Fausto v. Diamond

589 F. Supp. 451

Ann FAUSTO, Helen Howe, Trisha Lane, Maryanne Cuillo, American Civil Liberties Union-Rhode Island Affiliate, Plaintiffs, v. James W. DIAMOND, Department of Parks, Superintendent, City of Providence, Arthur Bergel, Carmine A. Bucci, Carol S. Dutcher, Thomas Boyle, Vincent J. Cirelli, Members of the Board of Park Commissioners of the City of Providence, Vincent Cianci, Mayor of the City of Providence, and Stephen Napolitano, Treasurer of the City of Providence, Defendants.

Civ. A. No. 80-0520 S.

United States District Court, D. Rhode Island.

June 19, 1984.

Revens & DeLuca, Sandra A. Blanding, Amato A. DeLuca, Warwick, R.I., for plaintiffs.

Charles Pisaturo, City Sol., Gerard McG. DeCelles, Sp. Asst. City Sol., Herbert F. DeSimone, Jr., Asst. City Sol., Providence, R.I., for defendants.

OPINION AND ORDER

SELYA, District Judge.

This case poses a vexing question: does the continuous display, maintenance and preservation of a memorial dedicated to the "Unknown Child" and located on property owned by the City of Providence, violate the Establishment Clause of the First Amendment to the United States Constitution? There can be no question but that the Fourteenth Amendment made the Establishment Clause protections applicable to the states. E.g., Everson v. Board of Education, 330 U.S. 1, 5, 67 S.Ct. 504, 506, 91 L.Ed. 711 (1947).

The case was tried to the court, sitting without a jury, in June of 1983. In addition to live testimony, the parties submitted an agreed statement of facts, several depositions, defendants' answers to plaintiffs' interrogatories and numerous exhibits. The court, in the presence of counsel, also viewed the locus which is at issue.

After receipt of trial briefs, and with the knowledge that a significant Establishment Clause case had been taken under advisement by the Supreme Court, this court determined that resolution of the controversy sub judice should be deferred pending such appellate guidance as might be forthcoming. That decision, Lynch v. Donnelly, ___ U.S. ___, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), has now been rendered. Counsel have recently submitted supplemental briefs, illuminating this case in the afterglow of Lynch. And, that accomplished, this opinion contains the court's findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a).

I.

The Cathedral of Saints Peter and Paul (Cathedral), the largest church in the Roman Catholic Diocese of Rhode Island (the population of which is over 60% Roman Catholic, Donnelly v. Lynch, 525 F.Supp. 1150, 1163 n. 21 (D.R.I.1981), aff'd, 691 F.2d 1029 (1st Cir.1982), reversed on other grounds, ___ U.S. ___, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984)), is located in the downtown area of Providence, Rhode Island. Its front steps open onto property owned by the City of Providence and known as Cathedral Square. Diocese offices also border Cathedral Square, as do an attractive complex of housing for the elderly and several secular commercial establishments. Hanging over the front of the diocesan offices is a large latin cross, not on municipal property. The Square was constructed on the site of abandoned public streets as part of an urban renewal project completed in 1975. Twenty-five percent of the funds used for the Cathedral Square project came from the City of Providence and the remainder from a federal grant. A large, cylindrically shaped waterfall fountain graces the scene. Its construction was integral to the renewal project's efforts to develop Cathedral Square as an urban mini-park area for the use and enjoyment of the citizens of Providence.

By 1979, the fountain had fallen into disrepair, due in part to the City's fiscal crisis. That spring, a group which came to be known as the Committee for the Memorial to the Unknown Child (Committee) met with defendant James W. Diamond, the Superintendent of the Department of Parks and Secretary to the Board of Park Commissioners for the City of Providence (Board). The evidence is unclear as to whether the idea for the restoration, described post, originated with the Committee or with Diamond; in any event, the point is not essential to this decision. There was some loose overlap between the Committee and an anti-abortion organization known as Catholics for Life (CFL).¹ Additionally, some members of the Committee were affiliated in other ways with the right-to-life movement.

Diamond and the Committee discussed the fact that the United Nations had declared 1979 to be "The Year of the Child." The Committee wanted "to do something to commemorate and honor the unknown child" whom Marshall Gillette, co-chair of the Committee, defined as young people affected by "divorce and broken homes ... kids that come to school with bruises, you know that they didn't fall down the steps and just — this is the thing we were thinking about mostly, children who really aren't thought about, they're just left to be on their own. Those are children who really are unknown. There's lots of them." Deposition of M. Gillette, June 8, 1983, at 8. McOsker, asked essentially the same question, described the unknown children as "the children today with child abuse ... and the children that are deprived of food and the children that are left neglected and ... the living child today is the unknown child that is not being cared for properly...." Deposition of J. McOsker, April 25, 1983, at 6. "Living children," in McOsker's view, also included "fetuses in the womb." Id. at 7. But see Gillette Deposition at 8-9. The inspiration for the name of the memorial came from the world-famous "Tomb of the Unknown Soldier" in Arlington, Virginia. Gillette Deposition at 8. The Committee spokespersons told Diamond that they were opposed to child abuse and that they regarded a fetus as a child. Deposition of J. Diamond, Mar. 16, 1983, at 19. According to Diamond, Committee members wistfully expressed the thought that it would be "beautiful" to have the fountain operable again. Id. The Committee proposed to repair the fountain at no cost to the City if it could be established as a Year of the Child memorial to the "unknown child," and denominated as "The Fountain of Life." Id.

Diamond, a public servant accustomed to the peculiar budgetary constraints endemic to older northeastern cities, thought that it would be serendipitous to get the fountain fixed at no expense to the City, and was happy to volunteer Park Department employees to help, Diamond Deposition at 27, but he was concerned about what he foresaw as possible constitutional problems with the concept. He discussed the proposal with the then director of the Rhode Island affiliate of the American Civil Liberties Union (RIACLU), John Gaffney. Eventually, Diamond, the Committee, and the RIACLU worked out a mutually-acceptable compromise; and on May 15, 1979, the Committee presented the consensus plan to the Board.

According to the Minutes of the Board of Park Commissioners Meeting dated May 15, 1979 (May 15 Minutes), Diamond briefed the Board on the condition of the fountain, the Committee's restoration proposal, and the estimated repair costs. He reported that the Committee wanted to donate the necessary repairs and to install a plaque "to note the donation in honor of the International Year of the Child and the victims of child abuse at every age." Id. at 1. Diamond told the Board that, in his mind, there were constitutional questions involving the plaque's wording: he thought, quite understandably, that it should be devoid of political or religious propaganda. Because the City had no money which could be used to rehabilitate the font, Diamond told the Board, it would be in the taxpayers' interest to accept the donation if a constitutionally appropriate way could be found to do so. Id.

Following Diamond's presentation, Professor James Kelly of Providence College, a Dominican institution, spoke on behalf of the Committee. He presented three quotations for the Board's consideration, viz.:

I have set before you life and death, the blessing and the curse. Choose life, then, that you and your descendants may live. 30 Deuteronomy.

If a man lose reverence for any part of life, he will lose reverence for all life. Dr. Albert Schweitzer.

A baby is God's opinion that life should go on. Carl Sandberg.

The Board was told, in substance, that the Committee, as part of the overall gift, proposed to have a suitable plaque made, engraved with one of this trio of quotations, and installed at the Square. The Board had the option to choose among the suggested inscriptions.

The Board discussed the Committee's proposal. That debate was on a high plane and was entirely unoffensive. There was no hint of the rancor to come. Then, on a motion by Commissioner Boyle, seconded by Commissioner Cirelli, the Board unanimously accepted the donation, subject to the following conditions:

The design aspects of the installation of the plaque and the work done on the fountain had to be to the technical satisfaction of the Superintendent of Parks or of the staff members he designated for this purpose and second, that while any of the three texts specified by Professor Kelly were acceptable to the Commission, any alteration in those texts or any other texts would have to be specifically approved by the Board prior to the installation of any plaque.

May 15 Minutes at 2.

Funds for the repair were solicited, inter alia, through mailings to various segments of the community and through stories in the Providence Visitor, a newspaper published by the Diocese. See, e.g., Providence Visitor, May 24, 1979, at 3. One of the letters used in soliciting funds for the Memorial was introduced into evidence. The letter, dated November 27, 1979, is printed on Committee stationary and states, in part:

The Committee for the Memorial to the Unknown Child was formed in this Year of the Child to focus the attention of people from all over Rhode Island and the United States on the abused, the neglected, the

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