AHA v. Lake Elsinore - Injunction Order | Standing (Law) | Establishment Clause

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 1 of 49 Page ID #:280

1 2 3 4 5 AMERICAN HUMANIST ASSOCIATION, 6 DIANA HANSEN, and JOHN LARSEN, 7 8 vs. Plaintiffs, CASE NO. 5:13-cv-989-SVW-OP IN CHAMBERS ORDER Re MOTION FOR PRELIMINARY INJUNCTION [8] UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

9 CITY OF LAKE ELSINORE, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 On May 30, 2013, Plaintiffs American Humanist Association, Diana Hansen, and John Larsen (collectively, “Plaintiffs”) filed the instant action in this Court against Defendant City of Lake Elsinore (“Defendant” or “City”). (Dckt. 1.) Plaintiffs’ I. INTRODUCTION Defendant.

Verified Complaint asserts that Defendant’s action violates both the Establishment Clause of the Federal Constitution as well as the Establishment, No Preference, and No Aid Clauses of the California Constitution. Id. In their Verified Complaint,

Plaintiffs ask this Court for a declaration that Defendant’s approval of the design, funding, construction, and display of the

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 2 of 49 Page ID #:281

1 monument (“Monument 2”)1 discussed herein violates the above2 listed constitutional provisions, as well as an injunction 3 preventing Defendant from funding or displaying the monument on 4 public property or transferring the monument to private property. 5 Id. 6 On June 11, 2013, Plaintiffs filed their motion for a

7 preliminary injunction, asking this Court to prevent Defendant, 8 as well as any successors or assigns, from funding or displaying 9 the monument on public property, “or through subsequent transfer 10 on private property.” For the reasons put forward in this Order,

11 the Court GRANTS Plaintiffs’ motion for preliminary injunction, 12 and ENJOINS Defendant from displaying Monument 2 in front of the 13 Stadium. 14 15 16 17 18 19 20 21 At this Court’s July 15, 2013 hearing, Defendant’s counsel referred to the monument at issue as “Monument 3,” because there 22 were three distinct designs proposed to the Lake Elsinore City Council (although only the final two contained sectarian 23 symbols). This Court refers to “Monument 2” as the monument that was ultimately approved by the City Council on November 13, 2012, 24 which featured several Latin crosses and one Star of David and is the subject of this litigation. 25 2 27
1

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 3 of 49 Page ID #:282

1 2 3 4 5

II.

FACTUAL BACKGROUND

A. Evidence in Support of a Motion for Preliminary Injunction The facts below are taken from Plaintiffs’ Verified The Ninth Circuit has held that “[t]here is no

6 Complaint (“VC”).

7 disputing that an affidavit and a complaint may be the basis for 8 a preliminary injunction unless the facts are substantially 9 controverted by counter-affidavits.” McCormack v. Hiedeman, 694 10 F.3d 1004, 1019 (9th Cir. 2012); see also K–2 Ski Co. v. Head

11 Ski Co., 467 F.2d 1087, 1088-89 (9th Cir. 1972) (“A verified 12 complaint or supporting affidavits may afford the basis for a 13 preliminary injunction; but if the facts so appearing consist 14 largely of general assertions which are substantially 15 controverted by counter-affidavits, a court should not grant such 16 relief unless the moving party makes a further showing sufficient 17 to demonstrate that he will probably succeed on the merits.”) 18 (internal citations omitted). 19 Indeed, the Ninth Circuit has held that a “trial court may

20 give even inadmissible evidence some weight, when to do so serves 21 the purpose of preventing irreparable harm before trial.” Flynt 22 Distrib. Co., Inc. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 23 1984); see also Republic of the Philippines v. Marcos, 862 F.2d 24 1355, 1363 (9th Cir. 1988) (allowing a district court to consider 25 3 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 4 of 49 Page ID #:283

1 hearsay in deciding whether to issue a preliminary injunction, 2 when the plaintiff “put forward enough to show a fair chance of 3 succeeding with its proof”); Neighborhood Assistance Corp. of Am. 4 v. First One Lending Corp., 2012 WL 1698368, at *16 (C.D. Cal. 5 May 15, 2012) (granting a preliminary injunction based on 6 affidavits, despite defendants’ evidentiary objections, because 7 “a preliminary injunction may be granted based on affidavits or 8 the allegations in a ‘verified complaint,’ despite their lack of 9 conformity with the Federal Rules of Evidence regarding hearsay 10 and personal knowledge”). 11 Defendant presented no facts that “substantially controvert”

12 the allegations made in Plaintiffs’ Verified Complaint in its 13 pleadings. Moreover, Defendant did not present any facts that

14 would “substantially controvert” Plaintiffs’ Verified Complaint 15 at the hearing held in this matter on July 15, 2013. Defendant

16 has provided additional facts, in the form of declarations and 17 exhibits, which have been incorporated into the factual 18 discussion below. 19 20 B. Allegations in the Verified Complaint In April of 2012, the Lake Elsinore City Council began

21 publicly discussing the possibility of creating a monument to 22 honor local military veterans. 23 24 The Lake Elsinore City Council is a five-member body; each councilmember is elected to a staggered four-year term. See CITY 4 27
2

VC ¶ 13.2

On May 7, 2012, the

25 (footnote continued)

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 5 of 49 Page ID #:284

1 City Council directed City staff to research potential designs 2 for the monument. VC ¶ 14. In response, City staff prepared a

3 report that was presented to the City Council at a meeting on 4 July 10, 2012. VC ¶ 17. The report proposed three design

5 possibilities for the Lake Elsinore Memorial: a rectangular slab, 6 a pentagonal slab, and an obelisk-shaped slab. VC ¶¶ 17-19.

7 Each proposed monument included the text: “Lake Elsinore Veterans 8 Memorial. This Memorial is dedicated to the men and women who We shall never forget!” VC ¶ 17.

9 served in our armed services.

10 Each proposed monument also included the City’s crest and the 11 insignias of all five branches of the military, but was otherwise 12 devoid of images or text. VC ¶ 17. The Staff Report also noted

13 that $50,000 had been budgeted for the monument in the City’s 14 fiscal year 2012-2013 budget, and recommend that the monument the 15 placed in the City Hall courtyard. 16 VC ¶¶ 20-21.

After the City staff completed its report, then-Mayor Pro

17 Tem Daryl Hickman suggested that the monument be placed at the 18 entrance of the Lake Elsinore Diamond Stadium (the “Stadium”), 19 located at 500 Diamond Drive in Lake Elsinore, California, in 20 order to maximize exposure. 21 LAKE ELSINORE, http://www.lake-elsinore.org/index.aspx?page=337 (last visited July 15, 2013). The Mayor and Mayor Pro Tem are 23 members of the City Council, although it is unclear if individuals are separately elected to these positions by the 24 voters or are chosen to fill these leadership roles from amongst the five elected councilmembers. Id. 22
OF

VC ¶¶ 12, 22.

The City owns the

25 5 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 6 of 49 Page ID #:285

1 stadium and the property on which it sits, although it is managed 2 by Lake Elsinore Storm LP, a non-governmental agency. 3 City of Lake Elsinore City Manager Grant Yates ¶¶ 3-5. Decl. of The

4 Stadium is home to the Lake Elsinore Storm, a Class A baseball 5 club affiliated with the San Diego Padres. 6 Id. at ¶ 4.

After the location discussion concluded, Councilmember

7 Melissa Melendez moved that the City Council chose the Obelisk 8 Design and place the monument at the Stadium’s entrance. 9 22. Melendez further moved to create an ad-hoc design VC ¶

10 subcommittee (the “Redesign Committee” or the “Committee”) of the 11 City Council, led by then-Mayor Brian Tisdale and Joyce Hohenadl 12 of the Lake Elsinore Historical Society, to change the design of 13 the monument. 14 VC ¶ 22. Both motions passed unanimously. Id.

The Redesign Committee met on August 3, September 7, October VC ¶¶ 23. 25. At the October 19, 2012

15 5, and October 19, 2012.

16 meeting, the Committee adopted a recommendation that the City 17 Council approve the Stadium as the monument’s location and 18 authorize the City to contract with a local company, Sun City 19 Granite Inc., to construct the monument. VC ¶¶ 25. The

20 Committee also recommended approval of the following design 21 (“Monument 1”): 22 23 24 25 6 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 7 of 49 Page ID #:286

1 2 3 4 5 6 7 8 9 10 11 12 VC ¶ 26, Ex. 1. The Committee’s recommendation was presented to

13 the City Council at a meeting on October 23, 2012 by City 14 Management Analyst Justin Carlson, who had attended the August 3 15 and October 19, 2012 Redesign Committee meetings. VC ¶ 28.

16 Carlson detailed his recommendations in a report, dated October 17 23, 2012, that noted the background and budget of the proposal. 18 See CITY
OF

LAKE ELSINORE, AGENDA ITEM NO. 19 (Oct. 23, 2012), available

19 at http://www.lake20 elsinore.org/index.aspx?recordid=1718&page=492. During his

21 presentation, Carlson indicated that the monument’s purpose was 22 to represent soldiers from “all wars.” 23 Id.

After Carlson finished his presentation, several local

24 residents addressed the City Council and voiced their objections 25 7 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 8 of 49 Page ID #:287

1 to the proposed monument.

VC ¶ 30.

Some specifically objected

2 to the presence of the Latin cross,3 noting that “[t]o construct a 3 veterans memorial that honors those only of one faith will surely 4 invite litigation,” and that the presence of the cross would 5 “open the floodgates to First Amendment controversies.” VC ¶ 306 33. Others objected only to the design itself; at least one

7 speaker stated that it was “refreshing to see a cross that is our 8 heritage.” 9 VC ¶ 32.

At the conclusion of the public’s remarks, the City Council Then-Mayor

10 began its own discussion of the proposed monument.

11 Pro Tem Hickman stated, “I feel sorry for us that we as 12 Christians cannot show the cross because [of] the First 13 Amendment, okay, it really is a shame that our society is leaning 14 that way.” VC ¶ 35. Councilmember Melendez stated that it was a

15 “sad reflection on our society when as a Christian nation, one of 16 the principles upon which we were founded is something we are 17 forced to hide in society specifically with reverence to our 18 veterans, the very people who have fought to protect our 19 religious freedom . . . . However, as I understand it, the cross 20 21 The “Latin” cross is distinguished from other crosses by its “iconic horizontal arm that is shorter than the vertical 22 arm.” Trunk v. City of San Diego, 629 F.3d 1099, 1111 (9th Cir. 2011). By contrast, a “Greek” cross has two equilateral arms 23 that bisect one another. Id. The Ninth Circuit has concluded that red Greek cross on a white background is “so closely 24 identified with the American Red Cross that it has largely shed any religious symbolism.” Id. 25 8 27
3

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 9 of 49 Page ID #:288

1 on this memorial is an issue, there is a No Preference Clause 2 apparently that we must abide by so that very likely, will have 3 to be removed.” VC ¶ 37. Mayor Tisdale stated, “it upsets me

4 that we have to play the pettiness of the cross and talk about 5 the Christianity of it.” 6 VC ¶ 40.

At that point, Councilmember Robert Magee made a motion to

7 continue the item and direct City staff to discuss the design 8 with regard to the “religious references.” VC ¶ 41. Mayor Pro

9 Tem Hickman objected, stating “I’m not going to sit here and wait 10 for people to denigrate my beliefs, okay, and so I’ll give them 11 two weeks.” VC ¶ 42. Mayor Tisdale suggested that it would not

12 be possible to have a new design in two weeks; Mayor Pro Tem 13 Hickman responded, “Then we don’t have to change it.” 14 44. VC ¶¶ 43-

Councilmember Melendez chimed in that she did not “want to

15 see this continued,” and then made a motion to approve the design 16 and proposed location “with the exception of the cross.” 17 45. VC ¶

Before continuing, Councilmember Melendez turned to the city

18 attorney and asked, “is that an issue?,” to which the city 19 attorney responded “yes.” VC ¶ 46. Melendez followed up by

20 asking “So, it’s not allowed to be on there, by law?”, to which 21 the city attorney responded “It’s something that we should 22 evaluate, but it is an issue . . . . If what you want is a yes/no 23 answer, right now, the answer is, it cannot be there.” 24 25 9 27 VC ¶ 47.

Councilmember Melendez then made another motion that “we

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 10 of 49 Page ID #:289

1 move forward today with the exception of, which it pains me to 2 say this, of removing the cross, only because the city attorney 3 is saying that’s going to open us up to litigation, is that 4 correct?” VC ¶ 49. The city attorney responded: “It’s a

5 publicly funded, it goes back to the separation of church and 6 state, and there is a no preference, you have public fund going 7 into a public monument in a public location, and it demonstrate, 8 arguably demonstrates, a religious preference.” VC ¶ 50. In

9 response, Councilmember Melendez made yet another motion, stating 10 “You know what, here’s my motion to, I think at some point you 11 have to take a stand. I’m sorry, I just think you do. And I’m

12 going to make a substitute motion that we approve this project as 13 is.” 14 VC ¶ 53. At that point, Councilmember Magee restated his motion to

15 “eliminate the religious reference” and have the City staff 16 develop “another recommendation.” 17 0, with Mayor Tisdale abstaining. 18 VC ¶ 54. VC ¶ 55. The motion passed 4-

On November 2, 2012, the Redesign Committee held another

19 public meeting and took testimony from approximately seventeen 20 residents about the design. VC ¶ 56. Four were against the most

21 recent version; two indifferent; nine in favor; and two supported 22 including the Latin cross but proposed adding a Star of David. 23 VC ¶ 56. The Redesign Committee voted unanimously to amend the

24 design by adding a Star of David and adding numerous Latin 25 10 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 11 of 49 Page ID #:290

1 crosses in the background, and recommended approval of the 2 following design (“Monument 2”): 3 4 5 6 7 8 9 10 11 12 13 VC ¶ 57, Ex. 3. The image includes several Latin crosses, as The proposed

14 well as a single Star of David sitting atop a post.

15 text reads: “HONORING BRAVE MEN AND WOMEN WHO BY THEIR SACRIFICE 16 GIVE LIFE TO OUR MOST PRECIOUS GIFT—FREEDOM.” Id. The back of

17 the monument includes the words “POW MIA,” and “YOU ARE NOT 18 FORGOTTEN,” as well as a silhouette of a bowed head, as depicted 19 below: 20 21 22 23 24 25 11 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 12 of 49 Page ID #:291

1 2 3 4 5 6 7 8 9 10 11 12 Tisdale Decl. ¶ 10 and Ex. A attached thereto. The five

13 additional, smaller plaques each feature the insignia of one 14 branch of the military. Id. The monument, if approved would

15 stand four and a half feet tall, three feet wide, and eight 16 inches thick with an eight-inch think granite base. 17 VC ¶ 82.

The Committee’s recommendation was forwarded to the full

18 City Council through a report, dated November 13, 2012, prepared 19 by Management Analyst Justin Carlson and approved by Interim City 20 Manager Thomas Evans (the “November 13 Report”). 21 Elsinore Mayor Brian Tisdale, Ex. 1. Decl. of Lake

The November 13 Report

22 recommended that the City Council approve the “location, revised 23 design, and layout of the proposed Lake Elsinore veteran’s 24 memorial to be located at Diamond Stadium,” and recommended 25 12 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 13 of 49 Page ID #:292

1 awarding the construction contract to Sun City Granite.

Id.

The

2 November 13 Report also included a “Discussion” section, which 3 stated: 4 5 6 7 8 9 Id. 10 The November 13 Report was presented to the City Council at VC ¶62. Several residents The monument includes a historical depiction of a World War II era solider at a cemetery kneeling at the grave of a fallen comrade. The grave marker includes the symbol of a cross. Behind the cross are additional grave markers that include the “Star of David.” The depiction is intended to reflect a purely historical context inspired by World War II era military cemeteries, in particular, the American War Cemetery near Omaha Beach, Normandy.

11 a meeting held on November 13, 2012.

12 addressed the City Council in support of the new design, many 13 specifically stating their support for the inclusion of the cross 14 and/or the Star of David. VC ¶¶ 64-72. Notably, Joyce Hohenadl—

15 the member of the Lake Elsinore Historical Society who had been 16 selected to co-chair the Redesign Committee—addressed the 17 Council, stating that “our ancestors came to this country with 18 their Christian-Judeo faiths, as Councilmember Melendez said . . 19 . . I’m afraid because of lawsuit threats we are being 20 blackmailed into sacrificing our heritage and our beliefs.”4 21 22 Other comments made by members of the public included: “God is the cross . . . . [those objecting to the cross] do not 23 deserve to take our freedom away to have our cross on the monument,” VC ¶ 66; “[For] so few in this city . . . to think 24 that they are going to have the power [to remove the cross] and not have been in the military. I don’t know where they came from 25 (footnote continued) 13 27
4

Id.

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 14 of 49 Page ID #:293

1 At the conclusion of the public’s comments, several 2 councilmembers spoke. Councilmember Melendez noted that the

3 cross had been “controversial” but that the monument, as 4 proposed, honored “all veterans,” and concluded that Monument 2 5 had “nothing to do with religion.” VC ¶ 75. Councilmember Magee

6 noted that taxpayers would be on the hook for any lawsuits 7 against the city, but that Councilmember Melendez had reached out 8 to a group that had “offered to support us and defense us against 9 any of these actions at no cost to the city.” 10 VC ¶ 77.

Councilmember Magee moved to approve the design; in so

11 moving, he stated that he had been persuaded by a member of the 12 public’s speech “about the cross.” VC ¶ 79. The City Council

13 then voted unanimously to approve the monument and contract with 14 Sun City Granite to construct the monument. 15 VC ¶¶ 80-81.

The Verified Complaint does not state whether construction However, at this Court’s July 15, 2013

16 of Monument 2 has begun.

17 hearing on this matter, Defendant confirmed that Monument 2 has 18 not yet been erected. 19 20 21 22 23 . . . . [The cross] needs to say just the way it is . . . . This is a symbol for all denominations of religion if anybody knows 24 anything about religion,” VC ¶ 69; “I am in favor of any design promoting Bible morality.” VC ¶ 72. 25 14 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 15 of 49 Page ID #:294

1 2 3

III. STANDING

“Article III of the U.S. Constitution confines federal Standing is

4 courts to hearing only ‘cases’ and ‘controversies.’

5 a core component of the Article III case or controversy 6 requirement.” Barnum Timber Co. v. U.S. E.P.A., 633 F.3d 894,

7 897 (9th Cir. 2011) (citing Lujan v. Defenders of Wildlife, 504 8 U.S. 555, 560 (1992)). To establish constitutional standing, 9 plaintiffs must 10 11 12 13 14 15 Barnum Timber, 633 F.3d at 897 (citing Lujan, 504 U.S. at 560-61 16 and Allen v. Wright, 468 U.S. 737, 751 (1984)). Moreover, in demonstrate three elements, which constitute the ‘irreducible . . . minimum’ of Article III standing: (1) injury-in-fact—plaintiff must allege ‘concrete and particularized’ and ‘actual or imminent’ harm to a legally protected interest; (2) causal connection—the injury must be ‘fairly traceable’ to the conduct complained of; and (3) redressability—a favorable decision must be ‘likely’ to redress the injury-in-fact.

17 actions for injunctive and declaratory relief, “there is a 18 further requirement that [applicants] show a very significant 19 possibility of future harm; it is insufficient for them to 20 demonstrate only a past injury.” San Diego County Gun Rights

21 Committee v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996). 22 “The party invoking federal jurisdiction bears the burden of Lujan, 504 U.S. at 561 (citations

23 establishing” standing. 24 omitted). 25

“Since [jurisdictional requirements] are not mere

15 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 16 of 49 Page ID #:295

1 pleading requirements but rather an indispensable part of the 2 plaintiff’s case, each element must be supported in the same way 3 as any other matter on which the plaintiff bears the burden of 4 proof, i.e., with the manner and degree of evidence required at 5 the successive stages of the litigation.” 6 omitted). Id. (citations

“Therefore, at the preliminary injunction stage, a

7 plaintiff must make a ‘clear showing’ of [the standing 8 elements].” Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir. 2010)

9 (citing Winter v. Natural Resources Def. Council, Inc., 555 U.S. 10 7, 22 (2008)). Moreover, “mere allegations will not support Doe v. National

11 standing at the preliminary injunction stage.”

12 Bd. of Medical Examiners, 199 F.3d 146, 152 (3d Cir. 1999). 13 Instead, the applicant must introduce “evidence demonstrating 14 more than a mere possibility” that jurisdiction is proper. 15 at 153. 16 In Establishment Clause cases, plaintiffs may establish Id.

17 standing by demonstrating that they will make “unwelcome direct 18 contact” with state-sponsored religion. See Vasquez v. Los

19 Angeles Cnty., 487 F.3d 1246, 1253 (9th Cir. 2007) (“We join the 20 majority of the circuits and hold that, in the Establishment 21 Clause context, spiritual harm resulting from unwelcome direct 22 contact with an allegedly offensive religious (or anti-religious) 23 symbol is a legally cognizable injury and suffices to confer 24 Article III standing.”); see also Catholic League for Religious & 25 16 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 17 of 49 Page ID #:296

1 Civil Rights v. City & Cnty. of San Francisco, 624 F.3d 1043, 2 1049 (9th Cir. 2010) (“The concept of a ‘concrete’ injury is 3 particularly elusive in the Establishment Clause context because 4 the Establishment Clause is primarily aimed at protecting non5 economic interests of a spiritual, as opposed to a physical or 6 pecuniary, nature.”) (internal citations, quotation marks, and 7 alteration omitted). 8 Here, both individual Plaintiffs, Diana Hansen and John

9 Larsen, have submitted declarations stating that they have 10 previously attended events at the Stadium. Hansen states that

11 she intends to avoid going to the Stadium if Monument 2 is 12 erected because she does not wish to encounter Monument 2’s 13 religious message; Larsen states that he wishes to continue 14 attending events at the Stadium and will come into contact with 15 Monument 2 if he does so. Such declarations are plainly See Catholic League, 624

16 sufficient to confer injury-in-fact.

17 F.3d at 1049, 1053 (holding that plaintiffs had standing to 18 assert an Establishment Clause claim challenging the city’s 19 resolution that a Catholic cardinal “withdraw his discriminatory 20 and defamatory directive that Catholic Charities of the 21 Archdiocese of San Francisco stop placing children in in need of 22 adopting with homosexual households” where plaintiffs asserted 23 that they lived in San Francisco, were Catholic, and had “come in 24 contact with the resolution”). 25 17 27 Moreover, because Larsen and

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 18 of 49 Page ID #:297

1 Hansen are both members of the American Humanist Association, the 2 organization has standing to sue under the doctrine of 3 associational standing. See Oregon Advocacy Ctr. v. Mink, 322

4 F.3d 1101, 1109 (9th Cir. 2003) (“An association has standing to 5 bring suit on behalf of its members when: (a) its members would 6 otherwise have standing to sue in their own right; (b) the 7 interests it seeks to protect are germane to the organization’s 8 purpose; and (c) neither the claim asserted nor the relief 9 requested requires the participation of individual members in the 10 lawsuit.”) (internal citations and quotation marks omitted). 11 Moreover, there is little debate that Plaintiffs satisfy the

12 causation and redressability requirements of standing: Plaintiffs 13 “seek a declaratory judgment that the resolution is 14 unconstitutional,” and if this Court were to grant the requested 15 relief, “the official act of the government becomes null and 16 void.” 17 18 19 20 A preliminary injunction is “‘an extraordinary and drastic IV. PRELIMINARY INJUNCTION STANDARD Catholic League, 624 F.3d at 1053.

21 remedy, one that should not be granted unless the movant, by a 22 clear showing, carries the burden of persuasion.’” Lopez v.

23 Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. 24 Armstrong, 502 U.S. 968, 972 (1997) (per curiam) (citation 25 18 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 19 of 49 Page ID #:298

1 omitted).

A plaintiff seeking a preliminary injunction must

2 establish that it is 1) likely to succeed on the merits; 2) 3 likely to suffer irreparable harm in the absence of preliminary 4 relief; 3) that the balance of equities tips in his favor; and, 5 4) that an injunction is in the public interest. Winter v.

6 Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Farris v. 7 Seabrook, 677 F.3d 858, 864 (9th Cir. 2012) (same). 8 Although they are often articulated separately, the Ninth

9 Circuit has held that the first and third requirements—the 10 likelihood of success on the merits and the balance of equities— 11 should be considered in tandem. Alliance for the Wild Rockies v. Under this

12 Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).

13 “sliding-scale” approach, these two elements “are balanced, so 14 that a stronger showing of one element may offset a weaker 15 showing of another.” Id. at 1131. Thus, the standard for

16 granting a preliminary injunction varies depending on the 17 relative harm and the likelihood of success on the merits. Id.

18 However, in order to succeed on an application for a preliminary 19 injunction, Plaintiffs must show that they are likely to suffer 20 irreparable harm and that the injunction is in the public 21 interest. 22 23 24 25 19 27 Id. at 1135.

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 20 of 49 Page ID #:299

1 2 3

V. IRREPARABLE HARM

In an Establishment Clause claim, the irreparable harm See Chaplaincy of

4 analysis collapses into the merits analysis.

5 Full Gospel Churches v. England, 454 F.3d 290, 304 (D.C. Cir. 6 2006) (holding that a “party alleging a violation of the 7 Establishment Clause per se satisfies the irreparable injury 8 requirement of the preliminary injunction calculus”); see also 9 Klein v. City of San Clemente, 584 F.3d 1196, 1207-08 (9th Cir. 10 2009) (“Both this court and the Supreme Court have repeatedly 11 held that the loss of First Amendment freedoms, for even minimal 12 periods of time, unquestionably constitutes irreparable injury.”) 13 (internal citations, alteration, and quotation marks omitted). 14 Accord ACLU of Ky. v. McCreary County, 354 F.3d 438, 445 (6th 15 Cir. 2003), aff’d on other grounds, 545 U.S. 844 (2005); 16 Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5th 17 Cir. 1996); Parents’ Ass’n of P.S. 16 v. Quinones, 803 F.2d 1235, 18 1242 (2d Cir. 1986). Thus, in determining whether Plaintiffs are

19 likely to suffer irreparable harm, this Court must consider 20 whether Plaintiffs are likely to succeed on the merits. 21 22 23 24 25 20 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 21 of 49 Page ID #:300

1 2 3

VI.

LIKELIHOOD OF SUCCESS ON THE MERITS: THE FEDERAL CONSTITUTION’S ESTABLISHMENT CLAUSE5

The Establishment Clause of the First Amendment provides

4 that “Congress shall make no law respecting establishment of 5 religion.” U.S. CONST. amend. I. “As the Supreme Court has

6 explained, the ‘touchstone’ of Establishment Clause jurisprudence 7 is the requirement of ‘governmental neutrality between religion 8 and religion, and between religion and nonreligion.’” Trunk v.

9 City of San Diego, 629 F.3d 1099, 1105-06 (9th Cir. 2011) 10 (quoting McCreary County v. ACLU, 545 U.S. 844, 860 (2005) 11 (citations and internal quotation marks omitted)). In analyzing

12 Establishment Clause claims, courts “do not apply an absolute 13 rule of neutrality because doing so would evince a hostility 14 toward religion that the Establishment Clause forbids.” 15 629 F.3d at 1106. Trunk,

Neutrality, the Supreme Court has noted, “‘is

16 not so narrow a channel that the slightest deviation from an 17 absolutely straight course leads to condemnation’” by the First 18 Amendment. McCreary, 545 U.S. at 876 (quoting Sherbert v.

19 Verner, 374 U.S. 398, 422 (1963) (Harlan, J., dissenting)); see 20 21 Plaintiffs have moved for a preliminary injunction under 22 both the Federal Constitution’s Establishment Clause as well as the California Constitution’s Establishment, No Preference, and 23 No Aid Clauses. Because the Court finds that the relief requested may be granted under the Federal Constitution’s 24 Establishment Clause claim, it declines to reach Plaintiffs’ California Constitution claims. 25 21 27
5

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 22 of 49 Page ID #:301

1 also Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 971 (9th 2 Cir. 2011) (“The Establishment Clause does not wholly preclude 3 the government from referencing religion. Rather, what the Clause 4 requires is governmental neutrality . . . .”) (internal citations 5 and quotation marks omitted). 6 “However, because ‘neutrality’ is a general principle, it

7 cannot possibly lay every issue to rest, or tell [courts] what 8 issues on the margins are substantial enough for constitutional 9 significance.” Trunk, 629 F.3d at 1106 (internal citations and Rather, in assessing whether a public

10 quotation marks omitted).

11 monument violates the Establishment Clause, courts are guided by 12 “two related constructs” articulated by the Supreme Court: “the 13 test set forth in Lemon [v. Kurtzman, 403 U.S. 602 (1971)], 14 which—through various twists and turns—has long governed 15 Establishment Clause claims, and the analysis for monuments and 16 religious displays more recently articulated in Van Orden [v. 17 Perry, 545 U.S. 677 (2005)].” 18 19 20 21 22 23 Trunk, 629 F.3d at 1106 (quoting Access Fund v. U.S. Dep’t of 24 Agric., 499 F.3d 1036, 1043 (9th Cir. 2007)). 25 22 27 “Although Lemon The Lemon test asks whether the action or policy at issue (1) has a secular purpose, (2) has the principal effect of advancing religion, or (3) causes excessive entanglement with religion. In recent years, the Supreme Court essentially has collapsed these last two prongs to ask “whether the challenged governmental practice has the effect of endorsing religion.” Trunk, 629 F.3d at 1106.

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 23 of 49 Page ID #:302

1 has

been

strongly it, and

criticized, in fact

the

Supreme the Lemon

Court test

has to

never a Ten

2 overruled

applied

3 Commandments display in an opinion issued the same day as Van 4 Orden.” 5 859-64). 6 7 8 9 10 11 12 13 14 15 In Van Orden, the Court declined to apply Lemon to a Ten Commandments monument on the grounds of the Texas State Capitol. Addressing whether that monument violated the Establishment Clause, the plurality struggled with reconciling “the strong role played by religion and religious traditions throughout our Nation's history” with the constitutional separation of church and state. Van Orden, 545 U.S. at 683. The plurality concluded that the Lemon test was “not useful in dealing with the sort of passive monument that Texas ha[d] erected on its Capitol grounds.” Id. at 686. Instead, its analysis focused on “the nature of the monument and . . . our Nation’s history.” Id. Taking into consideration the role of God and the Ten Commandments in the nation’s founding and history, the monument’s passive use, and its “undeniable historical meaning,” id. at 690, the plurality concluded that the display passed constitutional muster. However, in a separate concurrence— Trunk, 629 F.3d at 1106 (citing McCreary, 545 U.S. at

16 Trunk, 629 F.3d at 1106-07.

17 Van Orden’s controlling opinion, see Trunk, 629 F.3d at 1107— 18 Justice Breyer delineated a set of “difficult borderline cases” 19 like the monument at issue in Van Orden for which there could be 20 “no-test related substitute”—Lemon or otherwise—“for the exercise 21 of legal judgment.” Van Orden, 545 U.S. at 700 (Breyer, J., Such cases, Justice Breyer concluded, assessment to the of whether [a particular of the

22 concurring in judgment). 23 demand “a fact-intensive is] faithful

24 monument

underlying

purposes

25 Establishment Clause.”

Trunk, 629 F.3d at 1107. 23

This “flexible

27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 24 of 49 Page ID #:303

1 assessment entails a range of factors, including the monument’s 2 purpose, the perception of that purpose by viewers, the extent to 3 which the monument’s physical setting suggests the sacred, and 4 the monument’s history.” 5 with the Lemon factors, Id. but This inquiry “does not dispense rather retains them as ‘useful

6 guideposts.’”

Id. (quoting Van Orden, 545 U.S. at 700 (Breyer,

7 J., concurring in judgment)). 8 Thus, as the Ninth Circuit has held, Van Orden “establishes

9 an ‘exception’ to the Lemon test in certain borderline cases 10 regarding the constitutionality of some longstanding plainly 11 religious displays that convey a historical or secular message in 12 a non-religious context.” Trunk, 629 F.3d at 1107.

13 Unfortunately, “Justice Breyer did not explain in detail how to 14 determine whether a case was borderline and thus less appropriate 15 for the typical Lemon analysis.” 16 Id.

However, like the Ninth Circuit in Trunk, this Court need At a minimum,

17 not decide whether Lemon or Van Orden controls.

18 both tests require this Court to 1) determine whether the City’s 19 purpose in including the Latin crosses and the Star of David was 20 secularly motivated; and, 2) “engage in a factually specific 21 analysis of [Monument 2’s] history and setting.” 22 at 1107. Trunk, 629 F.3d

If Plaintiffs are likely to succeed either in

23 demonstrating that the Latin crosses and Star of David were 24 included primarily for religious reasons, or that the effect of 25 24 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 25 of 49 Page ID #:304

1 their inclusion is to endorse religion based on Monument 2’s 2 “history and setting,” then this Court may grant their motion for 3 preliminary injunction. For the reasons put forward below, the

4 Court concludes that it is likely that Plaintiffs will succeed on 5 under both prongs of the Lemon-Van Orden framework. 6 7 8 A. Purpose 1. Legal Standard Under both Lemon and Van Orden, courts must first “inquire

9 as to the purpose of the government action to determine whether 10 it is predominantly secular in nature.” 11 This inquiry 12 13 14 15 16 Trunk, 629 F.3d at 1108 (quoting McCreary, 545 U.S. at 862). 17 Although courts are “normally deferential to a State’s 18 articulation of a secular purpose, it is required that the 19 statement of such purpose be sincere and not a sham.” 20 Aguillard, 482 U.S. 578, 586-87 (1987). Edwards v. does not call for “any judicial psychoanalysis of a drafter’s heart of hearts.” Rather, “[t]he eyes that look to purpose belong to an objective observer, one who takes account of the traditional external signs that show up in the text, legislative history, and implementation of the statute, or comparable official act.” Trunk, 629 F.3d at 1107.

Thus, in assessing the

21 purpose of a challenged governmental action, this Court need not 22 credit “new statements of purpose . . . presented only as 23 litigating positions[.]” McCreary, 545 U.S. at 871. Instead, it

24 must take into account the “traditional external signs that show 25 25 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 26 of 49 Page ID #:305

1 up in the text [and] legislative history . . . . [and] the 2 statute’s words, enlightened by their context and the 3 contemporaneous legislative history . . . and the sequence of 4 events leading up” to action at issue. 5 6 2. Analysis Defendant argues that the Latin crosses and Star of David Id. (emphasis added).

7 featured in Monument 2 are meant to honor veterans of World War 8 II. In support of this contention, Defendant points to the

9 November 13 Report, which states that the Latin crosses and the 10 Star of David are “intended to reflect a purely historical 11 context inspired by World War II era military cemeteries, in 12 particular, the American War Cemetery near Omaha Beach, 13 Normandy.” 14 This purported secular purpose is belied by the sequence of

15 events leading up to the approval of the November 13 Report. 16 From the evidence available, it appears that the November 13 17 Report was the first time that any individual in the City—staff, 18 elected officials, or otherwise—suggested that the Latin crosses 19 and Star of David were meant to honor World War II in particular. 20 The record contains no indication that, when the City Council 21 first began discussing the possibility of creating a war memorial 22 in April of 2012, it specifically wished to honor or commemorate 23 World War II veterans. Nor is there any mention of World War II

24 at any one of the many city-sponsored meetings that took place 25 26 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 27 of 49 Page ID #:306

1 before the November 13 Report was prepared.

For example, when

2 the City Council directed city staff to research potential 3 designs for the war memorial at its May 7, 2012 meeting, there is 4 no indication that the Council asked for the monument to honor or 5 refer to World War II veterans. Similarly, when the Council

6 discussed the proposed designs at its July 10, 2012 meetings, and 7 the proposed redesign (Monument 1) at its October 23, 2012 8 meeting, there is no indication that any councilmember so much as 9 suggested that the Latin crosses and Star of David were meant to 10 allude to World War II veterans in particular. Indeed, in the

11 report that recommended approval of Monument 1 (which was 12 presented to the City Council at its October 23 meeting), there 13 is no mention of World War II veterans whatsoever. 14 The allegedly secular purpose of featuring the Latin crosses

15 and Star of David on Monument 2 is further undermined by 16 statements made at both the October 23 and November 13, 2012 City 17 Council meetings. At least three councilmembers made specific

18 statements that they wanted to keep the Latin cross as part of 19 the monument because of its religious symbolism. At one point,

20 Councilmember Melendez stated that it was a “sad reflection on 21 our society when as a Christian nation, one of the principles 22 upon which we were founded is something we are forced to hide in 23 society specifically with reverence to our veterans, the very 24 people who have fought to protect our religious freedom.” 25 27 27 Later

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 28 of 49 Page ID #:307

1 on, in light of the city attorney’s repeated warnings that 2 inclusion of the cross would create a First Amendment “issue,” 3 Councilmember Melendez responded, “I think at some point you have 4 to take a stand,” and moved to approve the project “as is.”6 5 Similarly, the comments of then-Mayor Pro Tem Hickman

6 demonstrate that the purpose of including the cross in Monument 2 7 was religiously motivated. At one point, Hickman stated: “I feel

8 sorry for us that we as Christians cannot show the cross because 9 [of] the First Amendment, okay, it really is a shame that our 10 society is leaning that way.” Later, Hickman stated, “I’m not

11 going to sit here and wait for people to denigrate my beliefs,” 12 and, after being told that his suggestion that staff be given two 13 weeks to redesign the monument was infeasible, concluded “Then we 14 don’t have to change it.” Finally, at the October 23, 2012

15 meeting, Mayor Tisdale stated, “it upsets me that we have to play 16 the pettiness of the cross and talk about the Christianity of 17 it.” 18 Finally, the City’s insistence that the Latin crosses and

19 Star of David were included for secular, rather than religious, 20 Melendez’s conclusory statement at the November 13, 2012 meeting that the Latin crosses and Star of David on Monument 2 22 had “nothing to do with religion,” cannot erase her articulated desire, made just three weeks earlier, to “take a stand” in 23 support of Christianity, especially in light of her repeated statements that she would only vote to remove the Latin cross 24 because the city attorney informed her that it would create a First Amendment “issue.” 21 25 28 27
6

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 29 of 49 Page ID #:308

1 purposes is undermined by comments made at the November 13 2 meeting itself. In voicing his approval for Monument 2,

3 Councilmember Magee stated that he had been persuaded by a local 4 resident’s plea to approve the monument, in which she had 5 “talk[ed] about her cross.” Similarly, in her address to the

6 Council, Joyce Hohenadl—the member of the Lake Elsinore 7 Historical Society who had been selected to co-chair the Redesign 8 Committee—stated that “our ancestors came to this country with 9 their Christian-Judeo faiths,” and that she was “afraid because 10 of lawsuit threats we are being blackmailed into sacrificing our 11 heritage and our beliefs.” Although not an elected official

12 herself, Hohenadl’s position as co-chair of a city-created 13 committee further lends support to the conclusion that the 14 primary purpose of including the Latin crosses and the Star of 15 David was to promote religion. 16 To conclude that the Latin crosses and Star of David on

17 Monument 2 were included to honor World War II veterans in 18 particular, this Court would have to ignore the entire sequence 19 of events leading up to the approval of the November 13 Report. 20 This Court must decline the City’s invitation to do so; indeed, 21 in McCreary, the Supreme Court rejected a similar suggestion that 22 courts should limit the purpose inquiry to only “the latest news 23 about the last in a series of governmental actions, however close 24 they may all be in time and subject.” 25 29 27 Id. at 866. As the

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 30 of 49 Page ID #:309

1 Supreme Court explained in McCreary, 2 3 4 5 6 7 8 McCreary, 545 U.S. at 866 (internal citations, quotation marks, 9 and alterations omitted). The comments made at the October 23 the world is not made brand new every morning, and the Counties are simply asking us to ignore perfectly probative evidence; they want an absentminded objective observer, not one presumed to be familiar with the history of the government’s actions and competent to learn what history has to show. The Counties’ position just bucks common sense: reasonable observers have reasonable memories, and our precedents sensibly forbid an observer to turn a blind eye to the context in which the policy arose.

10 Council meeting, as well as the eleventh-hour attempt to 11 articulate a secular purpose for the City’s decision to include 12 the Latin crosses and the Star of David on Monument 2, 13 demonstrate that the City’s desire to include these patently 14 religious symbols was religiously motivated. See Green v.

15 Haskell Cnty. Bd. Of Comm’rs, 568 F.3d 784, 801 (10th Cir. 2009) 16 (holding that the purpose of erecting a monument featuring the 17 Ten Commandments and the Mayflower Compact was primarily 18 religious based on “quotes from the[] commissioners [that] 19 appear[ed] in news reports, ranging from statements reflecting 20 their determination to keep the Monument, (‘I won't say that we 21 won’t take it down, but it will be after the fight.’), to 22 statements of religious belief, (‘That’s what we’re trying to 23 live by, that right there.’ ‘The good Lord died for me. I can 24 stand for him. And I’m going to.’ ‘I’m a Christian and I believe 25 in this. I think it's a benefit to the community.’ ‘God died for 30 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 31 of 49 Page ID #:310

1 me and you, and I'm going to stand up for him.’)”); see also 2 McCreary (rejecting the county government’s argument that the 3 purpose of including the Ten Commandments as part of a display, 4 which included copies of the Magna Carta, the Declaration of 5 Independence, and others, in front of the courthouse was “to 6 educate the citizens of the county regarding some of the 7 documents that played a significant role in the foundation of our 8 system of law and government” because the non-sectarian documents 9 had only been included after the counties were sued on account of 10 two earlier displays, one featuring solely the Ten Commandments 11 and the other featuring solely religious texts). This is not a

12 case where “savvy officials had disguised their religious intent 13 so cleverly that the objective observer just missed it.” 14 McCreary, 545 U.S. at 863. To the contrary, the “openly

15 available data,” id., demonstrates a full-throated desire to 16 include the Latin crosses and Star of David because of their 17 religious symbolism. 18 Three additional facts lend support to the conclusion that

19 the Latin crosses and Star of David were included on the monument 20 for religious purposes. First is the presence of the Latin Several courts—including

21 crosses and Star of David themselves.

22 the Supreme Court—have noted that the presence of patently 23 religious symbols, such as the Latin cross, suggest that the 24 purpose of erecting a monument is religious motivated. 25 31 27 See

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 32 of 49 Page ID #:311

1 McCreary, 545 U.S. at 869 (parsing the text of the Ten 2 Commandments in a purpose analysis and noting that while the 3 Commandments “have had influence on civil or secular law,” the 4 “original text viewed in its entirety is an unmistakably 5 religious statement dealing with religious obligations and with 6 morality subject to religious sanction”); Am. Civil Liberties 7 Union of Georgia v. Rabun Cnty. Chamber of Commerce, Inc., 698 8 F.2d 1098, 1110-11 (11th Cir. 1983) (noting that the presence of 9 a cross, in connection with other evidence, supported a finding 10 that the purpose of constructing a cross was primarily 11 religious); Mendelson v. City of St. Cloud, 719 F. Supp. 1065, 12 1069 (M.D. Fla. 1989) (“The Latin cross is unmistakably a 13 universal symbol of Christianity. Each witness at trial, 14 including a Catholic Priest and a Jewish Rabbi, testified that 15 they could perceive of no secular purpose for a Latin cross. Such 16 a cross has always been a symbol of Christianity, and it has 17 never had any secular purpose.”). 18 Second, the inclusion of sectarian symbols when none were

19 required further suggests that the inclusion of the cross was 20 religiously motivated. See Larkin v. Grendel’s Den, Inc., 459

21 U.S. 116, 124 (1982) (discrediting the government’s purported 22 secular purpose because it could be “readily accomplished by 23 other [non-sectarian] means”). If the City specifically wishes

24 to honor World War II veterans, there are a host of other images 25 32 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 33 of 49 Page ID #:312

1 that would plainly serve this purpose without using religious 2 symbols. 3 Finally, the comments made by members of the public at the

4 November 13 meeting further suggest that the Latin crosses and 5 Star of David were religiously motivated. See Epperson v. State

6 of Ark., 393 U.S. 97, 108 (1968) (concluding that “sectarian 7 conviction was and is” the reason that a statute outlawing the 8 teaching of evolution was passed based on statements from the 9 law’s advocates that “teaching of evolution would be subversive 10 of Christianity” and would “cause school children to disrespect 11 the Bible”) (internal citations and quotation marks omitted). 12 Several comments made by members of the public specifically 13 invoked Christianity, as local residents urged their 14 representatives to approve Monument 2 because of its religious 15 symbolism. See VC ¶¶ 64-72 (alleging that at the November 13

16 meeting, members of the public, in voicing their support for the 17 inclusion of the Latin cross and/or Star of David on Monument 2, 18 stated “God is the cross . . . . [those objecting to the cross] 19 do not deserve to take our freedom away to have our cross on the 20 monument”; “[For] so few in this city . . . to think that they 21 are going to have the power [to remove the cross] and not have 22 been in the military. I don’t know where they came from . . . .

23 [The cross] needs to say just the way it is . . . . This is a 24 symbol for all denominations of religion if anybody knows 25 33 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 34 of 49 Page ID #:313

1 anything about religion”; and, “I am in favor of any design 2 promoting Bible morality”).7 3 4 3. Conclusion: Primary Purpose In sum, in light of the sequence of events leading up the

5 approval of the November 13 Report, it is likely that Plaintiffs 6 will be able to demonstrate that the Latin crosses and Star of 7 David were included on Monument 2 because of their religious 8 symbolism. 9 10 B. Effect of Endorsing Religion In assessing whether the Monument has the “effect of

11 endorsing religion,” courts ask “whether it would be objectively 12 reasonable for the government action to be construed as sending 13 primarily a message of either endorsement or disapproval of 14 religion.” Trunk, 629 F.3d at 1109. “Endorsement” does not

15 concern “all forms of government approval of religion,” but 16 rather only those acts “that send the stigmatic message to 17 nonadherents that they are outsiders, not full members of the 18 political community, and an accompanying message to adherents 19 that they are insiders, favored members.” 20 Although the Ninth Circuit has warned that the connection between advocacy and legislation is often “complex, attenuated, 22 and mediated,” Trunk, 629 F.3d at 1109, it has recognized that religious advocacy “can form part of the context for determining 23 an act’s purpose.” Id. (emphasis added). Here, the public’s comments provide only additional proof—beyond the comments of the 24 legislators themselves—that Monument 2 features the Latin cross and Star of David for religious reasons. 21 25 34 27
7

Id.

Like the purpose

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 35 of 49 Page ID #:314

1 inquiry, this prong of the Lemon test is made from the 2 “perspective of an informed and reasonable observer who is 3 familiar with the history of the government practice at issue.” 4 Id. at 1110 (internal citations and quotation marks omitted). 5 In conducting this analysis, this Court must consider “fine-

6 grained, factually specific features of” Monument 2, “including 7 the meaning or meanings of the Latin cross [and the Star of David 8 on the monument], the [monument’s] history, its secularizing 9 elements, its physical setting, and the way the [monument] is 10 used.” 11 12 Id. 1. The Latin Cross Defendant does not, and cannot, dispute that the Latin cross Trunk, 629 F.3d at

13 is “the preeminent symbol of Christianity.” 14 1110.

Indeed, as the Ninth Circuit concluded just two years ago,

15 every single court of appeals that has considered challenges to 16 Latin crosses has concluded that the Latin cross is a Christian 17 symbol. Id. (citing Robinson v. City of Edmond, 68 F.3d 1226,

18 1232 (10th Cir. 1995); Murray v. City of Austin, 947 F.2d 147, 19 149 (5th Cir. 1991); Harris v. City of Zion, 927 F.2d 1401, 1403 20 (7th Cir. 1991); Rabun, 698 F.2d at 1110–11); see also (Jewish 21 War Veterans of the U.S. v. United States, 695 F. Supp. 3, 12 22 (D.D.C.1988) (“Running through the decisions of all the federal 23 courts addressing the issue is a single thread: that the Latin 24 cross ... is a readily identifiable symbol of Christianity.”). 25 35 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 36 of 49 Page ID #:315

1 Moreover, the cross is an exclusively “Christian symbol, and not 2 a symbol of any other religion.” Trunk, 629 F.3d at 1111

3 (internal citations and quotation marks omitted). 4 However, the more relevant question in the effects inquiry

5 is the same one confronted by the Ninth Circuit in Trunk: whether 6 the Latin cross has a “broadly-understood ancillary meaning as a 7 symbol of military service, sacrifice, and death.” 8 F.3d at 1111. Trunk, 629

After conducting an exhaustive inquiry as to the

9 history of the cross and its use, or absence, in memorials 10 honoring fallen soldiers, the Ninth Circuit concluded that the 11 Latin cross “does not possess an ancillary meaning as a secular 12 or non-sectarian war memorial.” 13 (emphasis added). Trunk, 629 F.3d at 1116

While acknowledging that “[m]ilitary

14 cemeteries have not, of course, remained entirely free of 15 religious symbolism,” the Ninth Circuit concluded that there was 16 simply no evidence that the cross had been “widely embraced by—or 17 even applied to—non-Christians as a secular symbol of death.” 18 Id. at 1113, 1116. Thus, while the Latin cross can serve “as a

19 powerful symbol of death and memorialization,” it nonetheless 20 “remains a sectarian, Christian symbol.” Id.; see also Am.

21 Atheists, Inc. v. Duncan, 616 F.3d 1145, 1161 amended and 22 superseded on other grounds on reh’g sub nom. Am. Atheists, Inc. 23 v. Davenport, 637 F.3d 1095 (10th Cir. 2010) (“[A] memorial cross 24 25 36 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 37 of 49 Page ID #:316

1 is not a generic symbol of death; it is a Christian symbol of 2 death that signifies or memorializes the death of a Christian.”).8 3 4 2. The Star of David The Star of David has received much less attention than the However, those courts that have considered

5 Latin cross.

6 challenges to monuments featuring the Star of David have 7 concluded that it is a “religious symbol” that conveys “purely 8 religious messages.” Greater Houston Chapter of Am. Civil

9 Liberties Union v. Eckels, 589 F. Supp. 222, 235 (S.D. Tex. 10 1984). 11 Defendant has made no argument that the Star of David does

12 not have such a message; nor have they provided any evidence that 13 the Star of David has a “broadly-understood ancillary meaning as 14 a symbol of military service, sacrifice, and death.” Thus, the

15 inclusion of the Star of David adds to the monument’s effect of 16 endorsing religion. See Cnty. of Allegheny v. Am. Civil

17 Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 615 18 19 20 21 22 23 24 25 37 27 The Trunk Court came to this conclusion while acknowledging that “the image of row upon row of small white crosses amongst poppies,” as well as Stars of David, had been used to memorialize American soldiers who fell in battle during each World War. This history, however, did not alter its conclusion that the Latin cross and Star of David were not broadly understood as symbols of military sacrifice and honor; instead, they marked “individual graves, not a universal monument to the war dead.” Trunk, 629 F.3d at 1113. Moreover, the Ninth Circuit concluded, “the universal symbol emanating from those foreign wars is the poppy, not the cross.” Id.
8

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 38 of 49 Page ID #:317

1 (1989) (“The simultaneous endorsement of Judaism and Christianity 2 is no less constitutionally infirm than the endorsement of 3 Christianity alone.”). 4 5 3. The Monument, its History, and its Physical Setting The conclusion that “the Latin cross is a Christian

6 religious symbol of remembrance or memorialization [or that the 7 Star of David, a Jewish one] does not, of course, end the 8 matter.” 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 It does, however, form a considerable obstacle to Defendant’s chances of prevailing. Defendant has not identified a single case in which a Latin cross included in a government monument, seal, or other public display has been upheld against an Establishment Clause challenge. Although the Court has found one, Murray v. City of Austin, Tex., 947 F.2d 147 (5th Cir. 1991), the vast majority of cases to have considered the presence of Latin crosses on city monuments, seals, or displays have found them to be unconstitutional. See, e.g. County of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 599 (1989) (noting that erection of a cross on government property would clearly violate the Establishment Clause); Am. Atheists, Inc. v. Duncan, 616 F.3d 1145 amended and superseded on other grounds on reh’g sub nom. Am. Atheists, Inc. v. Davenport, 637 F.3d 1095 (10th Cir. 2010) (individualized memorial crosses for state troopers on public roadside unconstitutional); Separation of Church & State Comm. v. City of Eugene, 93 F.3d 617 (9th Cir. 1996) (war memorial cross erected by private group in public park unconstitutional); Gonzales v. N. Twp. of Lake Cnty., Ind., 4 F.3d 1412 (7th Cir. 1993) (war memorial crucifix in public park unconstitutional); ACLU v. Rabun County Chamber of Commerce, Inc., 698 F.2d 1098 (11th Cir. 1983) (cross erected by private group unconstitutional); Jewish War Veterans of U.S. v. United States, 695 F. Supp. 3 (D.D.C. 1988) (war memorial cross on military base unconstitutional); Greater Houston Chapter of ACLU v. Eckels, 589 F. Supp. 222 (S.D. Tex. 1984) (war memorial containing three crosses and Star of David in public park unconstitutional); see also infra Section VI.B.3.c (discussing cases in which small crosses on city insignias and seals have been held unconstitutional). Moreover, the Latin cross that was 38 27
9

Trunk, 629 F.3d at 1117.9

“Secular elements, coupled

25 (footnote continued)

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 39 of 49 Page ID #:318

1 with the history and physical setting of a monument or display, 2 can—but do not always—transform sectarian symbols that otherwise 3 would convey a message of government endorsement of a particular 4 religion.” 5 Id.

Thus, for example, in County of Allegheny v. Am. Civil

6 Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573 (1989), 7 the “Supreme Court upheld a holiday display—located outside a 8 public building—consisting of an eighteen foot menorah, a forty9 five foot Christmas tree that the Court deemed a typically 10 secular emblem of the holidays, and a sign saluting liberty.” 11 Trunk, 629 F.3d at 1117 (citing Allegheny, 492 U.S. at 616–17). 12 “Although Justice O'Connor’s controlling opinion considered the 13 menorah to be an entirely sectarian object, she determined that 14 the display as a whole communicated a secular message. In the 15 same way that a museum might convey the message of art 16 appreciation without endorsing a religion even though individual 17 paintings in the museum have religious significance, the holiday 18 display in Allegheny conveyed a message of religious pluralism 19 and freedom, even though some elements of the display were 20 sectarian.” 21 22 part of the city’s seal in Murray was upheld for a specific 23 historical reason: it was one (of several) symbols featured in the coat of arms of the city’s namesake—Stephen F. Austin. 24 Murray, 947 F.2d at 149. No similar evidence exists here. 25 39 27 Trunk, 629 F.3d at 1117 (citing Allegheny, 492 U.S.

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 40 of 49 Page ID #:319

1 at 635 (O’Connor, J., concurring in part and concurring in the 2 judgment)). 3 Significantly, the history, as well as the physical setting

4 and secularizing elements of a monument, were central to Justice 5 Breyer’s conclusion that the Ten Commandments display at issue in 6 Van Orden did not violate the Establishment Clause. Unlike the

7 “short (and stormy) history of the courthouse Commandments’ 8 displays” at issue in McCreary, Justice Breyer relied upon the 9 fact that “40 years passed in which the presence of this 10 monument, legally speaking, went unchallenged,” in concluding 11 that the display in Van Orden passed constitutional muster. 12 Orden, 545 U.S. at 702-03 (Breyer, J., concurring in the 13 judgment); see also id. (stating that the lack of legal challenge 14 to the monument was “determinative” in that case). Furthermore, Van

15 Justice Breyer noted that the Ten Commandments statute at issue 16 in Van Orden was one of seventeen monuments and twenty-one 17 historical markers scattered over the Texas State Capitol 18 grounds, each of which “was designed to illustrate the ‘ideals’ 19 of those who settled in Texas and of those who have lived there 20 since that time.” Id. at 702. Justice Breyer concluded that,

21 because it was one of only several monuments, each of which 22 featured only secular and historical images and text, the Ten 23 Commandments display “communicates to visitors that the State 24 sought to reflect moral” rather than religious, principles. 25 40 27 Id.

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 41 of 49 Page ID #:320

1

Determining whether secular elements, as well as history and

2 physical setting, neutralize the religious effect of patently 3 religious symbols (such as the Latin cross or Star of David) is 4 an inherently case-specific inquiry; no two monuments, displays, 5 or symbols are the same. This individualized inquiry asks

6 whether “the entirety of [Monument 2], when understood against 7 the background of its particular history and setting, projects a 8 government endorsement of” religion, “taking into consideration 9 its entire context, not simply those elements that suggest a 10 secular message.” 11 12 Trunk, 629 F.3d at 1118.

a. Monument 2’s History “The Supreme Court has instructed that, when assessing the

13 effect of a religious display, [courts] must consider history 14 carefully: ‘reasonable observers have reasonable memories, and 15 the Court’s precedents sensibly forbid an observer to turn a 16 blind eye to the context in which the policy arose.’” 17 F.3d at 1118 (quoting McCreary, 545 U.S. at 866). 18 Monument 2 has a relatively brief history; indeed, it has Nonetheless, this brief history has been Trunk, 629

19 yet to be erected.

20 marked by religious overtones that likely would lead an objective 21 observer to “perceive a religious message” from the presence of 22 the Latin cross and the Star of David on Monument 2. 23 F.3d at 1118. Trunk, 629

The legislative history, and the comments of the

24 City’s elected leaders leading up to the approval of the November 25 41 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 42 of 49 Page ID #:321

1 13 Report, would lead a reasonable observer to believe that 2 Monument 2 endorses Christianity and Judaism. See Van Orden, 545

3 U.S. at 703 (Breyer, J., concurring in the judgment) (“[T]he 4 short (and stormy) history of the courthouse Commandments’ 5 displays [at issue in McCreary] demonstrates the substantially 6 religious objectives of those who mounted them, and the effect of 7 this readily apparent objective upon those who view them.”). 8 Indeed, the comments made by councilmembers themselves 9 demonstrate that the Latin cross (at least) sends a message of 10 endorsing religion: on at least two occasions, Councilmember 11 Magee moved to “remove the religious reference” in Monument 1. 12 Similarly, the comments of the members of the public at the

13 various hearings reflect a message of religious endorsement: as 14 the Ninth Circuit observed in Trunk, “starkly religious” comments 15 made in support of a governmental action by members of the public 16 are probative of whether an objectively reasonable observer would 17 conclude that a monument sends a message of endorsing religion. 18 Trunk, 629 F.3d at 1120.10 19 20 21 22 23 24 Indeed, the comments made in this case mirror those made by various advocacy groups in Trunk. Compare Trunk, 629 F.3d at 1120 (noting that, at a meeting considering whether to transfer the land on which the cross-featuring war memorial at issue from the City of San Diego to Congress, participants advocated for the transfer by “invoking the Cross’s importance as a Christian symbol, and denouncing their opponents as ‘Satanists’ or ‘haters of Christianity[,]’” and later, when the transfer was complete, “the Christian Coalition ‘commend[ed] the great efforts . . . in saving this historic symbol of Christianity in America’”) with 42 27
10

25 (footnote continued)

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 43 of 49 Page ID #:322

1

Finally, unlike the monument in Van Orden, which stood for

2 forty years before a legal challenge was surmounted, Monument 2 3 was challenged in court before it was even erected, further 4 lending support to the conclusion that it would communicate to a 5 reasonable observer a message of religious endorsement. 6 7 b. Monument 2’s Physical Settings Moreover, unlike the Ten Commandments display in Van Orden,

8 there is no evidence that Monument 2’s physical setting mitigates 9 an otherwise religious message. Monument 2 is slated to stand

10 alone in front of the Stadium; there are no surrounding war 11 memorials or other displays that might communicate to the 12 reasonable viewer that the City sought to reflect secular and 13 historical messages, rather than religious ones. See also Trunk,

14 629 F.3d at 1114 (suggesting, though not ruling, that the three 15 crosses at Arlington National Cemetery might withstand 16 constitutional scrutiny because they were not the “predominant 17 18 Verified Complaint, ¶¶ 64-72 (alleging that at the November 13 meeting, members of the public, in voicing their support for the 19 inclusion of the Latin cross and/or Star of David on Monument 2, stated “God is the cross . . . . [those objecting to the cross] 20 do not deserve to take our freedom away to have our cross on the monument”; “[For] so few in this city . . . to think that they 21 are going to have the power [to remove the cross] and not have been in the military. I don’t know where they came from . . . . 22 [The cross] needs to say just the way it is . . . . This is a symbol for all denominations of religion if anybody knows 23 anything about religion”; and, “I am in favor of any design promoting Bible morality”). 24 25 43 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 44 of 49 Page ID #:323

1 feature of the cemetery,” as they stood next to the “countless 2 headstones of soldiers buried in Arlington and alongside a large 3 number of other monuments that do not incorporate religious 4 imagery”) (emphasis added); id. at 1114, 1115 n.15 (suggesting, 5 though not ruling, that two crosses at Gettysburg National 6 Military Park might withstand constitutional challenge because 7 they were surround by over one hundred other monuments that did 8 not feature the cross, and noting that one of the crosses was a 9 “Celtic cross and may celebrate the Irish origin of the soldiers 10 instead of religion”). 11 12 c. Monument 2’s Secularizing Elements Defendant’s strongest argument that the monument “as a

13 whole” communicates a secular message comes from the relatively 14 modest size of the Latin crosses and the Star of David 15 themselves. Although the exact dimensions are unclear, it

16 appears that the Latin crosses and Star of David take up no more 17 than a third of the image that appears on the front of Monument 18 2, which is otherwise covered with text and pictures that, as 19 Plaintiffs concede, are secular. Thus, unlike the Latin cross in

20 Trunk—which, at forty-three feet high and twelve feet across, 21 dominated the smaller black walls and brick stones surrounding 22 it—the Latin crosses and Star of David are arguably not Monument 23 2’s “central feature.” 24 25 44 27 Trunk, 629 F.3d at 1123.

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 45 of 49 Page ID #:324

1

However, the sectarian features of a display need not Thus, in Harris v.

2 dominate them to send a religious message.

3 City of Zion, Lake Cnty., Ill., 927 F.2d 1401 (7th Cir. 1991), 4 the Seventh Circuit concluded that a city’s seal—a four-leaf 5 clover that featured a leaf in one quadrant, a water tower and 6 two industrial buildings in another, a school in a third, and a 7 church with a cross in front of it in the fourth—had the effect 8 of endorsing religion. Id. at 1412-13 (“The images on the seal

9 are not just neutral snapshots of the community; they are charged 10 with endorsement . . . . To any observer, the Rolling Meadows 11 seal expresses the City’s approval of those four pictures of City 12 life—its flora, its schools, its industry and commercial life, 13 and its Christianity.”). Harris is consistent with a host of

14 other cases finding that the primary effect of including 15 sectarian symbols was to send a message of religious endorsement, 16 even where the symbols did not dominate the monument or display. 17 See Robinson v. City of Edmond, 68 F.3d 1226, 1228 (10th Cir. 18 1995) (holding that a circular seal that contained four 19 quadrants, only one of which depicted a sectarian symbol (the 20 Latin cross) had the effect of endorsing religion); Murphy v. 21 Bilbray, 782 F. Supp. 1420 (S.D. Cal. 1991) aff’d sub nom. 990 22 F.2d 1518 (cross on city insignia unconstitutional); ACLU v. City 23 of Stow, 29 F. Supp. 2d 845 (N.D. Ohio 1998) (same). 24 25 45 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 46 of 49 Page ID #:325

1

Moreover, the fact that the Latin crosses and Star of David

2 do not dominate Monument 2 cannot take away from the unmistakably 3 religious message they send to any objective viewer. The Latin

4 crosses and Star of David are immediately noticeable to even the 5 most causal passer-by; they appear on the front of Monument 2, 6 and, in contrast to the concededly non-sectarian images that 7 appear on the front of Monument 2—the text, the American flag, 8 and the bald eagle—the sectarian symbols are illuminated in 9 white. Indeed, the only image other than the Latin crosses and

10 Star of David that is highlighted in white—a solider kneeling at 11 in front of the Latin crosses and Star of David—serves only to 12 reinforce the religious message that Monument 2 communicates to 13 an objective observer 14 15 16 17 18 19 20 The use of such distinctively Christian and Jewish symbols to honor all veterans sends a strong message of endorsement and exclusion. It suggests that the government is so connected to a particular religion that it treats that religion’s symbolism as its own, as universal . . . . By claiming to honor all service members with a symbol that is intrinsically connected to a particular religion, the government sends an implicit message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.

21 Trunk, 629 F.3d at 1124-25; see also American Atheists, 616 F.3d 22 at 1160–61 (“[T]he fact that all of the fallen ... troopers are 23 memorialized with a Christian symbol conveys a message that there 24 is some connection between [the state] and Christianity); Greater 25 Houston Chapter of Am. Civil Liberties Union v. Eckels, 589 F. 46 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 47 of 49 Page ID #:326

1 Supp. 222, 235 (S.D. Tex. 1984) (noting that the primary effect 2 of crosses and Stars of David used as war memorials “is to give 3 the impression that only Christians and Jews are being honored by 4 the country”). 5 6 4. Conclusion: Effect of Endorsement Thus, upon consideration of the meanings of the Latin cross

7 and Star of David, as well as Monument 2’s history, secularizing 8 elements, and physical setting, Plaintiffs are likely to prevail 9 on their contention that a reasonable observer would perceive 10 Monument 2 as “sending primarily a message of” endorsing 11 religion. 12 13 14 15 The final two factors of the preliminary injunction analysis VII. BALANCE OF THE EQUITIES AND THE PUBLIC INTEREST

16 also weigh in favor of granting the preliminary injunction. 17 Here, the balance of the equities tips sharply in favor of 18 granting a preliminary injunction. As discussed above,

19 Plaintiffs are likely to succeed on their Establishment Clause 20 claim; thus, any erection of Monument 2 would violate their First 21 Amendment rights. Indeed, a preliminary injunction is

22 particularly appropriate in this case, where Monument 2 has yet 23 to be installed in front of the Stadium. Enjoining the City from

24 erecting the monument, at least for the period in which the 25 47 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 48 of 49 Page ID #:327

1 parties conduct this litigation, preserves tax dollars that would 2 be unrecoverable once Monument 2 has been erected, and avoids the 3 need to tear down Monument 2 after it is already built. See

4 Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249, 5 261 (4th Cir. 2003) (holding that the government is “in no way 6 harmed by issuance of a preliminary injunction which prevents it 7 from enforcing a regulation, which, on this record, is likely to 8 be found unconstitutional”). 9 Finally, the Court finds that the public interest weighs in See Sammartano v.

10 favor of granting the preliminary injunction.

11 First Judicial Dist. Court, in & for Cnty. of Carson City, 303 12 F.3d 959, 974 (9th Cir. 2002) (“Courts considering requests for 13 preliminary injunctions have consistently recognized the 14 significant public interest in upholding First Amendment 15 principles.”); see also Newsom, 354 F.3d at 261 (4th Cir. 2003) 16 (“The final prerequisite to the grant of a preliminary injunction 17 is that it serve the public interest. Surely, upholding 18 constitutional rights serves the public interest.”). 19 20 21 22 23 24 25 48 27

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 49 of 49 Page ID #:328

1 2 3

VIII.

CONCLUSION

For the reasons put forward in this Order, Plaintiffs’ Defendant, as

4 motion for a preliminary injunction is GRANTED.

5 well as any successors or assigns, is hereby ENJOINED from 6 displaying Monument 2 in front of the Stadium. 7 8 DATED: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 49 27 July 16, 2013 _______________________________ THE HON. STEPHEN V. WILSON UNITED STATES DISTRICT COURT JUDGE

Sign up to vote on this title
UsefulNot useful