Grossbaum v. Indianapolis-Marion County Bldg. Auth.

870 F. Supp. 1450

Rabbi Abraham GROSSBAUM and Lubavitch of Indiana, Inc., Plaintiffs, v. INDIANAPOLIS-MARION COUNTY BUILDING AUTHORITY and Ronald L. Reinking, in his capacity as General Manager, Defendants.

No. IP 94-1801-C-H/G.

United States District Court, S.D. Indiana, Indianapolis Division.

November 22, 1994.

B. Keith Shake, Henderson Daily, Withrow & Devoe, Indianapolis, IN, Nathan Lewin, Niki Kuckes, Miller, Cassidy, Larroca & Lewin, Washington, DC, for plaintiffs.

Thomas J. Costakis, Kevin W. Betz, Krieg, Devault, Alexander & Capehart, Indianapolis, IN, for defendants.

ENTRY ON MOTION FOR PRELIMINARY INJUNCTION

HAMILTON, District Judge.

When a city puts up a Christmas tree in a "nonpublic forum," does the First Amendment require the city to allow private groups to display menorahs, Nativity scenes, and other religious symbols in the same place? At first blush, the answer appears to be no. See Lubavitch Chabad House, Inc. v. Chicago, 917 F.2d 341 (7th Cir.1990). Several years ago, the City of Chicago put up Christmas trees at O'Hare Airport. A Jewish group's request for permission to put up a menorah was denied. The Seventh Circuit held that the City did not violate the First or Fourteenth Amendments by putting up the Christmas trees and other secular holiday decorations while excluding religious symbols.

The central issue in the case before this Court is whether the Free Speech Clause of the First Amendment, as applied in Lamb's Chapel v. Center Moriches Union Free School Dist., ___ U.S. ___, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993), now dictates a different result. This Court does not believe the Lamb's Chapel prohibition on "viewpoint discrimination" in a nonpublic forum applies to this situation. When a city puts up secular Christmas decorations in a nonpublic forum, it may choose to allow private groups to display menorahs, Nativity scenes, and other religious symbols there as well (at least if it is careful to comply with the Establishment Clause), but the Free Speech Clause does not require it to allow such displays.

Plaintiffs Rabbi Abraham Grossbaum and Lubavitch of Indiana, Inc. filed this action on November 7, 1994, against defendants Indianapolis-Marion County Building Authority (the "Building Authority") and Ronald L. Reinking, its general manager. Plaintiffs seek injunctive and declaratory relief to require defendants to allow them to display a menorah in the lobby of the City-County Building in Indianapolis during the eight days of Chanukah. Plaintiffs moved for a temporary restraining order and preliminary injunction because Chanukah begins at sundown on November 27, 1994. On November 8, 1994, this Court denied the request for a temporary restraining order for lack of an emergency. A hearing on the motion for preliminary injunction took place on November 18, 1994. The motion is before the Court on the parties' briefs and oral arguments, and a stipulated factual record that includes two affidavits by Rabbi Grossbaum, the affidavit of William F. Fox, and the parties' Joint Stipulations of Fact. Because the case arises under the federal Constitution and civil rights laws, this Court has subject matter jurisdiction. 28 U.S.C. §§ 1331 & 1343(a)(3). This entry constitutes the Court's findings of fact and conclusions of law required by Fed.R.Civ.P. 52 and 65. For the reasons set forth below, the Court denies plaintiffs' motion for a preliminary injunction.

Plaintiff Grossbaum is an Orthodox Jewish rabbi affiliated with the Lubavitch Hasidic movement. He is the executive vice president of plaintiff Lubavitch of Indiana, Inc., a private, non-profit Orthodox Jewish organization in Indianapolis, Indiana. Defendant Building Authority is a municipal corporation responsible for managing the City-County Building in downtown Indianapolis. The City-County Building houses offices for various agencies and departments of the city and county governments. The lobby of the City-County Building is open to the public during business hours.

As general manager of the Building Authority, Reinking's duties include deciding whether to grant requests to use the lobby space for displays or exhibits. Requests to use the lobby are usually made in writings addressed to the Building Authority. Oral requests to use the lobby have also been made in the past. The Building Authority has produced 117 written requests for use of the lobby from 1990 through September 22, 1994. Most were granted. The exceptions were a group's third request in the same year (the Building Authority limits requests to two per year from the same group) and several recent requests to conduct sales or fundraising (the Building Authority has recently decided not to allow such activity). Some requests for use of the lobby came from private groups, but most were from government agencies. See Joint Stipulations of Fact, Tab A.

From approximately 1985 through 1992, plaintiffs requested and received permission from the Building Authority to display their five-foot tall menorah in the lobby of the City-County Building during Chanukah.¹ The menorah display was accompanied each year by a sign that said, "Lubavitch wishes you a Happy Chanukah." Plaintiffs were also permitted to light the candles of the menorah. Plaintiffs paid for all expenses of the display; no public funds were used in the menorah's display. Plaintiffs are prepared to place a sign by the menorah stating that it is a private display sponsored by Lubavitch of Indiana.

The Building Authority's minutes and correspondence show that the menorah display generated some public controversy in 1992. Although the record on this point is limited, the documents indicate that both the Indiana Civil Liberties Union and the Jewish Community Relations Council had questioned the display of the menorah in a public building like the City-County Building and had urged the Building Authority to reconsider its position. See Joint Stipulations of Fact, Tab H.

On September 30, 1993, Reinking sent a memorandum to the Board of Directors of the Building Authority concerning topics to be discussed at the next board meeting, including the topic of a proposed "display policy" for the City-County Building. He wrote:

The attention and publicity focused on the lobby of the City-County Building during the holiday season of 1992 pointed out the need for the Authority to have a written policy regarding displays in our building. Last year's holiday season brought newspaper articles, correspondence from the Indiana Civil Liberties Union and research into constitutional law. I am hopeful that an appropriate policy can facilitate a less controversial season in this and future years.

On October 4, 1993, the board unanimously passed the following resolution:

RESOLVED, that the Board of Directors of the Indianapolis-Marion County Building Authority hereby adopts the following policy on seasonal displays in the City-County Building:

Religious displays and symbols are not permitted in the City-County Building in that the display of seasonal religious symbols in the halls of government conveys the appearance of governmental endorsement of religion in violation of the Establishment Clause of the First Amendment of the Federal Constitution.

The Building Authority initially interpreted its new policy as forbidding both plaintiffs' menorah and a Christmas tree, which the Building Authority itself had displayed in the lobby in past years. On October 8, 1993, Reinking wrote to Rabbi Grossbaum and said that the new policy would not permit display of the menorah.

On December 6, 1993, Reinking reported to the board that employees in the building were unhappy with the decision not to put up a Christmas tree. Reinking also reported that the "City Administration" had asked the Building Authority to reconsider and allow display of both the Christmas tree and the plaintiffs' menorah, or, if the menorah could not be displayed, at least to put up the Christmas tree. The board's counsel advised that the Supreme Court and other courts had "uniformly held that a Christmas tree is a secular symbol and not a religious symbol" and could therefore be displayed, but that the menorah, a Nativity scene, or a cross would be a religious symbol prohibited by the October 4, 1993, policy. The board's minutes reflect discussion of the possibility that permission for the menorah might be deemed sufficient to transform the lobby into a "public forum," which the board wanted to avoid. The board refused to change the policy that barred plaintiffs from displaying their menorah, but instructed Reinking to erect a Christmas tree in the lobby.

Nothing in the record reveals any animosity on the part of the Building Authority against plaintiffs or their religious beliefs, or against religion in general. On this record, the new policy was intended simply to avoid the questions and controversy that the earlier display of the menorah had produced, and that future requests by these plaintiffs and other religious groups seemed likely to provoke.

The record does not reflect any further efforts by plaintiffs to display their menorah in 1993. On June 27, 1994, and August 4, 1994, however, Rabbi Grossbaum wrote to Reinking for permission to display the menorah during Chanukah in 1994. (Plaintiffs also wish to display the menorah in future years.) Reinking responded on August 9, 1994, with a copy of the 1993 policy and stated that the policy did not permit the display of seasonal religious symbols in the building. Plaintiffs filed this action on November 7, 1994. Plaintiffs base their motion for preliminary injunction only on Count One of their Complaint, which asserts that the lobby is a nonpublic forum and that the Building Authority's Policy on Seasonal Displays amounts to viewpoint discrimination prohibited by the Free Speech Clause of the First Amendment. For purposes of this motion only, the parties have stipulated that the lobby of the City-County Building is a...