No. 13-2914 UNITED STATES COURT OF APPEALS ...online.wsj.com/public/resources/documents/westside...Case No. 3:13-cv-00139 The Honorable Judge Sarah Evans Barker BRIEF AND REQUIRED

No. 13-2914

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

CHRIS CABRAL and NANCY TARSITANO, Plaintiffs - Appellees, v. CITY OF EVANSVILLE, INDIANA, Defendant. APPEAL OF : WEST SIDE CHRISTIAN CHURCH, Intervenor - Appellant.

Appeal from the United States District Court For the Southern District of Indiana

Case No. 3:13-cv-00139 The Honorable Judge Sarah Evans Barker

BRIEF AND REQUIRED SHORT APPENDIX OF INTERVENOR – APPELLANT, WEST SIDE CHRISTIAN CHURCH

Michael J. Cork Bryan Beauman Bamberger, Foreman, Oswald Sturgill, Turner, Barker & & Hahn, LLP Moloney PLL 201 N. Illinois St., Suite 1225 333 West Vine St. Indianapolis, IN 46204-4219 Lexington, KY 40507 (317) 464-1594 (859) 255-8581 Christopher C. Wischer* Bamberger, Foreman, Oswald & Hahn, LLP 20 N.W. Fourth Street, 7th Floor Hulman Bldg. Evansville, IN 47708 (812) 452-3595 *Application Pending Attorneys for Intervenor – Appellant, West Side Christian Church

Case: 13-2914 Document: 19 Filed: 11/12/2013 Pages: 88

i

DISCLOSURE STATEMENT

Pursuant to 7th Cir. R. 26.1, the undersigned makes the following

disclosures:

1. The full name of every party that the attorney represents in this case:

Intervenor-Appellant West Side Christian Church, Inc.

2. The names of all law firms whose partners or associates have appeared

for the party in this case or are expected to appear for the party in this court:

Bamberger, Foreman, Oswald & Hahn, LLP; Sturgill, Turner, Barker, &

Moloney, PLLC.

3. Intervenor-Appellant, West Side Christian Church, Inc., has no parent

corporation. It has not issued shares or debt securities to the public, and

there is no publicly held company that owns 10% or more of West Side

Christian Church, Inc.

s/ Michael J. Cork______________________ Michael J. Cork BAMBERGER, FOREMAN, OSWALD & HAHN, LLP 201 N. Illinois Street, Suite 1225 Indianapolis, IN 46204-4219 Ph: (317) 464-1594 Fax: (317) 464-1592 Email: [email protected] Counsel of Record under Circuit Rule 3(d)


ii

TABLE OF CONTENTS

Page

DISCLOSURE STATEMENT……………………………………………………….i

TABLE OF AUTHORITIES…………………………………………………………vi

JURISDICTIONAL STATEMENT ..................................................................... 1

STATEMENT OF ISSUES ................................................................................. 1

STATEMENT OF THE CASE ............................................................................ 1

STATEMENT OF FACTS ................................................................................... 4

I. The “Cross The River” Display .................................................................. 4

II. The Forum: The Evansville Riverfront ................................................... 5

III. Prior Unattended Displays Approved by the Board of Public

Works ...................................................................................................... 9

IV. Application For and Approval of the Church’s Display ....................... 10

SUMMARY OF THE ARGUMENT .................................................................. 13

STANDARD OF REVIEW…………………………………………………………. 15

ARGUMENT ...................................................................................................... 16

I. The District Court’s Order Must Be Overturned to Protect

the Church’s Constitutional Rights ............................................. 18

A. Religious Speech by a Private Citizen in a Public

Forum Does Not Violate the Establishment Clause. ....... 18


iii

B. The District Court Misapplied the Endorsement

Test to the Church’s Private Speech in a Public

Forum ................................................................................ 26

1. The Endorsement Test Applied By the

District Court Is Flawed Because… ...................... 29

a. …it relies on a determination of

“forcefulness” which is impermissible

because it involves viewpoint

discrimination of private speech in a

public forum. ................................................ 29

b. …“forcefulness” is not determinable. .......... 31

c. …application of any endorsement test

for private speech in a public forum

would usher in a most unappealing

Establishment Clause regime. .................... 32

2. Even Under Justice O’Connor’s Endorsement

Test, the Church’s Display Should Be

Allowed .................................................................... 33

II. Appellant Has Standing and Its Claim is Not Moot .................. 37

A. The Church Has Standing to Appeal the District

Court’s Order Because This Order Violates the

Church’s First Amendment Rights, and the Church


iv

Can Vindicate Its Rights Through a Private Cause

Of Action. ........................................................................... 37

1. The Church fulfills the requirements for

Article III standing: injury, causation,

redressability .......................................................... 37

2. Cabral-Tarasitano’s argument that the

Church cannot appeal because the injunction

below ran exclusively against the City is

without merit .......................................................... 38

3. Hollingsworth v. Perry does not undermine

the Church’s standing ............................................ 42

B. The Church’s Appeal is Not Moot ..................................... 45

1. The Church Has an Ongoing Personal Stake

in the Appeal Because It Desires to Erect

This and Similar Displays in the Future and

Has Pending Application to Do So. ........................ 45

2. The Denial of the Church’s Cross Display is

Capable of Repetition, Yet Evading Review. ......... 49

3. If the Church’s Appeal is Dismissed for

Mootness, the District Court’s Decision Must

Be Vacated. ............................................................. 52

CONCLUSION .................................................................................................. 53


v

CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7) .............. 55

PROOF OF SERVICE ....................................................................................... 55

CIRCUIT RULE 30(d) STATEMENT ............................................................... 55

SHORT APPENDIX……. …………………………………………………………...56


vi

TABLE OF AUTHORITIES CASES Page(s) ACLU v. Tarek ibn Ziyad Acad., 643 F.3d 1088 (8th Cir. 2011) ........................................................................... 41 Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004) ............................................................................. 44 Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) ....................................................................................... 37, 52 Ass’n of Contracting Plumbers of City of New York, Inc. v. Local Union No. 2, 841 F.2d 461(2d Cir. 1988) ................................................................................ 44 Bd. of Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226 (1990) .................................................................................... 19, 22 Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995) ............................................................... 16-20, 23-28, 31-36 Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427 (6th Cir. 2004) ....................................................................... 25-26 Chabad-Lubavitch of Georgia v. Miller, 5 F.3d 1383 (11th Cir. 1993)……………………………………………………....…23 Chabad–Lubavitch of Vt. v. City of Burlington, 936 F.2d 109 (2d Cir. 1991) ............................................................................... 50 Cohen v. City of Des Plaines, 8 F.3d 484 (7th Cir. 1993)……………………………………………………………31 Davis v. Fed. Election Comm’n, 554 U.S. 724 (2008) ...................................................................................... 50-51 Diamond v. Charles, 476 U.S. 54 (1986) ....................................................................................... 37, 43 Didrickson v. U.S. Dep’t of Interior, 982 F.2d 1332 (9th Cir. 1992) ...................................................................... 41-42 Doe v. Small,


vii

964 F.2d 611 (7th Cir. 1992) .................................................... 17, 21- 26, 30, 47 Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275 (1946) .......................................................................................... 44 Freedom From Religion Found., Inc. v. Obama, 641 F.3d 803 (7th Cir. 2011) ............................................................................. 38 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) .......................................................................................... 45 Gjertsen v. Bd. of Election Comm'rs of City of Chicago, 751 F.2d 199 (7th Cir. 1984) ............................................................................. 52 Good News Club v. Milford Central School, 533 U.S. 98 (2001) ............................................................................................. 29 Grossbaum v. Indianapolis-Marion Cnty. Bldg. Auth., 63 F.3d 581 (7th Cir. 1995) ............................................................. 17, 24-25, 30 Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U.S. 640 (1981) ........................................................................................... 19 Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) .............................................................................. 3, 42-43 Jackson v. Sok, 65 F. App’x 46 (6th Cir. 2003) .......................................................................... 44 Kendall-Jackson Winery, Ltd. v. Branson, 212 F.3d 995 (7th Cir. 2000) ........................................................................ 39-41 Korczak v. Sedeman, 427 F.3d 419 (7th Cir. 2005) ............................................................................ 38 Krislov v. Rednour, 226 F.3d 851 (7th Cir. 2000) ............................................................................. 49 Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993) ......................................................................... 17, 19-20, 29 Local 322, Allied Industrial Workers v. Johnson Controls, Inc., 921 F.2d 732 (7th Cir. 1991) ............................................................................. 44


viii

MacDonald v. City of Chicago, 243 F.3d 1021 (7th Cir. 2001) ................................................................ 47-48, 50 Mausolf v. Babbitt, 125 F.3d 661 (8th Cir. 1997) ............................................................................. 41 Plummer v. American Institute of Certified Public Accountants, 97 F.3d 220 (7th Cir. 1996) ......................................................................... 15-16 Rosenberger v. Rector and Visitors of the Univ. of Virginia, 515 U.S. 819 (1995) ...................................................................................... 29-30 Rowley v. McMillan. 502 F.2d 1326 (4th Cir. 1974) ........................................................................... 51 Satawa v. Macomb County Road Commission, 689 F.3d 506 (6th Cir. 2012) ............................................................................ 25 SEC v. Enterprise Trust Co., 559 F.3d 649 (7th Cir. 2009) ............................................................................ 44 Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105 (1991) ........................................................................................... 31 Transamerica Ins. Co. v. South, 125 F.3d 392 (7th Cir. 1997) ............................................................................. 38 United States v. Kaun, 827 F.2d 1144 (7th Cir. 1987) .......................................................................... 15 Widmar v. Vincent, 454 U.S. 263 (1981) ...................................................................................... 19-20 Wisconsin Right to Life State Political Action Comm. v. Barland, 664 F.3d 139 (7th Cir. 2011) ............................................................................. 46 STATUTES 28 U.S.C. § 1292(a)(1) .......................................................................................... 1 28 U.S.C. § 1331 .................................................................................................. 1 42 U.S.C. § 1983 ..................................................................................... 37, 40-41


ix

Evansville, IN., Mun. Code (EMC)…………………………………………………..7 Evansville, IN., Mun. Code (EMC) § 2.190 ........................................................ 8 Evansville, IN., Mun. Code (EMC) § 2.35.10...................................................... 8 Evansville, IN., Mun. Code (EMC) § 12.05 ........................................................ 8 Evansville, IN., Mun. Code (EMC) § 12.05.60 .................................................... 8 Evansville, IN., Mun. Code (EMC) § 12.05.140 .................................................. 8 Evansville, IN., Mun. Code (EMC) § 12.05.200 .................................................. 8 Evansville, IN., Mun. Code (EMC) § 12.05.220 .................................................. 8 Evansville, IN., Mun. Code (EMC) § 12.10 ........................................................ 8 Ohio Admin. Code § 105.41 ............................................................................... 16 Ohio Admin. Code § 128-4-02(A) ....................................................................... 16 RULES Fed. R. App. P. 27 ................................................................................................ 3 OTHER AUTHORITIES U.S. Const. ................................................................................................ passim U.S. Const. amend. I ................................................................................. passim U.S. Const. art. III .................................................................................. 37-38, 43


1

JURISDICTIONAL STATEMENT

The District Court had subject matter jurisdiction under 28 U.S.C. § 1331.

The court granted a permanent injunction on July 31, 2013. Appellants filed

a notice of appeal on August 28, 2013. This Court has appellate jurisdiction

under 28 U.S.C. § 1292(a)(1).

STATEMENT OF ISSUES

• Is the Establishment Clause violated when a private party utilizes a

public forum under the same uniform terms and conditions as others

but speaks with a religious perspective?

• If not, can a private party comply with the generally applicable terms

and conditions for use of a forum but speak with too forceful of a

religious message so that a reasonable observer would assume the

public forum has been extinguished and that the government has

endorsed the private speech?

• Should government officials decline to follow uniform rules governing

use of a public forum and examine the content of citizens’ speech in the

forum in order to determine if the content and viewpoint of the speech

of a private party is too forceful and overwhelms the forum?

STATEMENT OF THE CASE

This case involves excluding private speech from the public square.

Appellant, West Side Christian Church (the “Church”), sought to create an

artistic display in a public forum as dozens of other citizens had done in the


2

same location. The Church applied to the City for a permit to place a display

of crosses to be known as “Cross The River” within the public walkway at the

Evansville Riverfront. The City evaluated the application on neutral criteria,

understood the protected First Amendment rights of the Church and granted

the request with the addition of prominent disclaimers disavowing any

endorsement by the City of Evansville.

After the Church received its permit, Appellees, Chris Cabral and Nancy

Tarsitano (“Cabral-Tarsitano”) filed suit and moved for a preliminary

injunction against the City of Evansville, Indiana, to stop the display. They

alleged the Board’s permitting of the display violated the Establishment

Clause of the First Amendment. (R. 1). The Church, who was the applicant

for the right of way permit, along with nine other churches and faith-based

organizations who were to participate in the “Cross The River” display,

moved to intervene on July 12, 2013, alleging that their intervention is

necessary to allow them to protect their constitutional right to express their

private viewpoint in a public forum pursuant to the Free Exercise and Free

Speech Clauses of the First Amendment. (R. 15).

On July 18, 2013, the parties and proposed church Intervenors had oral

argument before the District Court on Plaintiff’s Motion for Preliminary

Injunction. (R. 31, p. 2). At the hearing, the District Court granted the

Church’s request to intervene, but denied the requests of the other nine

churches. (Id.).


3

On July 31, 2013, the District Court issued its Order holding that “the

City’s approval of this display of crosses constitutes an impermissible

endorsement of religion that violates the Establishment Clause of the First

Amendment,” and ordering that “the City is PERMANENTLY ENJOINED

from permitting the erection of the display as described and referred to

herein as the ’Cross The River’ within the Riverfront area.” (R. 31-32). The

District Court found that it was “not the inclusion of the crosses as such that

causes the display to run afoul of the First Amendment; rather it is the

forcefulness of the message being conveyed, based upon the significant scope

and size and duration of the overall display.” (R. 31, p. 19).

On August 28, 2013, Appellant filed its Notice of Appeal. (R. 35). On

September 12, 2013, Appellee filed a Motion to Dismiss Appeal for Lack of

Jurisdiction. (CA7 Doc. 8). Appellant filed its Response in Opposition to

Appellee’s Motion to Dismiss on September 30, 2013 (CA7 Doc. 13) along with

an Affidavit in support of its Response (Id., Ex. A)1, and Appellee filed its

Reply in Support of the Motion to Dismiss on October 3, 2013. (CA7 Doc. 14).

On October 11, 2013, this Court ordered that the motion to dismiss the

appeal be taken with the case and that the briefs fully address all

jurisdictional issues and discuss the bearing of Hollingsworth v. Perry, 133 S.

Ct. 2652 (2013). (CA7 Doc. 15). 1 The Affidavit of Roger Lehman was filed in support of the Appellant’s Response in Opposition to Appellee’s Motion to Dismiss in accordance with Fed. R. App. P. 27. It is relied upon solely in connection with the jurisdictional issues raised by Cabral-Tarsitano in their Motion to Dismiss, which this Court ordered to be taken with the case and dealt with in the parties’ briefs. (CA7 Doc 15).


4

STATEMENT OF FACTS

I. The “Cross The River” Display

“Cross The River” is a planned two-week long event to be conducted by

thirty-one Evansville area churches and other religious organizations

(collectively referred to as the “Churches”), including the Church. (R. 18-1, ¶

4). The event will consist of a display of up to thirty-one artistically painted

and decorated crosses, one for each participating organization, along the

Evansville Riverfront (“Riverfront”), a public forum as discussed below. (Id.).

Each cross is approximately six feet tall and made of polyethylene plastic.

(Id.). Each of the Churches will acquire a cross, decorate and paint the cross

as it sees fit and then display the cross along the walkway located at the

Riverfront during the “Cross The River” event. (Id. at ¶¶ 4, 23).

During the event, the crosses will be displayed along the Riverfront

between Court Street and Locust Street (R. 31, p. 8), a distance of

approximately four city blocks, with approximately fifteen feet between each

cross. (R. 20-19, p. 4). The Churches will be solely responsible for setting up

and maintaining the crosses. (R. 18-1, ¶ 17). The Churches will likewise be

responsible for removing the crosses from the Riverfront at the conclusion of

the display. (Id.). The crosses will remain the property of the Churches

during and upon conclusion of the event. (Id.).

“Cross The River” was originally scheduled for the two-week period,

beginning August 4, 2013, and ending August 18, 2013. (R. 20-18; R. 31, p. 8),


5

but has not yet occurred due to the permanent injunction issued by the

District Court. The Church and the other participating Churches have a

continuing desire to conduct the “Cross The River” event and display on the

Riverfront. (CA7 Doc. 13, Ex. A). The Church has filed a new application with

the City requesting permission for the display of the crosses on the Riverfront

fora at a yet to be determined two-week period during the summer of 2014.

(Id.). The requested display for 2014 is identical to the one originally planned

for the summer of 2013. (Id.).

II. The Forum: The Evansville Riverfront

The City of Evansville is a municipality located in Vanderburgh County in

the southwestern corner of Indiana having a population of approximately

120,000 people. (R. 1, ¶9; R. 31, p. 2). The Riverfront is a traditional public

forum located in the City’s downtown along and abutting the Ohio River. (R.

31, p. 2). There is no dispute that the Riverfront is a public forum (R. 1, ¶¶

10-14). The Riverfront is approximately a mile and a half in length and is

located on and around Riverside Drive (also known at this location as

Veterans Memorial Parkway), which is a large thoroughfare in the City. (R

.31, p. 2). The Riverfront is generally considered to begin in the northwest at

the Tropicana Evansville (a casino that until recently was called “Casino

Aztar”) and Court Street and end in the southeast at Sunrise Park and

Shawnee Drive. (R. 1, ¶ 10; R. 31, p. 4). The Riverfront is one of the City’s

most popular gathering spots (R. 1, ¶ 11; R. 31, p. 4), containing numerous


6

popular destinations, including: the Evansville Museum of Art, History, and

Science; the Evansville Pagoda, Convention, and Visitor Bureau; the Four

Freedoms Monument; Dress Plaza; and Sunrise Park. (R. 1, ¶ 11; R. 31, p. 4).

It also contains a trail and greenway between Riverside Drive and the Ohio

River. (R. 1, ¶ 12). Thousands of persons traverse the Riverfront every single

day. (R. 31, p. 4). (See photographs at R. 20-12 and R. 20-22 and map at R.

20-13).

The seat of the City’s government, commonly called the Civic Center, is

also located downtown but is at least seven blocks from the Riverfront. (R. 20-

1, p. 59, lines 10-17; R. 31, p. 5). No City offices are located at the Riverfront

and no City services are offered at the Riverfront. (R. 20-1, p. 59, line 8-10; R.

31, p. 5). The Riverfront is not visible from the Civic Center, nor is the Civic

Center visible from the Riverfront. (R. 20-1, p. 59, line 14, p. 60, line 4; R. 31,

p. 5).

The portion of the Riverfront where the cross display is planned to be

located extends over four contiguous blocks that directly abut Riverside Drive

between Court and Locust Street (R. 31, p. 5). The area contains a widened

sidewalk, which receives substantial use by joggers, bicyclists and

pedestrians. (Id.). A large, concrete retaining wall with a permanently

installed guardrail extends along the side that overlooks the Ohio River. (Id.).

The public area of the Riverfront is used by many people for many

purposes, including in person events and temporary unattended displays. (R.


7

31, p. 6-8; R. 1, ¶¶12-14; R. 20-23; R. 20-26; R. 20-28). Certain uses of the

Riverfront require permission from a City agency pursuant to the Evansville

Municipal Code (“EMC”). (R. 31, p. 5-6). The Department of Parks and

Recreation (“Parks Department”) approves requests for the use of the Four

Freedoms Monument, which is adjacent to the sidewalk to be used for the

Churches’ display. (Id.). Since at least 2007, the Parks Department has

approved every request (fifty-eight in total) for the use of Four Freedoms

Monument, including but not limited to requests for worship services (such as

several Sunrise Worship Services and several National Day of Prayer events),

family oriented events, candlelight vigils (including a vigil for “National

Coming Out Day” and one for Trayvon Martin), fire demonstrations, marches,

walks and rallies (such as a Zombie Walk, a Rally for Children’s and

Worker’s Rights, and a Stand Up for Religious Freedom Rally), private

weddings, and artistic displays. (Id. at 6). A complete list of the approved

events, which includes secular and religious events, is set forth in the record

at R. 20-26. (Referred to at R. 31, p. 6; see also Stipulation at R. 20-28).

The Board of Public Safety (“Safety Board”) approves any and all requests

for parades and other events that require closure of traffic on Riverside Drive

along the Riverfront. (R. 31, p. 6). Since at least 2010, the Safety Board has

approved every request to close down Riverside Drive (sixty-four in total),

including but not limited to applications for marathons and races, Marches

for Jesus, fireworks, Shriner’s Fest, parades and other events. (Id.). These


8

events include a Fundraiser Walk for Alzheimers; a Bar-B-Q competition to

benefit the Michael J. Fox foundation; several 5K, 10K and half-marathons;

and multiple parades to honor veterans. A complete list of the approved

events, which include secular and religious events, can be found at R. 20-27.

(Referred to at R. 31, p. 6; see also Stipulation at R. 20-28).

The Board of Public Works has many responsibilities under the Evansville

Municipal Code2, one of which is to approve any item to be placed within any

public way in the City of Evansville (EMC 12.05.140). (R. 31, p.6; R. 20-9; R.

20-16; R. 20-1, p. 11, lines 16-21, p. 13, line 22 - p. 14, line 2). EMC 12.05.140

provides: “No person shall cause the obstruction or partial obstruction of a

public way without the permission of or without a permit issued by the Board

of Public Works.…” (R. 20-16). A public way is any area over which the public

has a right of way, including streets, alleys and sidewalks, which would

include the public sidewalks at the Riverfront. (EMC 12.05.60).

The permit application is titled an “Application for Right-of-Way Permit.”3

(R. 31, p. 7; see also R. 20-17 and R. 20-18). The permit application is a

uniform application that must be completed by any person or group wanting

to place an item in any public right of way. (R. 20-1, p. 14, lines 7-16, p. 17,

2 Responsibilities include construction and maintenance of streets and sidewalks (EMC 12.05); approval of obstructions in any stream, water course, ditch, or drain pipe (EMC 12.05.200); and approval of street cuts (EMC 12.05.220); management and control of city cemeteries (EMC 2.190); managing and administering the fare schedule for municipal bus service (EMC 2.35.10); and management of the public wharves (EMC 12.10). 3 The permit application was formerly titled “Application for Encroachment Permit.” Copies of such applications in the record may contain this title. (See R. 20-23, p. 20).


9

lines 4-13, p. 37, line 23, p. 38, line 18). The permit application is obtained

from the City Engineer. (R. 31, p. 7; R. 20-1, p. 47, lines 10-12). Upon

completion by an applicant, a permit application is reviewed for safety

concerns by the City Engineer and usually reviewed for legal concerns, if any,

by the City’s legal counsel. (R. 31, p. 7; R. 20-1, p. 14, lines 7-16, p. 39, lines 1-

21). Provided that a permit application receives the necessary safety approval

from the City’s engineer and if needed, approval from the City’s legal counsel,

a permit application to encroach upon a public right of way is uniformly

approved. (R. 31, p. 7; R. 20-1, p. 57, lines 14-25). Indeed, no such permit

application has ever been denied. (R. 31, p. 7; R. 20-1, p. 42, lines 15-21, p. 57,

lines 9-25).

III. Prior Unattended Displays Approved by the Board of Public Works

Before the “Cross The River” display, the Board of Public Works has

approved a number of temporary unattended displays to be located at the

Riverfront (R. 31, p. 8). Since 2002, the United Way, a commonly known and

identifiable private corporation, has on multiple occasions applied for and

obtained a permit from the Board of Public Works for the temporary display

of artwork along the same portion of the Riverfront as the Church’s display of

its Crosses here. (R. 31, p. 8; R. 20-23).

The Board of Public Works approved the following United Way permit

requests: twenty-four carousel horse sculptures within the sidewalks along

Main Street and Riverside Drive from May through the last week of


10

September 2002 (R. 20-23, pp. 18, 20); twenty-four fish sculptures within the

sidewalks along Main Street and Riverside Drive from July 4 through

September 26, 2005 (R. 20-23, pp. 13, 22); eighteen to twenty four-foot tall

butterfly sculptures along both sides of Riverside Drive between Court Street

and Locust Street for an unspecified time period in 2005 (R. 20-23, pp. 10,

24); and fifteen chair sculptures along Main Street and Riverside Drive from

June to October 2006 (R. 20-23, pp. 2, 25).

The Board of Public Works most recently approved a permit in April 2013

for the Franklin Street Events Association’s display of six artistic sculptures

within the median of Franklin Street (not located at the Riverfront) for Earth

Day. (R. 20-23, p. 30).

IV. Application For and Approval of the Church’s Display

On April 30, 2013, the Church filed an application with the Board of

Public Works requesting permission for a two-week display of up to thirty-

one artistic crosses within the walkway at the Riverfront. (R. 31, p. 8). The

permit application was reviewed by the City’s Engineer. (R. 20-1, pp. 46, 49).

The City reviewed the Church’s permit application in the same manner as

any other permit application. (R. 20-1, p. 69). Specifically, Kerry D. Kamp, a

twenty-three-year employee of the City, met with a representative from the

Church, and addressed the safety concerns regarding the display of the

crosses on the Riverfront. (R. 20-19, pp. 2-3).


11

The Church’s permit application was first presented to the Board on June

6, 2013, at the Board’s regular weekly meeting. (R. 31, p. 8). The Board

tabled discussion of the permit application without making a decision and

requested that the permit application be brought before the Board at a future

meeting because the Church’s permit application was being presented to the

Board by the manufacturer of the crosses, not one of the Churches, and

because the request was not on the written agenda for the June 6, 2013,

meeting. (R. 31, p. 9). During the June 6 meeting, the Board was correctly

advised on the status of the law by its attorney that it should conduct a

content-neutral evaluation of the request:

I guess what I want to be careful to understand is, the fact that this has religious significance should not affect your decision. Your decision should be, because individuals have the right to express, you know, you can go down and stand on the riverside, riverfront, if you want to, and preach and you can do that, and no one can stop you from doing that, unless you’re interrupting traffic or somehow, you know, disrupting things, and to display a symbol of your faith, is also not, I mean, that’s something that you have the right to do. The City could not, on its own, put up any religious devices, but an individual has the right to freedom of express. Your comments about who made the presentation, which is a for-profit company wanting to sell these crosses to churches, is totally valid, and I agree 100 percent with that. I just want to be careful that we don’t just because they’re crosses, in my mind, that way I’m treating him in my mind, is these are statutes, and previously for the United Way, they were statues of pigs and steers, and this time it is a statue of a cross, and that’s the only difference as far as the Law Department is concerned.

(R. 31, p. 10) (emphasis added).


12

On June 20, 2013, the Church’s permit application was again presented to

the Board. (R. 31, p. 10). The presentation was made by Roger Lehman, a

representative of the Church. (Id.). The Board, upon hearing the presentation

by Mr. Lehman for the Church, approved the Church’s permit application.

(Id.). All of the events of this meeting are set forth in the Board’s minutes. (R.

20-20). As the Constitution requires, the Board did not consider the religious

nature of the display as a factor in approving the Church’s permit

application; rather, the Board was focused on neutral criteria, namely safety

and liability concerns, as it did with all other requests. (R. 31, p. 10). The

Church agreed to provide the required insurance. (R. 31, p. 12).

At its July 11, 2013 meeting, the Board of Public Works further required

the erection of a disclaimer during the period of the display. (R. 31, pp. 12-13;

see also Board’s Minutes at R. 23-3). The disclaimer is to be made on two

large signs located at the beginning and end of the display, each as large as

the crosses, and state: “The City of Evansville does not endorse the display or

its message. The display is sponsored by and funded by a private entity.”

(Id.).

Other than providing the permit application to the Church and approving

the permit application, as it did for every other request, the City has not had

and will not have involvement in the Church’s display of the Crosses along

the Riverfront beyond the neutral evaluation of public safety concerns and

insurance. More specifically, the City did not request the Church to make the


13

subject permit application. (R. 31, p. 12; see also R. 20-1, p. 53, lines 19-25).

The City is providing no manpower for the construction, transportation,

erection or removal of the Crosses. (R. 31, p. 12; see also R. 20-1, p. 54, lines

1-8, p. 35, lines 17-19). The City is not decorating the Crosses nor is it

directing the manner in which the Crosses should be decorated. (R. 21, p. 12;

see also R. 20-1, p. 54, lines 6-25). The City did not advise the Church as to

the number, size or building material for the Crosses. (Id.). The City will be

indemnified as to any liability resulting from the display of the Crosses as the

Church, upon directive from the Board on June 20, 2013, is providing liability

insurance. (R. 31, p. 12; see also R. 20-1, p. 52, lines 15-18).

SUMMARY OF THE ARGUMENT

When the government creates a forum for citizen speech and sets content-

neutral time, place and manner conditions on the operation of the forum, a

citizen may engage in speech, without creating a Constitutional violation

even if the speech is from a religious perspective. There simply can be no

Establishment Clause violation when the government does not sponsor the

private expression, the expression was made on government property that

has been opened to the public for speech, and permission was requested

through the same application process and on the same terms required of

other private groups.

Despite those Constitutional principles previously applied by this court,

the court below examined the content and message of the Church’s speech


14

and held that despite the similarities in the Church’s display and other non-

religious speech in the same forum, the Church’s message was too forceful,

threatened to overwhelm the public forum and should be enjoined. In doing

so, the District Court applied a modified form of the “Endorsement” test,

determining that a reasonable observer would view the Church’s speech as

too forceful and overwhelming, and thus as being endorsed by the City.

Although an endorsement test analysis is not necessary here, a reasonable

observer would not view the Church’s speech as being endorsed by the City

given the nature of the forum, the history of its use, the prior and similar

private speech in the location and the disclaimer signs accompanying the

Church’s speech. The new rule adopted by the District Court establishes an

unworkable and unconstitutional standard. Under the District Court’s

holding, governmental officials would be forced to conduct content-based

reviews of private religious speech in order to determine how forceful its

message is and whether it may overwhelm the public forum. The

governmental official has no standard by which to judge this inquiry.

In addition, with not all speech from a religious perspective excluded

under the Court’s reasoning, the governmental official will necessarily engage

in viewpoint-based discrimination by allowing some religious speech but not

all. Each of these scenarios is not feasible, is prohibited by the First

Amendment and would further create significant Equal Protection violations.

Finally, in determining if religious speech is too forceful, governmental


15

officials will necessarily but unconstitutionally excessively entangle

themselves with religion to determine which religious speech is proper and

which must be excluded from the public forum. The District Court’s analysis

was incorrect and the injunction should have been denied and the Judgment

should not have suppressed the Church’s speech.

The Church has standing to bring this appeal which is not moot. The

Court permanently enjoined the Church’s speech and the Church has a direct

stake in the outcome of this case. The case is not moot because the Church

desires to conduct the “Cross The River” display in the future, but the City of

Evansville is permanently enjoined from allowing it.

STANDARD OF REVIEW

In reviewing the granting of a permanent injunction “factual

determinations are reviewed under a clearly erroneous standard and the

necessary legal conclusions are given de novo review.” Plummer v. American

Institute of Certified Public Accountants, 97 F.3d 220, 229 (7th Cir. 1996)

(quoting United States v. Kaun, 827 F.2d 1144, 1148 (7th Cir. 1987)).

Three criteria are determinative of permanent injunctive relief: (1) will

the plaintiff have an adequate remedy at law or be irreparably harmed if the

injunction is denied; (2) does the threatened injury to the plaintiff outweigh

the threatened harm the injunction may inflict; and (3) will granting the

injunction harm the public interest. Plummer, 97 F.3d at 229. “A permanent

injunction (as opposed to a preliminary injunction or a temporary restraining


16

order) is not provisional in nature, but rather is a final judgment.” Id. Thus,

when the plaintiff seeks a permanent injunction, the “…issue is not whether

the plaintiff has demonstrated a reasonable likelihood of success on the

merits, but whether he has in fact succeeded on the merits.” Id.

ARGUMENT

In the past seven years, private citizens have conducted at least 122

events, rallies, festivals, etc., in the public forum located along Evansville’s

Riverfront. (R. 20-26; R. 20-28). But the court below enjoined the Church’s

display. Why? It’s too effective. In short, the District Court enjoined the

Church’s desired display and speech because of the religious viewpoint and

content of its message. The court below was concerned by the “forcefulness of

the [religious] message being conveyed, based on the significant scope and

size and duration of the overall display.” (R. 31, p. 19). The court determined

that the cross display “threatens to overwhelm and transform the otherwise

neutral public forum.” Id. at 17. If only the crosses had been smaller, or less

numerous, or displayed for one week rather than two—in other words, less

effective at conveying its religious message—then perhaps the court would

not have found an Establishment Clause violation.

But the court permanently enjoined the display, and in doing so departed

from decades of well-settled jurisprudence that the inclusion of privately-

owned religious displays in public fora—including religious displays like the

Church’s—does not violate the Establishment Clause. See, e.g., Capitol


17

Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 770 (1995)

(“Religious expression cannot violate the Establishment Clause where it (1) is

purely private and (2) occurs in a traditional or designated public forum…”);

Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 395

(1993) (where school district facilities were a public forum, “permitting

District property to be used to exhibit the [religious] film series involved in

this case would not have been an establishment of religion”); Doe v. Small,

964 F.2d 611, 619 (7th Cir. 1992) (en banc) (“The court erred in finding that

the religious content of a display in a quintessential public forum far removed

from the seat of government violates the Establishment Clause, for public

forums must be open to religious speech.”); Grossbaum v. Indianapolis-

Marion Cnty. Bldg. Auth., 63 F.3d 581, 592 (7th Cir. 1995) (“[T]he prohibition

of the menorah’s message [from being displayed in the lobby of a government

building] because of its religious perspective was unconstitutional under the

First Amendment's Free Speech Clause”).

There is no dispute that this case involved a temporary, private display of

religious speech in a traditional public forum. As such, three primary cases—

Pinette, Doe, and Grossbaum—guide this Court’s analysis. Each of these

cases rejected Establishment Clause challenges to temporary, unattended

religious displays. The lower court instead misapplied, distinguished or

ignored the controlling authority and found a violation of the Establishment

Clause. As such, the Judgment below should be reversed and the permanent


18

injunction vacated.

I. The District Court’s Order Must Be Overturned to Protect the Church’s Constitutional Rights

A. Religious Speech by a Private Citizen in a Public Forum Does Not

Violate the Establishment Clause.

The Supreme Court and this Court have held that the Establishment

Clause is not violated when a private speaker engages in religious-oriented

speech in a public forum. Yet, the court below held that no such bright-line

rule exists to distinguish government speech from private speech in a public

forum. The failure to make this distinction resulted in impermissible

viewpoint and content based discrimination, thereby violating the

constitutional rights of the Church.

The leading case on temporary private speech in a public forum is Capitol

Square Review & Advisory Bd. v. Pinette. 515 U.S. at 753. In Pinette, a

petition was made to place an unattended cross display on the Ohio state

capitol grounds for sixteen days during the Christmas season. Id. at 757-58.

The square had been used for public speeches, gatherings, and festivals for a

variety of causes, both secular and religious and was therefore a public

forum. Id. at 758. To use the square, applicants needed to obtain a permit, a

process that required an examination of neutral criteria such as safety,

sanitation, and non-interference with other uses of the square. Id. at 758. The

controlling State review board denied the cross display because of the

display’s religious content and to avoid what it feared would be official


19

endorsement of Christianity in violation of the Establishment Clause. Id. at

761.

The majority of the Supreme Court held that the State could not bar the

proposed private display of the cross in the public forum of Capitol Square.

Id. at 770. The Court noted that “[t]he State did not sponsor respondents'

expression, the expression was made on government property that had been

opened to the public for speech, and permission was requested through the

same application process and on the same terms required of other private

groups.” Id. at 763. Recognizing the display in Pinette as private expression,

the Court held that “[o]ur precedent establishes that private religious speech,

far from being a First Amendment orphan, is as fully protected under the

Free Speech Clause as secular private expression.” Id. at 760, citing Lamb’s

Chapel, 508 U.S. 384; Board of Ed. of Westside Community Schools (Dist. 66)

v. Mergens, 496 U.S. 226, 110 S. Ct. 2356, 110 L.Ed.2d 191 (1990); Widmar v.

Vincent, 454 U.S. 263, 102 S. Ct. 269, 70 L.Ed.2d 440 (1981); Heffron v.

International Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 101 S. Ct.

2559, 69 L.Ed.2d 298 (1981). The Court then reiterated the long standing

precedent for speech in a public forum that when “the property has by law or

tradition been given the status of a public forum,” the government may make

content-neutral time, place, and manner restrictions “but it may regulate

expressive content only if such a restriction is necessary, and narrowly

drawn, to serve a compelling state interest.” Pinette, 515 U.S. at 761.


20

Here, the challenge to the Church’s display (and the conclusion of the

court below) did not apply any content-neutral time, place, or manner

restriction. As in Pinette, “[t]o the contrary, [the result below is] precisely

because its content was [too] religious.” Id. at 761. This is the same error the

Supreme Court addressed in Pinette: “[w]e have twice previously addressed

the combination of private religious expression, a forum available for public

use, content-based regulation, and a State’s interest in complying with the

Establishment Clause. Both times, we have struck down the restriction on

religious content.” Id. (citing Lamb’s Chapel, supra (striking down school

facility use policy that excluded religious purposes); Widmar, supra (striking

down university policy excluding student religious groups)).

A majority of the Pinette Court upheld the display of a large (ten feet by

six feet) unattended cross intended to be displayed for sixteen days in a

public forum where other groups, including notably the United Way, had

located other displays, gatherings and festivals. A plurality of the Court held

“[r]eligious expression cannot violate the Establishment Clause where it (1) is

purely private and (2) occurs in a traditional or designated public forum,

publicly announced and open to all on equal terms.” Id. at 770. Similarly, the

Evansville city property along the Riverfront is such a forum. Numerous

events including unattended artistic displays by community groups such as

the United Way have been regularly located in the area. Accordingly, the


21

Church’s desired display does not violate the Establishment Clause simply

because it depicts a religious symbol.

Consistent with this Pinette holding is this Court’s earlier decision in Doe

v. Small, 964 F.2d 611 (7th Cir. 1992) (en banc). The Doe Court held that the

First Amendment protected the religious speech rights of private parties who

sought to display paintings of Jesus in a public park. Id. at 618. The court

below incorrectly distinguishes Doe on the basis that the park had multiple

uses at the time of the display and that the Doe Court dealt with an

overbroad injunction (R. 31, n. 8). But Doe controls the outcome here.

Doe involved a dispute over a Christmas display of sixteen canvas

paintings depicting scenes from the life of Christ (in an effort to “put Christ

back in Christmas,”) in an Ottawa, Illinois city park, a traditional public

forum. Id. at 612-13. Each annual display was exhibited by private parties.

Id. The Ottawa Junior Chamber of Commerce (Jaycees) maintained the

paintings until after the litigation ensued. Id. The paintings were

accompanied by a sign measuring nearly two feet by two feet “with letters 1

1/16’ high, clearly legible from the sidewalk but not from across the street

[stating]: ‘THIS DISPLAY HAS BEEN ERECTED AND MAINTAINED

SOLELY BY THE OTTAWA JAYCEES, A PRIVATE ORGANIZATION,

WITHOUT THE USE OF PUBLIC FUNDS.’” Id. The display was typically

erected for two months each year. Id. at n. 1. Similar to the Evansville


22

Riverfront, the Ottawa park was the “site of a broad array of private

activities in recent years, including religious activities.”4 Id. at 614.

After the City was sued in Doe, the Jaycees intervened to defend their

right to display the paintings in the City Park. Id. at 616. The district court

subsequently enjoined the future display of the paintings, and the Jaycees

appealed. Id. at 617 and n. 1. The City did not appeal the injunction. Id. After

the original panel ruling by this Court, the paintings were transferred to the

Ottawa Freedom Association who continued the appeal through the en banc

ruling. Id. at 616 and n. 1.

In determining the issue of “[w]hether private persons may be enjoined

from engaging in religious speech in a public forum on the basis of the

religious content of the speech,” Id. at 617, this Court noted the oft-quoted

passage that “there is a crucial difference between government speech

endorsing religion, which the Establishment Clause forbids, and private

speech endorsing religion, which the Free Speech and Free Exercise Clauses

protect.” Id. at 617-18 ((quoting Mergens, 496 U.S. 226) (emphasis original)).

Thus, the Court held that “the religious speech of private parties who wish to

display the paintings of Christ in Washington Park are protected under the

Free Exercise Clause and the Free Speech Clause.” Id.

The en banc Court held that the lower court “erred in finding that the

religious content of a display in a quintessential public forum far removed 4 The Doe opinion includes a list of events held in the park for an eight year period. Doe at 614. The list is strikingly similar to the lists that appear in the record at R. 20-26 and 20-28 and as set forth in the Statement of Facts herein.


23

from the seat of government violates the Establishment Clause, for public

forums must be open to religious speech.” Id. at 619. This Court explained:

[W]e fail to comprehend how the Establishment Clause could constitute a sufficiently compelling state interest to justify a content-based exclusion of private religious speech in a quintessential public forum. Thus, we hold that the district judge erred in finding that the Establishment Clause provided a sufficiently compelling interest to justify a content-based exclusion of speech from Washington Park. The City of Ottawa may not exclude private persons from Washington Park merely because of the religious content of their speech.

Id.

This Court’s decision reinforced the well-established principle that “the mere

presence of religious symbols in a public forum does not violate the

Establishment Clause, since the government is not presumed to endorse

every speaker that it fails to censor in a quintessential public forum far

removed from the seat of government.” Id. Based upon this principle, the Doe

Court held: “Hence, there is no conflict between the Establishment Clause

and the Free Speech Clause when private persons engage in religious speech

in a public forum.” Id. at 622. (emphasis added).

The Doe holding is significant because the Court below held that the per

se rule adopted by the plurality in Pinette was not adopted by a majority of

justices and is therefore not binding. (R. 31, n. 10). However, this per se test

from the Pinette plurality was recognized three years earlier by this Court in

Doe, sitting en banc. Accordingly, the rule from the four justice plurality in

Pinette is consistent with the law of this Circuit, which the lower court failed

to apply. See also Chabad-Lubavitch of Georgia v. Miller, 5 F.3d 1383, 1394


24

(11th Cir. 1993) (“Any perceived endorsement of religion in a true public

forum is simply misperception; the Establishment Clause is not, in fact,

violated.”) citing Doe, at 629.

Following Doe and the Supreme Court’s decision in Pinette, this Court

again analyzed a private, temporary, religious display in a nonpublic forum

in Grossbaum, 63 F.3d 581. There, for seven consecutive years the

government granted a request to display a menorah in the lobby of the city-

county building—the seat of city and county government in Indianapolis. Id.

at 582-83. After seven years of granting the request, the government adopted

a new policy and thereafter denied requests to display a menorah due to

“Establishment Clause concerns.” Id. This Court held that the display of the

menorah was protected by the First Amendment and that its display did not

violate the Establishment Clause.

In Grossbaum, the Building Authority allowed “broad access to a wide

variety of public and private speakers” in the lobby of the city-county

building. Id. at 582. The Authority accepted written or oral requests for use of

the lobby or to erect displays and “[o]f the 117 written requests made from

1990 through September 22, 1994, all were granted, to public and private

groups alike, except several requests for sales or fundraising activities, one

request for third-time use by the same party, and, in 1993 and 1994, the

plaintiffs’ requests to display their menorah at Chanukah.” Id.


25

This Court then held that allowing an unattended temporary display of

religious imagery, “pursuant to an evenhanded policy of allowing expression

on the holiday season, raises no Establishment Clause concerns of such

countervailing importance as to outweigh the plaintiffs’ right to free

expression.” Id. at 595.

The District Court rejected this reasoning from Pinette, Doe and

Grossbaum and instead conducted a content-based analysis into the

“forcefulness” and “scope” of the Church’s display to determine whether the

City of Evansville’s failure to censor the Church could be viewed as

endorsement by the City of the Church’s speech. Utilizing this analysis, the

Court below determined that because the Church would display thirty-one

six-foot tall crosses for fourteen days, a reasonable observer would believe

that the City endorsed the display.

The District Court’s conclusion is significant and unique. Neither Cabral-

Tarsitano nor the District Court below cited any post-Pinette case in which

private speech in a governmental forum, made on a temporary basis and

pursuant to the same terms and processes applied to others was found to

violate the Establishment Clause. Yet, other courts after Pinette have upheld

displays containing religious imagery when presented similar facts as to

process and forum. See, e.g., Satawa v. Macomb County Road Commission,

689 F.3d 506 (6th Cir. 2012) (holding the government would not violate the

Establishment Clause by approving a permit for a private party to erect a


26

religious display in forum opened by the government for speech); Chabad of

S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427 (6th

Cir. 2004) (affirming grant of preliminary injunction against City of

Cincinnati's enforcing ordinance prohibiting display of menorah in traditional

public forum during Chanukah).

As in Pinette and Doe, the Church’s fourteen day display creates no

“Establishment Clause” concerns because this display was to be located in a

traditional public forum. The Evansville Riverfront is open to a variety of

uses by private citizens and the Church’s request here was consistent with

other requests by other groups. In fact, it is significantly similar to the

United Way’s display of outdoor art of horse, fish, butterflies and chairs, with

each of those items on display longer than the Church’s. To bar the Church

from this public forum solely because of the religious content of its intended

speech would constitute impermissible viewpoint discrimination and cannot

be squared with Pinette and this Court’s precedent.

B. The District Court Misapplied the Endorsement Test to the Church’s Private Speech in a Public Forum

The District Court incorrectly applied and misinterpreted the

endorsement test espoused by Justice O’Connor in Pinette rather than the

per se test held by the plurality. Note, however, proper application of the

O’Connor endorsement test, albeit not the correct test where private speech

in a public forum is concerned as discussed above, upholds the

constitutionality of the Church’s display and the City’s approval of the Right


27

of Way Permit allowing it. In other words, had the District Court applied the

incorrect legal standard correctly, the Church and the City would have

prevailed and the Church’s display still would not have been enjoined.

Below, Cabral-Tarsitano argued that allowing the display may have

created the possibility for confusion about “endorsement” because, in their

view, a reasonable observer would see thirty-one six-foot tall crosses over four

city blocks along a public walkway and assume the City allowed and thus

endorsed that private speech. And Cabral-Tarsitano maintain this position

despite the presence of conspicuous disclaimers. The same rationale was

promulgated by the State in Pinette. But, it must be remembered that Justice

O’Connor rejected the State’s arguments in Pinette and joined with the

plurality in finding the display there constitutional. Although she did not join

the “per se” rule adopted by the plurality, her application of the endorsement

test ultimately lead her to the same result:

None of this is to suggest that I would be likely to come to a different result from the plurality where truly private speech is allowed on equal terms in a vigorous public forum that the government has administered properly. That the religious display at issue here was erected by a private group in a public square available “for use by the public…for free discussion of public questions, or for activities of a broad public purpose,” [citations omitted] certainly informs the Establishment Clause inquiry under the endorsement test. Indeed, many of the factors the plurality identifies are some of those I would consider important in deciding cases like this one where religious speakers seek access to public places: “The state did not sponsor respondents’ expression, the expression was made on government property that had been opened to the public for speech, and permission was requested through the same


28

application process and on the same terms required of other private groups.”

Pinette, 515 U.S. at 775 (citing the Pinette plurality at 763) (emphasis added).

Justice O’Connor’s endorsement test necessarily focuses upon the

perception of a reasonable, informed observer. Id. at 773. She stated that “the

applicable observer is similar to the ‘reasonable person’ in tort law, who … is

‘rather a personification of a community ideal of reasonable behavior,

determined by the collective social judgment.’” Id. at 779-80. According to her

standard under the endorsement test, the inquiry is not “whether there is

any person who could find an endorsement of religion, whether some people

may be offended by the display, or whether some reasonable person might

think [the State] endorses religion” because according to Justice O’Connor,

there will always be someone who reasonably might perceive a particular

action as an endorsement of religion. Id. at 780 (emphasis in original). Justice

O’Connor opined that “[t]he reasonable observer would recognize the

distinction between speech the government supports and speech that it

merely allows in a place that traditionally has been open to a range of private

speakers accompanied, if necessary, by an appropriate disclaimer.” Id.

The District Court’s Order cites to Justice O’Connor’s endorsement test,

framing the issue as “whether an objective reasonable observer, ‘aware of the

history and context of the community and forum in which the religious

display appears,’ would fairly understand the display to be a government


29

endorsement of religion.” (R. 31, p. 15) (citing Pinette 515 U.S. at 780).

However, that is where the District Court’s adherence to the O’Connor

endorsement test ends as the District Court goes on to hold that the Church

does not enjoy the same speech rights enjoyed by other Evansville citizens in

the forum, concluding that “based on the size and scope of the project, this

planned display of crosses would convey a message of the City’s endorsement

of Christianity to the reasonable observer, and thus, would violate the

Establishment Clause.” (R. 31, p. 15) (emphasis added). The District Court

continued, “It is the forcefulness of this message based on the size and scope

of the display that catapults it into the range of constitutionally prohibited

speech (emphasis added).” Id.

1. The Endorsement Test Applied By the District Court Is Flawed Because…

a. …it relies on a determination of “forcefulness” which is

impermissible because it involves viewpoint discrimination of private speech in a public forum.

When the government excludes religious speech because of the

“forcefulness of the message” on an otherwise permissible subject, it engages

in viewpoint discrimination. Good News Club v. Milford Central School, 533

U.S. 98, 111 (2001) (finding that activities such as religious instruction,

prayer, and discussion and recitation of the Bible are protected speech);

Lamb’s Chapel, 508 U.S. at 394. Viewpoint discrimination occurs “[w]hen the

government targets not subject matter, but particular views taken by

speakers on a subject.” Rosenberger v. Rector and Visitors of the Univ. of


30

Virginia, 515 U.S. 819, 829 (1995). This type of discrimination is “egregious”

and “blatant” because “[t]he government must abstain from regulating speech

when the specific motivating ideology or the opinion or perspective of the

speaker is the rationale for the restriction.” Id. Enjoining the church’s display

because of the “forcefulness of the message” of the display is viewpoint

discrimination in its purest form. Moreover, by allowing the use of the

premises for some religious purposes or even allowing some religious displays

as the opinion below does (“[t]his ruling should not be understood to foreclose

or prohibit any and all unattended displays on the Riverfront area that

convey a religious message”) (R. 31, p. 19). The court below engaged in

viewpoint discrimination by denying this Church’s display but did not

foreclose the permissibility of other religious displays that were less

“forceful.”

In his concurring opinion in Doe, now Chief Judge Easterbrook reiterated

the prohibition against viewpoint discrimination:

Government may not discriminate against private speech in a public forum on account of the speaker’s views. The Free Exercise Clause assures speakers whose message is religious no less access to public forums than that afforded speakers whose message is secular or sacrilegious.

Id. at 629 (Easterbrook, J., concurring) (citations omitted). Likewise, in

Grossbaum, this Court held that the government’s decision to deny the

permit for the display of the menorah was motivated by the speaker’s

religious message, Id. at 592, and was unconstitutional viewpoint


31

discrimination. Id. at 595-96.

b. …“forcefulness” is not determinable.

Even if viewpoint discrimination were permissible, how can a

governmental official, charged with the operation of a public forum, know

when the speech is too “forceful” so that a reasonable observer might believe

the government endorses the speech? There are no standards by which an

official can determine when the scope, size and duration is “too much” as to

create a message as to overwhelm the forum and this rule is an unworkable

standard. By even attempting such an analysis of the size, scope and

duration of religious speech, a government officer would engage in

impermissible viewpoint discrimination because he would be examining and

assessing the “forcefulness” of the message when he should be engaging in

content neutral regulation. See Pinette, 515 U.S. at 762.5

Further, the “forcefulness” of a citizen’s speech cannot be the

determinative factor in a constitutional challenge. If so, then less impactful

speech gets greater protection than more impactful and, in turn, less

offensive speech would garner more Constitutional protection than more

egregiously outrageous speech. First Amendment case law requires just the

opposite. See, e.g., Simon & Schuster, Inc. v. Members of New York State

5 In addition, requiring governmental officials to conduct a review of religious oriented speech entails an inevitable entanglement that violates the First Amendment. See, e.g. Cohen v. City of Des Plaines, 8 F.3d 484, 494 (7th Cir. 1993) (holding such an inquiry focused on the kid of government surveillance of religious activities or cooperation between government and religious officials that has been deemed an impermissible administrative entanglement.)


32

Crime Victims Bd., 502 U.S. 105, 118 (1991) (“the fact that society may find

speech offensive is not a sufficient reason for suppressing it. Indeed, if it is

speaker’s opinion that gives offense, that consequence is a reason for

according it constitutional protection.”).

c. …application of any endorsement test for private speech in a public forum would usher in a most unappealing Establishment Clause regime.

Adoption of any endorsement test with regard to private religious speech

in a public forum would have significant negative consequences regardless of

whether the test is the version adopted by Justice O’Connor in Pinette or the

modified version applied by the District Court in this case. In applying an

endorsement test, one must discern when, in Justice O’Connor’s case, an

objective reasonable observer would fairly understand religious speech to

have been government endorsement or, in the case of the District Court, that

the religious speech becomes too “forceful”.

The Pinette Court plurality concluded that if this theory were valid, “the

Establishment Clause regime that it would usher in is most unappealing,” Id.

at 767, and “would also disrupt the settled principle that policies providing

incidental benefits to religion do not contravene the Establishment Clause.”

Id. at 768. They continued that “[i]t has radical implications for our public

policy to suggest that neutral laws are invalid whenever hypothetical

observers may—even reasonably—confuse an incidental benefit to religion

with state endorsement.” Id. Notably, the Court found it “peculiar to say that


33

government ‘promotes’ or ‘favors’ a religious display by giving it the same

access to a public forum that all other displays enjoy.” Id. at 763-64. Instead,

the Court stated that the perception of favoritism is not enough to restrict

private religious speech in a public forum. Id. at 766.

The Court left open the possibility that a governmental entity could

manipulate the administration of the public forum “in such a manner that

only certain religious groups take advantage of it, creating an impression of

endorsement that is in fact accurate,” but found that none of that

governmental favoritism existed and concluded that “[p]rivate religious

speech cannot be subject to veto by those who see favoritism where there is

none.” Id. Likewise, here there is no allegation, evidence, or holding of the

Court below that hints at the manipulation of this forum or favoritism by any

governmental entity or official, and so any concern of that type of

endorsement is absent.

2. Even Under Justice O’Connor’s Endorsement Test, the Church’s Display Should Be Allowed

Even if the endorsement test espoused by Justice O’Connor in her

concurrence in Pinette is determined to be practical and valid under the law,

its application to the facts of this case nevertheless requires the Church’s

display to be allowed because a reasonable informed observer would not

conclude that the City government endorsed the Church’s display.

First, certain presumptions are required as the “reasonable” observer is

deemed to be “aware of the history and context of” the Evansville Riverfront,


34

which would include all of the previous unattended art displays and multi-

purpose uses. The “reasonable” observer is not permitted to limit their

knowledge “to the information gleaned simply from viewing the challenged

display.” Id. at 781. Thus, under the portion of Pinette cited although

misapplied by the court below, the “reasonable” observer should know the

general history of “the Riverwalk” and that it “has been used over time by

private speakers of various types is as much a part of the display’s context as

its [location].” Id. The “reasonable” observer would know that all requests for

use of the Riverfront, without exception, had been approved by applicable

City boards, including the Board of Public Works, where necessary. A

“reasonable” observer is also charged with the knowledge that the United

Way utilized the same area for past displays, and that the Church went

through the same process and the approval of its display was made subject to

the same requirements as the United Way displays. Id. (“An informed

member of the community will know how the public space in question has

been used in the past—and it is that fact, not that the space may meet the

legal definition of a public forum, which is relevant to the endorsement

inquiry.”).

Taking this knowledge of a reasonable observer into consideration, it is

difficult to imagine how the Court below would find that the government

endorsed the message, especially because there are only slight differences

between this display and the United Way displays and the court below did


35

not draw any distinction between them, except noting that the United Way’s

display, unlike the Church’s “did not convey religious content.” (R. 31, p. 8).

Each United Way display lasted for several months, not a mere two weeks.

Under the district court’s reasoning the duration of a display is important to

evaluating the “forcefulness of the message” and a reasonable observer would

know the Church’s display lasted less time than the United Way’s displays.

Six-foot tall crosses are certainly comparable to four-foot high horses.

Therefore, the size and duration of the Church’s proposed display were in

some ways smaller in scope than the allowed United Way displays.

Any perceived endorsement of the message by the government based on

some vague notion of its “forcefulness”, would be negated by the large

disclaimers at the beginning and end of the display. In Justice O’Connor’s

concurring opinion in Pinette, she specifically suggests that adding a

disclaimer to displays ameliorates any potential confusion that the

reasonable observer may have. “I would add the presence of a sign

disclaiming government sponsorship or endorsement on the Klan class, which

would make the State’s role clear to the community…In context, a disclaimer

helps remove doubt about state approval of respondents’ religious message.”

Id. at 776. In fact, that is precisely what the City of Evansville did by

requiring signs, of equal size to a cross, to be erected at each end of the

display stating: “The City of Evansville does not endorse the display or its

message. The display is sponsored by and funded by a private entity.” (R. 31,


36

pp. 12-13). Yet, these disclaimers were given no significance by the Court

below.

Even without disclaimers Justice O’Connor concluded in Pinette that

there is “’no realistic danger that the community would think that the [State]

was endorsing religion or any particular creed.” Id. at 772. Justice O’Connor

indicated “[t]hat the religious display at issue here was erected by a private

group in a public square available ‘for use by the public …for free discussion

of public questions, or for activities of a broad public purpose,’ certainly

informs the Establishment Clause inquiry under the endorsement test.” Id.

at 775. (citations omitted). Because the Church’s display was also erected by

a private group in a public square available for use by the public, and in

additions contained large, conspicuous signs disclaiming endorsement by the

City, it would be unreasonable to conclude that the City endorsed the display.

The District Court’s reliance on the “forcefulness of the message” to the

exclusion of all of the other factors the reasonable informed person would be

aware of marks a significant departure from the endorsement test espoused

by Justice O’Connor. Had the District Court properly applied O’Connor’s

endorsement test, it would have concluded that the reasonable observer

would not view the City’s approval of the Church’s application to display its

Crosses at the Riverfront as an endorsement of religion but instead would

recognize it for what it is – private speech in a traditional public forum. As

such, the District Court erred by concluding otherwise and enjoining the City


37

from forever approving the Church’s display. Its permanent injunction should

be overturned.

II. Appellant Has Standing and Its Claim is Not Moot

A. The Church Has Standing to Appeal the District Court’s Order Because This Order Violates the Church’s First Amendment Rights, and the Church Can Vindicate Its Rights Through a Private Cause Of Action.

1. The Church fulfills the requirements for Article III standing:

injury, causation and redressability.

The Church has standing to appeal because the District Court’s

permanent injunction below violates the Church’s First Amendment rights by

preventing the Church from displaying its crosses in a traditional public

forum. Cabral-Tarsitano claim this appeal cannot redress the harm inflicted

on the Church since the order runs exclusively against the City of Evansville

and the City did not appeal. But their argument overlooks the Church’s

separate, independent legal right through a private cause of action under 42

U.S.C. §1983 to require the City to comply with the First Amendment and

not discriminate against the religious viewpoint or content of its speech.

Because the Church can vindicate its rights through a private cause of action,

the order below harms the Church, and this Court can redress the Church’s

injury by overturning this order.

Reaching this conclusion starts with elemental standing rules. A party

“seeking appellate review” must have standing. Arizonans for Official English

v. Arizona, 520 U.S. 43, 64 (1997). While intervening below does not


38

automatically confer standing to appeal, an intervenor need only show “that

[it] fulfills the requirements of Art. III.” Diamond v. Charles, 476 U.S. 54, 68

(1986). The requirements of Article III standing are injury, causation, and

redressability. Freedom From Religion Found., Inc. v. Obama, 641 F.3d 803,

805 (7th Cir. 2011). In the appellate context, standing analysis “focuses on

‘injury caused by the judgment rather than injury caused by the underlying

facts’…” Transamerica Ins. Co. v. South, 125 F.3d 392, 396 (7th Cir. 1997)

(citation omitted).

Applying this test, the Church’s appellate standing is rather obvious: the

order below prevents the Church from displaying its Crosses and thereby

violates the Church’s First Amendment rights. This violation of its rights

harms the Church. Indeed, Cabral-Tarsitano do not directly dispute that

there is an “injury the Church might suffer as a result of the district court’s

opinion.” (CA7 Doc. 8, p. 13). And Cabral-Tarsitano do not dispute that the

District Court’s Order causes the potential injury. This appeal can redress

this harm by overturning the order below. For this reason, the Church has

standing to appeal. See Korczak v. Sedeman, 427 F.3d 419, 420 (7th Cir.

2005) (“To intervene in a suit is to become a party to it, and a party has a

right to appeal from a judgment that inflicts a sufficiently tangible injury on

him to give him standing under Article III of the Constitution to sue.”)

(citations omitted).

2. Cabral-Tarasitano’s argument that the Church cannot appeal because the injunction below ran exclusively against the City is


39

without merit.

In their Motion to Dismiss the Appeal, Cabral-Tarsitano cite only a few

cases supporting their argument that the Church lacks standing to appeal

the District Court’s permanent injunction, which runs exclusively against the

City, primarily relying on Kendall-Jackson Winery, Ltd. v. Branson, 212 F.3d

995 (7th Cir. 2000). But, contrary to Appellee’s assertions, Kendall-Jackson

explicitly supports the right of the Church to appeal the injunction.

In Kendall-Jackson, a state statute prohibited liquor suppliers from

altering their arrangements with distributors and empowered the state

liquor commission to order suppliers to honor past arrangements. Id. at 995-

96. To avoid this, some suppliers altered their arrangements with

distributors before the statute took effect. Id. After the statute took effect, the

distributors asked the liquor commission to order the suppliers to honor their

prior arrangements, and the commission did so. Id. The suppliers then sued

state officials saying the statute violated the Constitution’s Contract’s

Clause, and the distributors intervened as defendants. Id. The district court

enjoined the statute, and the distributors appealed. Id. This Court dismissed

the appeal because the state defendant did not appeal, and so the appeal

could not redress the harm inflicted on the distributors. Id. at 997-1000.

But the appeal could not redress the harm on the distributors because the

distributors could not legally force the commission to issue orders against the

suppliers. The distributors had no constitutional right or legal cause of action


40

to force the commission to act. Whether the commission issued its orders or

not was entirely up to its administrative discretion. So even if the injunction

against the commission remained in place, the injunction could not hinder

the distributors’ rights, and removing this injunction on appeal would not

redress any harm. See id. at 999 (“Because private parties cannot conduct an

independent enforcement action [to force the commission to act], the

injunction could not adversely affect the distributors in such an action…”).

See also id. at 998 (“The Commission’s decision not to appeal leaves the

distributors in the position that they would have occupied had the

Commission not entered the orders in the first place—and because Illinois

does not recognize any private right of action to contest such an enforcement

decision by the Commission, it would not be sound to allow the distributors to

challenge that decision indirectly.” (emphasis added)). Thus, under Kendall-

Jackson—like the other cases Cabral-Tarsitano previously cited—a party will

only lack standing to appeal an injunction against the government when that

party cannot legally force the government to act contrary to the injunction.

The situation here is different. The City of Evansville’s decision not to

appeal leaves the Church in the same position had the City denied the

Church’s application in the first instance. Were that to have happened, the

Church would have had been able to bring a private cause of action under 42

U.S.C. § 1983 to enforce its First Amendment right to speech in a public

forum. But the order below now forecloses this cause of action and therefore


41

injures the Church. For this reason, vacating the injunction below would

redress the injury inflicted on the Church, and the Church has standing to

request that this Court overturn the injunction on this appeal.

This conclusion is not a mere inference. Kendall-Jackson explicitly

acknowledges that intervenors can appeal an injunction so long as they can

force the government to act contrary to that injunction in the future through

a private right of action: “Sure the injunction injures them [the distributors],

but how can their appeal redress that injury given that the injunction will

continue to bind the Commission? When a statute creates a private right of

action, it is possible to see how such a question may be answered

affirmatively.” Id. at 998.

In support of its holding, the Kendall-Jackson Court cites Mausolf v.

Babbitt, 125 F.3d 661 (8th Cir. 1997), where a district court enjoined the

National Park Service from enforcing certain federal regulations, and the

Park Service did not pursue an appeal. Private intervenors were allowed to

appeal, not simply because the injunction injured them but because federal

regulations may be enforced by private parties by suits against the agencies

or other private parties, including causes of action under 42 U.S.C. § 1983

against a state actor defendant. Id. at 998; see also ACLU v. Tarek ibn Ziyad

Acad., 643 F.3d 1088, 1093 (8th Cir. 2011) (holding that parents had standing

to intervene “because the injury alleged—impingement of religious freedom if

TIZA stops providing the accommodations challenged by the ACLU—would


42

be redressed by a judicial determination that the policies are permitted under

the Establishment Clause”); Didrickson v. U.S. Dep’t of Interior, 982 F.2d

1332, 1339 (9th Cir. 1992) (allowing intervenor defendant to appeal even

though government defendant did not appeal because the “Government’s

acquiescence in the district court judgment effectively is the same as

promulgating a regulation that is contrary to the FSO’s position.”).

In this respect, the very precedent Cabral-Tarsitano cite completely

undermines their argument and demonstrates why the Church has standing

on this appeal. And this precedent coheres perfectly with what common sense

demands: an intervening party like the Church has standing to appeal an

order that violates the intervenor’s constitutional rights.

3. Hollingsworth v. Perry does not undermine the Church’s standing.

Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) does not undermine the

Church’s standing. In Hollingsworth, the Court held that proponents of a

ballot measure did not have standing to appeal a district court’s order

declaring the Proposition unconstitutional, concluding that petitioners had no

“direct stake” in the outcome of their appeal, since their only interest in

reversing the District Court order was “to vindicate the constitutional

validity of a generally applicable California law.” Id. at 2662. Hollingsworth

supports the Church’s standing to appeal. The Church has a direct

constitutional stake since it is the Church’s display which has been

permanently enjoined.


43

Unlike the Church’s claim, Hollingsworth likened the petitioner’s claim to

a generalized grievance, stating:

We have repeatedly held that such a “generalized grievance,” no matter how sincere, is insufficient to confer standing. A litigant “raising only a generally available grievance about government– claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large–does not state an Article III case or controversy.

Id. at 2662 (citations omitted). Unlike the petitioners in Hollingsworth, the

Church’s claim involves the infringement of its constitutional rights and

therefore confers Article III standing.

The Court likened Hollingsworth to Diamond v. Charles, 476 U.S. 54

(1986), where a pediatrician lacked standing as an intervenor to defend the

constitutionality of the State’s restrictions on abortion as merely “a professed

‘conscientious object[or] to abortions.’” Id. at 2663. The Diamond Court held

“‘[e]ven if there were circumstances in which a private party would have

standing to defend the constitutionality of a challenged statute, this [was] not

one of them,’ because Diamond was not able to assert an injury in fact of his

own.” Id. at 2664 (citations omitted). Here, however, the Church is able to

assert an injury in fact of its own, which is that the injunction infringes on its

constitutional rights.

The premise of Cabral-Tarsitano’s standing argument misconstrues this

precedent and erroneously asserts that this Court can only overturn an

injunction on appeal if the party bound by the injunction appeals. But this


44

premise is incorrect. Courts regularly hear appeals by intervenors not

technically bound by orders below when these orders adjudicate the

intervenors’ rights. See, e.g., Fishgold v. Sullivan Drydock & Repair Corp.,

328 U.S. 275 (1946) (even though the order did not run against it and no one

else appealed, intervening union had standing to appeal because the order

adjudicated the union’s rights); Jackson v. Sok, 65 F. App’x 46, 48 (6th Cir.

2003) (“Jackson argues that WAI lacks standing to appeal the decision below

since it was not bound by the original default judgment. We disagree.”); Ass’n

of Contracting Plumbers of City of New York, Inc. v. Local Union No. 2, 841

F.2d 461, 466-67 (2d Cir. 1988) (“Although the intervenors were not parties to

the arbitration and are not technically bound by the awards or injunctions,

the arbitration decisions and injunctions directly affect their rights as they

prevent the UA from exercising its constitutional authority to establish work

jurisdiction among its local unions.”).6

Indeed, intervenors must be allowed to appeal in this situation since they

run a risk of not being able to challenge the order in a future case due to res

judicata. See, e.g., Local 322, Allied Industrial Workers v. Johnson Controls,

Inc., 921 F.2d 732, 733-34 (7th Cir. 1991) (barring party who intervened in

earlier action from re-litigating its claim in a subsequent action under the

6 Even nonparties have standing to appeal orders affecting their rights. See, e.g., SEC v. Enterprise Trust Co., 559 F.3d 649, 652 (7th Cir. 2009) (holding that nonparty, nonintervening investors affected by a receiver's plan of distribution had standing to appeal an order approving the plan); Acree v. Republic of Iraq, 370 F.3d 41, 50 (D.C. Cir. 2004) (“courts often grant post-judgment motions to intervene where no existing party chooses to appeal the judgment of the trial court.”).


45

doctrine of res judicata). Likewise, the Church must be allowed to appeal now

or it risks never having this Court vindicate its right to display its Crosses.

B. The Church’s Appeal is Not Moot. Cabral-Tarsitano’s claim that the Church’s appeal is moot because the

requested date for the cross display “has expired.” (CA7 Doc. 8, pp. 2, 15). But

the Church submitted an affidavit with its Response to Appellee’s Motion to

Dismiss demonstrating that it has a pending application to erect the display

next year (CA7 Doc. 13, Ex. A). The Church maintains a desire to hold

similar displays in the future, and there is nothing in the record to the

contrary, thus the Church continues to have a personal stake in the appeal.

Furthermore, this case fits comfortably into the exception for cases that are

“capable of repetition, yet evading review.” Like cases involving parades and

similar events, any challenge to the Church’s religious display would not be

resolved until after the date for the event. “The heavy burden of persua[ding]

the court that the challenged conduct cannot reasonably be expected to start

up again lies with the party asserting mootness.” Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000). Cabral-Tarsitano

cannot satisfy their “heavy burden” of establishing mootness.

1. The Church Has an Ongoing Personal Stake in the Appeal Because It Desires to Erect This and Similar Displays in the Future and Has Pending Application to Do So.

The Church’s appeal is not moot because it has a continuing desire to

erect the cross display and other similar religious displays at the Riverfront.


46

The Church has reapplied to hold the Cross display next summer. (CA7 Doc.

13, Ex A). Given the time, effort, and expense the Church incurred in

preparing the cross display, it is important to the Church to be given the

opportunity to hold the display in the future.7 Id. Furthermore, the Church is

involved in a variety of outreach programs and civic events in the community.

(R. 18-1, ¶¶18-19). The cross display is merely one of those many activities.

The lower court’s ruling will not only prohibit the Church from holding the

cross display next summer and in future years, but will also detrimentally

impact other activities and events the Church desires to hold. Evansville is

required to deny a permit for such displays or events in order to comply with

the permanent injunction’s prohibition against any display that might

“overwhelm and transform the otherwise neutral public forum.” (R. 31, p. 17).

To avoid mootness, “[a] case must present a live controversy at the time of

filing, contain a live dispute through all stages of litigation, and the parties

must continue to have a personal stake in the outcome of the lawsuit

throughout its duration.” Wisconsin Right to Life State Political Action

Comm. v. Barland, 664 F.3d 139, 149 (7th Cir. 2011). In Wisconsin Right to

Life, a case involving First Amendment challenges to campaign finance laws,

a political action committee had challenged the laws prior to the summer

7 Contrary to the Cabral and Tarsitano repeated emphasis that the original date for the cross display has passed, the exact date of the event was far less important than the event itself. Although specific dates appear in the application (R. 18-1, p. 6), nowhere in the Affidavit of the Church’s Elder, Roger Lehman, are the dates mentioned. The August 2013 dates were selected because those were the dates that the Riverfront was available. This appeal alone confirms the Church’s continuing desire for the display.


47

2011 Wisconsin recall election. Id. Defendants argued that because the 2011

elections were over, the PAC no longer had a personal stake in the case, and

thus, the case was moot. Id. The Seventh Circuit rejected this argument,

finding that there was evidence of contributors who wanted to make

donations to the PAC in excess of the limits imposed by the campaign finance

laws. “That’s enough to support an ongoing live controversy.” Id.

Similarly, in MacDonald v. City of Chicago, 243 F.3d 1021 (7th Cir. 2001),

the plaintiff challenged the constitutionality of a parade ordinance. After

Chicago amended its ordinance, it argued that the claims were moot. Id. at

1025. This Court disagreed, holding that “even as revised, the ordinance as

interpreted by the district court continues to impact the plaintiffs. Thus,

since a case or controversy remains, we will consider the constitutionality of

Chicago’s parade permitting ordinance as it now stands.” Id.8

Here, the Affidavit of a Church elder establishes the Church’s ongoing

desire to hold the Cross display and similar religious events. (CA7 Doc. 13,

¶¶6-9, Ex. A). Just as Wisconsin Right to Life’s claims remained alive

8 Likewise, in Doe v. Small, 964 F.2d 611 (7th Cir. 1992), this Court, en banc, considered the appeal of an Intervenor in a challenge to a private religious display in a traditional public forum. The lower court enjoined future display of religious paintings, and the municipality did not appeal. Instead, the appeal was perfected by the “new” owner of the paintings. Id. at n.1. This Court entertained the appeal and ultimately ruled in favor of the intervenor. Although the Doe Court’s ruling should be controlling on the merits here, the opinion is also illustrative of the Church’s standing on appeal. See, e.g., id. at 626 (J. Flaum concurring) (“[a]dmittedly, this case comes to us in an unusual procedural posture: the City has not appealed, yet we are asked to “remedy the remedy” imposed for its Establishment Clause violation because the Ottawa Freedom Association (OFA), whose interests are affected, has intervened on appeal”).


48

because of evidence that donors wanted to contribute in excess of campaign

finance limits in the future, 664 F.3d at 149, so too do the Church’s claims

remain alive because of its continuing desire to engage in the speech that has

been enjoined by the District Court

Furthermore, the lower court’s ruling detrimentally impacts the Church’s

ability to not only hold the Cross display next summer, but also to use

Evansville’s public fora for other events. (R. 18-1, ¶25). (“Preventing the

display by court order would directly restrict the expressive goals of West

Side Christian Church and other participating churches.”). By creating a test

for the Church’s use of public fora that is based upon the “forcefulness of the

message being conveyed,” (R. 31, p. 19), the lower court has left the Church

and City unsure of what is permissible and what is not. This was the

dilemma faced by the plaintiff in MacDonald who did not know how the new

parade ordinances adopted by Chicago would affect other events the plaintiff

desired to hold. 243 F.3d at 1025. This Court found the question of what

impact the new ordinances would have on the plaintiff’s activities created a

live controversy that overcame claims of mootness. Id. This Court should

likewise rule that the question of the impact of the lower court’s order on the

Church’s expressive activities maintains a live controversy.

The only cases cited by Cabral-Tarsitano to support their contention that

there is no longer a live controversy are two of this Court’s cases that found

that a case was moot where the term of the contract at issue in the case had


49

expired. (See CA7 Doc. 8, p. 20). These cases have no relevance here.

Evansville continues to maintain the Riverfront public forum for use by

community groups. And the Church’s constitutional right to access this public

forum for its expressive activities does not have an expiration date. Its

ongoing desire to hold the cross display at the Riverfront is all that is

necessary to establish the ongoing live controversy in this case.

2. The Denial of the Church’s Cross Display is Capable of Repetition, Yet Evading Review.

Not only do the Church’s First Amendment claims present a live

controversy for this Court’s review, but the denial of the Church’s right to

hold the Cross display in Evansville’s Riverfront presents a situation that is

capable of repetition, yet evading review. This creates an “exception to the

mootness doctrine” which is applicable “where the challenged situation is

likely to recur and the same complaining party would be subjected to the

same adversity.” Krislov v. Rednour, 226 F.3d 851, 858 (7th Cir. 2000). In

Krislov, political candidates challenged restrictions on circulating nominating

petitions. 266 F.3d at 855. This Court found that although “the date of the

primary election in which Krislov and Sullivan wished to participate has long

since passed,” “[b]ecause at least Krislov has articulated an interest in

pursuing the Democratic Party’s nomination for other elective offices, we

have no doubt that this case meets these requirements [for capable of

repetition, yet evading review].” Id. at 858.

The facts of the Church’s case show why the “capable of repetition”


50

exception is necessary. The Church’s application for the Cross display was

approved barely a month before the selected dates. (R. 18-1, ¶16). The lawsuit

challenging the display was filed a few days later, (R. 1), and the District

Court issued its permanent injunction on July 31, 2013, mere days before the

date of the Cross display. (R. 31). This was an extremely fast timeline for a

permanent injunction. Yet, despite its speed, the Church still did not have

sufficient time to finalize an appeal to this Court and for this Court to rule on

the Appeal prior to the scheduled date for the Cross display. This same

process will be repeated every time the Church seeks a permit for a display

that Cabral-Tarsitano (or similar parties) find offensive. And each time, the

Church will have the doors of justice slammed in its face because the

requested date for its event will lapse prior to a final adjudication on the

merits.

Numerous courts have found that restrictions against artistic displays,

parades, and election-related activities are the exact circumstances for which

the capable of repetition standard was created. See Chabad–Lubavitch of Vt.

v. City of Burlington, 936 F.2d 109, 111 (2d Cir. 1991) (per curiam) (in

challenge to a menorah display in city park during Chanukah, “[t]he question

is ‘capable of repetition’ insofar as Lubavitch intends to seek a permit to

display a menorah in the Park every year at Chanukah”); MacDonald v. City

of Chicago, 1998 WL 673652 (N.D. Ill. Sept. 23, 1998) rev’d on other grounds,

243 F.3d 1021 (7th Cir. 2001) (denial of a parade permit was conduct “capable


51

of repetition, yet evading review” where plaintiff was likely to “apply for

parade permits in the future”); Davis v. Fed. Election Comm’n, 554 U.S. 724,

735-36 (2008) (challenge to finance laws was not moot where candidate “made

a public statement expressing his intent to [run again]”).

Cabral-Tarsitano argue that it is “too speculative” that the exact facts

giving rise to the lower court’s injunction would ever be repeated. Their

argument echoes those made by the defendants in Rowley v. McMillan who

were defending their decision to expel peaceful protestors from a Billy

Graham Day event. 502 F.2d 1326, 1330 (4th Cir. 1974). The defendants

claimed that “Billy Graham Day was a unique, nonrecurring occasion, not to

be repeated in the foreseeable future,” thus making plaintiffs’ claims arising

out of their ejection from the event moot. Id. at 1334. The Fourth Circuit

disagreed, finding that:

While we do not suppose that Charlotte, North Carolina, will again arrange public events to honor Dr. Graham in the near future, there is nothing in the record to suggest that … the plaintiffs or others similarly situated will not seek admission to future general public meetings for the purpose of exercising rights protected by the first amendment.

Id. The court in that case recognized that while the same exact event may

never recur, the unconstitutional censorship at similar events was likely to

happen again, just as it is in the instant case.

Here, the Riverfront public forum created by Evansville remains open.

The city continues to accept applications for events and displays at the

Riverfront, including the Church’s application that is now pending. (CA7 Doc.


52

13, Ex A). Like the protestors in Rowley who were concerned that they would

be expelled from similar public events, the Church has a real fear that its

pending application to display crosses next summer and its future displays or

events will be denied based upon the District Court’s permanent injunction.

For example, would the Church be denied from displaying thirty artistic

murals of famous scenes from the Bible because such a display would

“overwhelm” the public forum? Likewise, would a local synagogue be

prohibited from erecting several large menorahs on the Riverfront during

Chanukah or a Hindu temple stopped from displaying life-size sculptures of

their deities? Upon receipt of such a request, Evansville will be required to

determine whether the display has a message or impact that is too “forceful”

or “overwhelming” such that it appears as if the City favors religion. It is this

concrete likelihood that the Church and other similarly situated speakers will

have their displays improperly censored again that satisfies the criteria for

“capable of repetition yet evading review.”

3. If the Church’s Appeal is Dismissed for Mootness, the District Court’s Decision Must Be Vacated.

When a civil case from a federal court has become moot while on its way

to, or pending before, this Court, the “established practice” is to reverse or

vacate the judgment and remand with a direction to dismiss. Arizonans for

Official English, 520 U.S. at 71; see also Gjertsen v. Bd. of Election Comm'rs

of City of Chicago, 751 F.2d 199, 202 (7th Cir. 1984) (“As a general rule, when

a case becomes moot on appeal, the district court’s decision is vacated in


53

order to make sure that a decision that the loser was unable to get appellate

review of does not have res judicata or collateral estoppel effect in subsequent

litigation between the parties.”). If the Church’s appeal is dismissed for

mootness, this Court should vacate the permanent injunction.

CONCLUSION

Based on the foregoing reasons, the District Court’s judgment should be

reversed and the permanent injunction vacated. The citizens who desire to

silence the Church’s speech from the public forum cannot establish that that

they have prevailed on the merits of their claim. There is no Establishment

Clause violation for a governmental entity to allow private speech that is

religious in nature to occur under the same neutral terms and conditions

governing the operation of the governmental forum. The governmental entity

must act with neutrality to the private speech regardless of its content.

Furthermore, a reasonable observer cannot perceive the City’s

endorsement of the Church’s speech because the Evansville Riverfront is a

public forum open for the speech of all citizens who comply with content-

neutral restrictions on the use of the forum. Aware of the history of the

Riverfront, the prior uses and other artistic displays, there is no threat that

the Church’s display would be so uniquely forceful or overwhelming that a

reasonable observer would conclude the City endorsed the Church’s speech.


54

Finally, the Church’s display was enjoined in this matter giving it a

unique and direct interest to be protected in this appeal. The Church desires

and intends to conduct the “Cross The River” display making the case not

moot.

Respectfully submitted,

s/ Michael J. Cork________________


55

CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7)

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 13,954 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) (as modified by Seventh Circuit Rule 32(b)) because the brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 12-point font and Century type style.

s/ Michael J. Cork__________________

PROOF OF SERVICE

I certify that on the 13th day of November, 2013, I electronically filed the foregoing document with the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using the CM/ECF system. Service will be made on the following ECF-registered counsel by operation of the Court’s electronic system: Gavin M.Rose, Esq. ACLU of Indiana 1031 E.Washington Street Indianapolis, IN 46202

Keith W. Vonderahe, Esq. Ziemer, Stayman, Weitzel & Shoulders 20 N.W. First Street P.O. Box 916 Evansville,IN 47706

s/ Michael J. Cork__________________ Michael J. Cork BAMBERGER, FOREMAN, OSWALD & HAHN, LLP 201 N. Illinois Street, Suite 1225 Indianapolis, IN 46204-4219 Ph: (317) 464-1594

CIRCUIT RULE 30(d) STATEMENT

The undersigned certifies that the appellant’s short appendix contains all

materials required by Circuit Rule 30(a) and (b).

s/ Michael J. Cork__________________


56

SHORT APPENDIX

Table of Contents

Order Granting Plaintiff’s Motion for Preliminary Injunction ................ Tab 1 and Entering Permanent Injunction Judgment .................................................................................................... Tab 2


1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION CHRIS CABRAL, NANCY TARSITANO, Plaintiffs, vs. CITY OF EVANSVILLE, INDIANA, Defendant, WEST SIDE CHRISTIAN CHURCH, Intervenor.

))))))))))))))

No. 3:13-cv-00139-SEB-WGH

ORDER

This matter is before the Court on Plaintiffs’ request for injunctive relief seeking

an order enjoining Defendant, the City of Evansville (“the City”), from permitting the

erection on public property of a display of up to thirty-one, six-foot-tall crosses (“the

Crosses”) to remain in place over a two-week period sponsored by and scheduled to be

decorated by a group of local churches. On June 20, 2013, the City’s Board of Public

Works approved by a 2-0 vote the permit application filed by West Side Christian Church

(“the Church”) on behalf of itself and several other private religious organizations. The

display of the Crosses is scheduled to span out over a four-block area which is part of the

City’s popular, well-traveled riverfront area, between August 4, 2013 and August 18,

2013.

Case 3:13-cv-00139-SEB-WGH Document 31 Filed 07/31/13 Page 1 of 20 PageID #: 659Case: 13-2914 Document: 19 Filed: 11/12/2013 Pages: 88

2

On June 25, 2013, Plaintiffs Chris Cabral and Nancy Tarsitano filed this lawsuit

including their motion for preliminary injunction to enjoin the above described display,

arguing that the City’s approval of it constitutes an endorsement of religion, in violation

of the Establishment Clause of the First Amendment. The parties thereafter filed a joint

motion to consolidate the preliminary injunction hearing with the final trial on the merits,

which the Court granted. A hearing was conducted by the Court on Wednesday, July 18,

2013, prior to which West Side Christian Church and nine other private religious

organizations who intend to participate in the event by decorating the respective crosses

moved to intervene in the litigation on the grounds that their intervention is necessary to

allow them to protect their constitutional right to express their private viewpoint in a

public forum pursuant to the Free Exercise and Free Speech Clauses of the First

Amendment. At the July 18th hearing, the Court granted West Side Christian Church’s

request to intervene, but denied the requests of the other nine religious organizations,

ruling that West Side Christian Church had been the only applicant for the original permit

and only permittee to receive the City’s authorization to erect the display.

This dispute highlights the tension that often arises between the Establishment

Clause and the Free Exercise and Free Speech Clauses of the First Amendment to the

Constitution, which provides in relevant part: “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof; or abridging the

freedom of speech ….” U.S. CONST. amend. I. The Court, attempting to resolve this

tension here, seeks to strike a proper balance between the private religious speech of the

churches scheduled to play out in the public forum known as the Riverfront located in


3

Evansville. The important legal distinction that underlies the “crucial difference between

government speech endorsing religion, which the Establishment Clause forbids, and

private speech endorsing religion, which the Free Speech and Free Exercise Clauses

protect,” is well established. Board of Educ. of Westside Community Schs. v. Mergens,

496 U.S. 226, 250 (1990) (O’Connor, J., concurring) (emphasis in original). But, as the

Tenth Circuit recently recognized in American Atheists, Inc. v. Duncan, 637 F.3d 1095

(10th Cir. 2010): “[C]ourts have struggled mightily to articulate when government action

has crossed the constitutional line.” Id. at 1117 (citing Bauchman ex. rel. Bauchman v.

W. High Sch., 132 F.3d 542, 551 (10th Cir. 1997) (observing the Supreme Court’s failure

to “prescribe a general analytic framework within which to evaluate Establishment

Clause claims,” as well as the fact that “many believe the Court’s modern Establishment

Clause jurisprudence is in hopeless disarray”) (citation and quotation omitted). The

acknowledged ambiguity infusing the precedential decisions which this Court must

interpret and apply relating to the legal standards in First Amendment jurisprudence

leaves us and other government policymakers “in a vise between the Establishment

Clause on one side and the Free Speech and Free Exercise Clauses on the other.” Capitol

Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 768 (1995) (plurality opinion).

In applying First Amendment principles, every decision is highly fact sensitive;

but applying those facts to the established precedent is neither straightforward nor easy.

Having carefully considered the parties’ briefing and arguments, the documentary

evidence, and the controlling legal authorities, we hold, for the reasons set forth in detail


4

below, that the City’s approval of this display of crosses constitutes an impermissible

endorsement of religion that violates the Establishment Clause of the First Amendment.

Findings of Fact

I. The City and the Riverfront Area

The City of Evansville is a sizeable, thriving municipality located in Vanderburgh

County in the southwest corner of Indiana. Its population numbers approximately

120,000 persons. The City’s riverfront area (“the Riverfront”) extends over

approximately a mile and a half of park-like public space contiguous to the Ohio River

which directly overlooks the River’s scenic vistas. The Riverfront encompasses and

surrounds a large and busy thoroughfare referred to as Riverside Drive (also known as

Veterans Memorial Parkway) and extends generally from its northwest boundary which

adjoins the Tropicana Evansville (a casino that until recently was called “Casino Aztar”)

and Court Street to its southeast boundary at Sunrise Park and Shawnee Drive. Affidavit

of Chris Cabral (“Cabral Aff.”) ¶ 3; Affidavit of Nancy Tarsitano (“Tarsitano Aff.”) ¶ 3.

The Riverfront is a popular gathering spot in Evansville offering recreational space and

picturesque views of the Ohio River and the City’s skyline. It is home to a number of

popular civic and cultural venues, including the Evansville Museum of Art, History and

Science; the Evansville Pagoda, Convention, and Visitor Bureau; the Four Freedoms

Monument; Dress Plaza; Sunrise Park; and a trail and greenway located between

Riverside Drive and the Ohio River. Compl. ¶ 12. The parties agree that thousands of

people traverse the Riverfront on a daily basis.


5

The portion of the Riverfront where the Crosses are to be displayed extends over

four contiguous blocks that directly abuts the stretch of Riverside Drive1 nearest to the

City’s downtown, between Court and Locust Streets. Id. ¶ 17. The area contains a

widened sidewalk which receives substantial use by joggers, bicyclists, and pedestrians.

A large, concrete retaining wall with a permanently installed guardrail extends along the

side that overlooks the Ohio River, where there is also a walkway set with pavers and

permanently planted trees. Deposition of Bill Nix (“Nix Dep.”) at 65. This portion of the

Riverfront area is located approximately seven (7) blocks from the Civic Center, which is

the locus of the City’s governmental presence. The downtown area between the

Riverfront and the Civic Center consists of both commercial and residential buildings

which range in size from single story structures to one approximately eighteen story high

structure. The Riverfront is not visible from the Civic Center, and the Civic Center is not

visible from the Riverfront. There are no City offices located on the Riverfront. Id. at

59.

II. The City’s Policies Regarding Use of the Riverfront

The following three City departments share responsibility for controlling the use

of the Riverfront area: the Department of Parks and Recreation (“the Parks Department”),

the Board of Public Safety (“the Safety Board”), and the Board of Public Works (“the

Works Board”). The Parks Department oversees use of the Four Freedoms Monument,

which is located next to and to the southeast of the area in which the Crosses will be

1 Riverside Drive has two lanes of southeast-bound traffic, two lanes of northwest-bound traffic, and a median dotted with permanently planted trees.


6

displayed. Since at least 2007, the Parks Department has approved special use permits

for a variety of secular and non-secular activities, including, inter alia: requests for

worship services, family oriented events, candlelight vigils, fire demonstrations, marches

and walks, and private weddings. See Dkt. No. 20-26.

The Safety Board is responsible for traffic flow along the Riverfront. At least

since the beginning of 2010, the Safety Board has approved a number of special event

applications from both secular and non-secular organizations requiring closures or traffic

curtailments on Riverside Drive for various events, including, inter alia: marathons and

races, a “March for Jesus,” fireworks, the Shriners Fest, and parades. See Dkt. No. 20-

27.

The Works Board has exclusive authority over activities occurring in the public

rights of way within the City, including the streets, sidewalks, and alleys. It is

responsible for approving permit applications by groups and individuals to make private

use of the Riverfront and its esplanade, including the four-block stretch at issue in this

litigation. The Works Board is established by Section 2.70.010 of the Evansville

Municipal Code, which provides in pertinent part that the Board “shall have such

authority as is necessary for the control and direction of the departments within the

Division of Transportation and Services … and such authority as is necessary to

effectuate the responsibilities of the Division of Transportation and Services. §

2.70.010(E). The Works Board is comprised of three members (unless a temporary

vacancy occurs) appointed by and who serve at the pleasure of the City’s Mayor.

However, the Works Board possesses complete autonomy with regard to decisions within


7

its area of lawful authority; the Mayor does not direct or otherwise intervene in specific

issues before the Board. Nix Dep. at 9, 55-56. Currently, the members of the Works

Board include Marty Amsler, Anthony Brooks, and Bill Nix. Mr. Nix serves as the

Board’s president, the position he has held since his appointment to the Board in January

2012. Id. at 4, 9-10.

When any entity wishes to secure permission to use the Riverfront for a display

that threatens to encroach upon a public right of way, an application titled an

“Application for Right-Of-Way-Permit” (“right of way application”) must be filed. Id. at

37-39. Right of way application forms are available from the City Engineer. Upon

completion of the required form by an applicant(s), the City’s Engineer conducts a review

of the permit application focusing on the safety concerns implicated by the request. The

application is also reviewed by the City’s legal counsel to identify and address any issues

of a legal sort. After these reviews, the application is considered at a public hearing by

the Works Board, at the conclusion of which the Board votes to approve or reject the

permit application. Id. at 39. A majority of the three-member Works Board is required

to approve an application. Id. at 10-11.

According to Mr. Nix, the Works Board uniformly approves permit applications

that have received safety approval from the City’s Engineer and approval by the City’s

legal counsel; the Board has never denied any permit application satisfying those

requirements. Id. at 42, 57. Mr. Nix also testified that the Works Board has complete

and full discretion to make these decisions, and, beyond complying with any applicable


8

requirements set out in various municipal ordinances,2 there are no other written or

unwritten criteria that guide the Board’s discretion. Id. at 10-11, 14-15.

The history of uses of the Riverfront by in-person events and festivals, both

secular and non-secular, is long and varied. That is not true, however, with regard to

unattended displays erected there that are comparable to that at issue here. On three or

four occasions after the year 2000, the Works Board has approved requests by the local

United Way to erect works of art constructed out of painted concrete and placed along the

portion of the Riverfront where the Crosses would be displayed. These works of art did

not convey religious content; they consisted of depictions of butterflies, fish, and carousel

horses, and each display remained in place for approximately three months. Deposition

of Kerry Kamp (“Kamp Dep.”) at 14-15. Earlier this year the Works Board approved a

request from the Franklin Street Events Association for a one-day display of six recycled

art sculptures to be placed in the median on Franklin Street (away from the downtown

area) in observance of the group’s Earth Day celebration. Id. at 17-19.

III. West Side Christian Church’s Application for the Cross Display

On April 30, 2013, West Side Christian Church submitted a permit application for

its “Cross the River” project. In the permit, the Church requested permission to erect

thirty-one (31) large plastic crosses within the Riverfront area between Court Street and

Locust Street which, when finally in place will extend over four city blocks where they

will remain for a two-week period, from August 4, 2013 to August 18, 2013. The permit

2 Prior to presentation of a proposed display to the Board, the review performed by the City’s legal counsel has included its compliance with municipal ordinances.


9

references the fact that each cross will measure six feet in height and forty-two (42)

inches in width and be anchored to a forty-four (44) inch square base. Each cross will be

sponsored and decorated by separate Christian churches in the Evansville area. Dkt. Nos.

20-17; 20-18 (Permit Applications).

West Side Christian Church’s permit application was first presented to the Works

Board on June 6, 2013, at a regularly scheduled meeting. At that time, the proposed

display was introduced to the Works Board as “just a [means to] show [the] faith

throughout the community.” Dkt. No. 20-19 (6/6/2013 Board Minutes) at 4. The Works

Board tabled discussion of the permit application at the June 6 meeting without making a

final decision, requesting that the proposal be brought back before the Board at a future

meeting, both because the request was not officially on the agenda for that meeting and

because the permit application was being submitted to the Board by the manufacturer of

the Crosses, rather than by a representative of West Side Christian Church.3 Nix. Dep. at

48, 50; see id.

There was limited discussion of the proposal at the first meeting before the issue

was tabled, specifically, insurance issues as well as safety concerns associated with the

placement of the Crosses were raised and discussed. The City’s legal counsel, Ted

Ziemer, also addressed the Board, opining that because West Side Christian Church’s

original proposal included the words “Jesus Saves” being printed on each of the Crosses,

the City’s legal department viewed such writing to run afoul of Section 12.05.210(E)(7)

3 It is the Works Board’s practice to have the person or a representative of the organization seeking the permit appear and present the permit application to the Board, rather than a third party, presumably to respond to any questions the Board might have.


10

of the Evansville Municipal Code, which prohibits so-called “First Amendment signs.”4

At the June 6 meeting, the City’s counsel also stated as follows:

I guess what I want to be careful to understand is, the fact that this has religious significance should not affect your decision. Your decision should be, because individuals have the right to express, you know, you can go down and stand on the riverside, riverfront, if you want to, and preach and you can do that, and no one can stop you from doing that, unless you’re interrupting traffic or somehow, you know, disrupting things, and to display a symbol of your faith, is also not, I mean, that’s something that you have the right to do. The City could not, on its own, put up any religious devices, but an individual has the right to freedom of express [sic]. Your comments about who made the presentation, which is a for-profit company wanting to sell these crosses to churches, is totally valid, and I agree 100 percent with that. I just want to be careful that we don’t, just because they’re crosses, in my mind, the way I’m treating him [sic] in my mind, is these are statues, and previously for the United Way, they were statues of pigs and steers, and this time it is a statue of a cross, and that’s the only difference as far as the Law Department is concerned.

Dkt. No. 20-19 at 9-10.

On June 20, 2013, West Side Christian Church’s permit application was

resubmitted to the Works Board. Roger Lehman, a representative of the Church, made

the oral presentation. Following Mr. Lehman’s presentation, the Works Board approved

the permit application by a 2-0 vote.5 Nix Dep. at 9-10; see Dkt. No. 20-20 (6/20/13

Board Minutes) at 4. The discussion regarding West Side Christian Church’s permit at

the June 20 Works Board meeting focused largely on safety and liability concerns and did

not address the religious aspects of the display beyond a reference to the City’s legal

4 The City’s ordinance provides that a “First Amendment sign” is “any sign promoting any cause, party, candidate, idea, or concept; except it does not include advertising signs advertising any business or sale of product or service by a business.” § 12.05.210. The Evansville Municipal Code also provides, in pertinent part, that “First Amendment signs may not be placed on or over any paved portion of the street or sidewalk.” § 12.05.210(E)(7). 5 Board member Brooks was not present at this regularly scheduled meeting. Nix. Dep. at 10.


11

counsel’s opinion that it would be permissible for the churches to put a plaque on each

cross indicating which church was the sponsor of it. See Dkt. No. 20-20 at 1-3.

IV. The Display of the Crosses

As approved by the Works Board, up to thirty-one, six-foot-tall Crosses would be

erected and displayed over a two-week period in an area extending over the previously

described four block stretch of the Riverfront between August 4, 2013 and August 18,

2013. The precise location of each of the Crosses was yet to be determined. Nix Dep. at

22. Three proposals existed for the orientation of the Crosses: first, perpendicular to

Riverside Drive directly abutting the street; second, perpendicular to Riverside Drive

overlooking the Ohio River on the furthest side of the sidewalk from the street; or, third,

parallel to Riverside Drive overlooking the Ohio River on the far side of the sidewalk

away from the street. According to the City’s legal counsel, the decision regarding the

final orientation of the Crosses would be made by the Works Board with input from the

participating churches. See Dkt. No. 20-10 at 5-7 (photographs depicting each proposal).

The City is not decorating the Crosses; rather each of the Crosses are to be

decorated by Sunday School children affiliated with each individual church participating

in the project.6 Nix Dep. at 31. According to discussions occurring during the June 20

Works Board meeting, each church was expected to place a plaque on its respective cross

indicating its sponsorship, but the City has since determined that such a sign would also

6 The exact manner in which each cross will be decorated is left to the individual churches to decide and remained unsettled (beyond the restriction that the decorations cannot include writing) at the time of the hearing on Plaintiffs’ motion for preliminary injunction. However, at the hearing, counsel for the West Side Christian Church represented that at least some of the Crosses will be painted by children from the congregations of the participating churches.


12

run afoul of the prohibition on “First Amendment signs,” and thus, current plans omit the

display of any specific identifiers. See Dkt. 23-3 (7/11/2013 Board Minutes) at 6.

Although the City will have no involvement in decorating the Crosses, Mr. Nix testified

that the Works Board retains the authority to require that individual crosses be taken

down if the Board deems the decorations on the crosses to be “inappropriate.” Nix Dep.

at 31-32. What constitutes “appropriate” is not clear; apparently that determination has

been left to the discretion of the Works Board. 7

The City has no financial stake in the display of the Crosses, having provided no

financial support for the Cross the River project and expecting to receive no financial

contributions for the use of the space. It will not be responsible for and will provide no

manpower for the construction, transportation, erection or removal of the Crosses. Id. at

54. The City is being indemnified as to any liability resulting from the display of the

Crosses as the Church, upon direction from the Works Board, through the Church’s

acquisition of appropriate liability insurance. Id. at 52. Approximately three weeks after

the Works Board gave its approval of the display of the Crosses, the Board decided

during its July 11, 2013 meeting that a disclaimer should be erected both at the front and

back of the display, of a size equal to that of one of the Crosses, which will state: “The

7 At the preliminary injunction hearing, counsel for the City and counsel for the Church both argued that the Works Board is empowered to exercise discretion only with regard to safety issues and to regulate the writing on the Crosses. Mr. Nix, however, testified in his deposition that the Works Board has discretion to remove any cross that based on its decorative elements the Board deems inappropriate. Nix Dep. at 31-32. One of the examples cited was the inclusion of a depiction of the devil in response to which Mr. Nix stated that the Works Board has discretion to remove such a cross if the Board considers it inappropriate. Id. at 32.


13

City of Evansville does not endorse the display or its message. The display is sponsored

by and funded by a private entity.” Dkt. No. 23-3 at 6.

V. Plaintiffs

Plaintiffs are both residents of the City. Cabral Aff. ¶ 1; Tarsitano Aff. ¶ 1. Ms.

Tarsitano lives in downtown Evansville and Mr. Cabral works in that same area. Both

Plaintiffs regularly pass by the area where the Crosses will be erected; indeed, they

traverse it on a daily basis. Cabral Aff. ¶ 10; Tarsitano Aff. ¶ 13. Ms. Tarsitano’s

residence is located on Riverside Drive, and thus, she will also likely be able to see the

Crosses from her window. Tarsitano Aff. ¶ 2, ¶ 13. Her daily travels require her to drive

up and down Riverside Drive and she also routinely walks her dog on the Riverfront’s

greenway, including the area immediately past the space where the Crosses are to be

displayed. She has averred that she passes the area where the Crosses are to be displayed

multiple times a day. Mr. Cabral passes by the Riverfront area on his way to his work

each day. However, he has testified that if the display is erected he intends to find an

alternate route to and from work and other downtown locations so as to avoid coming

into contact with the Crosses. Cabral Aff. ¶ 11.

Conclusions of Law

The Establishment Clause of the First Amendment to the Constitution of the

United States, which was made applicable to state and municipal governments by the

Fourteenth Amendment, Doe ex rel. Doe v. Elmbrook Sch. Dist., 687 F.3d 840, 849 (7th

Cir. 2012) (en banc), cert. pending, No. 12-755 (citing Everson v. Bd. of Educ. of Ewing

Twp., 330 U.S. 1, 8 (1947)), provides that “Congress shall make no law respecting an


14

establishment of religion,” U.S. CONST. amend. I, cl. 1. The Seventh Circuit Court of

Appeals has recognized that, although often criticized, the three-pronged test set forth by

the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971), “‘remains the prevailing

analytical tool for the analysis of Establishment Clause claims.’” Elmbrook Sch. Dist.,

687 F.3d at 849 (quoting Books v. City of Elkhart (Books I), 235 F.3d 292, 301 (7th Cir.

2000)). Under the Lemon test, government action fails constitutional muster if it: (1)

lacks a legitimate secular purpose; (2) has the primary effect of advancing or inhibiting

religion; or (3) fosters an excessive governmental entanglement with religion. See 403

U.S. at 612-13.

In cases involving religious displays on public property, courts often apply a

slightly modified version of the Lemon test to determine whether a violation of the

Establishment Clause is threatened. Under this approach, the primary question under

Lemon’s “primary effect” prong focuses on whether a government practice has “the effect

of communicating a message of government endorsement or disapproval of religion.”

Lynch v. Donnelly, 465 U.S. 668, 692 (1984) (O’Connor, J., concurring); see also Cnty.

of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 592-93 (1989)

(opinion of Blackmun, J.) (“[W]e have paid particularly close attention to whether the

challenged governmental practice either has the purpose or effect of ‘endorsing’ religion,

a concern that has long had a place in our Establishment Clause jurisprudence.”). The

endorsement approach requires the Court to “assess[ ] the totality of the circumstances

surrounding the display to determine whether a reasonable person would believe that the


15

display amounts to an endorsement of religion.” Books I, 235 F.3d at 304 (citation

omitted). In other words, the question the Court must resolve is “whether an objective,

reasonable observer, ‘aware of the history and context of the community and forum in

which the religious display appears,’ would fairly understand the display to be a

government endorsement of religion.” Books v. Elkhart County, Ind. (Books II), 401 F.3d

857, 867 (7th Cir. 2005) (quoting Pinette, 515 U.S. at 780 (O’Conner, J., concurring)).

After careful review of the specific facts before us, we conclude that based on the

size and scope of the project, this planned display of crosses would convey a message of

the City’s endorsement of Christianity to the reasonable observer, and thus, would violate

the Establishment Clause. The Latin cross is widely recognized as “the principal symbol

of Christianity around the world,” Pinette, 515 U.S. at 792 (Souter, J., concurring in part

and concurring in judgment). It “carries deeply significant meaning for those who adhere

to the Christian faith” and “acts as a ‘short cut from mind to mind,’ for adherents who

draw strength from it and for those who do not ascribe to Christian beliefs.” Elmbrook

Sch. Dist., 687 F.3d at 852 (quoting West Virginia State Bd. of Educ. v. Barnette, 319

U.S. 624, 632 (1943)). While the message intended to be conveyed by the sponsors of

this display of crosses is unambiguous and unequivocal, the constitutional concern rests

not with the use of the cross symbol as such, but rather with the oversized, imposing and

somewhat overpowering size, scope, and magnitude of the display. That the plans call

for it to extend over a four city block expanse of iconic public space within the

geographic and cultural center of the community of Evansville and be comprised of


16

numerous six-foot-tall crosses, will clearly communicate a sectarian message. It is the

forcefulness of this message based on the size and scope of the display that catapults it

into the range of constitutionally prohibited speech.

In defense of this use, the City and the Church emphasize the history of the

Riverfront as a public forum, contending that a reasonable observer of the exhibit would

not view it as an endorsement of religion by the City, rather simply as consistent with the

City’s longstanding practice of allowing a wide variety of types of expression to occur in

this place thereby establishing the traditional accommodation of free speech.8 To the

extent this is true, the comparable prior uses have been limited to in-person events

approved by the Works Board of both a secular and non-secular nature.9 Even so, such

historic practice does not finally resolve the matter, given that the Supreme Court has

8 Both the City and the Church rely heavily on the Seventh Circuit’s en banc decision in Doe v. Small, 964 F.2d 611 (1992), which addressed display of religious paintings in a city park erected during a Christmas holiday season. However, we do not find that decision particularly instructive in the case before us for several reasons. First, the court in Small made clear that the issue it was addressing was whether the district court’s injunction was overbroad, not the issue of whether the municipality had in fact endorsed the private organization’s religious speech, given that the municipality had not appealed the trial court’s decision on that issue. Id. at 617. Moreover, the facts in Small differ in significant ways from the facts before us. For example, in Small, the city park where the religious paintings were to be displayed was open to all private parties to engage in protected expression on a “first come, first served” basis with no prior approval from the municipality required. Id. at 613. The display itself at issue in Small is also distinguishable from the display of the Crosses at issue here as the religious paintings were accompanied in the city park by other monuments depicting the holiday season that helped to temper the religious message of the display. Id. at 614-15. 9 We note again that the City does not exercise these powers on the basis of an officially adopted or otherwise established policy of equal access. Although the record before us supports the City’s contention that it has never denied a right-of-way permit request for content-based reasons, it is clear from Mr. Nix’s testimony that the Works Board retains the discretion to deny a request on any grounds it may choose. Moreover, Mr. Nix maintains that, even after approving the display, the Works Board retains discretion to remove any cross that the Board deems “inappropriate.”


17

“never held the mere creation of a public forum [to] shield the government entity from

scrutiny under the Establishment Clause.” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.

290, 303 n.13 (2000) (citing Pinette, 515 U.S. at 772 (O’Connor, J., concurring in part

and concurring in judgment) (“I see no necessity to carve out … an exception to the

endorsement test for the public forum context.”)).

As Justice O’Connor wrote in her concurrence in Pinette,10 under certain

circumstances “whether because of the fortuity of geography, the nature of the particular

public space, or the character of the religious speech at issue, among others,” 515 U.S. at

778, a private religious organization “may so dominate a public forum that a formal

policy of equal access is transformed into a demonstration of approval.” Id. at 777. We

think that is the case here, where because of both the size and scope of the display

(including the area covered, the size of each component cross, the number of crosses, and

the extended time during which the unattended display will be in place) it threatens to

overwhelm and transform the otherwise neutral public forum, creating a demonstration of

approval and leading a reasonable observer to believe that the City has endorsed the

message.11

10 The lead opinion in Pinette is a four-justice plurality opinion. Both Justice O’Connor and Justice Souter wrote separate concurrences, each joining the other, as well as Justice Breyer. As the narrowest opinions necessary to the Court’s judgment, these concurrences become the controlling opinions. See Marks v. United States, 430 U.S. 188, 193 (1977); Grosjean v. Bommarito, 302 Fed. App’x 430, 436 n.1 (6th Cir. 2008) (“Under the Marks doctrine, it appears that the concurring opinions of Justice Souter and Justice O’Connor were the more narrow, and therefore controlling, grounds for judgment in [Pinette].”). 11 Also, as noted infra, the Works Board retains the discretion to deny a right-of-way request on any grounds it chooses and to remove individual crosses, even after approving the display. A


18

The City’s previous approvals of other uses of the Riverfront for an overtly

religious purpose, such as for sunrise services, prayer vigils, and a March for Prayer, are

easily distinguishable from its approval of the proposed display of the Crosses. These

prior uses all involved in-person events of short duration, usually lasting only a few

hours. In contrast, the display of the Crosses, while not permanent, will extend over a

two week period, thereby strengthening the message of endorsement by the City. More

significantly, unlike in-person events where the identity of the individual speaker(s) is

clearly associated with the message, “an unattended display (and any message it conveys)

can naturally be viewed as belonging to the owner of the land on which it stands.” Id. at

786 (Souter, J., concurring). Here, because the Crosses will constitute an unattended

display, a reasonable observer is likely to conclude that the City supports it as well as the

message it conveys. Such an endorsement is prohibited by the First Amendment

Establishment Clause.

The City’s attempts to dilute the religious impact of the display by prohibiting

written messages on the Crosses and by requiring disclaimers, while generally

commendable, no doubt reflect its own recognition of and sensitivity to the magnitude of

the display and the constitutional concerns it raises.12 We emphasize, it is not the

inclusion of the crosses as such that causes this display to run afoul of the First reasonable observer, knowing of this discretion, would be apt to conclude that the City endorses the message based on its approvals. 12 The parties have stipulated that this case centers on the endorsement analysis. However, we note that, given that the City has no formal neutral policy for approving displays and the Works Board retains discretion to make post hoc determinations regarding appropriateness of the decorations on the Crosses and to remove portions of the display as the Board deems necessary, it may also give rise to entanglement concerns. We leave this issue for another day.


19

Amendment; rather, it is the forcefulness of the message being conveyed, based on the

significant scope and size and duration of the overall display.

In reaching this decision, we are keenly aware that “[w]hen federal courts deal

with entanglements between government function and private religious faith, we confront

some of the most sensitive aspects of our Nation’s public life” and that in establishing the

required balance between the Establishment Clause and the Free Speech and Free

Exercise Clauses, we must “try to ensure that we recognize and protect faith and its

importance in our individual, community, and national lives, on the one hand, while

avoiding government support, endorsement, and subtle coercion in favor of particular

faiths, on the other.” Elmbrook Sch. Dist., 687 F.3d at 857 (Hamilton, J., concurring).

This ruling should not be understood to foreclose or prohibit any and all unattended

displays on the Riverfront area that convey a religious message. To stay within

constitutional bounds, however, it must stop short of creating a message that overwhelms

the nature of the public forum thereby transforming it into government endorsed religious

speech.

Accordingly, the City is hereby PERMANENTLY ENJOINED from permitting

the erection of the display as described and referred to herein as “Cross the River” within

the Riverfront area.

IT IS SO ORDERED.

Date: __________________________ 07/31/2013 _______________________________

SARAH EVANS BARKER, JUDGE United States District Court Southern District of Indiana


20

Distribution:

Gavin Minor Rose ACLU OF INDIANA [email protected] Christopher C. Wischer BAMBERGER, FOREMAN, OSWALD AND HAHN [email protected] Michael J. Cork BAMBERGER, FOREMAN, OSWALD AND HAHN, LLP [email protected] Bryan H. Beauman STURGILL, TURNER, BARKER & MOLONEY, PLLC [email protected] Keith W. Vonderahe ZIEMER STAYMAN WEITZEL & SHOULDERS [email protected] Clay W. Havill ZIEMER STAYMAN WEITZEL & SHOULDERS LLP [email protected]


UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION CHRIS CABRAL, NANCY TARSITANO, Plaintiffs, vs. CITY OF EVANSVILLE, INDIANA, Defendant, WEST SIDE CHRISTIAN CHURCH, Intervenor.

))))))))))))))

No. 3:13-cv-00139-SEB-WGH

JUDGMENT

Pursuant to the Court’s ruling simultaneously entered on this date, judgment is

entered in favor of Plaintiffs. Defendant, the City of Evansville, Indiana, is hereby

PERMANENTLY ENJOINED from permitting the erection within the Riverfront area of

the display as described and referred to in the Court’s ruling as “Cross the River.”

IT IS SO ORDERED.

Date: __________________________

07/31/2013 _______________________________

SARAH EVANS BARKER, JUDGE United States District Court Southern District of Indiana


Distribution:

Gavin Minor Rose

ACLU OF INDIANA

[email protected]

Christopher C. Wischer

BAMBERGER, FOREMAN, OSWALD AND HAHN

[email protected]

Michael J. Cork

BAMBERGER, FOREMAN, OSWALD AND HAHN, LLP

[email protected]

Bryan H. Beauman

STURGILL, TURNER, BARKER & MOLONEY, PLLC

[email protected]

Keith W. Vonderahe

ZIEMER STAYMAN WEITZEL & SHOULDERS

[email protected]

Clay W. Havill

ZIEMER STAYMAN WEITZEL & SHOULDERS LLP

[email protected]


Documents

No. 13-2914 UNITED STATES COURT OF APPEALS ...online.wsj.com/public/resources/documents/westside...Case No. 3:13-cv-00139 The Honorable Judge Sarah Evans Barker BRIEF AND REQUIRED