Chabad-Lubavitch of Georgia v. Miller

This case alleging violations of the First Amendment is before the court on Plaintiffs' motion for partial summary judgment and injunctive relief on Count II of Plaintiffs' Second Amended Verified Complaint and on Defendants' motion for summary judgment.

Plaintiff Chabad-Lubavitch of Georgia ("Chabad") is a Hasidic Jewish group based in Georgia which is dedicated to reawakening and educating other Jews and the public on the Jewish faith. Plaintiffs Rabbi Yossi New and Rabbi Yossi Lerman are two members of Chabad. This dispute arises from Plaintiffs' attempt to maintain a menorah on the plaza in front of the State Capitol building in Atlanta, Georgia, or alternatively in the Rotunda of the Capitol Building, for the duration of Chanukah, 1991.

The facts in this case are uncontested. Much of the procedural and factual history of this case has previously been recounted in this court's opinion of December 11, 1990 which denied Plaintiffs' motion for temporary restraining order.SeeChabad-Lubavitch of Georgia, Inc. v. Harris,752 F. Supp. 1063(N.D.Ga. 1990). For ease of reference, the court will again summarize the history of the case.

During Chanukah, 1989, Plaintiffs erected a fifteen foot high steel menorah on the plaza in front of the State Capitol. The menorah was accompanied by a bright yellow sign which read "HAPPY CHANUKA from CHABAD OF GEORGIA." The menorah was lit in a religious ceremony and remained on the plaza for the eight days ofPage 1388Chanukah. Each day it was re-lit for thirty to forty-five minutes. Prior to placing the menorah on the plaza in 1989, Plaintiffs sought permission from the Georgia Building Authority which, along with the Governor's office, has authority over the Capitol grounds. They received permission from Defendant Luther Lewis, who was then Acting Director of the Georgia Building Authority.

During December, 1989, while the menorah was on display, Stanley Gunter of the Governor's staff noticed it. At the hearing on Plaintiffs' motion for temporary restraining order, Mr. Gunter testified that he became concerned about the establishment clause implications of the display and that he resolved to check out that concern if Chabad made another request to display the menorah. At about the same time, Mr. Gunter also noticed a live nativity scene, sponsored and organized by the Georgia Building Authority, in the Rotunda of the Capitol. The nativity scene was surrounded by a Christmas tree, reindeer, gifts and a Santa Claus.

Prior to Chanukah, 1990, an employee of Chabad telephoned Mr. Gunter and requested permission to once again erect the menorah on the plaza. A request was also made to repeat the candle-lighting ceremony. On November 1, 1990, the office of Governor Joe Frank Harris sent a letter to Attorney General Michael J. Bowers requesting that he review and analyze the proposed 1990 Rotunda Christmas display, the menorah display and the proposed Chanukah candle-lighting ceremony to determine whether they violated the establishment clause of the First Amendment. In response, the Attorney General sent Governor Harris an opinion letter. That letter concluded that the 1990 Rotunda display, which would have consisted of a live nativity scene and would have been opened with religious music and prayers, violated the establishment clause. As to Plaintiffs' activities, the Attorney General concluded that the candle-lighting ceremony, which included the display of the menorah for a short period in the plaza area, did not violate the First Amendment. However, the Attorney General opined that the display of the menorah for the entire eight days of Chanukah created an impermissible appearance of State sponsorship.

On November 14, 1990, Mr. Gunter telephoned Chabad and related the Attorney General's opinion that the menorah display throughout Chanukah would be unconstitutional. At that time, Mr. Gunter denied Chabad's request for the eight day display. A candle-lighting ceremony, including use of the menorah, was approved for December 18, 1990.¹On December 7, 1990, in response to the denial of their request to display the menorah during the eight days of Chanukah, Plaintiffs filed a complaint and motion for temporary restraining order. Three days later, Plaintiffs filed their first amended complaint. That complaint alleged that by denying Plaintiffs' request to erect and maintain a menorah during Chanukah, Defendants had engaged in content-based discrimination that was not supported by a compelling governmental interest. Chabad sought a preliminary and permanent injunction authorizing and ordering Defendants to permit the erection and maintenance of the menorah on the plaza of the State Capitol for the duration of Chanukah.

On December 10, 1990, the court held an evidentiary hearing on Plaintiffs' motion for temporary restraining order. By order dated December 11, 1990, the court denied that motion on the grounds that the Georgia Building Authority Buildings and Grounds Policy, adopted at the annual meeting of the Georgia Building Authority more than two years prior to Plaintiffs' request, forbade the placement of any unattended display on the Capitol grounds. The court found that this policy was a reasonable time, place and manner regulation in that it was "content neutral", "narrowly tailored to serve a significant governmentPage 1389interest" and "[left] open ample alternative channels of communication."752 F. Supp. at 1068. Therefore, the court found that Chabad was unlikely to succeed on the merits in showing a violation of the First Amendment.

Chabad immediately filed an emergency motion with the United States Court of Appeals for the Eleventh Circuit. On December 12, the Court of Appeals denied Plaintiffs' emergency motion. Thereafter, Plaintiffs' dismissed their appeal, and elected to proceed to judgment in this court.

In January, 1991, Chabad renewed its request to display its menorah on the grounds of the State Capitol. In addition to that request, which was identical to the request of previous years, Chabad made an alternative request to erect its menorah inside the Capitol Rotunda. On March 13, 1991, after receiving no response to either of these requests, Plaintiffs filed a motion to amend their complaint.²By order dated April 25, this court granted Plaintiffs' motion as unopposed. Plaintiffs' second amended complaint added a Count II in which Plaintiffs sought a permanent injunction authorizing and ordering Defendants to permit the erection and maintenance of a menorah in the Rotunda of the State Capitol. On November 7, 1991, Plaintiffs filed a motion for partial summary judgment on Count II. The next day, Defendants filed a motion for summary judgment on both counts of Plaintiffs' complaint.

For the sake of simplicity, the court will address Defendants' motion for summary judgment first. In Plaintiffs' brief in opposition to Defendants' motion for summary judgment, Plaintiffs acknowledge that the State is entitled to summary judgment on Count I of the complaint. Specifically, Plaintiffs agree that the Georgia Building Authority Buildings and Grounds Policy — which prohibits the placing of unattended objects on the plaza of the State Capitol — has been enforced by the State in a content-neutral manner. As such, Plaintiffs acknowledge that the State may refuse to permit Chabad to place its menorah on the Capitol plaza for the eight-day duration of Chanukah. Accordingly, Defendants' motion for summary judgment as to Count I of Plaintiffs' complaint is GRANTED as unopposed.

Defendants' motion for summary judgment as to Count II of the complaint requires substantially more analysis. The parties agree that the Georgia Building Authority Buildings and Grounds Policy, which prohibits the placing of unattended objects on the plaza of the State Capitol, is not applicable to the Rotunda of the State Capitol.³Defendants acknowledge that there are no other content-neutral policies which would prohibit unattended displays in the Rotunda. Nonetheless, Defendants believe that they are entitled to summary judgment on Count II of Plaintiffs' complaint and advance two separate arguments to support this claim. The court will address each claim in turn.

Defendants' first argument, raised briefly in the memorandum of law in support of Defendants' motion for summary judgment and more extensively in Defendants' response to Plaintiffs' motion for partial summary judgment, rests on the claim that the Capitol Rotunda is not a public forum. As such, Defendants argue that they are entitled to ban the menorah display in order "to preserve the property . . . for the use to which it is lawfully dedicated."Perry Education Assn. v. Perry Local Educators'Assn.,460 U.S. 37,46,103 S.Ct. 948,955,74 L.Ed.2d 794(1983)Page 1390(citations omitted). Plaintiffs concede that the Rotunda is not a "traditional" public forum. They argue, however, that the State has opened up the Rotunda for use by the public as a place for expressive activity. According to Plaintiffs, this action by the State amounts to the designation of the Rotunda as a "limited" or "created" public forum.

In determining whether a governmental body has designated public property as a limited public forum, courts must:

[look] to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum. [They must also examine] the nature of the property and its compatibility with expressive activity to discern the government's intent.Cornelius v. NAACP Legal Defense Fund,473 U.S. 788,802-03,105 S.Ct. 3439,3449,87 L.Ed.2d 567.See also Stewart v.District of Columbia Armory Bd.,863 F.2d 1013,1017(D.C. Cir. 1988) (courts must examine "the consistent policy and practice of the government"). TheCorneliuscourt, after setting out the above criteria, went on to provide several examples of state policies which are sufficient to designate property as a limited public forum. For example, inWidmar v.Vincent,454 U.S. 263,102 S.Ct. 269,70 L.Ed.2d 440(1981), the Court found that the policy of a state university to make meeting facilities available to student groups provided clear evidence of an intent to create a public forum. Similarly, inSoutheasternPromotions, Ltd. v. Conrad,420 U.S. 546,95 S.Ct. 1239,43 L.Ed.2d 448(1975), the Court found that a municipal auditorium and a city-leased theater which were, in practice, dedicated to expressive activities constituted a limited public forum.

As detailed in Plaintiffs' Statement of Material Facts, over the past nine years the State of Georgia has opened the Rotunda to the citizens of Georgia for use as a place of expressive activity. The State has allowed press conferences by groups such as the Lake Lanier Environmental Watch Group and the National Organization for the Reform of Marijuana Laws. Plaintiffs' Statement of Material Facts, ¶¶ 10, 17. It has also allowed cultural events like a rally by the Friends of Independent Living and a Holocaust Commemoration sponsored by numerous Jewish groups.Id.at ¶¶ 23, 26. Finally the State has permitted private citizens and groups to erect displays in the Rotunda. For example, an 18-foot tall Indian Teepee has been displayed numerous times in connection with the annual Indian Heritage Week.Id.at ¶¶ 35, 38-40, 43. The undisputed evidence shows that the above described historical, educational and cultural events, and many others, have been permitted by the State in conformity with a content-neutral, equal access policy and that the State has allowed access to the Rotunda on a first-come, first-serve basis to all interested parties.⁴SeeDefendants' Response To Plaintiffs' Statement Of Material Facts, ¶¶ 10-29.

A review of the diverse list of speech and events permitted in the Rotunda makes it patently clear that the State of Georgia has designated the Rotunda as a limited public forum. Numerous varieties of speech and symbolic expression, from political to religious, have been permitted in the Rotunda. Through its consistent practice over the past nine years, the State has revealed its intent to open up the Rotunda to assembly and debate.Cornelius,473 U.S. at 802-03,105 S.Ct. at 3449. Therefore, it has designated the Rotunda as a limited public forum.⁵Page 1391

Defendants make a second argument which is closely related to the public forum argument. Defendants maintain that even if the Capitol Rotunda has become a limited public forum by virtue of the State's grant of access to various groups, the resulting constitutional right to speak extends only to other entities of "similar character". The State distinguishes between the secular displays that have been permitted in the Rotunda and the menorah display at issue in the instant case and argues that allowing secular displays in the Rotunda should not be construed as opening the forum to religious symbols.

This argument misconstrues the implications of designating public property as a limited public forum. The State's attempt at distinguishing between religious and secular speech constitutes content-based discrimination.Congregation Lubavitch v. City ofCincinnati,923 F.2d 458,460(6th Cir. 1991) ("Discrimination against religious speech as such is content-based ....");Chabad-Lubavitch of Georgia,752 F. Supp. at 1066. Once property has been designated as a limited public forum by opening it generally to the public, content-based distinction is permissible only if narrowly tailored to serve a compelling state interest.Widmar,454 U.S. at 270,102 S.Ct. at 274. "The Constitution forbids a State to enforce certain exclusions from a forum generally open to the public, even if it was not required to create the forum in the first place."Id.at 267-68,102 S.Ct. at 273. Applicable precedent provides no legal support for Defendants' argument that religious displays may be excluded from the Rotunda, while all other forms of speech are allowed.⁶

The recognition of the Rotunda as a limited public forum provides only a starting point for analysis of this dispute. As described above, under well-established First Amendment jurisprudence, in order to restrict protected speech⁷in a public forum based on content, the State must meet the test of strict scrutiny,i.e.,Defendants must show that the restriction is narrowly tailored to serve a compelling state interest.Widmar,454 U.S. at 270,102 S.Ct. at 274.⁸Defendants contend that the need to avoid a violation of the establishment clause amounts to a compelling state interest sufficient to satisfy the strict scrutiny test. The Supreme Court has held that the need to avoid an establishment clause violation does represent a compelling state interest, but only if the proposed speech actually violates the clause.Widmar,454 U.S. at 271,102 S.Ct. at 275. Thus, Defendants' second argument in support of their motion for summary judgment is that permitting the erection of the Chabad menorah inside the Capitol Rotunda would be a violation of the establishment clause.

In the instant case, the court has already implicitly recognized that the menorah is aPage 1392religious symbol.Chabad-Lubavitch,752 F. Supp. at 1066-67.⁹Neither party contests this conclusion. The determination of whether the display of a religious symbol on government property contravenes the First Amendment's establishment clause is controlled by the line of cases which began withLemon v.Kurtzman,403 U.S. 602,612-13,91 S.Ct. 2105,2111,29 L.Ed.2d 745(1971).¹⁰Over the course of the twenty years since theLemontest was developed, lower federal courts have consistently used it to determine the constitutionality of various religious displays. The Supreme Court, however, has seemingly resisted applying the test to every case of religious displays.See Doe v.Small,934 F.2d 743,757-58(7th Cir. 1991) ("the Supreme Court itself has resisted wholeheartedly adopting the test in every case"). As recently asLynch v. Donnelly,465 U.S. 668,104 S.Ct. 1355,79 L.Ed.2d 604(1984), in which the Court upheld the display of a creche by the city of Pawtucket, Rhode Island, the Court expressed its doubts about the continuing validity of theLemontest, stating, "we have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area."465 U.S. at 679,104 S.Ct. at 1362(quoted inDoe,934 F.2d at 758). Nevertheless, Chief Justice Burger applied the three prongs of theLemontest in his majority opinion upholding the creche.465 U.S. at 681,104 S.Ct. at 1363.

In the most recent applicable case, the Supreme Court appears to have returned to theLemontest, putting emphasis on the second prong — the appearance or effect of endorsing religion. Justice Blackmun, writing the opinion of the Court, explained:

[T]he government's use of religious symbolism is unconstitutional if it has the effect of endorsing religious beliefs, and the effect of the government's use of religious symbolism depends upon its context.County of Allegheny v. ACLU,492 U.S. 573,597,109 S.Ct. 3086,3103,106 L.Ed.2d 472(1991). Justice Blackmun found that this test accurately portrayed the relevant constitutional principles at issue in religious display cases.Id.at 597,109 S.Ct. at 3103("[t]hese general principles are sound, and have been adopted by the Court in subsequent cases.").

InAllegheny,the Supreme Court examined the constitutionality of two privately owned holiday displays which were erected on public property in the city of Pittsburgh. The first display was a creche depicting the Christian nativity scene which was placed on the "Grand Staircase" in the center of the Allegheny County Courthouse. The creche was not accompanied by any other decorations or placed next to any secular ornaments. The second display was a Chanukah menorah, similar to the one in the instant case, placed outside the City-County Building next to a Christmas tree and a sign saluting liberty.Id.at 578,109 S.Ct. at 3093. The Court divided sharply on the issue of whether these private displays on public property violated the establishment clause.

The division of the Court resulted in two different majorities. A majority consisting of Justices Blackmun, Brennan, Marshall, Stevens and O'Connor held that the display of the creche in the county courthouse violated the establishment clause. Justice Blackmun, joined by Justice O'Connor, wrote for the Court. Justice Blackmun focused on the "context" in which the display was placed: . . . the Court has made clear that, when evaluating the effect of government conductPage 1393under the Establishment Clause, we must ascertain whether `the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices.' . . . Accordingly, our present task is to determine whether the display of the creche . . .in [its] `particular physicalsetting,'has the effect of endorsing or disapproving religious beliefs.492 U.S. at 597,109 S.Ct. at 3103(citations and footnote omitted, emphasis added).

In finding the creche display unconstitutional, Justice Blackmun explained: . . . nothing in the context of the display detracts from the creche's religious message. The [display at issue inLynch v. Donnelly,465 U.S. 668[104 S.Ct. 1355,79 L.Ed.2d 604] (1984)] composed a series of figures and objects, each group of which had its own focal point. Santa's house and his reindeer were objects of attention separate from the creche, and had their specific visual story to tell. . . .Here,in contrast, the creche stands alone: it is thesingle element of the display on the GrandStaircase.¹¹ Furthermore, the creche sits on the Grand Staircase, the `main' and `most beautiful part' of the building that is the seat of county government. . . .Noviewer could reasonably think that it occupies thislocation without the support and approval of thegovernment.Thus, by permitting the `display of the creche in this particular physical setting,' . . . the county sends an unmistakable message that it supports and promotes the Christian praise to God that is the creche's religious message.492 U.S. at 598-600,109 S.Ct. at 3104(citations and footnotes omitted, emphasis added).¹²

In contrast, a majority consisting of Chief Justice Rehnquist and Justices White, Blackmun, O'Connor, Scalia and Kennedy found that the display of the menorah did not violate the establishment clause. Justice Blackmun explained: . . . the menorah here stands next to a Christmas tree and a sign saluting liberty. While no challenge has been made here to the display of the tree and the sign, their presence is obviously relevant in determining the effect of the menorah's display. The necessary result of placing a menorah next to a Christmas tree is to create an `overall holiday setting' that represents both Christmas and Chanukah — two holidays, not one.492 U.S. at 614,109 S.Ct. at 3112. Justice Blackmun concluded that the display which represented both Christmas and Chanukah "are part of the same winter-holiday season, which has attained a secular status in our society."Id.at 616,109 S.Ct. at 3113.¹³Thus, theAlleghenycase teaches that, in ascertaining whether the display of a religious symbol conveys a message of government endorsement of religion in violation of the establishment clause, the court must examine the context in which the religious symbol is displayed. This focus on context is consistent with thePage 1394Court's earlier jurisprudence in this area.See Lynch v.Donnelly,465 U.S. 668,692,104 S.Ct. 1355,1369(O'Connor, J., concurring and finding that the constitutionality of a religious display depends on its "particular physical setting");Stone v.Graham,449 U.S. 39,101 S.Ct. 192,66 L.Ed.2d 199(1980) (holding that the display of the Ten Commandments on the walls of public classrooms violates the Establishment Clause under similar rationale).

Chabad's proposed menorah display in the Rotunda would be virtually identical, in terms of its physical context, to the illicit creche display inAllegheny.If the State complied with Chabad's request, the fifteen-foot steel menorah would be displayed in the heart of the State Capitol. It would not be surrounded by other secular symbols of the holiday season. Rather, it would be a prominent and isolated structure and not visually part of any comprehensive secular display.¹⁴Alleghenyheld that the unaccompanied display of a creche, a clearly religious symbol, in the center of an important county building violated the establishment clause by leading a viewer to the inescapable conclusion that the symbol has the support and approval of the government.492 U.S. at 600,109 S.Ct. at 3105. The logical extension of theAlleghenydecision is that the display of a religious symbol like a menorah, in the center of a state capitol building, unadorned by secular symbols, also conveys a message of government endorsement of religion which is impermissible under the establishment clause. The Second Circuit, in a case remarkably similar to the instant case, reached the same conclusion. InKaplan v. City of Burlington,891 F.2d 1024(2nd Cir. 1989), the Court of Appeals reviewed the dismissal by a District Court of a complaint which challenged a city's decision to permit the placement of a menorah in a city hall park by a private group. The menorah, like the creche inAlleghenyand the menorah in this case, was displayed on public property which was closely associated with a core government function and was displayed alone. The Court of Appeals reversed the District Court's dismissal of the complaint, finding that "Alleghenyteaches that the display of a menorah on government property in this case conveys a message of government endorsement of religion in violation of the Establishment Clause."891 F.2d at 1024.Compare Americans United For Separation of Church and State v.City of Grand Rapids,922 F.2d 303(6th Cir. 1990) (speculating thatAlleghenydoes not prohibit the erection of a privately-owned menorah on a municipal plaza).

Plaintiffs offer two arguments which they believe distinguish this case fromAllegheny.The first is that the Georgia State Capitol Rotunda, unlike the courthouse inAllegheny,is a public forum. According to Plaintiffs, the erection of a privately owned religious symbol in a public forum for a relatively short period of time in a public forum would not convey a message of governmental sponsorship, even if the forum is inside a governmental building. Plaintiffs argue that persons who view the menorah in the Rotunda would do so in the context of the State's longstanding practice of opening the Rotunda to a broad spectrum of protected speech and thus would not mistake the display for a state sponsored event. In support of this argument, Plaintiffs point out that this court, in its November 11, 1990 order which denied Plaintiffs' motion for a temporary restraining order, found no binding authority which would extend theAlleghenyholding from the non-public into the public forum. However, after a review of the rationale ofAlleghenythe court is compelled to hold thatAlleghenydoes apply to this case.

InAllegheny,the Court found that the context of the creche caused viewers to mistakenly conclude that the display had the endorsement of the government. This finding turned on the fact that the creche stood alone and was disassociated from other secular symbols. The menorah in this case would be similarly isolated. It isPage 1395uncontested that the Rotunda, where the menorah would be displayed, is a location where others are free to engage in speech and to place displays. Common sense dictates, however, that many of the persons who enter the Capitol Building and view the Chabad menorah would be unaware of that previous activity. Those persons would not view the menorah in the context of the State's longstanding practice of opening the Rotunda to a broad spectrum of protected speech. Instead, the persons viewing an isolated menorah in the center of the State Capitol would, in all likelihood, conclude that the menorah occupies the center of the Capitol with the support and approval of the State of Georgia. By permitting the display of the menorah in that setting, the State would send a message that it supports the religious message conveyed by the menorah.

The conclusion that the public forum status of the Rotunda does not change the result compelled byAlleghenyis supported by the Supreme Court's decision inWidmar.There, the Court indicated that whether a given forum is public or not is only one factor to be considered in determining whether the context of a display indicates that the government has placed its imprimatur on the message.454 U.S. at 274,102 S.Ct. at 276.Alleghenymakes it clear that the physical context of the display is the most important factor to be considered. Here, despite the fact that the Rotunda is a public forum, the physical context of the menorah display would communicate a message which violates the First Amendment.See Kaplan,891 F.2d at 1028.

Plaintiffs' second argument in attempting to distance this case fromAlleghenyis contained in their brief in opposition to Defendants' motion for summary judgment. Briefly stated, Plaintiffs argue thatAlleghenycannot be applicable because their right to display a menorah cannot turn on whether the State has chosen to erect a Christmas tree at the time of their request. That is not the implication of the rule announced inAlleghenynor is it the holding of the court today. The decision of the court today is limited to a finding that the erection by Chabad of a menorah in the Rotunda of the State Capitol, unaccompanied by other secular symbols, would violate the establishment clause of the First Amendment. It may well be, though the court does not reach the issue, that Plaintiffs could legally erect a display in the Rotunda which included both secular symbols and a menorah without implicating the establishment clause. It is clear, however, that Plaintiffs' intended display of a fifteen-foot tall, unattended menorah in the Rotunda would result in a violation of the establishment clause. As such, Defendants have presented a compelling interest sufficient to restrict Plaintiffs' First Amendment speech. Therefore, Defendants are entitled to summary judgment on Count II of Plaintiffs' second amended complaint. Under these circumstances, Plaintiffs' motion for partial summary judgment on Count II must be denied.

Accordingly, Defendants' motion for summary judgment [# 32-1] is GRANTED. Plaintiffs' motion for partial summary judgment and for injunctive relief [# 31-1] is DENIED.

SO ORDERED, this day of December, 1991.

/s/ Orinda D. Evans _______________ ORINDA D. EVANS United States District Judge