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ACLU OF NEW JERSEY v. SCHUNDLER

November 28, 1995

THE AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, on behalf of its members, ROBERT LANDER, ADAM JACOBS, JOEL SOLOW, AND ANN SORREL, Plaintiffs,
v.
BRET SCHUNDLER, in his official capacity as Mayor of the City of Jersey City, New Jersey, the CITY COUNCIL OF JERSEY CITY and the CITY OF JERSEY CITY, NEW JERSEY, Defendants.



The opinion of the court was delivered by: DEBEVOISE

 DEBEVOISE, Senior District Judge.

 Plaintiffs, the American Civil Liberties Union of New Jersey ("ACLU"), and four residents of the City of Jersey City instituted this action against defendants, the City of Jersey City and its Mayor and Council, seeking, among other things, to preliminarily and permanently enjoin Defendants from erecting a creche and menorah at the front entrance of City Hall. Plaintiffs move for summary judgment on their complaint and for an Order that (1) permanently enjoins the Defendants from erecting or sponsoring religious displays on property owned by the City of Jersey City; and (2) declares that the display of a creche and menorah in front of Jersey City Hall violates the First Amendment of the United States Constitution and correlative sections of the New Jersey Constitution. Defendants cross-move for summary judgment in their favor on all counts of the complaint. For the reasons set forth below, Plaintiffs' and Defendants' motions are granted in part and denied in part.

 BACKGROUND

 The following facts are undisputed and are taken from the parties' papers.

 Since at least the 1965 holiday season, the City of Jersey City (the "City") has displayed a creche and menorah on the lawn and plaza area in front of its City Hall. The City Hall Plaza is land that is owned by the City. In addition, the creche and menorah are owned, maintained, and stored by the City. Since the beginning of his term as Mayor, the religious displays have been erected and displayed at the direction of Jersey City Mayor Bret Schundler and the City Council.

 The creche is displayed on the days immediately preceding and following Christmas. The scene depicts the traditional Christian imagery of the Three Wisemen, Joseph, Mary, and the Baby Jesus. The replicas of Mary and Joseph are placed inside of a small manger, while the Three Wisemen are placed a few feet away. It is erected on the right side of City Hall as one faces the main entrance. It is approximately twelve feet long by eight feet wide, surrounded and framed by a post-rail. Although usually displayed near a menorah, *fn1" no other traditional secular symbols of Christmas are displayed near the creche.

 The menorah is displayed during Hanukkah on the left side of City Hall Plaza. As with the display of the creche, the display of the menorah does not include any secular symbols of the holiday season.

 During the 1994 holiday season, all the individual plaintiffs encountered these displays. Three of the plaintiffs, Joel Solow, Ann Sorrel, and Robert Lander, as Jersey City residents, property owners, and taxpayers, viewed these displays as they travelled past City Hall or visited City Hall to conduct official or private business.

 On or about December 13, 1994, the American Civil Liberties Union of New Jersey ("ACLU") sent a letter to Mayor Schundler informing him of complaints that it had received regarding the displays and asking the Mayor to reevaluate the "practice of displaying these religious symbols on public property." On or about December 16, 1994, The Becket Fund for Religious Liberty sent a response to the ACLU. That letter informed the ACLU that the City would post a sign describing the City's position regarding cultural displays as follows:

 
All cultural displays throughout the year, beginning with this creche, will be accompanied by a sign that reads: "Through this display and others throughout the year, the City of Jersey City is pleased to celebrate the diverse cultural and ethnic heritages of its peoples."

 A new sign containing the quoted language appeared in front of City Hall on December 16, 1994.

 Plaintiffs brought this suit to, inter alia, enjoin the Defendants from erecting similar displays during the upcoming holiday season and all future holiday seasons.

 SUMMARY JUDGMENT STANDARD

 Summary judgment is appropriate where the moving party establishes that "there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the non-moving party to carry its burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 Once the moving party has carried its burden under Rule 56, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts in question." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), rev'g, 723 F.2d 238 (3d Cir. 1983). The opposing party must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of its pleadings. Sound Ship Bldg. Co. v. Bethlehem Steel Co., 533 F.2d 96, 99 (3d Cir.), cert. denied, 429 U.S. 860, 50 L. Ed. 2d 137, 97 S. Ct. 161 (1976).

 At the summary judgment stage the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The mere existence of some alleged factual dispute between the parties, however, will not otherwise defeat a properly supported motion for summary judgment. Id. at 247-248.

 ANALYSIS

 Plaintiffs argue that the creche and menorah are religious symbols and that the City's practice of displaying these religious symbols violates the Establishment Clause of the United States Constitution, in addition to the Equal Protection Clause and various New Jersey Constitutional provisions.

 Defendants assert that the City celebrates its diversity through a wide variety of official proclamations, city-sponsored events, and seasonal public displays. The City further states that because religion is often an integral part of culture, many of the City's various cultural activities include religious elements. It is in keeping with these cultural efforts that the City displays a menorah and creche in front of City Hall each holiday season.

 I. Plaintiffs' Establishment Clause Claim

 In an effort to support the enthusiasm of the holiday season, a government entity must be careful not to step over the constitutional bounds of the Establishment Clause of the United States Constitution. The Establishment Clause of the First Amendment provides: "Congress shall make no law respecting the establishment of religion . . . ." U.S. Const. amend. I. The First Amendment is applicable to the states ...


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