Cabral v. City of Evansville

958 F.Supp.2d 1018

Chris CABRAL, Nancy Tarsitano, Plaintiffs,

v. CITY OF EVANSVILLE, INDIANA, Defendant,West Side Christian Church, Intervenor.

No. 3:13–cv–00139–SEB–WGH.

United States District Court,

S.D. Indiana,

Evansville Division.

July 31, 2013.

Gavin Minor Rose, ACLU of Indiana, Indianapolis, IN, for Plaintiffs.

Clay W. Havill, Keith W. Vonderahe, Ziemer Stayman Weitzel & Shoulders LLP, Evansville, IN, for Defendant.

ORDER

SARAH EVANS BARKER, District Judge.

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.

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 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, 110 S.Ct. 2356, 110 L.Ed.2d 191 (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, 115 S.Ct. 2440, 132 L.Ed.2d 650 (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 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.

The portion of the Riverfront where the Crosses are to be displayed extends over four contiguous blocks that directly abuts the stretch of Riverside Drive ¹ 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 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...