Original Author: Ashburn, Melissa
Date of Material: 11/11/2011
Laws and regulations--Federal
Reviewed Date: 06/25/2021
MTAS was asked whether an arrangement, where a local bank leased with the Town for water tower space and placed a Christian cross on top of the tower, is a violation of the Establishment Clause of the U.S. Constitution.
November 11, 2011
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, 10-1276, 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, 10-1276, 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.
Melissa A. Ashburn