicles, 288 F.3d 610
(4th Cir. 2002)..................................................................................................................... 1, 7, 8
Utah Highway Patrol Ass’n v. Am. Atheists, Inc., 132 S. Ct. 12 (2011) ...................................... 22
Van Orden v. Perry, 545 U.S. 677 (2005) ............................................................................. passim
Wallace v. Jaffree, 472 U.S. 38 (1985) ............................................................................. 12, 13, 16
Walz v. Tax Comm’n of City of New York, 397 U.S. 664 (1970).................................................. 19
iii
Wells v. City and County of Denver, 257 F.3d 1132 (10th Cir. 2001) ............................................ 7
Constitutional Provisions
U.S. CONST. amend. I ................................................................................................................ 3, 10
Statutes
28 U.S.C. § 1254(1) ........................................................................................................................ v
Secondary Authorities
Amy J. Alexander, Comment, When Life Gives You the Lemon Test: An Overview of the
Lemon Test and Its Application, 3 PHOENIX L. REV. 641 (2010) ............................................. 19
Edith Brown Clement, Public Displays of Affection ... for God: Religious Monuments After
McCreary and Van Orden, 32 HARV. J.L. & PUB. POL'Y 231 (2009) ....................................... 11
ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES (4th ed. 2011) ..... 13, 22
JOHN NEWTON, OLNEY HYMNS, IN THREE BOOKS (6th ed. 1797)................................................. 16
iv
STATEMENT OF JURISDICTION
The United States Court of Appeals for the Thirteenth Circuit entered final judgment on
February 2, 2011. Petitioners filed a timely petition for writ of certiorari. This Court granted
that petition on May 15, 2011.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1254(1).
v
STATEMENT OF THE CASE
This case involves two questions: first, whether a government-approved, privately-funded
monument erected in a traditional public forum constitutes government or private speech; and
second, whether a twelve-foot, two-ton Latin cross placed in a public park violates the
Establishment Clause.
The monument in question, Rebirth, was commissioned by the Washtonia Professional
Firefighters Association (“WPFA”) to honor firefighters lost in the attacks of 9/11. D. Ct. at 3.1
It was created and designed by a self-declared religious sculptor, and inscribed with religious
scripture. Id. Originally, the WPFA planned to install Rebirth for four months each in four
different cities. Id. at 4. At the conclusion of this tour, the WPFA claimed it would move
Rebirth to WPFA’s forthcoming union hall. Id. The first three cities approved the plan without
incident. Id. In Waitsburg, the fourth city, multiple City Council members objected to
displaying Rebirth in Patton Park. Despite their concerns, the majority of the Council voted to
approve the monument. Id. at 2–3.
Before Rebirth was unveiled, several members of the Waitsburg community voiced
complaints. Complainants included Sarah Gonzalez, the Washtonia Association of Humanist
Liberties (“WAHL”), local Jewish groups, and other individual citizens. Id. at 5. In response,
the Waitsburg City Council imposed a litany of specific changes to Rebirth. Id. At that time, no
legal action was taken.
One month later, in October 2007, the WPFA announced that it would not be completing
union hall as scheduled. Id. at 6. The WPFA then requested that Rebirth remain in Patton Park
1
References to “D. Ct.” are to the opinion of the District Court in this case. See Washtonia
Ass’n of Humanist Liberties v. Hurley, ____ F. Supp. 3d ____ (D. Wt. 2009).
vi
until at least August 2013. Id. Over objections by multiple City Council members, Waitsburg
approved this request. Id. One week later, Sarah Gonzalez and WAHL filed suit. Id.
Plaintiff Sarah Gonzalez works as a curator for the Washtonia Arts Museum, which
borders on Patton Park. Id. at 2. Ms. Gonzalez’s office overlooks Patton Park, and, as an atheist,
she finds the monument’s religious content offensive. Id. at 6. Ms. Gonzalez’s daily “direct and
unwelcomed personal contact” with the monument is the source of the litigation. Id. at 2.
On June 19, 2009, the District Court held that Rebirth was public speech, but denied
Plaintiffs’ motion for injunctive relief, holding that the speech was secular in nature. D. Ct. at 9–
19. Plaintiffs timely appealed, and on February 2, 2011, the Thirteenth Circuit reversed, holding
(1) that Rebirth was public speech and (2) that the District Court erred as a matter of law by
declining to apply the analytical framework of Lemon v. Kurtzman, 403 U.S. 602 (1971). Cir.
Ct. at 4–20.2 The Circuit Court remanded the case to the District Court with instructions to grant
summary judgment in favor of Plaintiff-Appellants. Id. at 21.
Judge Papadopoulos dissented from the Circuit Court’s opinion. He argued that Rebirth
was private speech, and, because the Establishment Clause only applies to government speech,
further analysis was unnecessary. Cir. Ct. at 22–30.
On May 15, 2011, this Honorable Court granted writ of certiorari to the United States
Court of Appeals for the Thirteenth Circuit.
2
References to “Cir. Ct.” are to the opinion of the Circuit Court in this case. See Washtonia
Ass’n of Humanist Liberties v. Hurley, ____ F.3d ____ (13th Cir. 2011).
vii
STATEMENT OF THE FACTS
The WPFA Commissions Rebirth
In 2005, the Washtonia Professional Firefighters Association financed the construction of
Rebirth, a monument dominated by a Latin cross. D. Ct. at 2. According to notes from a
January 2005 meeting, the WPFA commissioned the piece to honor fallen firefighters. Id. at 2–
3. The WPFA planned to install Rebirth for four months at a time in four cities across
Washtonia, the last of which would be Waitsburg. Id. at 4. At the conclusion of the tour, the
WPFA claimed they would place the monument in the foyer of their planned but incomplete
union hall. Id.
Susan Blake Designs and Creates Rebirth
After agreeing to finance Rebirth, the WPFA commissioned Susan Blake, a local
sculptor, to create and design the display. Id. at 3. Ms. Blake, a born-again Christian who
advertises herself as “receiv[ing] inspiration in the Good Book and incorporat[ing] His word into
every artistic creation,” designed a twelve-foot high, two-ton Latin cross. Id. At the point where
the Cross intersects, Ms. Blake engraved a quotation from the Book of Isaiah. Id. The Cross,
made of materials from the fallen World Trade Center towers, was flanked by two smaller
pillars, and topped with a sculpted eagle. Id.
The Waitsburg City Council Debates and Approves Rebirth
Before Rebirth came to Waitsburg, two members of the Waitsburg City Council voiced
concerns over the monument’s overtly religious content. Id. at 4. After the City Council
discussed these concerns and voted in favor of its placement, Wayne Davis, speaking in his role
as City Council President, stated: “If I to choose between being politically correct or honoring
God and Country, I will always choose the latter.” Id.
viii
Waitsburg Erects Rebirth; Citizens Complain
On September 1, 2007, Waitsburg unveiled Rebirth in Patton Park. Id. at 4. The park, a
traditional public forum, houses several permanent, non-religious monuments, and two
museums. Id. at 4–5. After its erection, the Washtonia Association of Humanist Liberties, local
Jewish groups, and several individual citizens objected to the display. Id. at 5. WAHL asserted
that that the prominent Cross and biblical reference violated the Establishment Clause; the
Jewish groups objected to the religious content; and the individual citizens wanted to honor their
family members in an individualized way. Id. Each group lodged official complaints with the
Waitsburg City Council.
Waitsburg Specifically Alters Rebirth
In response to complaints, the Waitsburg City Council issued several directives to the
WPFA: first, the WPFA had change the message of Rebirth by concealing the scripture; second,
a Star of David had to be added to the display; and third, Rebirth must include the requested
personal memorials. Id. Each change was made. Id.
Satisfied with the changes, the City Council unveiled Rebirth on September 11, 2006. Id.
At the unveiling, Waitsburg Mayor Edward Hurley spoke on behalf of the city and welcomed
Rebirth to Waitsburg by leading citizens in Christian prayer. Id. at 6.
Rebirth Remains after Four Months; Sarah Gonzalez Sues
One month later, at an October 7, 2007 budget meeting, the WPFA noted that it would
not be completing its union hall as planned and petitioned the Waitsburg City Council to allow
the monument to stand for nearly six more years, until August 2013. Id. The Waitsburg City
Council reviewed and approved this request, allowing Rebirth to remain many times longer than
originally proposed. Id. On October 15, Ms. Gonzalez and WAHL filed suit. Id.
ix
SUMMARY OF THE ARGUMENT
Rebirth is unconstitutional Establishment of Religion. Waitsburg erected a twelve-foot,
two-ton Cross in a public park. Waitsburg’s actions were religiously motivated, and the effect of
those actions was to impermissibly advance religion. As such, Rebirth is government speech that
violates the Establishment Clause.
Rebirth is government speech under each of the various tests employed by courts to
determine whether a given message is attributable to government. In Pleasant Grove City v.
Summum, this Court’s most recent consideration of whether the government is speaking, a
religious organization sued a city after the city refused to erect a religious monument in a public
park. 129 S. Ct. 1125 (2009). Each of the nine Justices agreed that a privately financed display
in a public park was government speech. See id. at 1129. Here, like in Summum, the city chose
the display and exercised final approval authority over as its selection. As such, Rebirth is
government speech.
Rebirth is also government speech under the so-called four-factor test that several circuit
courts have employed. This test considers (1) the central “purpose” of the program in which the
speech in question occurs; (2) the degree of “editorial control” exercised by the government or
private entities over the content of the speech; (3) the identity of the “literal speaker”; and (4)
whether the government bears the “ultimate responsibility” for the content of the speech. Sons of
Confederate Veterans, Inc. v. Comm’r of Va. Dept. of Motor Vehicles, 288 F.3d 610 (4th Cir.
2002). Here, Waitsburg exercised a high level of editorial control over Rebirth when its officials
heard specific complaints, made specific changes in response to those complaints, and spoke at
its unveiling. Waitsburg exercised editorial control over Rebirth and literally spoke for Rebirth.
Under the four-factor test, Rebirth is public speech.
1
A third test for government speech is the Seventh Circuit’s reasonable observer test. See
Choose Life Ill., Inc. v. White, 547 F.3d 853, 863 (7th Cir. 2008). Under this reasonable observer
test, the court determines whether a hypothetical reasonable observer would classify given
speech as government speech. A reasonable person views a display as belonging to the owner of
the land where it stands. See Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753,
786 (1995). Rebirth sits indefinitely in a public park; accordingly, it is government speech.
Rebirth is government speech, and must therefore comply with the Establishment Clause.
It does not. The Waitsburg City Council erected Rebirth for a predominantly religious reason,
giving the impression that the city intended to endorse certain religions but not others.
Furthermore, Rebirth had the principal effect of advancing religion in Waitsburg. A reasonable
observer would be aware of this advancement. Rebirth is unconstitutional because the city’s
actions were not neutral towards religion, Lemon v. Kurtzman, 403 U.S. 602 (1971), and instead
endorsed particular religions, Lynch v. Donnelly, 465 U.S. 668 (1984).
Waitsburg may not memorialize its fallen firefighters by demonstrating a preference for
favored religions. Doing so sends the message to non-adherents that they are outsiders. The
Establishment Clause prohibits state actors from sending such a message. The Constitution
requires that Rebirth be taken down.
2
ARGUMENT
Mayor Edward Hurley and the city of Waitsburg (collectively “Waitsburg” or “the city”)
violated the Constitution by erecting Rebirth in Patton Park. The Establishment Clause of the
First Amendment requires state actors to “make no law respecting an establishment of religion.”
U.S. CONST. amend. I. See also Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 14–16
(1947) (incorporating the Establishment Clause). The Establishment Clause, of course, allows
Waitsburg to honor its fallen heroes. It does not allow the city to memorialize them by erecting a
twelve-foot Cross on public property.
There are two issues before this Court: (1) whether Rebirth is government speech; and, if
so, (2) whether that speech violates the Establishment Clause. Each is addressed below.
I. REBIRTH IS GOVERNMENT SPEECH
The duty of complying with the Establishment Clause rests solely on public actors. U.S.
CONST. amend. I. The Establishment Clause prevents government actors from giving preference
or priority to one religion over another. Epperson v. State of Ark., 393 U.S. 97, 104 (1968)
(noting the Establishment Clause “mandate[es] governmental neutrality between religion and
religion, and between religion and nonreligion”). When government adopts private speech for its
own purposes, that speech must comply with the Establishment Clause. See Pleasant Grove City
v. Summum, 129 S. Ct. 1125, 1131–34 (2009) (noting that government adopt the speech of
“private sources for the purpose of delivering a government-controlled message,” but that
“speech must comport with the Establishment Clause”). Whether the government has adopted
private speech as its own depends on the degree of control that the government that exercised
3
over the message of that speech. See Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 562
(2005).
As this Court has recognized, government speech includes selecting and presenting
messages that the government does not necessarily itself adopt, as with books in a library, items
on display in a museum, speakers with contrary views in a lecture series, and so forth. See Ark.
Educ. Television Comm’n v. Forbes, 523 U.S. 666, 674 (1998). Deciding whether to display a
privately-formulated message is exactly what libraries, public television stations, and museums
do. See id. A privately funded monument that a city council approved for placement in a public
park fits these standards of government speech. There are narrow exceptions to this rule. See,
e.g., Green v. Haskell Cnty. Bd. of Comm’rs, 568 F. 3d 784, 797 n.8 (10th Cir. 2009)
(acknowledging limited circumstances in which a permanent monument could be considered
private speech, as when all of a town’s residents are allowed or encouraged to take part in
crafting the monument’s message). Because of the level of control that the Waitsburg City
Council exercised over Rebirth, none of these exceptions applies.
Waitsburg spent considerable time and effort deciding whether to display a privatelyformulated message. The City Council met several times, Mayor Hurley spoke publicly in favor
of Rebirth, and the city made several changes to the original monument. D. Ct. at 4–6. Under
each relevant test set forth to determine whether speech is public or private, these actions qualify
Rebirth as public speech. Therefore, the United States District Court for the District of
Washtonia and the United States Court of Appeals for the Thirteenth Circuit both correctly held
that the City of Waitsburg was speaking when it approved and controlled Rebirth.
4
A. Rebirth is Public Speech under Summum.
This Court’s most recent decision on government speech, Pleasant Grove City v.
Summum, 129 S. Ct. 1125 (2009), comfortably fits the facts of this case. Like the Summum
Court, this Court should find the monument to be government speech.
In Summum, a religious organization sued the city after the city refused to erect a
religious monument in a public park in which other monuments stood. Id. The court concluded
that while a public park is a traditional public forum for transitory expressive acts, the placement
of a monument was not one of these acts. Rather, it is “best viewed as a form of government
speech.” Id. at 1129. All nine Justices concurred that a privately financed display in a public
park is a form of government speech. Id.
Summum carved out a broad category of government speech: any message over which the
government has effective control. Id. at 1128. Tracing this doctrine back to Justice Stewart’s
concurrence in Columbia Broad. Sys., Inc. v. Democratic Nat. Comm., 412 U.S. 94 (1973)
(Stevens, J., concurring), Summum reaffirmed that the government is entitled to select views it
wants to express, but must comply with the Establishment Clause in selecting those views. 129
S. Ct at 1139. The government, then, has two choices. First, it may choose to open the park up
for private permanent monuments. In so doing, the city would only be able to discriminate based
on content or viewpoint unless that distinction is narrowly tailored to a compelling interest. See,
e.g., R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382 (1992) (noting that “[c]ontent-based
regulations are presumptively invalid”). Thus, Waitsburg could not include Rebirth and exclude
a monument that glorifies the perpetrators of the 9/11 attacks. Waitsburg did not make that
choice. Second, Waitsburg may appropriate private speech as government speech. Under this
approach, the city may choose which monuments to display, but must comply the Establishment
5
Clause. Here, as in Summum, the city chose what monument to display. If Waitsburg wishes to
control the message, it must comply with the constitutional restrictions on doing so. It may not
both control the message and claim exemption from the Establishment Clause.
After Summum, permanent monuments installed on public land are doubtless
government speech. 129 S. Ct. at 1132. A proposed date of removal does not make Rebirth
private speech. This conclusion fits with the Court’s holding in Pinette. 515 U.S. 753 (1995).
In that case, the Ku Klux Klan, a private group, requested permission to erect a Cross for sixteen
days in a public park that had been temporarily opened for displays. Id. at 758. This case differs
on the facts. Rebirth’s removal date has already been pushed back from January 1, 2008, four
months after it was originally installed, until at least August of 2013, which is at least 23 months
after Rebirth was first installed. Waitsburg has not opened a window for a brief period of time; it
has installed a two-ton monument that will sit on government property until an underfunded
organization can pay for it to be moved.
In Summum, this Court spoke on the issue considered today and concluded that a
monument like Rebirth left in a public area like Patton Park for an indeterminable amount of
time counted as public speech. 129 S. Ct. at 1138. On the issue of public speech, this Court
need only follow established law.
This court’s reasoning in Summum adequately addresses the facts of this case. The same
conclusion – Rebirth is government speech – is also compelled by other tests employed by the
Circuit courts.
B. Rebirth is Public Speech under the Four-Factor Test
The Fourth, Eighth, Ninth, and Tenth Circuits have employed a four-factor test to
determine whether a message is government speech, private speech, or a mixture of the two. See
6
Ariz. Life Coal v. Stanton, 515 F.3d 956, 965 (9th Cir. 2008); Sons of Confederate Veterans, 288
F.3d at 618–19; Wells v. City and County of Denver, 257 F.3d 1132, 1141 (10th Cir. 2001);
Knights of the Ku Klux Klan v. Curators of the Univ. of Mo., 203 F.3d 1085, 1093–96 (8th Cir.
2000). The four-factor test considers (1) the central “purpose” of the program in which the
speech occurs; (2) the degree of “editorial control” exercised by the government; (3) the identity
of the “literal speaker”; and (4) whether the government bears the “ultimate responsibility” for
the content of the speech. Sons of Confederate Veterans, 288 F.3d at 618. Accord Johanns, 544
U.S. at 562 (explaining that when the government “approves every word that is disseminated, it
is not precluded from relying on the government-speech doctrine merely because it solicits
assistance from nongovernmental sources in developing specific messages”).
The four-factor test was first applied by the Eight Circuit in Knights. 203 F.3d 1085. In
that case, the Klan attempted to contribute to a publicly owned radio station. Id. at 1088–89. As
was the practice, a government employee would then have to acknowledge the Klan’s
contributions during regular segments where such contributions are acknowledged. The Court
held that because the literal speaker was a public employee, the acknowledgement of Klan
support was government speech. Id. at 1093–94. As a result, acknowledgement of Klan support
was government speech. Id. But see Robb v. Hungerbeeler, 370 F.3d 735, 744 (8th Cir. 2004)
(distinguishing Knights as “resting largely on the unique context of public broadcasting, in which
editorial discretion to select programming and sponsors looms large, and involving absolutely no
showing of viewpoint discrimination” (internal quotation marks omitted)).
The four-factor test has not been confined to public-broadcasting cases. For example, the
Tenth Circuit applied the test to a Christmas display located on a government building. See
Wells, 257 F.3d 1132 (finding that the display is government speech). Similarly, the Ninth and
7
Tenth circuits have applied it in challenges to specialty license plates. See Stanton, 515 F.3d at
956 (finding that the central purpose was vehicle identification and that there was nothing in the
record to suggest that Arizona intended to adopt the message of each special organization plate
as its own speech); Sons of Confederate Veterans, 288 F.3d at 618–19 (finding that the central
purpose of the state’s license plate program was to produce revenue by adopting some speech as
government speech).
The factual ambiguity present in the license-plate cases is lacking here. Waitsburg
exercised editorial control when it heard specific complaints to Rebirth, D. Ct. at 4, and made
specific changes in response to those complaints, id. at 6. Then, at the official unveiling, Mayor
Hurley, speaking in his capacity as a government official, stated that he could think of “no better
place” for the display than the park. Id. at 4. Like Knights, there is a literal speaker to whom to
attribute the speech. Unlike the license plate cases, where there was legitimate confusion over
whether the state or driver spoke, the words were clearly and unambiguously Mayor Hurley’s.
Finally, the City Council approved the display of Rebirth on multiple occasions. Id. at 4, 6.
Waitsburg not only believed that it had ultimate responsibility for the content of the speech, but
it actually exercised that responsibility by altering it in the attempt to avoid constitutional
scrutiny.
Waitsburg exercised editorial control of the monument and literally spoke for it.
Application of the four-factor test demonstrates that Rebirth is government speech.
C. Rebirth is Public Speech under the Reasonable Observer Approach
Seventh Circuit has also adopted distinct test for determining whether speech is public or
private. Under this approach, courts consider the speech and determine who a reasonable
observer would believe to be speaking. See Choose Life, 547 F.3d at 863. But see Summum, 129
8
S. Ct. at 1141–42 (Souter, J., concurring) (arguing alone for a reasonable observer standard in
public speech issues). A reasonable observer would conclude that Rebirth, a two-ton Cross
sitting in a public park for an undetermined amount of time, is public speech.
In Choose Life, the Court explained that the four-factor test could be “distilled (and
simplified) by focusing on the following inquiry: Under all the circumstances, would a
reasonable person consider the speaker to be the government or a private party?” 547 F.3d at
863. The Court went on to explain that factors bearing on this question would include the degree
to which government exercised editorial control over the message, and whether the government
or a private party communicated the message. Id.
In Choose Life, an anti-abortion advocacy group sought to compel Illinois to issue
“choose life” specialty license plate. Id. The Court, considering issues of compelled speech,
private speech within government sponsored forums, and the difference between permitted and
adopted speech, held that “the most obvious speakers in the specialty-plate context are the
individual vehicle owners who choose to display the specialty plates and the sponsoring
organizations whose logos or messages are depicted on the plates.” Id. at 863–64. The Court
pointedly noted that a reasonable observer test would yield the same outcome in Sons of
Confederate Veterans and Stanton. Id. at 863.
Unlike the license plates in Choose Life, Patton Park is not privately owned. Putting a
sign on the park is akin to putting a sign on a car: the message is attributable to the owner of the
property. The reasonable observer test employed by the court in Choose Life hinges on how a
reasonable person would view an entity. Here, public officials endorsed Rebirth’s message and
placed it in a public park. A reasonable person views a display as belonging to the owner of the
land where it stands. See Pinette, 515 U.S. at 786 (1995) (Souter, J., concurring in part and
9
concurring in judgment) (“[A]n unattended display (and any message it conveys) can naturally
be viewed as belonging to the owner of the land on which it stands.”); id. at 804 (Stevens, J.,
dissenting) (“[S]tructures on government property . . . imply state approval of their message.”).
Just as a reasonable person sees a message on a car as the speech of the car’s owner, a reasonable
person views a two-ton monument in a public park as the message of government.
Rebirth is government speech under Summum, the four-factor test, and the reasonable
observer test. As such, it must comply with the limits placed upon such speech by the
Establishment Clause. Rebirth falls outside of those limits.
II. GOVERNMENT DISPLAY OF REBIRTH VIOLATES THE ESTABLISHMENT CLAUSE
The Establishment Clause of the First Amendment states, “Congress shall make no law
respecting an establishment of religion.” U.S. CONST. amend. I. Laws that establish religion by
discriminating among religious groups are met with strict scrutiny. See Bd. of Educ. of Kiryas
Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994); Larson v. Valente, 456 U.S. 228 (1982).
However, application of the Establishment Clause to non-discriminatory government speech is,
as the Court of Appeals stated, “hardly ‘self-defining.’” Cir. Ct. at 7 (quoting Cnty. of Allegheny
v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 593 (1989)). The Court has operationalized
this prohibition through two distinct, but often overlapping, tests: the tripartite Lemon test, and
the endorsement test.
Whatever the test, the result is the same: Waitsburg violated the Establishment Clause by
erecting a controversial religious monument.
10
A. The Lemon Test
Most courts check government speech for compliance with Establishment Clause by
applying the framework set forth by the Court in Lemon v. Kurtzman. 403 U.S. 602 (1971).
Under this Lemon test, government speech is compliant with the Establishment Clause only if it
(1) is motivated by a secular purpose; (2) has the principal or primary effect of neither advancing
nor inhibiting religion; and (3) does not excessively entangle government with religion. See id.
at 612–13.
The Lemon test has faced considerable criticism. See, e.g., Lamb’s Chapel v. Ctr.
Moriches Union Free Sch. Dist., 508 U.S. 384, 399 (1993) (Scalia, J., concurring) (“I will
decline to apply Lemon . . . .”). Indeed, Justice Breyer described the Lemon test as merely a
“useful guidepost[]” in his decisive concurrence in Van Orden v. Perry. 545 U.S. 677, 700
(2005) (Breyer, J., concurring). Nonetheless, the Lemon test remains the law of the land. See
Edith Brown Clement, Public Displays of Affection . . . for God: Religious Monuments After
McCreary and Van Orden, 32 HARV. J.L. & PUB. POL’Y 231, 247 (2009) (“Out of the ten-plus
religious monuments cases actually decided by the courts of appeals since Van Orden, only two
have expressly declined to apply Lemon, and both did so on extremely narrow grounds.”)
There appear to be two limited exceptions where Lemon does not apply. First, Lemon
does not apply where the controversial display is not “different in any constitutionally significant
way” from a display already considered by the Court. ACLU Neb. Found. v. City of Plattsmouth,
419 F.3d 772, 778 (8th Cir. 2005) (en banc). In such a case, the outcome is controlled by the
prior determination. See id. Second, the Lemon test is inapplicable to “longstanding plainly
religious displays that convey a historical or secular message in a non-religious context.” Card
v. City of Everett, 520 F.3d 1009, 1016 (9th Cir. 2008).
11
This case does not fall within either exception. First, it is not directly analogous to
another case already considered by this Court. It has the most similarities with Van Orden – both
cases involved a challenged monument sitting among other monuments on public grounds – but
the cases are different in many constitutionally significant ways. See discussion infra Part
II.A.2; accord Dist. Ct. at 18 (finding significant differences between Rebirth and the display in
Van Orden). Second, there has not been longstanding acceptance of Rebirth. It stood
unchallenged for twelve months in three other cities. This does not constitute “longstanding
acceptance.” Twelve months it is not longstanding. Cases turning on longstanding acceptance
involved much lengthier periods of acceptance. See Card, 520 F.3d at 1021 (thirty years); Van
Orden, 545 U.S. at 682 (forty years). Further, there was no acceptance in Waitsburg, and there is
no reason to impute any acceptance by other cities to Waitsburg, where Rebirth was challenged
only a few days after the city unveiled it. Dist. Ct. at 5.
Because neither exception applies, this case will be analyzed under the Lemon test. This
section addresses, in order, the test’s three prongs: purpose, effect, and excessive entanglement.
1. Purpose
As stated in Lemon, a law is invalid if lacks “a secular legislative purpose.” Lemon, 403
U.S. at 612 (emphasis added). The Court has relied on this prong to invalidate laws with no
secular purpose, see Wallace v. Jaffree, 472 U.S. 38, 56 (1985), and laws where the “primary
purpose” was religious, see Edwards v. Aguillard, 482 U.S. 578, 594 (1987). The modern
approach is to strike down laws that have the “predominant purpose of advancing religion.”3
McCreary County v. ACLU of Ky., 545 U.S. 844, 870 (2005).
3
Chief Justice Rehnquist and Justice Scalia have each criticized the Court’s application of the
purpose prong, but their criticism has not led the Court to abandon the prong. See ERWIN
12
The current test was considered in detail in McCreary County. There, two county
legislatures ordered that the Ten Commandments be placed in high traffic areas of their
respective courthouses. Id. at 851. In Pulaski County, the county Judge-Executive presided over
the unveiling amid objections to the display. Id. The ACLU of Kentucky responded to the
displays by seeking a preliminary injunction in district court to block the display. Id. at 852.
Before the district court could rule on the injunction, both legislatures passed resolutions
affirming the role of the Ten Commandments as a basis of Kentucky law. They also ordered that
the display be expanded to include eight other documents in which religious elements were
highlighted. Id. at 853–54.
The district court then issued a preliminary injunction ordering the counties to remove the
displays. Id. at 854. The counties responded by erecting a new display entitled “The
Foundations of American Law and Government Display.” This display included nine documents
of equal size, including the Ten Commandments and the Bill of Rights. Id. at 856.
Justice Souter, writing for the Court, began his analysis by rejecting the argument that
legislative purpose is inherently unknowable. Judges perform this analysis, he wrote, by
CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 1248 (4th ed. 2011). Chief
Justice Rehnquist has argued that the Lemon test is substantively incorrect, suggesting that
“nothing in the Establishment Clause requires government to be strictly neutral between religion
and irreligion,” and would uphold laws that pursue secular ends with nondiscriminatory religious
means. Wallace v. Jaffree, 472 U.S. 38, 113 (1985) (Rehnquist, J., dissenting). Justice Scalia
has expressed doubt that the Lemon purpose prong can even be applied: “[D]iscerning the
subjective motivation of those enacting the statute is,” he argues, “almost always an impossible
task.” Edwards v. Aguillard, 482 U.S. 578, 636 (1987). Neither view has ever commanded a
majority of the Court. Rather, the Court has expressly “declin[ed] the invitation to abandon
concern with purpose.” McCreary County v. ACLU, 545 U.S. 844, 863 (2005). Justice Souter,
writing for the Court in McCreary County, emphasized that “[e]xamination of purpose is a staple
of statutory interpretation that makes up the daily fare of every appellate court in the country.”
Id. at 861. The Court’s analysis makes sense: The Establishment Clause should not allow
government to act with the purpose of advancing or endorsing religion.
13
examining the text, history, and implementation of the law through the eyes of a reasonable
observer. Id. at 862. If this analysis reveals that a religious aim predominates then the state
action violates the Establishment Clause. Id. at 856. Applying this test, this Court concluded
that the evolution of the three displays would convince a reasonable observer that “the Counties
were simply reaching for any way to keep a religious document on the walls of courthouses
constitutionally required to embody religious neutrality.” Id. at 873.
A reasonable observer of the events in Waitsburg would come to the same conclusion.
As an initial matter, the reasonable observer is aware of the “motives of the display’s creator and
the reasons for the display’s design.” Am. Atheists, Inc. v. Davenport, 637 F.3d 1095, 1104 (10th
Cir. 2010) cert. denied, 132 S. Ct. 12 (U.S. 2011). This observer would therefore know that
Rebirth was made by self-professed “born-again Christian” who “incorporates His word into
every artistic creation.” D. Ct. at 3 (internal quotation marks omitted). Put differently, the
observer would know that the WPFA gave complete control to an artist who also literally makes
Crosses for churches. Id.
The reasonable observer would also be aware of the Rebirth’s history. For example, she
would know that Waitsburg City Council President Wayne Davis left little doubt about his
purpose in erecting the monument: “If I have to choose between being politically correct or
honoring God and Country,” he said, “I will always choose the latter.” D. Ct. at 4. After several
groups formally complained about Rebirth’s religious content, she would know Waitsburg made
that choice. Consistent with Davis’s obstinate position, the City Council did not respond by
removing the Cross. Instead, it attempted to make Rebirth less objectionable to the complaining
groups by mandating three changes. First, the Council ordered that the Cross by made less
explicitly religious by concealing the quote from the Book of Isaiah. Second, the Council
14
ordered that another Abrahamic religion, Judaism, be represented by its own religious symbol.
Third, it ordered that the display include personalized memorials submitted by Washtonians who
lost a family member in the 9/11 attacks.
These three changes did not bring Rebirth into compliance with the Establishment
Clause.4 The first condition did not make the Cross any less Christian. The Latin cross is a
principal symbol of Christianity. See, e.g., Buono v. Norton, 371 F.3d 543, 544-45 (9th Cir.
2004) (“[The Latin cross] is exclusively a Christian symbol, and not a symbol of any other
religion.” (quoting Buono v. Norton, 212 F. Supp. 2d 1202, 1205 (C.D. Cal. 2002))). And when
that Cross is inscribed with a quotation from the Bible there can be little doubt that it conveys “a
reaffirmation of Christian beliefs.” Salazar v. Buono, 130 S. Ct. 1803, 1820 (2010) (finding that
a Latin cross does not, in itself, necessarily convey approval of Christianity). This message is
not eliminated by obscuring the inscription: “reasonable observers have reasonable memories”
and will not forget that the Cross incorporates Christian dogma. McCreary, 545 U.S. at 866.
Similarly, the second and third conditions did not bring Rebirth into compliance with the
First Amendment by including some non-Christian messages. “The simultaneous endorsement
of Judaism and Christianity is no less constitutionally infirm than the endorsement of
4
History matters in Establishment Clause cases. For example, Justice Breyer described history
as the “determinative factor” in his decisive concurrence in Van Orden. 545 U.S. at 679 (Breyer,
J., concurring). With regard to a revised display, the current approach allows for the possibility
that government has changed its purpose from its implementation of the first display to the
revised (and presumably less objectionable) display. See McCreary County, 545 U.S. at 874.
But the purpose behind the original display may be considered if, in “light of context,” it is
“implausible” that the government has really changed its purpose in erecting the revised display.
Id. The Cross is twelve feet tall. The Star of David is less than half as tall. The revised display
endorses two religions, but seems to endorse Christianity more strongly than Judaism. In this
same vein, the inclusion of a wooden slab with personalized engravings and mementos is
consistent with a secular purpose, but the size and placement of the three exhibits makes it
implausible that the City has truly changed its purpose. The Cross was the centerpiece of the
original display, and it remains the centerpiece of the revised display.
15
Christianity alone.” Cnty. of Allegheny, 492 U.S. at 615. Further, including non-religious
content does not strip the Cross of its religious content. For example, promoting meditation may
be a valid secular purpose, but a school may not set aside time for meditation or voluntary prayer
when the state intends to “characterize prayer as a favored practice.” Wallace, 472 U.S. at 60.
Here, the Christian message is favored: the Cross sits in the middle of the display while the Star
of David and personalized memorials sit to the side; the Cross is twelve-feet tall while the Star of
David is five-feet tall and the personalized memorials share a wooden slab of unspecified height;
and the Cross alone has been a part of the display from its inception. The display cannot be
fairly characterized as neutral toward religion or irreligion.
The implementation of display also reveals its impermissible purpose. The Mayor
presided over the unveiling and delivered a speech riddled with allusions to Christianity. He
analogizes the fallen firefighters to Jesus Christ. D. Ct. at app’x 1 (“Like the man on the Cross at
Calvary . . . .”). He characterizes the unveiling as a prayer by stating “[t]oday we pray for [fallen
firefighters]” and concludes his remarks with “God bless.” Id. And lest there be any doubt that
the Mayor is leading the audience in Christian prayer, a student sings a Christian hymn. See
JOHN NEWTON, OLNEY HYMNS, IN THREE BOOKS, at A2 (6th ed. 1797) (stating that “Amazing
Grace” and other hymns were written to “promot[e] the faith and comfort of sincere Christians”).
Waitsburg did not erect Rebith for a predominantly secular reason. Rather, it placed a
twelve-foot Cross on public property. When citizens objected, the city took steps to appease the
objectors. But the context of the display reveals Waitsburg was motivated by a religious purpose
that predominated over any secular aims. In short, Waitsburg was simply reaching for a way to
memorialize fallen firefighters by erecting a religious monument. A display erected for such a
reason cannot withstand constitutional scrutiny. See McCreary, 545 U.S. at 865.
16
2. Effect
The second prong of the Lemon test requires that the “principal or primary effect” of the
law “be one that neither advances nor inhibits religion.” Lemon, 303 U.S. at 612. Therefore, a
law may advance or inhibit religion so long as such effects are not the principal or primary
consequences of the government action. See, e.g., Corp. of the Presiding Bishop v. Amos, 483
U.S. 327 (1987) (holding that Lemon’s effect prong is not violated by state action that has the
secondary effect of advancing religion). Analysis under this prong turns on what effects actually
occurred, and not upon the mere possibility for advancement or inhibition. See, e.g., Cnty. of
Allegheny, 492 U.S. at 597 (describing the Court’s job as determining whether a display,
considered in its particular physical setting, has the effect of endorsing or disapproving religious
beliefs).
Analysis of effect is analyzed through the eyes of a reasonable observer. The key
question, as the Circuit Court recognized, is “whether the reasonable person would conclude that
[the] display has the effect of endorsing religion.” ACLU of Ky. v. Mercer Cnty., 432 F.3d 624,
636 (6th Cir. 2005). A reasonable observer of Rebirth, taking into account its physical
characteristics and setting, would conclude that the primary effect was government advancement
of preferred religions.
Rebirth conveys a religious message. There are secular elements, but the religious
elements dominate. The Cross stands alone in significance. It sits in the middle of Rebirth,
flanked by replicas of twin towers. The Star of David sits to the left of the Cross; the
personalized slab sits to the right. The Cross is literally elevated above all other elements. It is
two feet taller than the replicas of the twin towers and seven feet taller than the Star of David.
And perhaps most tellingly, the Cross is the only part of Rebirth that is actually made of steel
from the World Trade Center. Rebirth itself is plainly religious. However, this determination
17
does not end the inquiry; the reasonable observer must also consider the monument’s physical
setting.
Rebirth, considered in context with the rest of Patton Park, has the primary effect of
advancing religion. In addition to Rebirth, the 30-acre park is home to two other memorials, two
museums, and a few abstract statues. These objects do little to mitigate Rebirth’s plainly
religious message. Museums are buildings containing, among other things, symbolic works. But
the building itself, visible to all, does not convey a particular message beyond Waitsburg’s
appreciation of the arts. Similarly, abstract statues do not have identifiable messages. Only
Rebirth and the memorials contain a message. Taken together, the monuments send three
messages: World War II is memorialized; Union soldiers are memorialized; and Waitsburg
honors its fallen firefighters by erecting a twelve-foot Cross.
Patton Park is not the park considered in Van Orden. The monument at issue in Van
Orden was six feet tall and sat in a 22-acre park that also contained “17 monuments and 21
historical markers commemorating the “people, ideals, and events that compose Texan identity.”
545 U.S. at 681. The displays, taken together, conveyed a secular message: this city
acknowledges its roots. The challenged monument was a part of that message, but the religious
message did not dominate. Rebirth, in contrast, is not a part of a larger secular scheme.
Waitsburg erected a monument to fallen firefighters that is dominated by a Cross.
Comparisons to Van Orden are also inapposite on separate grounds. The Van Orden
monument stood for forty years without objection, id. at 701, the “determinative factor” in the
case, id. at 679 (Breyer, J., concurring). In contrast, and perhaps because of the display’s
prominence in Patton Park, Rebirth was immediately controversial in Waitsburg.
18
Van Orden was a “borderline case.” 545 U.S. at 704 (Breyer, J., concurring). Rebirth is
a larger, more prominent, and more controversial version of the monument considered in Van
Orden. Under Van Orden, Rebirth is unconstitutional because it violates purpose prong of the
Lemon test.
3. Excessive Entanglement
The third prong of the Lemon test forbids government from enacting law that “foster[s]
‘an excessive government entanglement with religion.’” Lemon, 403 U.S. at 613 (quoting Walz
v. Tax Comm’n of City of New York, 397 U.S. 664, 674 (1970)). Such entanglement is defined as
“‘comprehensive, discriminating, and continuing state surveillance’ or action potentially igniting
controversy.” Amy J. Alexander, Comment, When Life Gives You the Lemon Test: An Overview
of the Lemon Test and Its Application, 3 PHOENIX L. REV. 641, 662 (2010) (quoting Lemon, 403
U.S. at 619). This case does not involve state surveillance of religion, but rather state action that
created religious controversy. The Establishment Clause seeks to avoid “social conflict,” Van
Orden, 545 U.S. at 699, and in close cases, the degree to which the “display is [likely] to be
prove divisive” may determine the outcome of the case, id. at 704.
Rebirth was extremely divisive. Its erection “set off a firestorm of . . . complaints.” D.
Ct. at 5. A religious group wanted to make Rebirth more religious by including their own
symbol; a secular group wanted to make Rebirth less religious by removing the biblical
reference. Waitsburg was then placed in the unenviable position of choosing between religious
and irreligion, exactly the kind of choice that the Establishment Clause prohibits. Making a
monument more and less religious is not one right; it is two wrongs.
Not all entanglements are prohibited; an “[e]ntanglement must be excessive before it runs
afoul of the Establishment Clause.” Agostini v. Felton, 521 U.S. 203, 233 (1997) (internal
19
quotation marks omitted). The question, then, is whether it is excessive to commemorate
firefighters lost in the 9/11 attacks with a twelve-foot, multi-ton Cross. It is. If a “contemporary
state effort to focus attention upon a religious text is certainly likely to prove divisive in a way
that [a] longstanding, pre-existing monument [is] not,” then state effort to focus attention upon a
giant religious symbol that is inscribed with hidden religious text and that actually ignited
controversy cannot withstand constitutional scrutiny. Van Orden, 545 U.S. at 703 (Breyer, J.,
concurring).
The District Court was rightly concerned about the consequences of “removing this
memorial.” D. Ct. at 18. Such removal would likely be “explosive.” Id. But the Court is not
being asked to “compel the government to purge from the public sphere all that in any way
partakes of the religious.” Van Orden, 545 U.S. at 699. Indeed, small Crosses have been
historically been placed in Patton Park without complaint, and respondents do not challenge their
display. It is a “matter of degree,” and here Waitsburg went too far. Id. at 704. Any controversy
resulting from Rebirth’s removal is regrettable, but responsibility for that controversy lies at the
feet of the City Council. It chose to violate the Establishment Clause by erecting a religious
monument that has proven to be divisive. It cannot now complain that removing the monument
would also prove divisive. Cities must not be free to skirt the limits of the Establishment Clause
by erecting first and asking permission later.
B. The Endorsement Test.
As was previously noted, the Lemon test is current law. The so-called endorsement test
shares many similarities with the Lemon test and provides a useful perspective on Establishment
Clause cases. Indeed, it was first described by Justice O’Connor in her decisive concurrence to
Lynch v. Donnelly, where the plurality applied the Lemon test. 465 U.S. 668 (1984). Justice
20
O’Connor proposed modifying the Lemon test to focus on whether government appeared to be
endorsing religion. Id. at 687–94 (O’Connor, J., concurring). This approach, known as the
endorsement test, focuses on whether a given action “sends a message to nonadherents that they
are outsiders . . . and an accompanying message to adherents that they are insiders.” Id. at 688.
Such a message is sent when government either intends to endorse religion or when its actions
would appear to a reasonable observer as a religious endorsement. Thus, two questions must be
asked: (1) “whether the government intends to convey a message of endorsement or disapproval
of religion,” id. at 691; and (2) whether the government practice has “the effect of
communicating a message of government endorsement or disapproval of religion,” id. at 692.
See also Cnty. of Allegheny, 492 U.S. at 592 (paying “close attention to whether the challenged
governmental practice either has the purpose or effect of endorsing religion” (internal quotation
marks omitted)).
Waitsburg violates both prongs: first, it intended to endorse religion; and second, Rebirth
accomplished this aim. In this case, these two prongs line up with the purpose and effect prongs
of the Lemon test. Waitsburg chose to advance religion by symbolically endorsing it. Thus, with
regard to purpose, there is no practical difference in this case between asking (a) under Lemon,
whether government action was motivated by a legitimate religious purpose; or (b), under the
endorsement test, whether the action was intended to convey religious endorsement. Religion is
advanced to the extent that Rebirth endorses it, and vice-versa. As a result, there is no need to
repeat the Lemon analysis. See discussion infra Part II.A.1. Similarly, there is no practical
difference in this case between asking (a) under Lemon, whether the government’s message has
the principal effect of advancing religion; or (b), under the endorsement test, whether the
government’s message communicates religious endorsement. See discussion infra Part II.A.2.
21
In sum, the facts of this case do not implicate the tensions between the Lemon test and
endorsement test.5
III. CONCLUSION
Waitsburg violated the Establishment Clause by erecting a twelve-foot, two-ton Cross on
public property. Rebirth is government speech because Waitsburg approved it, controlled its
message, and spoke on its behalf. As government speech, Rebirth violates the establishment
clause because it was erected with a religious purpose and had the effect of promoting religion.
The facts of this case are in many ways similar to those confronted by the Court in Van
Orden. That “borderline case” presented only the “shadow” of an Establishment Clause
violation. Van Orden, 545 U.S. at 704. Rebirth is very much in the light. It is larger, more
prominent, more religious symbolic, and more controversial than the monument in Van Orden.
Waitsburg may, of course, honor its fallen firefighters. But it may not so do by endorsing a
particular set of religions.
5
Some have called for the Court to rethink its Establishment Clause jurisprudence. See, e.g.,
Utah Highway Patrol Ass’n v. Am. Atheists, Inc., 132 S. Ct. 12 (2011) (Thomas, J., dissenting
(describing “an Establishment Clause jurisprudence in shambles”); ERWIN CHEMERINSKY,
CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 1266 (4th ed. 2011) (concluding that there is a
“prospect for major change” in the analysis of religious symbols on government property).
Respondents take no position in this debate because this case does not require addressing it.
Existing law, fragmented or not, adequately addresses the facts of this case and provides a clear
resolution: the City violated the Establishment Clause.
22
For the foregoing reasons, Sarah Gonzalez and the WAHL respectfully request that this
Court affirm the judgment of the Court of Appeals.
Respectfully submitted,
_/s/ Team Z___________
Team Z
Counsel for Respondents
DATED: January 17, 2012
23