OPINION AND ORDER
BERTELSMAN, Chief Judge:
This matter is before the court on cross-motions for summary judgment. This case raises two distinct issues: (1) whether closing various courts and offices in the Kenton County Courthouse and Administration Building on Good Friday in 1997 and the future violates the Establishment Clause of the First Amendment; and (2) whether the sign announcing the closing in 1996 violated the same provision.
The facts in this case are undisputed. The Kenton Circuit Court, the Kenton District Court and the Kenton County Fiscal Court are located in the Kenton County Courthouse and Administration Building in Kenton County, Kentucky. Several other state and county offices are also located in that building.
In November of 1995, the appropriate officials entered orders or resolutions identifying the dates on which their respective courts would be closed in 1996. Consistent with the long-standing practice of those courts, the closing schedules were identical. Good Friday, April 5, 1996, was among the seventeen days listed on which the courts would be closed. The other holidays listed were: New Year's Day (two days); Martin Luther King, Jr. day; President's Day; Memorial Day; Independence Day; Labor Day; Columbus Day; Election Day; Veterans Day; Thanksgiving Day (two days); Christmas Day (two days); and New Year's Eve (two days).
In early April of 1996, the Kenton County Deputy Judge Executive, desiring to put his new computer and a clip art database to use, created a colorful sign to be posted on the doors of the building that stated:
KENTON COUNTY OFFICES WILL BE CLOSED FOR OBSERVANCE OF GOOD FRIDAY FRIDAY APRIL 5th
In addition to the words, the sign contained a picture of a four inch high crucifix with an image of Christ on it.
On April 3, 1996, the plaintiffs initiated this action. They alleged that both the sign posted and the actual closing violated the Establishment Clause of the First Amendment to the Constitution of the United States. Upon receiving notice of the action, the defendants immediately removed the sign and replaced it with a sign that simply stated that the offices would be closed on April 5, 1996.
On April 5, 1996, the building was opened, but the courts and several other offices in the building were closed.
It is undisputed that the courts and the offices in the Kenton County Courthouse and Administration Building have closed on Good Friday for as many years as any witness in this case can remember. Although there is evidence that the offices and courts closed for a half day some years and for a full day other years, it is undisputed that the county and state employees in the building have
After this action was filed, the defendants affirmatively changed the identification of the Good Friday holiday to "Spring Holiday." Barring court intervention, this spring holiday will continue to be observed on the Friday before Easter.
Although the closing is to be observed on Good Friday, the day on which Christians remember Jesus' crucifixion, there is no evidence that the court and office closings are otherwise related to the Christian holiday. No employees are encouraged to attend church or other religious services. No emphasis is placed on the religious aspects of Good Friday.
In support of their contention that Good Friday is the day on which many Kentuckians traditionally begin their spring vacations, the defendants have offered evidence from the Kentucky Transportation Cabinet indicating that, in 1995, highway traffic on Good Friday was third in volume only to Independence Day and the Thanksgiving weekend. Plaintiffs have made no effort to contest that evidence.
The Law Before
The First Amendment to the Constitution of the United States addresses the subject of freedom of religion succinctly, stating:
Exactly what the framers intended by this language has been the subject of considerable debate. In trying to apply the concise language of this clause in our diverse society, the courts, including this court, have been anything but concise. See American Civil Liberties Union v. Wilkinson, 701 F.Supp. 1296 (E.D.Ky.1988), aff'd, 895 F.2d 1098 (6th Cir.1990).
As early as 1989, this court identified seven theories being advocated by various courts, judges and scholars for the interpretation of the Establishment Clause. In descending order of separatism, these theories were:
In Wilkinson, this court held that the Sixth Circuit had adopted the "endorsement test" and concluded that it was to be preferred over the competing tests. Wilkinson, 701 F.Supp. at 1309-10; see also American Civil Liberties Union v. City of Birmingham, 791 F.2d 1561 (6th Cir.), cert. denied, 479 U.S. 939, 107 S.Ct. 421, 93 L.Ed.2d 371 (1986).
In the instant opinion, the court is assisted by the fact that — after some intervening disagreement
In Pinette, the State of Ohio denied the Ku Klux Klan's application for a permit to erect an unadorned cross on Capitol Square in Columbus, Ohio, during the Christmas holiday season. The permit authority did not rely on the history of the Klan's using the cross, especially a burning cross, as an instrument of hate, prejudice and oppression. Instead, it based its denial of the permit on the religious significance of the cross as a Christian symbol. Pinette, ___ U.S. at ___ - ___, 115 S.Ct. at 2444-45.
It was undisputed that Capitol Square was a traditional public forum. Id. When the Klan challenged the permit denial, the state defended on the ground that permitting the cross would violate the Establishment Clause. Pinette, ___ U.S. at ___, 115 S.Ct. at 2445. The district court and the United States Court of Appeals for the Sixth Circuit held that the permit had been wrongfully denied and concluded that the presence of the cross in the Square would not violate the Establishment Clause. See Pinette v. Capitol Square Review and Advisory Bd., 30 F.3d 675 (6th Cir.1994) and Pinette v. Capitol Square Review and Advisory Bd., 844 F.Supp. 1182 (S.D.Ohio 1993).
The Supreme Court did not advert to the political history of the Klan but treated the case as presenting the pure Establishment Clause issue of whether a private organization could be permitted to erect a Christian religious symbol in an area which was a traditional public forum located adjacent to the seat of state government. Pinette, ___ U.S. at ___ - ___, 115 S.Ct. at 2445-47.
Importantly, the Court
In part IV of his opinion, Justice Scalia spoke only for a plurality.
In the view of the plurality, it was not even necessary to apply the endorsement test to cases involving private religious expression in a public forum. Rather:
Pinette, ___ U.S. at ___, 115 S.Ct. at 2450.
In separate concurring opinions, Justices O'Connor, Souter and Breyer expressed the view that the endorsement test should apply to both government speech and private speech on government property. Pinette, ___ U.S. at ___, 115 S.Ct. at 2452. Justice O'Connor also clarified the criteria for application of the endorsement test through the "perception of a reasonable, informed observer." Id.
In her view, "when the reasonable observer would view a government practice as endorsing religion ... it is our duty to hold the practice invalid." Pinette, ___ U.S. at ___,
The "reasonable observer" through whose eyes a court must scrutinize the government action is akin to the ordinarily prudent person of tort law. This observer "is presumed to possess a certain level of information that all citizens might not share." Id. The observer "must be deemed aware of the history and context of the community and forum" in which the religious action occurs.
Id. at ___, 115 S.Ct. at 2456.
Justice O'Connor and seven other Justices seem to agree with the views expressed by this court in Wilkinson, 701 F.Supp. at 1301, that an appropriate disclaimer can, in many situations, rebut an inference of government endorsement that might otherwise arise.
Since the Klan in Pinette was willing to use a disclaimer, Justice O'Connor held that application of the endorsement test resulted in the conclusion that the state would not violate the Establishment Clause in permitting the cross. Pinette, ___ U.S. at ___, 115 S.Ct. at 2457.
Justice Ginsburg dissented in an opinion that implicitly accepts the endorsement test, but finds the display under consideration unconstitutional under that test. She particularly emphasized the lack of a disclaimer. She expressly approved the disclaimer ordered by this court in Wilkinson and implied that the display in the case before the Court would have been constitutional had a similar disclaimer been employed. Pinette, ___ U.S. at ___ n. 1, 115 S.Ct. at 2474 n. 1.
In summary, then, synthesizing the various opinions, eight members of the Pinette Court have adopted the endorsement test
Application of the Endorsement Test to the Case at Bar
The Posted Sign
Applying the endorsement test, as elaborated in the various opinions in Pinette, it is readily apparent that the sign posted in this case violated the Establishment Clause. The sign depicted the crucifixion of Christ and stated that the Kenton County Offices, including the courts, would be closed "in observance of Good Friday."
In this case of government speech (rather than private speech in a public forum), the sign could be, and was in fact, perceived by reasonably informed observers, to be a government endorsement of the Christian religion. The court accepts that this apparent endorsement was not intended, but this made no difference in the observer's perception. Although the defendants immediately abjured use of the sign, removed it, and disavow
Closing the Courthouse on Good Friday
Turning now to the principal issue before it, this court must apply the endorsement test now mandated by a clear majority of the Justices of the Supreme Court. This requires this court to place itself in the figurative shoes of a "reasonable observer" as defined in the opinions of Justice O'Connor and adopted by a majority of the Supreme Court. Pinette, ___ U.S. at ___, 115 S.Ct. at 2455.
This observer "must be deemed aware of the history and context of the community and forum in which the religious display appears." Id. Further, the knowledge of this hypothetical observer is not to "be limited to the information gleaned simply from viewing the challenged display." Id.
In the Pinette case, for example, the Court attributed to the hypothetical observer "knowledge that the cross is a religious symbol, that Capitol Square is owned by the State, and that the large building nearby is the seat of state government." Id. In Justice O'Connor's view the observer should also be deemed to "know the general history of the place" where the display occurs. Id. at ___ - ___, 115 S.Ct. at 2455-56. This is not to say the observer must be presumed to be an "`ultra-reasonable observer' who understands the vagaries of [the Supreme Court's] First Amendment jurisprudence."
The observer must not be deemed to be super-sensitive.
The key to Justice O'Connor's approach to these Establishment Clause problems is the necessity of preventing non-adherents from feeling excluded from the community or believing that their standing in it is impaired by the perceived government endorsement of religion. Pinette, ___ U.S. at ___, 115 S.Ct. at 2452. It is significant, therefore, that she states, "A State has not made religion relevant to standing in the political community simply because a particular viewer of a display might feel uncomfortable." Id. at ___, 115 S.Ct. at 2455.
Applying these criteria to the informed observer from whose perspective the instant case must be decided, that observer must be deemed to be aware of the following facts: For many years, the Kenton County Courthouse has closed on Good Friday. The orders and resolutions of the various courts and county and state officers made specific reference to Good Friday. The courthouse usually closed for the entire day, although by law only half a day was a state holiday.
Many local public schools and businesses also close on all or part of Good Friday. In addition, at least one major national institution — the New York Stock Exchange — closes on that day. In many Northern Kentucky communities this is the traditional start of spring vacation. This area is usually experiencing chilly weather in March and early April, and, as reflected by the Kentucky Transportation Cabinet Statistics, many Kentuckians spend Good Friday traveling to warmer areas.
The observer would also be aware that there is an abundance of local church services in this area on Good Friday. Many churches offer services in the early morning,
Under the Supreme Court criteria, the observer would also be aware of the history of this controversy. He or she would know that as soon as objections to the sign surfaced in 1996, the courthouse authorities removed the sign. The observer would also know that the official posting the sign immediately disclaimed any intent to endorse religion.
The observer is presumed to know that some officials stated that they closed because it was traditional; others that they closed because there would be problems getting services such as heat and maintenance. Others stated that few members of the public could be expected to come in on that day. The courts in particular believed it would be difficult to get jurors and witnesses. Some stated that they merely desired to accommodate their employees on that busy weekend. The employees might desire to travel for a spring vacation or to family gatherings which are traditional for the Easter holiday, for both the religious and non-religious.
The informed observer would know that the officials reformed their practices with regard to this holiday to make every possible effort, while still closing on the Friday before Easter, to rebut any impression that they were closing in observance of the holiday. The resolutions and orders have all been amended to merely state that the courthouse will close this year on a given date. The signs will also so state. In short, the officials have done almost everything they can to disclaim any intent to endorse religion.
The Remains of the
It seems probable that the Supreme Court has abandoned the tri-partite test of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).
Hartmann v. Stone, 68 F.3d 973, 979 (6th Cir.1995) (citing Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) and Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985)).
First, the courthouse closing in 1997 and future years has a secular purpose, to provide a spring holiday at a festive time of the year. Almost all cultures have some kind of spring festival. The plaintiffs in this case
Second, there is no evidence that the closing has the primary effect of promoting or inhibiting religion. A person can go to church, read scriptures or meditate outside working hours, and a person who is off work can travel, do housework, begin preparing a holiday dinner or engage in other purely secular activities. There is no evidence that even one person pursued religious activities because the courthouse was closed, who would not have done exactly the same thing otherwise.
Finally, with regard to the third Lemon criterion, there is not a whit of entanglement between the defendant officials and any church or religion. It is true that the closing may have the incidental effect of accommodating someone in a religious activity. But this has long been permitted
In short, the decision when to close the county courthouse remains in the discretion of the state officials with whom the constitutional separation of powers has wisely left it. As I have expressed on many occasions, I strongly believe that the federal courts should avoid — whenever possible — getting involved in decisions of this kind which the Tenth Amendment
Other Good Friday Closing Cases
Only two of the federal courts of appeals have addressed the issue of closing on Good Friday. The earliest decision, Cammack v. Waihee, 932 F.2d 765 (9th Cir.1988), cert. denied, 505 U.S. 1219, 112 S.Ct. 3027, 120 L.Ed.2d 898 (1992), applied the Lemon test and found that a Hawaii statute declaring Good Friday a state holiday did not violate the Establishment Clause because of the secular purpose of providing an additional holiday for the people of the state.
Plaintiffs here rely heavily on the second federal appellate decision, Metzl v. Leininger, 57 F.3d 618 (7th Cir.1995). Unfortunately, this case was decided a few days before the Supreme Court's decision in Pinette, and the Metzl court did not have the benefit of the high court's decision, as hereinabove outlined.
The Seventh Circuit was apparently applying the Lemon test, although that is not completely clear. In any event, its decision that a state statute declaring a public school holiday on Good Friday was very fact specific and largely based on what it deemed to be inadequacies in the factual record regarding secular versus religious practices on the Friday before Easter.
Importantly, the court demonstrated some discomfort with its holding and confined it to inadequacies in the record. Thus, in the course of its opinion, the court stated:
Metzl, 57 F.3d at 622-23 (emphasis added).
Of course, the defendants in the instant case do argue that the purpose of their spring holiday on the Friday before Easter is to give employees a spring break, rather than to commemorate the crucifixion of Jesus Christ. This court agrees with the Seventh Circuit that this does make it a "different case."
In emphasis of this point, the Seventh Circuit further observed that Illinois could validly accomplish the secular purpose of a Good Friday closing "either by officially adopting a `spring weekend' rationale for the law ... or by moving to a system of local option for school districts." Id. at 624.
Therefore, a close analysis of Metzl demonstrates that the instant plaintiffs' reliance on it is misplaced. Indeed, Metzl supports the defendants' position because they have adopted the procedures that the Seventh Circuit opinion suggests. Clearly, the Seventh Circuit was deliberately laying down guidelines on how to establish the closing of public facilities on the Friday before Easter, or any other day that happens to have religious significance in the community.
Therefore, Cammack, Metzl, and the decision of this court are harmonious. The Establishment Clause is not violated by the instant defendants' closing of the Kenton County Courthouse on the Friday before Easter under the circumstances described in this record.
The court has previously granted the motion of the plaintiffs for summary judgment regarding the sign posted in 1996. An injunction will enter prohibiting repetition of such practices.
A judgment will also enter concurrently herewith denying relief as to closing the courthouse on Good Friday in 1997 or future years if the practices now in effect continue to be observed. Therefore, the court being advised,
Pursuant to the Opinion and Order entered concurrently herewith, the court being advised,
1. That a separate Injunction shall enter pursuant to said Opinion and Order;
2. That the defendants may continue to close on the Friday before Easter in 1997 and future years if current practices are pursued and the Injunction is obeyed; and
3. That plaintiffs shall recover their costs, including appropriate attorney's fees. 28 U.S.C. Section 1988.
Pursuant to the Opinion and Order and Judgment entered concurrently herewith, the court being advised,
In addition, the defendants challenged plaintiffs' standing to bring this action. However, repeatedly being confronted by state action that offends one's religious beliefs is sufficient to meet the necessary standing requirements. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); see also Hawley v. City of Cleveland, 773 F.2d 736 (6th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1266, 89 L.Ed.2d 575 (1986). In this case, it appears from the complaint that the plaintiffs regularly conducted business at the Kenton County Courthouse. Therefore, their repeated exposure to the signs posted and their inability to conduct business on Good Friday are sufficient to allege standing in this case.