institution, and may not involve itself too deeply in such an institution's affairs.
County of Allegheny v. ACLU, 492 U.S. 573, 590-91, 106 L. Ed. 2d 472, 109 S. Ct. 3086 (1989).
A government's actions will violate the Establishment Clause if the action (1) does not have a secular purpose, (2) either advances or inhibits religion in its principal or primary effect, or (3) fosters an excessive entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 29 L. Ed. 2d 745, 91 S. Ct. 2105 c (1971). The Supreme Court also has scrutinized whether the practice has the purpose or effect of "endorsing" a religion by conveying a preference for a particular religion or religious belief. Allegheny, 492 U.S. at 592. Furthermore, "It is well-settled that whether a government display violates the first amendment is indeed a question of law." Harris v. City of Zion, 927 F.2d 1401, 1402 n.1 (7th Cir. 1991).
The City has not violated the Establishment Clause by providing equal access to an open forum for a variety of groups, including religious organizations. The secular purpose behind the City's policy is to promote a diversity of ideas and cultures in an area easily accessible to the public. The primary effect of the City's policy neither advances nor endorses a particular religion. By allowing access to the forum on a first come, first served basis, the City merely provides an opportunity for individuals or organizations to engage in activities protected by the first amendment. The City also is not excessively entangled with the Christmas Committee. Other than promulgating a neutral and simplistic policy to allow for wide and easy access to the forum, the City's involvement with the Christmas Committee's display is nonexistent. Therefore, the City has not violated the establishment clause by allowing religious groups equal access to the Park. See Widmar v. Vincent, 454 U.S. 263, 271-72, 70 L. Ed. 2d 440, 102 S. Ct. 269 (1981).
This court also concludes the City's actions do not violate California's constitutional provisions. The court is aware of the recent decision of Hewitt v. Joyner, 940 F.2d 1561, 1565 (9th Cir. 1991), in which the Ninth Circuit held that, if possible, courts should decide cases on state constitutional grounds and avoid resolving constitutional issues. California's constitution prohibits the establishment of religion and "any appearance the government has allied itself with one specific religion." Id. (citing Fox v. City of Los Angeles, 22 Cal. 3d 792, 150 Cal. Rptr. 867, 587 P.2d 663 (1978)). In Fox, the California Supreme Court held the lighting of a cross on the grounds of city hall exhibited a preference for a particular religion and, thus, was unconstitutional. In Okrand v. City of Los Angeles, 207 Cal. App. 3d 566, 254 Cal. Rptr. 913 (1989), a California appellate court addressed the constitutionality of an unlit menorah on the grounds of city hall. The menorah was part of an exhibit which included a Christmas tree. The court concluded the display of the menorah did not exhibit a preference for a particular religious belief because the city made no "effort to express some kind of subtle governmental advocacy of a particular religious message." Id. at 574.
This case is clearly distinguishable from Fox and is more akin to Okrand. The City has not expressed a preference, nor does it appear the City has expressed a preference, for a particular religion or religious belief. The City simply provides an open forum for all groups, religious and nonreligious, to exhibit displays or conduct other activities in the park. The forum is made available to the first individual or organization that reasonably requests access and obtains a permit. Other than prohibiting obscenity and imposing reasonable time, place, and manner restrictions, the content of the message is irrelevant. The City's policy, therefore, also does not violate state constitutional provisions.
This case also is distinguishable from the recent decision of Murphy v. Bilbray, No. 90-134 (S.D. Cal. filed Dec. 3, 1991), involving the Mount Helix and Mount Soledad crosses. The Murphy case involved permanent religious symbols located on city and county property. This case, however, involves a public forum open to both religious and nonreligious groups to exhibit displays.
For the reasons set forth above, the court makes the factual findings as requested by the Ninth Circuit, reaffirms the court's conclusions of law on the federal claims, and makes conclusions of law on the state constitutional claims. This court concludes that the City's practice of allowing a private committee to display a nativity scene during December does not violate the federal or state constitution.
MARILYN L. HUFF, JUDGE
UNITED STATES DISTRICT COURT
ORDER - December 16, 1991
On December 13, 1991, this court submitted its Findings of Fact and Conclusions of Law to the United States Court of Appeals for the Ninth Circuit. As exhibit "1," this court attached Judge William B. Enright's Memorandum Decision and Order in Kreisner v. City of San Diego, No. 88-1993 (S.D. Cal. filed Nov. 8, 1989). The court did not attach or submit any other documents to the Ninth Circuit. Counsel is responsible for submitting to the Ninth Circuit any other documents counsel believe should be considered on appeal.
IT IS SO ORDERED.
MARILYN L. HUFF, JUDGE
UNITED STATES DISTRICT COURT