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. e du/thir dc ir c uit_1999/42Filed February 16, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 98-5021

_______________

AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, on behalf of its members, ROBERT LANDER, ADAM JACOBS,

JOEL SOLOW and ANN SORREL

v.

BRET SCHUNDLER, in his official capacity as Mayor o f the City of Jersey City, New Jersey; THE CITY COUNCIL O F

JERSEY CITY, NEW JERSEY; CITY OF JERSEY CITY,

NEW JERSEY,

Appellants

_______________

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(D.C. No. 95-cv-00206) (District Judge: Honorable Dickinson R. Debevoise)

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Argued: August 6, 1998

Before: NYGAARD, ALITO, and RENDELL, Circuit Judges

(Opinion Filed: February 16, 1999)

KEVIN J. HASSON (ARGUED)

ERIC W. TREENE The Becket Fund for Religious Liberty 2000 Pennsylvania Ave., N.W.

Suite 3580 Washington, D.C. 20006

Counsel for AppellantsNATHAN LEWIN

RICHARD W. GARNETT (ARGUED)

MILLER, CASSIDY, LARROCA &

LEWIN 2555 M Street, N.W. Washington, D.C. 20037

Counsel for Chabad of Pittsburgh as Amicus Curiae in Support of Defendants-Appellants

RONALD K. CHEN (ARGUED)

RUTGERS CONSTITUTIONAL

LITIGATION CLINIC Rutgers Law School 15 Washington St. Newark, NJ 07102

Counsel for Appellee

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OPINION OF THE COURT

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ALITO, Circuit Judge:

This appeal concerns the constitutionality of two J ersey City "holiday" displays. The first, which featured a menorah and a Christmas tree, was annually placed in front of City

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Hall for several decades. In 1995, the District Co urt permanently enjoined the City from continuing the p ractice of erecting this or any substantially similar displ ay, see ACLU of N.J. v. Schundler, 931 F.Supp. 1180 (D.N.J. 1995 ), and a prior panel of our court affirmed that decision. A CLU of N.J. v. Schundler, 104 F.3d 1435, 1444-50 (1997). Jerse y City subsequently moved for relief from that order under Rule 60 (b)(5) of the Federal Rules of Civil Procedure, con tending that the Supreme Court's intervening decision in Agostin i v. Felton, 521 U.S. 203, 117 S. Ct. 1997 (1997), had undermined the panel's reasoning. The District Cou rt denied this motion, and we now affirm that decision.

Jersey City also challenges the District Court's mo st recent decision regarding a modified holiday display that the City put up after the original display was enjoined. Th e modifieddisplay contained not only a creche, a menorah, and

Christmas tree, but also large plastic figures of S anta Claus and Frosty the Snowman, a red sled, and Kwanzaa sym bols on the tree. In addition, the display contained tw o signs stating that the display was one of a series of dis plays put up by the City throughout the year to celebrate its re sidents' cultural and ethnic diversity. We find this modif ied display to be indistinguishable in any constitutionally sig nificant respect from the displays upheld by the Supreme Cou rt in Lynch v. Donnelly, 465 U.S. 668 (1984), and County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989) (hereinafter "Allegheny County"), and we therefore hold that Jersey City's modified display is likewise constitu tional.

I.

From at least 1965 until 1995, the City of Jersey C ity commemorated the winter holiday season by displayin g a creche and a menorah on city property in front of C ity Hall. The creche and menorah were owned, maintained, and stored by the City. The creche, which was displayed durin g the period preceding and following Christmas, included a manger that measured 11' 9" by 7' by 4' 4". It also inclu ded figures of Mary, Joseph, the Baby Jesus, and the Three Wise Men;

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these varied in height from 12" to 27". Surrounded by a postrail fence, the creche was placed on the right side of City Hall. The menorah, measuring 19' by 14', was displ ayed during Chanukah on the left side of City Hall. (Al so on the left-side of the lawn was a 13' Christmas tree, but this apparently escaped the District Court's attention.1 ) Because the date of Chanukah generally falls near that of C hristmas, the creche and menorah were usually displayed simultaneously, but in 1994, when the plaintiffs co mmenced this suit, Chanukah began unusually early, on Novem ber 28, and therefore the menorah was taken down shortly be fore the creche went up.2

When Jersey City erected its traditional display in 1994, the American Civil Liberties Union sent the City a letter asking it to discontinue its practice of displaying religious symbols on public property. In response, the City placed a sign adjacent to the display stating: "Through this display and others throughout the year, the City of Jersey City is pleased to celebrate the diverse cultural and ethni c heritages of its peoples." Jersey City maintains that the s ign's reference to other events refers to, among other th ings, the City's annual commemoration of Ramadan, the annual Grand Phagwah Parade held to celebrate the Hindu New Year , and a wide variety of cultural events related to the ma ny diverseethnic groups in the City.

On December 21, 1994, the ACLU and other plaintiffs filed a complaint in state court against the City, the ma yor, and the city council (hereinafter collectively "the Cit y"), challenging the City's display under the federal an d state constitutions.3 In January 1995, the City removed the action to the District Court, and on November 28, 1995, th e District

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1. See 104 F.3d at 1438 n.1. 2. According to the City, such an anomaly will not recur until 2014. 3. Neither side has argued in this appeal that the state constitution imposes tighter restrictions than the federal Const itution. Therefore, for purposes of this litigation we treat the two bo dies of law as coextensive. See ACLU of N.J. v. Schundler, 104 F.3d at 1446 n.11.

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Court granted the plaintiffs' motion for summary ju dgment and held that the City's display violated the Estab lishment Clause of the federal Constitution, as well as a pa rallel state constitutional provision. The District Court perma nently enjoined the City from erecting its traditional dis play or any substantially similar scene or display at the front entrance of City Hall or on other property that the City owned, maintained, or controlled.

The City announced that it would appeal the decisio n, but in the meantime, on December 13, 1995, it erected a modified display that included, in addition to the elements in the previous display, a 4' tall plastic figure of Santa Claus, a 3' 10" tall plastic figure of Frosty the Snowman, a 4' tall sled, Kwanzaa symbols on the tree, and two signs, each approximately 2' by 3', stating: "Through this disp lay and others throughout the year, the City of Jersey City is pleased

to celebrate the diverse cultural and ethnic herita ges of its peoples." See Appendix A (display on left side of City Hall); Appendix B (display on right side of City Hall); Ap pendix C (map of display).

The plaintiffs then moved to have the City held in contempt of the District Court's injunction, and they also s ought a preliminary injunction against the modified display . On December 18, the District Court denied these reques ts, concluding that the addition of the secular symbols rendered the modified display constitutionally unobjectionab le. Rulingquickly, the District Court did not analyze the mod ified

display at length but wrote:

I conclude that by making these additions defe ndants have sufficiently demystified the [holy], they have sufficiently desanctified sacred symbols, and they have sufficiently deconsecrated the sacred to escap e the confines of the injunctive order in this case.

On appeal, a panel of our court affirmed the Distri ct Court's decision regarding the original display. 1 04 F.3d at 1444-50. The panel noted the religious significanc e of the creche and the menorah, as well as the City's annua l

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expenditure of some public funds to erect and maint ain the display. Id. at 1445. The panel concluded that "t he [original] display cannot be viewed as anything but a constitu tionally impermissible dual endorsement of Christianity and

Judaism." 104 F.3d at 1446.

The panel cited three reasons for rejecting the Cit y's argument that the display was not an endorsement of Christianity and Judaism but part of the City's yea r-long celebration of its people's many different religiou s and ethnic backgrounds. 104 F.3d at 1446-50. The panel concl uded (a) that government endorsement of many different relig ions violated the Establishment Clause, id. at 1447, (b) that a reasonable observer, viewing the holiday display, w ould not be aware of the City's other religious and cultural celebrations at other times of the year, id. at 144 7-49, and (c) that the City's policy of celebrating many differen t religions was a quintessential example of government entangle ment with religion. Id. at 1449-50. In reaching the la tter conclusion regarding entanglement, the prior panel relied chiefly on Aguilar v. Felton, 473 U.S. 402 (1985). See 104

F.3d at 1449-50.

Turning to the modified display, the panel held tha t the District Court's analysis was incorrect. 104 F.3d at 1450-52. The panel found no basis in Supreme Court cases fo r what it termed the District Court's "`demystification' a pproach," and the panel noted that the parties agreed that th is approach was "flawed." Id. at 1450-51 & nn. 17-18. The panel "conclude[d] that the district court erred in determining that the constitutionality of the modified display depended on whether the presence of Frosty and Santa `demystifi ed' the creche and the menorah." Id. at 1451 (footnote omi tted). The panel therefore remanded the case for the District Court to analyze the modified display pursuant to the proper standards. Id. at 1452. But while remanding the q uestion of the constitutionality of the modified display fo rreconsideration by the District Court, the panel al so spent

several paragraphs expressing in dicta a skeptical view about the constitutionality of the modified display. Id . at 1451-52.

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On remand, the plaintiffs moved for summary judgmen t and a permanent injunction barring the modified dis play. The defendants cross-moved for summary judgment and also filed a motion under Fed. R. Civ. P. 60(b)(5) for r elief from the District Court's earlier injunction on the ground t hat the Supreme Court's decision in Agostini, which overrul ed Aguilar, had undermined the panel's reasoning. Spe cifically, the defendants pointed to the panel's reliance on t he concept of "entanglement" and the Supreme Court's decision in Agostini that entanglement should no longer to be c onsidered an independent test but should be viewed along with other factors as "an aspect of the inquiry into . . . eff ect." 117 S. Ct.

at 2015.

Reversing its prior position, the District Court gr anted summary judgment for the plaintiffs and held that t he modified display violated the Constitution. The Co urt wrote that the panel's "discussion of the context of the display after the addition of Frosty the Snowman, Santa and a red sled

leaves little doubt that it would conclude on the b asis of the

facts in the record before it that even after these additions the display communicates the City's endorsement of Chri stianity

and Judaism in violation of the Establishment Claus e." The

District Court also denied the defendants' motion f or Rule 60(b)(5) relief, and the defendants then took this appeal.

II.

We first consider the City's challenge to the denia l of its Rule 60(b)(5) motion. Under that rule, a court may relieve a party from a final judgment or order when "it is no longer equitable that the judgment should have prospective application." Fed. R. Civ. P. 60(b)(5). A party c an show that a judgment should no longer have prospective applic ation if it can demonstrate "a significant change in either factual

conditions or the law." Rufo v. Inmantes of Suffol k County Jail, 502 U.S. 367, 384 (1992).

In Agostini, the Supreme Court modified the Establi shment Clause test articulated in Lemon v. Kurtzman, 403 U .S. 602, 612-13 (1971), which asked (1) whether a challenged

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government practice had a secular purpose, (2) whet her its principal or primary effect advanced or inhibited r eligion, and(3) whether it created an excessive entanglement of the

government with religion. See ACLU of N.J. v. Blac k Horse Pike Reg'l Bd. of Educ., 84 F.3d 1471, 1483 (3d Cir . 1996). The Agostini Court stated that Lemon's entanglement prong is best understood and treated "as an aspect of the inquiry into a statute's effect." Agostini, 117 S. Ct. at 2015. While this statement merges the entanglement prong with t he effect prong, it does not mean that considerations of exce ssive entanglement have been entirely deleted from Establ ishment Clause analysis; in Agostini, the Court analyzed th e factors regarding entanglement at length. See id. at 2015- 16. Rather, the statement appears to mean that entangle ment, standing alone, will not render an action unconstit utional if

the action does not have the overall effect of adva ncing, endorsing, or disapproving of religion. See id.

Since entanglement analysis is still part of the Establishment Clause inquiry, the mere fact that th e prongs have been merged is insufficient to undermine the p rior panel's decision regarding the original Jersey City display. The City and amicus curiae Chabad of Pittsburgh poi nt out, however, that the prior panel's entanglement analys is relied on two rationales that the Supreme Court rejected i n Agostini. First, the prior panel stated that the C ity's display policy would foster excessive interactions between municipal officials and local religious leaders in implementi ng the policy.4 104 F.3d at 1449-50. Second, the prior p anel reasoned that the City's displays would "produce po litical divisiveness." Id. at 1450. The Agostini Court ad dressed

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4. The panel asked: "Should a rabbi and a priest be consulted when erecting the menorah and the creche? Should a cere mony accompany the erection of these religious symbols? Should th e City employ a Muslim cleric during the Ramadan Observance month to avoid offending a theological protocol of Islam?" 104 F. 3d at 1449 (footnote omitted). Compare Greater Pittsburgh ACLU v. Allegheny County, 842 F.2d 655, 662 (3d Cir. 1988) ("mere pla cement and storage [of religious display] will involve little entanglement"), aff'd in part and rev'd in part, 492 U.S. 573 (1989 ).

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these same two factors in considering the constitut ionality of New York City's "Title I" program,5 under which pub lic school teachers are sent into parochial schools to provide remedial education to disadvantaged children, and the Court held that these two factors "are insufficient by themselves t o create an `excessive' entanglement" under its "current unders tanding

of the Establishment Clause." 117 S. Ct. at 2015.

While we are inclined to agree with the City and am icuscuriae Chabad of Pittsburgh that the prior panel's

entanglement analysis is no longer valid in the wak e of Agostini, it does not follow that Rule 60(b)(5) rel ief was required. Before discussing entanglement at all, t he prior panel concluded that Jersey City's original display violated the Establishment Clause because it "communicate[d ] [an] endorsement of Christianity and Judaism . . . ." 10 4 F.3d at 1446. If this conclusion is accepted, the original display is unconstitutional irrespective of the presence or ab sence of excessive entanglement. Accordingly, we agree with the District Court that Rule 60(b)(5) relief was not re quired.

III.

We therefore turn to the question of the modified d isplay. As noted, the District Court, after initially uphol ding this display, reached the opposite conclusion on remand. Not unreasonably, the District Court interpreted certai n statements in the prior panel opinion to mean that the panel viewed the modified display as constitutionally dub ious. We conclude, however, that the statements on which the District Court relied were merely dicta, that the prior pane l did not render a decision regarding the constitutionality o f the modified display, and that we are therefore obligat ed to analyze that question in accordance with our own be st independent judgment.6

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5. Title I of the Elementary and Secondary Educatio n Act of 1965, 79 Stat. 27 (1965), as modified, 20 U.S.C. S 6301 et s eq. (1994). 6. Our court strives to maintain a consistent body of circuit jurisprudence. Thus, "[i]t is the tradition of this court that the holding of a panel in a reported opinion is binding on subsequent panels" and that "no subsequent panel overrules the holding in a published opinion of a previous panel." Internal O perating Procedure 9.1 (emphasis added). Dicta in prior opin ions, however, are not treated similarly. On the contrary, we hav e repeatedly held that dicta are not binding. See, e.g., McGurl v. Trucking Employees, 124 F.3d 471, 484 (3d Cir. 1997); United States v. Bennett, 100 F.3d 1105, 1110 (3d Cir. 1996); Bradle y v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1071 (3d Ci r. 1990). Our tradition of treating prior panel decisions as binding is closely tied to the rules and procedures regardi ng rehearing en banc. Rehearing en banc provides the opportunit y for the full court to correct a panel decision to which the

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As previously noted, when the modified display was first challenged in the District Court, that Court was re quired to rule on an expedited basis, and the Court was there fore unable to provide a lengthy, detailed explanation o f itsconclusion that the display satisfied Establishment Clause

standards. Instead, the District Court summarily s tated that by adding additional objects to the original displa y, the City had, in the Court's view, "sufficiently demystified the [holy], . . . sufficiently desanctified sacred symbols, and

. . . sufficiently deconsecrated the sacred." As both si des recognized in the prior appeal and as the panel hel d, see 104 F.3d at 1451 & n.18, this analysis did not comport with Lynch or Allegheny County and finds no support in Establishment Clause jurisprudence. Demystificatio n, desanctification, and deconsecration suggest a proc ess of profanation, something that the Establishment Claus e neither demands nor tolerates. See, e.g., Lemon, 4 03 U.S. at 612 (government conduct violates Establishment Clau se if its primary effect is to advance or inhibit religion).

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court is unwilling to be bound. But the standards for rehearing en banc look to the panel's decision, not to the pa nel's dicta. See Fed. R. App. P. 35 (emphasis added) (rehearing in banc may be ordered by a court of appeals "to secure or main tain uniformity of its decisions . . . ."). LAR 35.1 (emphasis add ed) (if rehearing is sought based on an asserted conflict with prior circuit precedent, counsel must certify, "based on a reasoned and stud ied professional judgment, the panel decision is contrary to decisio ns of the United States Court of Appeals for the Third Circuit . . . and that consideration by the full court is necessary to sec ure and maintain uniformity of decisions in this court."). Thus, pa nel dicta are generally not tested by the availability of en banc review, and they are accordingly not entitled to the same bindi ng authority that our court has traditionally given to panel dec isions.

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Emphasizing the insufficiency of the District Court 's "demystification" analysis, the prior panel "concl ude[d] that the district court erred in determining that the constitutionality of the modified display depended on whether the presence of Frosty and Santa `demystified' the creche and the menorah." 104 F.3d at 1451. The panel therefo re vacated the District Court's modified injunction or der and remanded the case "so that the district court [coul d] consider, consistent with the standards set forth in [its] op inion, whether the modified display was constitutional." Id. at 1452. Since no facts were in dispute, the prior pa nel itself certainly could have ruled on the constitutionality of the modified display. Moreover, since the relevant fac ts are relatively simple and were set out in full detail i n the panel's opinion, see id. at 1437-38, the prior panel was in just as good a position as the District Court to decide tha t question in the first instance. Yet the prior panel chose no t to take that course, instead remanding for the District Cou rt to makethat decision. In light of this remand, it is appa rent that the

prior panel did not foreclose us from ruling on the constitutionality of the modified display in accord ance with our own best independent judgment. We entirely agr ee with Judge McKee's summary of the majority holding. In concurrence, Judge McKee wrote:

I think my colleagues' analysis of Lynch and A llegheny establishes that the first display is inconsis tent with the prohibitions of Lemon and properly remands to determine the legality of the second display.

104 F.3d at 1453 (emphasis added).

We thus reject the plaintiffs' suggestion that the prior panel "formally remanded the issue of the Modified Displa y to the district court" but "in effect already answered the question it ostensibly remanded." Appellees' Br. at 6, 8 (emph asis added). There is no such thing as an ostensible re mand, and that is not what the prior panel purported to do. The prior panel in fact remanded the question of the constitu tionality of the modified display, thus leaving the question open and

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requiring us to decide that question for ourselves.

For these reasons, the dissent's chastisements abou t "evad[ing] the reasoning of [the] prior panel" (Dis sent at 42) are mistaken. We have scrupulously followed what i s "binding" upon us: the prior panel's "holding" (se e IOP 9.1), i.e., that the original display was unconstitutiona l and the District Court, in judging the second display, empl oyed incorrect standards. As for the prior panel's comm ents about the modified display, the dissent itself acknowledg es that these were expressed "in dictum" (Dissent at 42), b ut the dissent would apparently have us follow these non-b inding statements rather than Supreme Court precedent, viz ., Lynch and Allegheny County. This we cannot do.

IV.

The Supreme Court has handed down two decisions concerning the constitutionality of municipal holid ay displays, and therefore it is to these decisions th at we must primarily look for guidance in evaluating Jersey Ci ty's modified display.

A. In Lynch v. Donnelly, 465 U.S. 668 (1984), the Court upheld the constitutionality of a holiday display e rected by the City of Pawtucket, Rhode Island. "[S]ituated i n a park owned by a nonprofit organization and located in th e heart of the shopping district," the display was characteriz ed by theCourt as "essentially like those to be found in hun dreds of

towns or cities across the Nation -- often on publi c grounds -- during the Christmas season." Id. at 671. The display consisted of "many of the figures and decorations traditionally associated with Christmas, including, among other things, a Santa Claus house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, caro lers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, a lar ge banner that reads `SEASONS GREETINGS,' and [a] creche." I d. All components of the display were owned by the City. Id. The City had purchased the creche some years earlier fo r $1365, and the City incurred a small annual expense in ere cting,

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lighting, and dismantling the creche. Id.

Writing for the Court, Chief Justice Burger analyze d the inclusion of the creche in the Pawtucket display un der the Lemon test and thus inquired whether the inclusion of the creche had a secular purpose, whether its principal or primary purpose was to advance or inhibit religion, and whether it created an excessive entanglement of gov ernment with religion. See 465 U.S. at 679. The Court hel d that the Pawtucket display had a secular purpose, explaining :

The city . . . has principally taken note of a significant historical religious event long celebrated in the Western World. The creche in the display depicts the historical origins of the traditional event long recogniz ed as a National Holiday. . . . The display is sponsor ed by the City to celebrate the Holiday and to depict th e origins of that Holiday. These are legitimate secular pu rposes.

Id. at 680-81 (footnote omitted).

The Court likewise held that the inclusion of the c reche did not have the principal or primary effect of advanci ng religion. 465 U.S. at 681-83. Noting that prior Establishmen t Clause cases had upheld various forms of aid to students a ttending church-related schools and colleges, tax exemptions for church property, Sunday Closing laws, "release tim e" programs, and legislative prayers, the Court was "u nable to discern a greater aid to religion deriving from inc lusion of the creche than from these benefits and endorsements pr eviously

held not violative of the Establishment Clause." I d. at 682.

The Court concluded that if the inclusion of the cr eche provided some "benefit to one faith or religion or to all religions," the effect was "indirect, remote and in cidental." Id.

at 683.

Finally, the Court held that there was no impermiss ibleentanglement. 465 U.S. at 683-85. The Court saw no

"administrative entanglement" and observed that the re was "no evidence of contact with church authorities con cerning the content or design of the exhibit." Id. at 684. The Court

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also noted that the cost of including the creche wa s small. Nor did the Court see a basis for finding an excess ive entanglement due to political divisiveness. Id. at 684-85. The Court rejected the idea that political divisive ness alone could "serve to invalidate otherwise permissible co nduct." Id. at 684. Observing that the inclusion of the creche had produced no marked dissension prior to the lawsuit then before it, the Court pointedly wrote that "[a] liti gant cannot, by the very act of commencing a lawsuit . . . creat e the appearance of divisiveness and then exploit it as e vidence of entanglement." Id. at 684-85.7

Justice O'Connor, who joined the opinion of the Cou rt and

cast the critical fifth vote in favor of the consti tutionality of the Pawtucket display, wrote a concurring opinion " to suggest

a clarification of . . . Establishment Clause doctr ine." Id. at 687 (O'Connor, J., concurring). She pointed out, h owever, that she viewed the Court's opinion as "consistent with" her analysis. Id.

Justice O'Connor wrote that government "can run afo ul of [the Establishment Clause] in two principal ways": by means of an "excessive entanglement with religious instit utions" and by "government endorsement or disapproval of religi on." 465 U.S. at 687-88. In the Pawtucket case, Justice O'C onnor found "no institutional entanglement," and she stat ed that "political divisiveness along religious lines shoul d not be an independent test of constitutionality." Id. at 689 . "The central issue in [the] case," she stated, was "whet her Pawtucket ha[d] endorsed Christianity by its displa y of the creche." Id. at 690. "To answer that question," s he continued, it was necessary to "examine both what P awtucket intended to communicate in displaying the creche an d what message the city's display actually conveyed." Id. She found that "Pawtucket did not intend to convey any messag e of endorsement of Christianity or disapproval of non-C hristian religions." Id. at 691. She explained:

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7. See ACLU of N.J. v. Black Horse Pike Reg'l Bd. o f Educ., 84 F.3d 1471, 1486 (3d Cir. 1996) (general summary of Lynch ).

14The evident purpose of including the creche in the

larger display was not promotion of the religi ous content of the creche but celebration of the p ublic holiday through its traditional symbols. Cele bration of public holidays, which have cultural signif icance even if they also have religious aspects, is a legitimate secular purpose.

Id.

Justice O'Connor also concluded that Pawtucket's di splay of the creche did not "communicate a message that t he government intend[ed] to endorse the Christian beli efs represented by the creche." Id. at 692. She wrote :

Although the religious and indeed sectarian si gnificance of the creche . . . is not neutralized by the setting, the overall holiday setting changes what viewers m ay fairly understand to be the purpose of the display -- as a typical museum setting, though not neutralizin g the religious content of a religious painting, neg ates any message of endorsement of that content. The d isplay celebrates a public holiday, and no one conten ds that declaration of that holiday is understood to b e an endorsement of religion. The holiday itself has very strong secular components and traditions. Gov ernment celebration of the holiday, which is extremely common, generally is not understood to endorse the rel igious content of the holiday, just as government cel ebration of Thanksgiving is not so understood. The creche is a traditional symbol of the holiday that is very commonly displayed along with purely secular symbols, a s it was in

Pawtucket.

Id.

Four Justices -- Justices Brennan, Marshall, Blackm un, and Stevens -- dissented, concluding that the Pawtu cket display did not have a secular purpose, 465 U.S. at 698-701 (Brennan, J., dissenting), had the primary effect o f placing "the government's imprimatur of approval on the par ticular

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religious beliefs exemplified by the creche," id. a t 701, and "pose[d] a significant threat of fostering `excessi ve entanglement.'" Id. at 702.

B. The Supreme Court's second decision concerning holiday displays came five years later in County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989), af f'g in part and rev'g in part, Greater Pittsburgh ACLU v. Alleg heny County, 842 F.2d 655 (3d Cir. 1988). At issue were twodisplays on public property in downtown Pittsburgh. The

first was situated on the Grand Staircase of the Al legheny County Courthouse, a spot described as the "most pu blic" and "most beautiful" part of that building. 492 U. S. at 579. This display consisted of a creche, a banner procla iming "Gloria in Excelsis Deo!" ("Glory to God in the hig hest!"), some poinsettias, a "small" decorated evergreen, and a p laque stating that the display had been donated by the Ho ly Name Society, a Roman Catholic group. Id. at 580. "No figures of Santa Claus or other decorations appeared on the Gr and Staircase." Id. at 580-81. (A picture of this dis play appears at 492 U.S. at 622, Appendix A.)

Five Justices -- the four Lynch dissenters plus Jus tice O'Connor -- held that this display violated the Est ablishment Clause. Writing for the Court with respect to this issue, see 492 U.S. at 588-92, Justice Blackmun took pains to distinguish the Allegheny County Courthouse display from the display upheld in Lynch. "[U]nlike in Lynch," he wrote, "nothing in the context of the display detracts fro m the creche's religious message." Id. at 598. He noted that the creche stood "alone" as "the single element of the display on the Grand Staircase" and that "[t]he presence of Sa ntas or

other Christmas decorations elsewhere" in the court house "fail[ed] to negate the endorsement effect of the c reche." Id. at 598-99 & n. 48. Justice Blackmun rejected the s uggestion that the "floral decoration surrounding the creche" could "be viewed as somehow equivalent to the secular symbols in the overall Lynch display." Id. at 599. He concluded: In sum, Lynch teaches that government may cele brate

16

Christmas in some manner and form, but not in a way that endorses Christian doctrine. Here, Alleg heny County has transgressed this line. It has cho sen to celebrate Christmas in a way that has the effe ct of endorsing a patently Christian message: Glory to God for the birth of Jesus Christ. Under Lynch, and t he rest of our cases, nothing more is required to demonst rate a

violation of the Establishment Clause. The di splay of the creche in this context, therefore, must be per manently enjoined.

Id. at 601-02.

In a separate concurrence, Justice O'Connor similar ly distinguished Lynch, stating that "[i]n contrast t o the creche in Lynch, which was displayed in a private park in the city's commercial district as part of a broader display of traditionalsecular symbols of the holiday season, this creche st[ood]

alone in the county courthouse" and had the "unconstitutional effect of conveying a government endorsement of Christianity." 492 U.S. at 627 (O'C onnor, J., concurring). Three of the Lynch dissenters -- Bren nan, Marshall and Stevens -- were of the view that the d isplay of religious symbols on government property necessaril y sends a messsage favoring religion. 492 U.S. at 637-46 ( Brennan, J., concurring in part and dissenting in part); id. at 646-55 (Stevens, J., concurring in part and dissenting in part). In an opinion by Justice Kennedy, four Justices dissented and would have upheld the courthouse display. 492 U.S. at 655-79.

A splintered majority of the Court reached a differ ent conclusion concerning the second display at issue i n Allegheny County, which was located in front of the CityCounty Building. (A picture of this display appear s at 492 U.S. at 622, Appendix B.) The City's portion of th is building houses its "principal offices, including the mayor' s," 492 U.S. at 581, and is thus the functional equivalent of a city hall. This second display included three elements: a dec orated 45- foot Christmas tree; an 18-foot menorah that was o wned by

17

Chabad, a Jewish group, but was stored, erected, an d removed each year by the City; and a sign stating: "During this holiday season, the city of Pittsburgh salutes liberty. Let these festive lights remind us that we are keepers of the flame of liberty and our legacy of freedom." Id. at 582, 587.

Six Justices concluded that this display was consti tutional, but they set out their views in three separate opin ions. First, four Justices approved Justice Kennedy's opinion, w hich concluded that both Pittsburgh displays satisfied t he Establishment Clause. Justice Kennedy concluded t hat these displays did not violate the Establishment Cl ause because they were noncoercive and did not give dire ct benefit to religion in such a degree that they established or tended to establish religion. 492 U.S. at 659, 663-667 (opin ion of Kennedy, J.). He noted that it is indisputable tha t government may participate in celebrating holidays with religious origins, and he added that requiring gove rnment to refrain from any use of religious symbols in connec tion with these celebrations would convey a message of hostil ity to religion. He wrote:

If government is to participate in its citizen s' celebration of a holiday that contains both a secular and religious component, enforced recognition of only the se cular aspect would signify the callous indifference toward religious faith that our cases and traditions do not require . . . .Id. at 664.

Second, Justice Blackmun addressed the City-County Building display in Part VI of his opinion, which w as not endorsed by any other member of the Court. 492 U.S . at 613-21 (opinion of Blackmun, J.). Justice Blackmun concluded that this display represented a celebrati on by the city of "both Christmas and Chanukah as secular hol idays." Id. at 615. He interpreted the display to mean tha t "both Christmas and Chanukah are part of the same winter- holiday season, which has attained a secular status in our society." Id. at 616. He noted that the tallest object in th e display, the

18

tree, is a secular symbol, and while he recognized that the menorah is a religious symbol, he suggested that it did not in context convey a religious message because of the p roximity of the larger tree and the fact that, in his view, there was no comparable secular symbol of Chanukah that the City could

have used. Id. at 616-18. He was fortified in thi s view by the mayor's sign, which saluted liberty and drew "upon the theme of light . . . common to both Chanukah and Ch ristmas

as winter festivals . . . ." Id. at 619.

Third, Justice O'Connor concluded in a separate concurrence that the "combined holiday display of a Chanukah menorah, a Christmas tree, and a sign salu ting liberty d[id] not have the effect of conveying an e ndorsement of religion." Id. at 632. She agreed with Justice Blackmun that the Christmas tree is a secular symbol, but sh e felt that Justice Blackmun's analysis "obscure[d] the religio us nature of the menorah and the holiday of Chanukah." Id. a t 633. She viewed "the relevant question for Establishment Clause purposes" as "whether the city of Pittsburgh's disp lay of the menorah, the religious symbol of a religious holida y, next to a Christmas tree and a sign saluting liberty sen[t] a message of government endorsement of Judaism or whether it sen[t] a message of pluralism and freedom to choose one's own beliefs." Id. at 634. She opined that the latter, secular message was the one that the display conveyed:

By accompanying its display of a Christmas tre e -- a secular symbol of the Christmas holiday season -- with a salute to liberty, and by adding a religious symbol from a Jewish holiday celebrated at roughly the sam e time of year, . . . the city did not endorse Judaism o r religion in general, but rather conveyed a message of plur alism and freedom of belief during the holiday season.

Id. at 635 (O'Connor, J., concurring).Justice O'Connor rejected the suggestion that the d isplay

conveyed "a message that endorses religion over non religion," observing that "[a] reasonable observer would . . . appreciate that the combined display [was] an effort to acknow ledge the

19

cultural diversity of our country and to convey tol erance of different choices in matters of religious belief or nonbelief by recognizing that the winter holiday season is celeb rated in diverse ways by our citizens." Id. at 635-36.9

Because of the splintered majority in Allegheny Cou nty with respect to the constitutionality of the display in front of the City-County Building, we must employ the standard s et out in Marks v. United States, 430 U.S. 188 (1977), in order to identify the Court's holding. Specifically, we mus t examine the positions taken by the Justices needed to form a majority and follow the opinion that supports the majority p osition on the narrowest grounds. See Katz v. Aetna Cas. & Su r. Co., 972 F.2d 53, 58 (3d Cir. 1992); Planned Parenthood of Southeastern Pennsylvania v. Casey, 947 F.2d 682, 6 93-94 (3d Cir. 1991), aff'd in part and rev'd in part, 50 5 U.S. 833 (1992).

In the case of Allegheny County, Justice O'Connor's opinion sets out the position that we must follow. In orde r to be sustained, a display would have to satisfy, at a mi nimum, the standards set out in Justice Kennedy's opinion, whi ch was approved by three other Justices, as well as the st andards set out in Justice O'Connor's opinion. Although Justic e Blackmun also voted to sustain the display at the C ityCounty Building, his position seemingly imposes mor e formidable standards, and a display would not have to meet those standards in order to survive. Accordingly, in considering how the modified Jersey City display no w before us fares under Allegheny County, we will focus on J ustice O'Connor's opinion. Before doing that, however, we will first test the modified Jersey City display against the t eachings of Lynch.

___________________________________________________ ________

8. See Black Horse Pike, 84 F.3d at 1486-87 (genera l summary of Allegheny County). 9. The three dissenters -- Brennan, Marshall and St evens -- held the same view of the scene in front of City Hall as the y did of the creche on the great staircase. 492 U.S. at 637-46 (Brenna n, J., concurring in part and dissenting in part); id. at 646-55 (Ste vens, J., concurring in part and dissenting in part).

20V.

The display that the Supreme Court sustained in Lyn ch resembles the modified Jersey City display in sever al important respects. Both included one or more reli gious symbols owned by the city (in Lynch, a creche; in J ersey City, a creche and a menorah), as well as a variety of se cular ones. Both included one or more secular signs or banners (in Lynch, a banner proclaiming "SEASONS GREETINGS"; in Jersey City, two signs that read: "Through this dis play and others throughout the year, the City of Jersey City is pleased

to celebrate the diverse cultural and ethnic herita ges of its peoples."). Accordingly, Lynch appears to support the constitutionality of the modified Jersey City displ ay unless some constitutionally significant distinction can b e shown.

One potentially important difference is that the di splay in Pawtucket was located on private property in the ce nter of the city's business district, whereas the Jersey Ci ty display was situated in front of City Hall on public land. In Lynch, neither the opinion of the Court nor Justice O'Conn or's concurrence seemed to attribute constitutional sign ificance to this fact. (The opinion of the Court noted the fact in passing at the beginning of the opinion, 465 U.S. a t 671, and Justice O'Connor did not mention this fact at all.) However, Justice O'Connor's opinion in Allegheny seemed to p lace greater emphasis on this aspect of the Pawtucket di splay, 492 U.S. at 623, 626 (O'Connor, J., concurring), an d therefore we will discuss this potentially signific ant

distinction in connection with our discussion of Al legheny County.

With the possible exception of this factor, however , we see no reasonable basis for distinguishing the modified Jersey City display from the display upheld in Lynch. The plaintiffs and our dissenting colleague suggest that the cases can be distinguished on the ground that in the modified Je rsey City display "Santa Claus and Frosty the Snowman clearly do not constitute separate focal points or centers of atte ntion coequal with the Menorah and the Nativity Scene," A ppellees'

21

Br. at 14, but we see no basis for this distinction

. Appendices A and B to this opinion, which depict th e modified displays on both sides of City Hall in Jer sey City, speak for themselves. In the modified display on t he right, the sleigh is just as much a focal point as the fig ures in the nativity scene. And in the modified display on the left, the tree is just as much a focal point as the menorah.1 0

The dissent attempts to distinguish the modified Je rseyCity display from the display in Lynch on the groun d that

"the Jersey City display had more and larger sectar ian symbols combined with fewer secular symbols." Diss ent at 35. What the record shows, however, is the followi ng. With respect to the size of the religious symbols i n the two displays, the nativity-scene figures in the Jersey City display, which ranged from 12 inches to 27 inches in height, were not larger than those in the Lynch display, which range d in height from five inches to five feet. 465 U.S. at 671. Nor were there more figures in the Jersey City nativity scene than in the Pawtucket scene, which contained figures of "the Infant Jesus, Mary and Joseph, angels, shepherds, k ings, and animals." 465 U.S. at 671. Thus, the dissent' s point boils down to this: the Jersey City display differ ed from the Lynch display in that it included a large menorah a nd a smaller number of secular symbols. But any suggest ion that these factors are dispositive for Establishment Cla use purposes is belied by the Supreme Court's holding i n Allegheny County that the display of a large menora h and one secular symbol, a Christmas tree, in front of the C ity-County Building in Pittsburgh was constitutional.

It is interesting that the plaintiffs deride some o f the very distinctions that the dissent finds so significant. See

___________________________________________________ ________

10. The plaintiffs' reference to "separate focal po ints" was derived from Justice Blackmun's discussion of the display of the creche on the Grand Staircase of the county courthouse in All egheny County. Writing for the Court in this portion of his opinio n, Justice Blackmun contrasted this display, in which the creche "st[oo d] alone" as "the single element of the display on the Grand Staircas e," with the Pawtucket display, in which each of the secular fig ures "had its own focal point." 492 U.S. at 598.

22

Appellees' Br. at 15 (the court should not "engage in the fruitless exercise of determining, figuratively, `h ow many candy canes offset one Jesus?' . . . . There is si mply no common currency or rate of exchange by which religi ous and secular symbols can be traded and offset."). Inste ad, the plaintiffs stress the District Court's observation on remand that Jersey City's addition of the secular symbols was "a ploy designed to permit continued display of the religio us symbols." The suggestion seems to be that, even if Jersey City could have properly erected the modified displ ay in the first place, the City's initial display, which was held to violate the Establishment Clause, showed that the city offi cials were motivated by a desire to evade constitutional requi rements and that this motivation required invalidation of t he modified display. Asked during oral argument whether this m eantthat Jersey City might be precluded from erecting a display

identical to one that would be permissible in other nearby cities, counsel for the plaintiffs insisted that Je rsey City's "prior history" would have to be taken into account , at least

until the time came when it could be considered to be "purged" of the "prior constitutional taint." Oral Arg. Tr. at

27.

We reject this argument. The mere fact that Jersey City's first display was held to violate the Establishment Clause is plainly insufficient to show that the second displa y lacked "a secular legislative purpose," see Lemon, 403 U.S. a t 612-13, or that it was "intend[ed] to convey a message of e ndorsement or disapproval of religion." Lynch, 465 (O'Connor, J., concurring). As our prior discussion of Lynch and Allegheny County illustrates, the Supreme Court's decisions r egarding holiday displays have been marked by fine line-draw ing, and therefore it is not easy to determine whether parti cular displays satisfy the Court's standards. Under thes e circumstances, the mere fact that city officials mi scalculate and approve a display that is found by the federal courts to

23

cross over the line is hardly proof of the official s' bad faith.11 Although the original Jersey City display was ultim ately struck down, no Supreme Court or Third Circuit prec edent clearly established that it was unconstitutional un til the prior panel handed down its decision, and therefore the c ity officials' decision to continue to erect that displ ay, which had been put up for decades, can hardly be viewed as ev idence of

an intent to flout the Establishment Clause.12

We now consider how the modified Jersey City displa y fares under the holding of the Supreme Court in Allegheny County. The Court's decision striking down the display of t he creche on the Grand Staircase of the Allegheny County Cour thouse does not cast doubt on the constitutionality of the modified Jersey City display. As noted earlier, the display on the Grand Staircase consisted of a creche with a religi ous proclamation ("Gloria in Excelsis Deo") surrounded by a floral decoration that "serve[d] only to draw one's attent ion" to the creche. 492 U.S. at 598-99. The display contained no secular symbols, and the display did not communicat e to a reasonable observer the sort of secular message tha t is needed to pass Establishment Clause scrutiny, e.g., acknowledgment of "the cultural diversity of our co untry" and support for "tolerance of different choices in matt ers of religious belief or nonbelief by recognizing that t he winter holiday season is celebrated in diverse ways by our citizens." Allegheny County, 492 U.S. at 636 (O'Connor, J., co ncurring). The modified Jersey City display expressly conveyed this very message by means of its sign and implicitly conveye d the___________________________________________________ ________

11. If reaching the erroneous conclusion that a par ticular display is constitutional is regarded as proof of an intent to flout the Establishment Clause, are Allegheny County dissente rs implicated by

virtue of their views? 12. The plaintiffs' position is also contrary to th e Supreme Court's treatment of the two displays at issue in Allegheny County. If the plaintiffs' view were correct, the erection of the unconstitutional display on the Grand Staircase of the County Courth ouse should have militated in favor of also striking down the displa y in front of the City-County Building, but a majority of the Supreme Court sustained that display, and not one Justice took the position that the officials' miscalculation regarding the Grand Stair case tainted the decision concerning the City-County Building.

24

same message through its diverse nonverbal elements . Thus, the unconstitutional display on the Grand Staircase of the Allegheny County Courthouse is readily distinguisha ble from the modified Jersey City display.

On the other hand, there are instructive parallels between the constitutionally permissible display in front o f the CityCounty Building and the modified Jersey City displ ay. (Indeed, the photograph of the City-County Building display, see 492 U.S. at 622, and the display on the left-s ide of Jersey City's City Hall (see Appendix A of this opi nion) are virtually identical except for the presence of Sant a in the latter display). First, both displays contained bo th secular and religious symbolism. It is true that the City- County Building display included fewer religious symbols ( a menorah only) than the modified Jersey City display (both a menorah on the left side of City Hall and a creche on the r ight), but the City-County Building display also included fewer se cular symbols, and in both cases the balance seems to hav e been roughly the same. Moreover, Justice O'Connor's opi nion in Allegheny County refutes any suggestion that the di splay of a menorah is inherently less likely to create Estab lishment Clause problems than is the display of a creche. E schewing the suggestion that Chanukah is "a `secular' holida y" or that "the menorah has a `secular dimension,"' she pointe dly wrote that "the menorah is the central religious symbol a nd ritual object of [a] religious holiday." 492 U.S. at 633- 34. She similarly rejected the idea that, because "it would be implausible for the city to endorse a faith adhered to by a minority of the citizenry," inclusion of a menorah in a holiday display is less likely than a Christian religious s ymbol to convey a message of government endorsement of relig ion. Id. at 634. She wrote that "[a] menorah standing alone at cityhall may well send such a message to nonadherents, just as

in this case the creche standing alone at the Alleg heny County Courthouse sends a message of governmental endorsement of Christianity . . . ." Id.

Second, the strong similarity between the location of the City-County Building display (on public land in fro nt of what

25

is in essence Pittsburgh's City Hall) and the locat ion of the Jersey City display (on public land in front of Cit y Hall) is particularly important in light of our earlier conc lusion that the only basis on which the Pawtucket display uphel d in Lynch might potentially be distinguished from the m odified Jersey City display was that the former display was located on private land in the city's business district. T he portion of Justice O'Connor's separate opinion in Allegheny Co unty relating to the display on the Grand Staircase sugg ested that this distinction had some significance.13 But when Justice O'Connor turned to the display in front of the City -County Building -- a location indistinguishable for presen t purposes from the site of the Jersey City display -- she hel d that the display was constitutional. (The other factors tha t Justice O'Connor stressed in this portion of her Allegheny County opinion -- the tree and the sign -- also have close parallels here). This persuades us that the location of the Jersey City display on public property in front of City Hall do es not in itself provide a valid basis for holding the displa y to be

unconstitutional.

Moreover, although this factor is not necessary to our decision, we are convinced that, in evaluating the message conveyed by the modified Jersey City display to a r easonable observer, the general scope of Jersey City's practi ce regarding diverse cultural displays and celebrations should b e considered. In our en banc decision in ACLU of N.J . v. Black Horse Pike Reg'l Bd. of Ed., 84 F.3d 1471 (3d Cir. 1996), we held that, in determining whether a government prac tice endorses religion, " `the "history and ubiquity" of a practice is relevant because it provides part of the context in which a reasonable observer evaluates whether a challenged governmental practice conveys a message of endorsem ent of

___________________________________________________ ________

13. Justice O'Connor noted that the creche in Lynch had been "displayed in a private park in the city's commercial district ," and she opined that "[t]he display of religious symbols in public areas of core government buildings runs a special risk of `mak[in g] religion relevant, in reality or public perception, to statu s in the political community.'" 492 U.S. at 626 (O'Connor, J., concur ring (quoting Lynch,465 U.S. at 692 (O'Connor, J., concurring)).

26

religion.' " Id. at 1486 (quoting Allegheny County , 492 U.S. at 630 (O'Connor, J., concurring)); see also Capito l Square Review and Advisory Bd. v. Pinette, 115 S.Ct. 2440, 2455 (1995) (O'Connor, J., concurring) ("the reasonable observer in the endorsement inquiry must be deemed aware of the history and context of the community and forum in w hich the religious display appears"; "the knowledge attribut ed to the reasonable observer [cannot] be limited to the info rmation gleaned simply from viewing the challenged display" ). To the extent that the prior panel opinion, see 104 F.3d a t 1448-49, conflicted with our prior en banc decision in Black Horse Pike, the prior en banc decision must of course tak e precedence.

In sum, we are unable to perceive any meaningful constitutional distinction between the display at i ssue here and those that the Supreme Court upheld in Lynch an d Allegheny County. Reasonably viewed, none of these displays conveyed a message of government endorsement of Christianity, Judaism, or of religion in general bu t instead "sent a message of pluralism and freedom to choose one's own beliefs." Allegheny County, 492 U.S. at 633 (O 'Connor, J., concurring). If we follow Lynch and Allegheny County, we have no alternative but to reverse the permanent in junction insofar as it enjoins Jersey City from erecting the modified display "or any substantially similar scene or dis play in the vicinity of the entrance to the City of Jersey City 's City Hall." Indeed, even if we were persuaded that the modifie d display itself was unconstitutional, we could not possibly approve an injunction against "any substantially similar scene or display." Both the Pawtucket display and the displ ay in front of the City-County Building in Pittsburgh were, at the least, "substantially similar" to the modified Jersey City display, and consequently the District Court's injunction ha s the obviously improper effect of enjoining displays tha t are identical to ones that have passed the Supreme Cour t's scrutiny.

The dissent's attempt to distinguish the modified J ersey City display from the display upheld in Allegheny C ourt is

27

unpersuasive. The dissent first observes that in A llegheny County the 45' tall Christmas tree "dwarfed the 18' tall menorah." Dissent at 36. The reader can compare t he photograph of the display sustained in Allegheny Co unty (see 492 U.S. at 622) with Appendix A to this opinion (t he left sideof the Jersey City display) and make an independent

judgment as to whether the two scenes are constitut ionally distinguishable. In our view, they are not. The t wo menorahs are comparable in height (18' tall in Alle gheny, 19' tall in Jersey City), and although the tree in Pitt sburgh appears larger than that in Jersey City, it is diff icult to believe that this difference in height is dispositi ve.

The dissent next observes that "a display's locatio n informs the constitutional analysis" (Dissent at 36), but t he dissent obscures the fact that the display upheld in Allegh eny County and the Jersey City display were located in compara ble spots: on public land in front of the building that housed the principal offices of the municipal government.

The dissent notes that "Jersey City used public fun ds to own, erect, and maintain the creche and the menorah ." Dissent at 37. But in Allegheny County, the menora h was also "stored, erected, and removed each year by the city." 492 U.S. at 587 (opinion of Blackmun, J.). And in Lynch, the city owned, erected, and dismantled the creche. 46 8 U.S. at

671.

Finally, the dissent argues that, whereas "a displa y containing only a menorah and a Christmas tree" may be constitutional, "when a creche and a menorah are di splayed together, `the menorah's religious significance is emphasized.' " Dissent at 37 (quoting Schundler I, 104 F.3d at 1446). This statement overlooks the fact that t he creche and menorah were displayed on opposite sides of the City Hall Plaza Park. See Appendix C. More important, since Lynch teaches that display of a creche is not per s e unconstitutional, and Allegheny County teaches that the same is true of a menorah, it is hard to accept the proposition that the Establishment Clause is violat ed when

28

these two symbols are displayed together as part of a holiday display that includes secular symbols and is dedica ted to the celebration of a municipality's cultural diversity.

VI.

Before concluding, we find it necessary to explain why we do not agree with some of the prior panel's dicta r egarding the modified display. Our central point of disagre ement concerns the prior panel's suggestion that any incl usion of a creche -- but not a menorah -- in a display in fron t of a prominent government building, such as a city hall, is incompatible with the Establishment Clause. The pr ior panel

observed:Government display of a creche [unlike a menor ah]

cannot convey a meaning separate from the very act it is meant to portray. A creche depicts the Birth o f Christ,

the event that lies at the foundation of Chris tianity. In Allegheny County, the Court determined that di splays containing a creche as a primary focal point, which are situated at the seat of government, are consti tutionally impermissible as they convey a message of gove rnment endorsement. This is consistent with Lynch, i n which the Court permitted a creche that was part of a display in a private park depicting a "winter wonderla nd" scene because, in context, there were no external in dicia of government endorsement.

104 F.3d at 1451.

We respectfully submit, in part for reasons that we have already discussed, that this dicta misinterprets bo th Lynch and Allegheny County. First, the distinction that is drawn between a creche and a menorah necessarily rests on the mistaken view that these two symbols differ critica lly with respect to the nature or degree of the religious me ssage that they convey. As we have explained, however, Justic e O'Connor flatly rejected this suggestion in her piv otal Allegheny County opinion. See 492 U.S. at 633-34 ( opinion

29

of O'Connor, J.). Once it is recognized that a cre che and a menorah should be regarded as equivalent religious symbols for the purpose of analyzing holiday displays, the similarity between the constitutionally permissible display in front of the City-County Building in Pittsburgh and the modi fied display in front of Jersey City's City Hall becomes apparent.

Second, we cannot agree with the prior panel's sugg estion that in Lynch "the Court permitted a creche that wa s part of a display in a private park depicting a `winter won derland' scene because, in context, there were no external i ndicia of government endorsement." 104 F.3d at 1451 (emphasi s added). As we have noted, in Allegheny County, Jus tice O'Connor, as well as Justice Blackmun, seems to hav e attributed some significance to the fact that the d isplay in Lynch was situated on private property in the cente r of Pawtucket's commercial district, but to go further, as the prior panel did, and say that the Pawtucket display bore "no external indicia of government endorsement" is not correct. In Lynch, every Justice, whether in the majority or the dissent, agreed that by means of its holiday displa y the city of Pawtucket was endorsing some message. The Justi ces differed in their interpretation of the message tha t the display conveyed, but they all understood that the message was linked to the City -- as the lower court opinions i n that casemade abundantly clear:

[I]t is difficult to suggest that anyone could have failed to receive a message of government sponsorship af ter observing Santa Claus ride the city fire engin e to the park to join with the mayor of Pawtucket in in augurating the holiday season by turning on the lights of the city- owned display. See Donnelly v. Lynch, 525 F. Supp. 1150, 1156 (RI 1981). Indeed, the District Co urt in Lynch found that `people might reasonably mis take the Park for public property,' and rejected as `fr ivolous' the suggestion that the display was not directly a ssociated with the city. Id., at 1176, and n. 35.

Allegheny County, 492 U.S. at 666-67 (opinion of Ke nnedy,

30

J.). Once these two points are recognized -- that the menorah and the creche must be viewed for present p urposes as equivalent religious symbols and that the displa y in Lynch indisputably involved the conveyance of a governmen t message -- the foundation of the prior panel's dict a is

undermined.

VII.

For these reasons, we affirm the decision of the Di strict

Court insofar as it denied the defendants' motion u nder Rule 60(b)(5) for relief from the Court's previous judgm ent. However, we reverse the District Court's order inso far as it disposed of the parties' cross-motions for summary judgment with respect to the modified display and insofar as it enjoined the defendants from erecting that or any substantia lly similar display. We remand the case to the District Court with instructions to grant summary judgment in favor of the

defendants.

31

NYGAARD, Circuit Judge. Dissenting.

I have two reasons for dissenting. First, I dissen t because I believe that the argument urged upon us by appell ant

undermines our earlier decision in this case. Foll owing Schundler I, addressing the original display, I sti ll conclude that the addition of a few small token secular obje cts is not enough to constitutionally legitimate the modified display. Although appellant strives mightily to explain what we did not hold in Schundler I, I believe it more importan t todetermine what we did hold. We explicitly held tha t the

display at issue here, minus Frosty, Santa, the sle igh, and the Kwanzaa symbols, was unconstitutional because i t had the effect of communicating an endorsement of parti cular religions. So, I submit that the real question now is whether simply adding Kwanzaa symbols to the tree and placi ng Frosty (a secular symbol of Christmas), Santa (a on cereligious symbol -- St. Nicholas -- now quite secul arized), and a sleigh in the display sufficiently changed th e display's context so as to negate the message that was convey ed by the original display, which we held unconstitutional.

The second, albeit weaker, reason why I dissent is that although the majority cites the applicable Supreme Court case law to reach its conclusion that this display is constitutional, parsing the same law and applying i t to these facts leads me to the opposite conclusion. There i s, I readily acknowledge, much confusion and plenty of room for jurisprudential disagreement in this area. No brig ht lines of demarcation have been drawn between religious "establishment" and simple display, and perhaps non e of us is capable of accurately drawing such a line given the state of the case-law. I am afraid that the shifting majori ties and fact-specific opinions of the Supreme Court in Lync h and Allegheny County provide only a precarious analytic al framework for both the public and we inferior feder al courts to apply in determining the exact location of the l ine of

demarcation.

The Supreme Court's two major recent excursions int o this

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area have resulted in fractured majorities and no c lear statement of the law. Nonetheless, it seems to me that the Court has directed us to evaluate religious symbols in the context of the entire display. As we noted in Schu ndler I, "the Supreme Court, in its myriad of approaches in the d isplay cases, has repeatedly emphasized the importance of examining the context of the display at issue to de termine whether it has the effect of endorsing religion." Schundler I, 104 F.3d at 1451. We reaffirmed the significance o f context when we examined Allegheny County and Lynch "to ill ustrate `the importance of the context of a challenged prac tice' in conducting an Establishment Clause analysis." Id. (quoting ACLU v. Black Horse Pike Reg'l Bd. of Educ., 84 F.3 d 1471, 1484 (3d Cir. 1996) (en banc)). Following the Supr eme Court's decisions in Lynch and Allegheny County, I conclude that Jersey City's modified display resulted in an unconstitutional establishment of religion.

A. LynchFirst, our display is unlike the display that the S upreme

Court allowed in Lynch. The majority sees "no reas onable basis," other than the different locations of the d isplays, "for distinguishing the modified Jersey City display fro m the display upheld in Lynch." Majority Opinion at 21. I believe that this analysis of the display fails to adequate ly credit the different contexts of the two displays. When looke d at in its context, I believe that the constitutional display in Lynch is distinguishable. The display approved by the Court in Lynch included, in addition to a creche (the only religio us symbol),

a Santa Claus house with a live Santa distribu ting candy; reindeer pulling Santa's sleigh; a live 40-foot Christmas tree strung with lights; statues of carolers in old-fashioned dress; candy-striped poles; a "t alking" wishing well; a large banner proclaiming "SEAS ONS GREETINGS"; a miniature "village" with several houses and a church; and various "cut-out" figures, i ncluding those of a clown, a dancing elephant, a robot, and a teddy bear.

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Allegheny County, 492 U.S. at 596, 109 S. Ct. at 31 02 (opinion of Blackmun, J.). The Court in Allegheny County noted that the Lynch display was composed of a seri es of figures and objects, each group of which had its ow n focal point. See id. at 598, 109 S. Ct. at 3104 (opinion of the Court). The various objects each had a separate "v isual story to tell." Id., 109 S. Ct. at 3104.

Contrasting the Lynch display, with its "superabund ance of secular symbols [which] dilute[d] the message of the creche," Amancio v. Town of Somerset, No. Civ.A. 98CV12810RGS, 1998 WL 846865, *3 (D. Mass. Nov. 23, 1998) (finding display consisting of a creche, holi day lights, a wreath, a Christmas tree, and a plastic Santa Cla us unconstitutional), with the Jersey City display rev eals a different context. Here, rather than a "superabund ance" of secular objects, only a handful of nonsectarian obj ects were placed in the display, none of which, other than th e Christmas tree, could have reasonably been consider ed a separate focal point. I would not underestimate th e essential importance to the Supreme Court majority of the num erous secular objects surrounding the creche in Lynch. A s the Second Circuit Court of Appeals noted,

After Allegheny and Lynch, therefore, not ever y city-owned-and/or-displayed creche violates th e Establishment Clause. Lynch squarely upheld a city's erection of a creche that it owned as part of its Christmas display in a park owned by a nonprof it organization. A key factor leading to that co nclusion,especially in light of the later Allegheny dec ision, was

that the creche was only a small part of an ot herwise secular display.

Elewski v. City of Syracuse, 123 F.3d 51, 54 (2d Ci r. 1997) (upholding a holiday display of a creche in light o f the context) (emphasis added) (citations omitted), cert . denied, 118 S. Ct. 1186 (1998). Although I disagree with t he Elewski opinion in light of Lynch, nonetheless even if we a pply its reasoning to the Jersey City display, the creche an d menorah

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were certainly not "small parts" of an otherwise se cular display. The only reasonable interpretation, as we noted in Schundler I, is that Frosty and Santa composed a sm all secular part of an otherwise sectarian display, not the other way around.

Rather than the seasonal, "winter wonderland" scene in Lynch, Jersey City erected a display that a reasona ble observer would interpret as having three symbolic f ocal points: the creche, the menorah, and the Christmas tree.1 The same three focal points that were found to resu lt in an unconstitutional endorsement of religion by this Co urt in Schundler I.2 Indeed, the modified display perhaps provides a more substantial example of endorsement than the original display because the characters of the creche were r emoved from their isolated, sheltered position in the mang er to a more prominent position beside it. See Schundler I , 104 F.3d at 1439. Compared to the display in Lynch, the Jer sey City display had more and larger sectarian symbols combi ned with fewer secular symbols. This created a differe nt context

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1. Appellant argues that because the tree was compa rable in size to the menorah, it created a separate focal point. This a rgument is irrelevant in light of our holding in Schundler I. In that ca se, we expressly held that the presence of the Christmas tree did no t make the display constitutional. In Schundler I, we determined that the Christmas tree had a secular effect, and the mere addition of Kwan zaa ornaments to the tree certainly does little to enhance the alrea dy secular effect.

In addition, applying a sort of Blackmun yardstick test, appellant appears to argue that the 4' tall Santa and the 3'1 0" tall Frosty created separate focal points that operated to neut ralize the sectarian message conveyed by the 14' tall menorah and the over 45' square, 7' tall manger with a separate nativity scene. The snowman was located to the back left of the manger, approximately 35 feet away from the manger. See App. 48. Santa C laus, on the other hand, was located across the walkway, situate d betweenthe 13' tall tree and the 14' tall menorah. These token figures

simply did not substantially detract from the uncon stitutional sectarian message conveyed by the original display. See Schundler I, 104 F.3d at 1452.

2. We also placed a great deal of emphasis on the l ocation of the display on the front steps of City Hall in Schundle r I. I will follow the majority's lead and discuss this aspect of the case when dealing with Allegheny County.

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and resulted in a different message, one of governm ent endorsement of religion.

B. Allegheny County

Nor do I think that Allegheny County supports the conclusion that the Jersey City display was constit utional. It can be argued that, when looking at the secular and sectarian elements, the balance seems to have been "roughly" the same in the Jersey City display and the Alleghe ny County display located on the front steps of the City-Coun ty Building. I think that statement underestimates the importance of the context of the display by eliding the

difference in the size and location of the various elements. In Allegheny County, the 45' tall Christmas tree was " clearly the predominant element in the city's display" on the s teps of the City-County Building. Allegheny County, 492 U.S. a t 617, 109 S. Ct. at 3113 (opinion of Blackmun, J.). The tree dwarfed the 18' tall menorah, which was placed to t he side of the tree's central position beneath the middle arch way in front of the building. See id. This clearly contr asts the Allegheny County display with the Jersey City displ ay in which, on both sides of the display, the "predomina nt"

element was sectarian.

Although not determinative, a display's location in forms the constitutional analysis. As Justice O'Connor state d in Allegheny County, "[t]he display of religious symbo ls in public areas of core government buildings runs a special r isk of `mak[ing] religion relevant, in reality or in publi c perception, to status in the political community.' " 492 U.S. at 626, 109 S. Ct. at 3119 (O'Connor, J., concurring) (alterati on in original) (quoting Lynch, 465 U.S. at 692, 104 S. C t. at 1369 (O'Connor, J., concurring)). When dealing with the original display in the exact same location in Schundler I, we stated,

When a government chooses to speak by erecting a creche on government property, the principles at the core of the Establishment Clause are clearly implic ated. By erecting the creche itself, on city property, a city sends a stronger message of endorsement of religion than when36

it merely provides a forum for private religio us speech. In the former context, the government is effec tively conveying the message that "we celebrate the h oliday season by recognizing the birth of Christ."

Schundler I, 104 F.3d at 1445 (citation omitted). What is clear then is that when a display containing religi ous elements is located in front of the main city gover nment building, we should recognize that the possibility of sending a message of religious endorsement to the reasonabl e observer is augmented.3

We must not overlook an important basis of our deci sion in Schundler I: In finding the display unconstitution al, we relied on the fact that Jersey City used public funds to o wn, erect, and maintain the creche and the menorah. Although not a deciding factor, we noted that "by using taxpayer d ollars to fund a display containing religious symbols, Jersey City has increased the risk that the display's religious mes sage will be attributed to the city and its taxpayers." Id. at 1445-46; see also Elewski, 123 F.3d at 57 (Cabranes, J., dissent ing) (noting that government sponsorship is "a relevant and important factor"). The modified display here is s ubject to the same infirmity.

In Allegheny County, the Court allowed a display containing only a menorah and a Christmas tree. We

, however, have found that when a creche and a menora h are displayed together, "the menorah's religious signif icance is emphasized." Schundler I, 104 F.3d at 1446. In Al legheny County, Justice O'Connor found that, even though th e religious message of the menorah was not entirely neutralized, any message of government endorsement was

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3. Justice O'Connor approved the display in Alleghe ny County that was situated on the steps of a government building. Si nce she allowed that display, it can be argued that the location of the Jersey City display does not in itself provide a valid basis for holdin g the display to be unconstitutional. Although I agree that this facto r alone does not justify finding a display to be unconstitutional, i t is certainly an aspect that should be taken into account when deter mining the message conveyed by the display.

37negated by the presence of the much larger Christma s tree.

See Allegheny County , 492 U.S. at 635, 109 S. Ct. at 3123 (O'Connor, J, concurring). In Jersey City, however , the religious aspect of the menorah was underscored by the rest of the display.4 In this case, the menorah is more reasonably viewed in light of the presence of the creche, not the tree. In Allegheny County, the menorah outside the City-Coun ty Building was privately owned and its religious mess age was not accentuated by the additional presence of a cre che representing the stable wherein Jesus was born. Th ese facts distinguish the Allegheny County display from this one.

To support its argument that no sectarian message w as delivered, appellant points to the two signs procla iming that the display was part of a year-round celebration of diversity. The value of the signs should be considered in ligh t of, and is wholly negated by, the fact that the original di splay we held unconstitutional contained the same sign. Furtherm ore, the sign clearly states that Jersey City is supporting the display, removing any doubt from the reasonable observer's m ind concerning whether the display was private speech o r government speech. Although informative, the mere presence of signs stating that the display was part of a cel ebration of ethnic and cultural differences does little to nega te the impact of the sectarian message.5

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4. It can be argued that Justice O'Connor's opinion in Allegheny County seems to rebut Justice Blackmun's argument in the same case that a menorah is an inherently less religious symbol than a creche. I am not sure I agree with that because when a reason able observer sees a menorah what would she or he think of except the miracle of the oil, or of the holy candelabrum in the Jewis h Temple, and of the Jewish Festival of Lights. Moreover, althou gh the religious impact of a menorah standing alone was debatable, a t least by the members of the Supreme Court, we have found that th e combination of a menorah with a creche communicates a clearly s ectarian message. See Schundler I, 104 F.3d at 1446. 5. As Justice Blackmun stated, "The simultaneous en dorsement of Christianity and Judaism is no less constitutionall y infirm than the endorsement of Christianity alone." Allegheny Coun ty, 492 U.S. at 615, 109 S. Ct. at 3112 (opinion of Blackmun, J.)

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Appellant argues that Schundler I incorrectly deter mined

that a reasonable observer would not be aware of Je rsey City's other celebrations throughout the year. Ass uming arguendo that the earlier panel was incorrect, look ing at thehistory of this display and others in Jersey City d oes little to

save the modified display from its message. I am n ot exactly

sure what a reasonable observer would think. I dou bt, however, that he or she would question long why the creche and menorah were on the City Hall lawn before concl uding

that it was to celebrate Christmas and Hanukkah. I also think that the reasonable observer, looking at the modified display, would be aware of the various ethnic and c ultural celebrations throughout the year. In addition, th e reasonable observer would likely know that no other religious celebrations occurred in front of City Hall. The r easonable observer would see that the display is larger than any other display in front of City Hall. The reasonable obse rver would realize that the display was in place longer than a ny other display, secular or sectarian, that occupied the ve ry visible space in front of City Hall.6 Finally, the reasona ble observer would likely remember that for approximately thirty years, Jersey City had erected a virtually identical displ ay that we found endorsed religion in violation of the First A mendment

of the United States Constitution.

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6. From my examination of the record, the only evid ence of other displays erected by Jersey City in front of City Ha ll comes from the deposition of the mayor, Bret Schundler.

Q. Apart from the menorah and the nativity sc ene, can you recall any other displays erected on the city's initi ative that have been erected in front of City Hall?

A. I'm sure there have been.

Q. Do you have any specific recollections of any examples, as we sit here today?

A. We have had memorial week out there, we ha ve flags out there, as you know, which is right in front of City H all, celebrating every group under the sun.

App. 160.

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After thirty years of religious promotion by Jersey City in front of City Hall, the reasonable observer would l ikely see the addition of the secular figures, which "lacked the physical sturdiness and careful positioning of the religious symbols," Dist. Ct. at 10, as we saw them in our previous opi nion --

"token additions" which do little to "secularize" t he "conveyed . . . message of government endorsement of religion ." Schundler I, 104 F.3d at 1452 & n.19 (noting the "a rtful[ ]"argument of the ACLU that the reasonable observer w ould no

doubt characterize the additional figures as "attem pts at evasion of constitutional prohibitions through supe rficial secular tokenism"); see also Dist. Ct. at 10 (findi ng that the addition of the secular symbols was "a ploy designe d to permit continued display of the religious symbols") ; ACLU v. City of Florissant, 17 F. Supp. 2d 1068, 1075-76 (E .D. Mo. 1998) (finding, on similar facts, that adding secul ar figures to a previously sectarian display did not "negate or m uffle the earlier message of endorsement"). I am aware of no Supreme Court holding that allows the government to make a religious pronouncement at Christmas and Hanukkah as long as it has made a sufficient number of secular pronounceme nts at other times of the year. Although Jersey City cert ainly has separate ethnic and cultural celebrations, this doe s not obscure the fact that for several weeks of every ye ar, the city government erected a display that communicated a re ligious message. The Supreme Court's interpretation of the First Amendment simply does not allow the government to d o that.

C. Lack of Supreme Court Standard

This case, after four years of litigation, undersco res what I stated earlier about the problems with the standa rds and analyses provided by the Supreme Court in this area . In the course of this litigation, we have twice been asked to evaluate the constitutionality of two virtually identical di splays. We have come to two directly opposite conclusions. Wh at has resulted is an intra-circuit split in the truest se nse of the phrase.

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The inconsistent results in this Court can be direc tly attributed to the insufficient and inconsistent gui dance given to the inferior federal courts - or, perhaps as I e arlier mused, the behavior at issue here is incapable of being gu ided. In both Lynch and Allegheny County, the Supreme Court could not agree on the correct analysis, much less the co rrect application of a standard to the facts. After Capi tol Square Review & Advisory Board v. Pinnette, 515 U.S. 753, 115 S. Ct. 2440 (1995), it now appears that a majority of the Supreme Court has at least accepted that government sponsored religious speech should be evaluated unde r the endorsement test. Until the Supreme Court decides a case in which a majority opinion of the Court utilizes a cl ear test to analyze a religious display, we are left with fact- specific inquiries that focus on the size, shape, and infere ntial message delivered by displays with religious elemen ts, leaving almost any display that has a religious symbol in i t open to challenge and any such display that has secular ele ments, no matter how trivial, open to judicial approval.Unfortunately, Justice Kennedy's prediction in Alle gheny

County has come true. "[A] jurisprudence of minutia e" relying on "little more than intuition and a tape measure" has resulted from the unclear analyses contained in the various opinions of the Supreme Court. Allegheny County, 4 92 U.S. at 674-76, 104 S. Ct. at 1359-60 (Kennedy, J., conc urring in the judgment in part and dissenting in part).

D. Lack of Consistency

Were the foregoing the only reason for my disagreem ent, I may not have written a dissent; or if so, it would may well

have suffered the same end as most others I write. However, there is another aspect of this case -- the fact t hat we have already addressed the display at issue here, and th at, in my opinion, the majority's opinion slices our earlier holding too thinly. As I noted earlier, in light of the holdin g in Schundler I, the only question for us today is whether the ad ditions of Santa, Frosty, a sleigh, and some Kwanzaa ribbons rehabilitate a display that we held to be an uncons titutional

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endorsement of religion. The majority, however, go es beyond this issue to question the central holding and reas oning underlying an earlier opinion of this Court--a clos e reading of the majority's holding reveals that the decision does not only rely on the presence of the figures or the Kwa nzaa ribbons. Therefore, the majority would effectively overrule one of our own opinions: a task reserved for the en banc Court. Although this event would be cause for alar m in any case, my dismay is heightened here where the second opinion emanates from the exact litigation as the first. I n this instance, the concern for the consistency of the la w and the legitimacy our jurisprudence is intensified. Of co urse the law of religious displays is characterized by intensive fact analysis and questionable line drawing, and it is possible t o disagree with our prior holding and analysis; however, to pr otect the integrity of our jurisprudence, I cannot condone th e appearance of one panel overruling another.

We have the duty not only to review cases and point out error, but also to provide guidance. We cannot ask others to respect the integrity of our decisions when we ours elves do not; but instead evade the reasoning of a prior pan el in the same case. This case is unique in that we have alr eady expressed our views on the precise issue and nearly identical facts that are the subject of this appeal. We stat ed, albeit in dictum, when addressing the exact display at issue here, that

[t]he token additions of the secular symbols d o little to alter the "context" or the focal points of the City's display. We reiterate that Jersey City's disp lay of thecreche at the seat of City government power

impermissibly conveyed a message of government endorsement of religion. And, in our view, th e City's addition of Santa, Frosty, and a red sled did little to secularize that message.

Schundler I, 104 F.3d at 1451. Although dictum, th e language fulfills our responsibility to instruct an d guide the

District Court.

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On remand, the District Court scrupulously followed our instructions and reasoning and determined that the modified display violated the Establishment Clause. The Dis trict Judge made this determination, even though he may n ot have agreed with it, because he felt duty-bound, in an area of law fraught with uncertainty, to follow what he perceived to be the instructions we had given him. Now, reex amining the same display almost two years after Schundler I , this Court finds that the addition of the figures of San ta and Frosty, who was lashed to a tree next to the sleigh , do in fact neutralize the unconstitutional message of endorsem ent that had been conveyed by Jersey City for three decades and reverses itself concerning the appropriateness of o ur earlier

instructions. This constitutional about-face in th e same case troubles me greatly, strikes to the core of the leg itimacy of our jurisprudence, and exposes us to well-earned cr iticism for inconsistency and for giving insufficient respe ct to an earlier instruction by the Court.

E. Conclusion

I conclude that the message of this display remains the same as that of the original display. On one side, the

menorah and the Christmas tree tower over the Santa Claus. On the other side, a manger, representing the site where Jesus was born, dominates the scene. Next to the m anger, a cart and a nativity scene reflect the action that myth says

surrounded the birth of Jesus. Off to the side is the sleigh, and the snowman is placed behind and to the side of the

scene. The dominant element of each side of the di splay is a religious symbol. Looking at the display as a whol e, rather than focusing on only those elements that were also present in the constitutional displays in Lynch or Alleghen y County, it seems to me that the dominant message of the dis play is an endorsement of religion.

By underestimating the importance of the size, loca tion, and number of the secular elements of the display, we have now essentially given governments free reign to des ign their religious displays in as sectarian a manner as poss ible. In43

addition, if the government should happen to cross the line and convey an unconstitutional message, it needs me rely to add one or two more token secular figures and try a gain. I do not think this is the proper message to deliver.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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Appendix A

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Appendix B

46

Appendix C

47