A1 Friedman v. Board of County Commissioners

LOGAN, Circuit Judge. This case challenges a county government’s use of a seal bearing, among other things, a latin cross and the Spanish motto, “CON ESTA VENCEMOS,” under the Establishment and Free Exercise Clauses of the First Amendment of the United States Constitution and under the New Mexico Constitution. The district court found no constitutional violations, Johnson v. Board of County Commissioners, 528 F.Supp. 919, 925 (D.N.M.1981), and a divided panel of this court affirmed. On rehearing en banc, we now vacate our earlier opinions and reverse on Establishment Clause grounds. [779] I The circular seal that plaintiff challenges in this action under 42 U.S.C. § 1983 contains the phrases, “Bernalillo County,” and “State of New Mexico,” separated by two diamonds along its outermost green edge. Within an inner circle, the Spanish motto, “CON ESTA VENCEMOS,” which translates into English as, “With This We Conquer,” or “With This We Overcome,” arches over a golden latín cross,1 highlighted by white edging and a blaze of golden light. The motto and cross are set in a blue background depicting the sky over four darker blue mountains and a green plain. Eight white sheep stand on the plain. Copies of the seal follow as an appendix to this opinion. There is no record of when the county originally adopted the seal or of its purpose in doing so. The seal was used, however, on some county documents as early as 1925, and again from at least 1945 to 1956. Since 1973, the seal has been displayed on county documents, stationery, motor vehicles, and the shoulder patches of sheriffs department officers. According to testimony, officials expanded use of the seal merely to identify the county as a governmental unit distinct from Albuquerque. Yet at least one county commissioner testified that at the time use of the seal was expanded he knew the cross represented the role of the Catholic Church in the settlement of the Southwest. Specifically he thought that the cross referred to priests and friars who accompanied Spanish conquistadors into the area. Two historians and an expert in heraldry testified that the cross on the seal represented Catholicism, Christianity, and the Spaniards. One of the historical experts also admitted that religious conversion of the Native American population in New Mexico sometimes was accomplished through force; the other verified use of Spanish Inquisition tactics in New Mexico. The evidence is not completely clear on the meaning of “ESTA” or “this” in the motto, but plaintiffs expert on the Spanish language testified that the only thing “ESTA” referred to very clearly was the cross. Even one of defendants’ expert historians testified that, if the cross were eliminated, his interpretation of the seal’s meaning, i.e., “We are overcoming with our Christian heritage,” would be less than obvious. But he thought “ESTA” literally referred to the entire seal. Lay witnesses for the plaintiff and the defendants understood the “this” of the motto to be the cross. The interpretation to be given the appearance of the sheep on the seal also was the subject of some dispute, generally divided along a layperson-expert line. Plaintiff testified that the sheep apparently represented the “flock of Jesus.” The defendants’ experts, on the other hand, saw the sheep as symbolic of the importance of the sheep-raising industry in Bernalillo County history, and not of the Christian “lamb of God” or “good shepherd” or “flock of Jesus.” The district court found no violation of the three-part Establishment Clause test of Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971), having been persuaded by the testimony of the defendants’ experts that the significance of the sheep and cross was solely historical.2 Johnson, 528 F.Supp. at 923780 25. The court also characterized the amount of money the county must spend for display of the motto and cross as minimal, and dismissed the Free Exercise claim. Id. at 925. Although the district court recited the claim under Article II, Section 11 of the New Mexico Constitution and said it was properly joined under United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), it did not discuss explicit reasons for rejecting it. Id. at 920. Because we find the Establishment Clause issue dispositive, we do not address the Free Exercise Clause and New Mexico constitutional claims. II The district court correctly began its analysis with recitation of the three independent tests of Lemon, 403 U.S. at 612-13, 91 S.Ct. at 2111. Although the Supreme Court has been unwilling to endorse Lemon as the “be-all” and “end-all” in Establishment Clause cases, it has continued to apply it almost exclusively. See Wallace v. Jaffree, — U.S. —, —, 105 S.Ct. 2479, 2489, 86 L.Ed.2d 29 (U.S. June 4, 1985); Lynch v. Donnelly, 465 U.S. 668, 678, 104 S.Ct. 1355, 1361, 79 L.Ed.2d 604 (1984); cf. Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (Lemon test not used in Establishment Clause challenge to state legislature’s use of chaplain; use upheld); Larson v. Valente, 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) (Lemon test not used in Establishment Clause challenge to charitable solicitation law; law invalidated). See generally Smith, Some Observations on the Establishment Clause, 11 Pepperdine L.Rev. 457, 469 (1984); Van Alstyne, Trends in the Supreme Court: Mr. Jefferson’s Crumbling Wall —A Comment on Lynch v. Donnelly, 1984 Duke L.J. 770, 782 (1984). Under Lemon the Establishment Clause is violated if any of the three following conditions are not met. First, the governmental action in question must have a secular purpose. Second, its principal or primary effect must be one that “neither advances nor inhibits” religion. And, third, the action must not foster an excessive government entanglement with religion. Lemon, 403 U.S. at 612-13, 91 S.Ct. at 2111. The goal is the prevention of “unnecessary intrusion of either the church or the state upon the other.” Lynch, 465 U.S. at 672, 104 S.Ct. at 1358. Each prong of the Lemon test is independent. The challenged government action must survive all three to be allowed under the Establishment Clause. See id. — U.S. at —, 105 S.Ct. at 2489; Stone v. Graham, 449 U.S. 39, 40, 101 S.Ct. 192, 193, 66 L.Ed.2d 199 (1980); Bell v. Little Axe Independent School District, 766 F.2d 1391, 1402 (10th Cir.1985). Ill Our review of the record convinces us that the district court’s finding in favor of the county on the second prong of Lemon — the “effect” test — was clearly erroneous.3 “The Establishment Clause pro781 Mbits the government from making adherence to a religion relevant in any way to a person’s standing in the political community.” Lynch, 465 U.S. at 687, 104 S.Ct. at 1366 (O’Connor, J., concurring). “The effect prong asks whether, irrespective of government’s actual purpose, the practice ... conveys a message of endorsement or disapproval. An affirmative answer ... should render the challenged practice invalid.” Id. at 690, 104 S.Ct. at 1368. In other words, the existence of a non-secular effect is to be judged by an objective standard, which looks only to the reaction of the average receiver of the government communication or average observer of the government action. This contrasts with the subjective examination under the purpose test. If the challenged practice is likely to be interpreted as advancing religion, it has an impermissible effect and violates the Constitution, regardless of whether it actually is intended to do so. In addition, the resulting advancement need not be material or tangible. An implicit symbolic benefit is enough. See Larkin v. Grendel’s Den, 459 U.S. 116, 125, 103 S.Ct. 505, 511, 74 L.Ed.2d 297 (1982). In Larkin the Supreme Court struck down a Massachusetts statute granting churches and schools the de facto power to veto liquor license applications for businesses within a certain distance of the institutions. The Court stated: “[T]he mere a-ppearance of a joint exercise of legislative authority by Church and State provides a significant symbolic benefit to religion in the minds of some by reason of the power conferred. It does not strain our prior holdings to say that the statute can be seen as having a ‘primary’ and ‘principal’ effect of advancing religion.” Id. at 125-26, 103 S.Ct. at 511 (emphasis added). Similarly we have held that even the unspoken grant of a state “imprimatur” to religious activity in primary schools is impermissible under the effect test. See Little Axe, 766 F.2d at 1405. “The Government may depict objects with spiritual content, but it may not promote or give its stamp of approval to such spiritual content.” Allen v. Hickel, 424 F.2d 944, 948 (D.C.Cir.1970). Some uses of the seal at issue in the case before us might not give an appearance or imprimatur of impermissible joint church-state authority. Use similar to a notary seal on county documents or a one-color depiction in which the seal and especially the cross are not easily discernible might not pass the threshold. But this is not such a case. Here the county prominently displays the seal on county vehicles and uses it to identify law enforcement officers. Plaintiffs presented highly persuasive evidence that the seal leads the average observer to the conclusion that the county government was “advertising” the Catholic faith. A rabbi testified that the seal suggested to him that there was an “officialness” about Christianity in the state and county. In addition, he pointed out that the cross had at times symbolized outright oppression and persecution of Jewish people. It cannot be denied, as one amicus brief argues, that the cross probably would have a similarly threatening connotation for a Lebanese Moslem or Northern Irish Protestant. We are compelled to draw the same conclusion with regard to the reactions of Native Americans who reside in Bernalillo County. The seal certainly does [782] not memorialize their “Christian heritage” but rather that of those who sought to extinguish their culture and religion. At the least, then, the seal as used conveys a strong impression to the average observer that Christianity is being endorsed. It recalls a less tolerant time and foreshadows its return. Religious minorities may not be made to feel like outsiders because of government’s malicious or merely unenlightened endorsement of the majority faith. It is not decisive that defendants’ heraldic and historical experts, and lay witnesses who are members of Christian sects, reacted less emotionally to the seal. It is to be expected that members of Christian sects would be more comfortable with a seal endorsing their beliefs than would individuals who adhere to different beliefs. The comfort of the majority is not the main concern of the Bill of Rights. Rather, its “very purpose ... was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to ... freedom of worship ... and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628 (1943). The Supreme Court “has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.” Wallace, — U.S. at —, 105 S.Ct. at 2487 (emphasis added). This case is not like the creche display upheld in Lynch, 465 U.S. at 685, 104 S.Ct. at 1365. The religious significance of the cross, as of the creche, is undisputed; the district court correctly observed that any statement to the contrary would be disingenuous.4 Johnson, 528 F.Supp. at 924. But the seal, unlike the creche, pervades the daily lives of county residents. It is not displayed once a year for a brief period on a single parcel of government land. Rather it appears on all county paper work, on all county vehicles, even on county sheriff’s uniforms. Further, Bernalillo County residents do not view the cross and motto in the context of a generally secular commercial display, as Pawtucket, Rhode Island, residents do the creche. The context of the cross and motto is quite different. The cross is the only visual element on the seal that is surrounded by rays of light. The motto may be fairly regarded as promoting the religion the cross represents. Indeed, that religion seems to be embraced as the instrument by which the county “conquers.” A person approached by officers leaving a patrol car emblazoned with this seal could reasonably assume that the officers were Christian police, and that the organization they represented identified itself with the Christian God. A follower of any non-Christian religion might well question the officers’ ability to provide even-handed treatment. A citizen with no strong religious conviction might conclude that secular benefit could be obtained by becoming a Christian. “When the power, prestige, and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.” Abington School District v. Schempp, 374 U.S. 203, 221, 83 S.Ct. 1560, 1571, 10 L.Ed.2d 844 (1963) (quoting Engel v. Vitale, 370 U.S. 421, 430-31 (1962)). In view of the seal’s composition and use, the county has violated the Establishment Clause. We therefore REVERSE. [783] APPENDIX A [784] Footnotes [1] The cross occupies roughly half of the seal, which means the cross alone stands approximately one foot high when it appears on county vehicles of the type shown in the appendix, infra. [2] The precise standard for our review of "constitutional facts,” such as the district court’s findings on each prong of the Lemon test, is unclear. In the Establishment Clause case of Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), Chief Justice Burger referred to the "clearly erroneous” standard, id. at 681, 104 S.Ct. at 1363, and the dissent by Justice Brennan agreed. Id. at 704 n. 11, 104 S.Ct. at 1375 n. 11 (Brennan, J., dissenting). Justice O’Connor’s concurrence, however, referred to the district court’s conclusion as "error as a matter of law." Id. at 694, 104 S.Ct. at 1369 (O’Connor, J., concurring). Further, in the later case of Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 508, 509, 104 S.Ct. 1949, 1964, 80 L.Ed.2d 502 (1984), the Court held that the clearly erroneous standard did not govern [780] appellate review of a finding of malice by the factfinder under a First Amendment standard. The Court stated: "Regarding certain largely factual questions in some areas of the law, the stakes — in terms of impact on future cases and future conduct — are too great to entrust them finally to the judgment of the trier of fact." Id. at 501 n. 17, 104 S.Ct. at 1960 n. 17. Cf. Miller v. Fenton, — U.S. —, —, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985) (voluntariness of confession is a legal question requiring independent federal determination). Under either standard we would reverse; therefore we need not decide which standard applies under the Establishment Clause. [3] We do not explicitly reject the district court’s findings of an adequate secular purpose and of no excessive entanglement. Yet we note that all courts must be wary of accepting after-the-fact justifications by government officials in lieu of genuinely considered and recorded reasons for actions challenged on Establishment Clause grounds. We must be vigilant to distinguish between sham and sincere purposes. See Wallace, — U.S. at —, 105 S.Ct. at 2489-93; id. at —, 105 S.Ct. at 2499 (O’Connor, J., concurring); Little Axe, 766 F.2d at 1403. In this case there was no evidence of the county’s purpose for originally adopting the seal; the purported motive for the later expansion of its use was county identification. Yet county offi781 ciáis and the district court recognized the religious significance of the cross, and lay witnesses reacted to what they perceived to be religious symbolism in the sheep. It is at least possible that the seal had a secular purpose but that specific elements of it did not. In addition, we must caution that courts not be too easily convinced that the administrative or political entanglement demonstrated in a given case is de minimis because of the limited monetary value of the government’s involve-meat. Here the district court acknowledged that, in spite of the county’s denials, “some cost must be attributable to the display of the seal.” Johnson, 528 F.Supp. at 925. Expense is not the only path to entanglement. And, even if it were, we must remember that it is no defense to say that the government’s action represents a "relatively minor encroachment on the First Amendment.” Abington School Dist. v. Schempp, 374 U.S. 203, 225, 83 S.Ct. 1560, 1573, 10 L.Ed.2d 844 (1963). [4] The district court asserted that it would be "correspondingly disingenuous to deny that Catholicism was the preeminent religion in the early days of this territory.” 528 F.Supp. at 924. This discounts the existence and importance of Native American religions, an assortment of belief systems that preceded Christianity in preeminence. The Spanish colonists were not the only persons inhabiting New Mexico who needed religion to keep themselves "physically and spiritually alive.” Cf. Johnson, 528 F.Supp. at 922.