Jon G. Murray and Society of Separationists, Inc.,plaintiffs-appellants, v. City of Austin, Texas and Travis County, Texas, Defendants-appellees, 947 F.2d 147 (5th Cir. 1991)

Today, we address an issue grounded in part of the bedrock on which our Country stands--freedom of religion. The issue springs from the inclusion of a Christian cross in the insignia of the City of Austin, Texas. The cross found its way into the insignia because it was part of the coat of arms of the person for whom the City is named, Stephen F. Austin, the "father of Texas".

Jon Murray and the Society of Separationists, of which he is a member, sued the City, among others, claiming that the insignia violates the Establishment and Free Exercise Clauses of the First Amendment (as incorporated by the Fourteenth Amendment), because it contains the cross, among other symbols. Agreeing that there are no disputed issues of material fact, the parties filed cross-motions for summary judgment. The district court granted summary judgment for the City and sua sponte imposed Rule 11 sanctions against Murray and the Society. 744 F. Supp. 771 (W.D. Tex. 1990).¹  We AFFIRM the summary judgment, but VACATE the award of sanctions.² 

In 1916, the Austin City Council sought proposed designs for a municipal flag and chose a design that incorporated, with some modifications, the family coat of arms of Stephen F. Austin, the "father of Texas" and the person after whom the City is named. The original Austin family coat of arms was a crest with three cross-crosslets and a wreath, supporting a Latin cross between two wings. (A Latin cross is the symbol of the Christian religion; its three upper arms are shorter than the lower arm, while a crosslet is "a small cross; esp: one used as a heraldic bearing". Websters New Collegiate Dictionary 308-09, illustrations 1 and 18 (9th ed. 1989). A cross-crosslet is defined as "heraldry: a cross with a crossbar near the end of each arm". Websters New International Dictionary 541 (3d ed. 1986).) The Latin cross in the coat of arms signified that a progenitor had participated in a crusade; and the wings represented St. Austin (also known as St. Augustine), the Archbishop of Canterbury. (See Appendix 1.) Stephen F. Austin modified the original coat of arms by replacing the three cross-crosslets with a deer's head to symbolize that he was an American pioneer. He also changed the Latin cross atop the crest into a form of cross-crosslet: a Latin cross with crosslets on only the three upper arms. (See Appendix 2.)

For its insignia, the City has used an adaptation of Stephen F. Austin's coat of arms. The insignia is a circle with "CITY OF AUSTIN" written circumferentially across the top and "FOUNDED 1839" across the bottom. Inside the circle is a shield formed by three vertical stripes, with an inverted triangle at the top of the shield. Inside the triangle is a lamp of knowledge, representing "the educational advantages of the City." (For example, the University of Texas is located at Austin.) Atop the shield is the silhouette of the State capitol, and superimposed on the capitol is the Latin cross with crosslets on the three upper arms, surrounded by a pair of wings. (See Appendix 3.) The insignia is used on police cars and other city vehicles, letterhead, monthly utility bills, uniforms of city employees, including police and firefighters, on the wall of the city council chambers, and on or in many city-owned buildings, parks, and recreation centers. (See Appendix 4.)

Murray's summary judgment affidavit stated, among other things: that he lives and works in Austin, receives many items of correspondence from the City and uses its public services, including police and fire protection and water, electric, garbage, and utility services; that he has visited the chambers of the Austin City Council and the City's municipal building; that the Christian cross in the insignia is used only by the Roman Catholic denomination; that the fact that his city uses "such a religious symbol truly offends" him; that he does "not subscribe to the religion symbolized nor to the particular sect of that religion which is further symbolized"; that he personally confronts the insignia in "many locations around the City," including the monthly utility bills he receives at his home and at the Society's offices; that use of the insignia by the City is an endorsement of Christianity in general and the Roman Catholic faith in particular; that "only after research into the seal³  and the cross did [he] become aware that the cross was part of Stephen F. Austin's coat-of-arms"; that he has "experienced police hostility in the past when police protection was needed"; that he fears that this may have been because of the City's association with Christianity and his status as a "well known atheist spokesperson"; and that he is also "distressed that some portion of [his] City tax contribution or ... utility payments goes to advertising religion."

At issue is whether the insignia violates the Establishment and Free Exercise Clauses of the First Amendment, which provides in relevant part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." U.S. Const. amend. I. As noted, the cross depicted in the insignia is a Latin cross with three crosslets, which Murray states is used particularly by the Roman Catholic faith. However, the challenge is not to a particular denomination being represented. Instead, Murray relies on what he perceives as the representation of Christianity. And, he asserts that although the cross does not occupy much space in the insignia, it is a prominent part of it; that because of its color and location, as well as its being surrounded by a pair of wings, " [a]ll attention is drawn to" it.

The resolution in 1916 soliciting designs for the City's flag makes no mention of the cross or Christianity, instead solicits designs of "artistic merit" expressing "some salient characteristics of the city", and suggests as possibilities use of

[t]he natural beauty of Austin, the City of the Violet Crown, the lake and dam, the Capital of the State, the dome of the Capitol, the seal of the city, and educational center, its industries, the sentiment of its past history, the derivation of the name--from Stephen F. Austin, an expression of the ideals of Stephen F. Austin in symbolic form, the use of the coat of arms of Stephen F. Austin.

Nor is there any reference to the cross in the resolution in 1919 adopting the design. The resolution describes the emblem as a shield with a silhouette of the Capitol crowning the whole

and woven into this silhouette is the crest to the coat-of-arms of Stephen F. Austin, after whom the City of Austin was named. The entire design is a modified form of the Austin coat-of-arms. In the center ... is a golden lamp of knowledge, typifying the educational advantages of Austin....

Although the cross is included in the insignia because it was part of Stephen F. Austin's coat of arms, it is a Christian cross nonetheless. While the reason for its being in the insignia is one of the factors we consider, we cannot avoid reaching the First Amendment issue simply because the cross was not placed in the insignia for religious purposes. It was in the original coat of arms to denote that an ancestor had participated in a crusade. But of far more significance, anyone seeing the insignia sees a Christian cross. We cannot expect persons viewing it to have researched its origin beforehand, any more than we can expect the City to include a disclaimer with it.

As a threshold issue, we must, of course, be satisfied that Murray and the Society have standing to challenge the insignia.⁴  To establish standing under Article III of the United States Constitution, a litigant must demonstrate:

that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant ...

that the injury "fairly can be traced to the challenged action" and

[that the injury] "is likely to be redressed by a favorable decision."

Cramer v. Skinner, 931 F.2d 1020, 1024 (5th Cir. 1991) (brackets in Cramer) (quoting Valley Forge Christian College v. Americans for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S. Ct. 752, 758, 70 L. Ed. 2d 700 (1982)), cert. denied, --- U.S. ----, 112 S. Ct. 298, 116 L. Ed. 2d 242 (1991). And in so deciding, "a court should consider three prudential concerns":

1) whether the plaintiff's complaint falls within the zone of interests protected by the statute or constitutional provision at issue;

2) whether the complaint raises abstract questions amounting to generalized grievances which are more appropriately resolved by the legislative branches; and

3) whether the plaintiff is asserting his or her own legal rights and interests rather than the legal rights and interests of third parties.

Cramer, 931 F.2d at 1024-25 (citations omitted).

Murray asserts that his earlier described affidavit establishes that he and the Society have standing under general standing principles and that he has standing as a municipal citizen and taxpayer. Concerning the former, see, e.g., Foremaster v. City of St. George, 882 F.2d 1485, 1490-91 (10th Cir. 1989) ("allegations of direct, personal contact [with municipal logo] suffices as non-economic injury"), cert. denied, --- U.S. ----, 110 S. Ct. 1937, 109 L. Ed. 2d 300 (1990); Saladin v. City of Milledgeville, 812 F.2d 687, 692-93 (11th Cir. 1987) (receipt of city correspondence and proclamation bearing challenged seal sufficient to confer standing); compare Harris v. City of Zion, 927 F.2d 1401, 1405 (7th Cir. 1991) (use of city seal on automobile tax stickers and garbage bags which plaintiffs were required to use and plaintiffs' altering their travel routes to avoid viewing seal painted on city water tower sufficient to confer standing), petitions for cert. filed, (U.S. July 19, 1991) (No. 91-141) and (U.S. Aug. 19, 1991) (No. 91-299).

Although "the concept of injury for standing purposes is particularly elusive in Establishment Clause cases," Saladin, 812 F.2d at 691 (citation omitted), Murray has alleged sufficient injury to confer standing. In so ruling, we attach considerable weight to the fact that standing has not been an issue in the Supreme Court in similar cases, such as Lynch v. Donnelly, 465 U.S. 668, 104 S. Ct. 1355, 79 L. Ed. 2d 604 (1984) (plaintiffs were the American Civil Liberties Union and residents of the community in which the creche in issue was displayed in a private park, who were also members of the ACLU) and County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 109 S. Ct. 3086, 106 L. Ed. 2d 472 (1989) (plaintiffs were the ACLU and several residents of a community where a creche and a menorah were displayed in the County Courthouse and just outside the City-County Building respectively). Compare Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 485-87, 102 S. Ct. 752, 765-67, 70 L. Ed. 2d 700 (1982) (where plaintiffs learned of challenged conduct through the media and did not live in or near the alleged offending state, the Court held no standing for federal taxpayer grievance nor for "psychological consequence presumably produced by observation of conduct with which one disagrees").⁵  And, because Murray has standing, the Society, of which he is a member, also has standing. Warth v. Seldin, 422 U.S. 490, 511, 515, 95 S. Ct. 2197, 2211, 2213, 45 L. Ed. 2d 343 (1975); Harris v. City of Zion, 927 F.2d at 1401, 1405.

We quickly dispose of the Free Exercise Clause and sanctions issues.

The free exercise claim is based on Murray's assertions that " [t]here is at least subtle coercion for the Plaintiffs to adhere to the majoritarian faith symbolized by the cross in the seal" and that Austin residents are "forced to support an official municipal seal bearing the cross." However, this contention reaches well beyond the purview of the Free Exercise Clause.

The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires. Thus, the First Amendment obviously excludes all "governmental regulation of religious beliefs as such." The government may not compel affirmation of religious belief, punish the expression of religious doctrines it believes to be false, impose special disabilities on the basis of religious views or religious status, or lend its power to one or the other side in controversies over religious authority or dogma.

Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872, ----, 110 S. Ct. 1595, 1599, 108 L. Ed. 2d 876 (1990) (emphasis and citations omitted). None of these concerns is implicated. Murray fails to articulate a sufficient burden or restriction imposed on the free exercise of his religion (or non-religious beliefs) or to offer any authority in support of his "subtle coercion" argument.⁶ 

We agree with the district court that Murray's claim is a "far cry from cases dealing with actual interference ... or actual compulsion" which have presented viable Free Exercise claims. 744 F. Supp. at 775; see, e.g., Wooley v. Maynard, 430 U.S. 705, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977) (invalidating compelled display of "Live Free or Die" on license plate); Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972) (invalidating law requiring compulsory school attendance); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943) (invalidating compulsory flag salute). His argument is without merit.

Equally unavailing is the City's attempt to justify the sanctions. In sua sponte imposing them under Fed. R. Civ. P. 11, the district judge stated that Murray had failed to present any evidence in support of his excessive entanglement and free exercise claims.⁷  We review the imposition of Rule 11 sanctions under the abuse of discretion standard. Thomas v. Capital Security Servs., Inc., 836 F.2d 866, 872 (5th Cir. 1988) (en banc).

The City devoted one paragraph in its brief to this issue and cited no authority for the sanctions.⁸  Moreover, in requesting oral argument before this court, the City stated that the issues presented "have not been addressed by this [c]ourt or authoritatively decided by the United States Supreme Court [and] ... are of an important and consequential nature...." Although we agree with the district court that Murray's claims are unavailing, we conclude that his contentions do not violate Rule 11, which provides for sanctions if a claim is not "well grounded in fact and is [not] warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law." Murray's claims are, at the very least, protected by the "good faith argument" provision in Rule 11, especially for this sensitive area. See infra. They do not fail Rule 11's standards.⁹ 

The critical issue is whether the insignia can withstand Establishment Clause challenge. As with most Establishment Clause cases, our review "is a delicate task." County of Allegheny, 492 U.S. at 623, 109 S. Ct. at 3117 (O'Connor, J., concurring in part and in the judgment). The exceedingly great flexibility that must be applied in such review is well-stated in Lynch, 465 U.S. at 678-79, 104 S. Ct. at 1361-62 (citations omitted):

In each case, the inquiry calls for line-drawing; no fixed, per se rule can be framed. The Establishment Clause like the Due Process Clauses is not a precise, detailed provision in a legal code capable of ready application. The purpose of the Establishment Clause "was to state an objective, not to write a statute." The line between permissible relationships and those barred by the Clause can no more be straight and unwavering than due process can be defined in a single stroke or phrase or test. The Clause erects a "blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship."

Murray asserts violation of the Establishment Clause pursuant to the Lemon test. In order to pass constitutional muster under it, a statute or other governmental practice (1) "must have a secular legislative purpose; ... its principal or primary effect must be one that neither advances nor inhibits religion; ... [and (3) it] must not foster 'an excessive government entanglement with religion.' " Lemon, 403 U.S. at 612-13, 91 S. Ct. at 2111-12 (citations omitted) (emphasis added). On appeal, Murray relies solely on part two of the test, the "effects" prong, conceding that the City did not have an inappropriate purpose in using the insignia and that its use does not involve excessive entanglement between government and religion. Lemon was decided in 1971. More recent cases, such as Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330, 77 L. Ed. 2d 1019 (1983), Lynch (1984) and the most recent pronouncement, County of Allegheny (1989), are attempts to explain or clarify, if not find a better approach than, Lemon. See, e.g., the opinion for the Court in Lynch, 465 U.S. at 679, 104 S. Ct. at 1362:

In the line-drawing process we have often found it useful to inquire whether the challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion. Lemon, supra. But, we have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area. See, e.g., Tilton v. Richardson, 403 U.S. 672, 677-678 [91 S. Ct. 2091, 2095-96, 29 L. Ed. 2d 790] (1971); [Committee for Public Education and Religious Liberty v.] Nyquist, 413 U.S. [756,] 773 [93 S. Ct. 2955, 2965, 37 L. Ed. 2d 948 (1973) ]. In two cases, the Court did not even apply the Lemon "test." We did not, for example, consider that analysis relevant in Marsh.... Nor did we find Lemon useful in Larson v. Valente, 456 U.S. 228 [102 S. Ct. 1673, 72 L. Ed. 2d 33] (1982), where there was substantial evidence of overt discrimination against a particular church.

See, e.g., Jones v. Clear Creek Independent School Dist., 930 F.2d 416, 419 (5th Cir. 1991) (Lemon was proper test to apply when determining constitutionality of school district resolution allowing student volunteers to present nonsectarian, nonproselytizing graduation prayers), petition for cert. filed, (U.S. Aug. 20, 1991) (No. 91-310); Jones, 930 F.2d at 424 (Garwood, J., concurring) (agreeing that Lemon test, "the challenged policy's highest hurdle", was met, but declining to decide whether "some less restrictive or rigid test might be more properly applied").

The judgment in Lynch resulted from the concurring opinion by Justice O'Connor, in which she stated that " [f]ocusing on institutional entanglement and on endorsement or disapproval of religion clarifies the Lemon test as an analytical device." 465 U.S. at 689, 104 S. Ct. at 1367 (emphasis added). The Supreme Court was far more divided, indeed fractured, in County of Allegheny, in which the endorsement test employed by some of the Justices was rivaled by a coercion test espoused by four: "Non-coercive government action within the realm of flexible accommodation or passive acknowledgment of existing symbols does not violate the Establishment Clause unless it benefits religion in a way more direct and more substantial than practices that are accepted in our national heritage." 492 U.S. at 662-63, 109 S. Ct. at 3137-38 (Kennedy, J., concurring in the judgment in part and dissenting in part). We need not discuss further the differing views advanced in County of Allegheny. Suffice it to say that there is no one readily and easily applicable test. Perhaps, because of the sensitivity of this area, this is as it should be. And, it may well be that Lynch, including as discussed below, provides all the guidance that is necessary, at least for this case. However, as further discussed below, this wish is belied by the sharply divided Court in County of Allegheny. Accordingly, for this case, not only must we attempt to apply Lemon, but we must look to Lynch, Marsh, and County of Allegheny as well.

The Lemon "effects" prong asks whether the insignia's principal or primary effect advances or inhibits religion; if it does, it violates the First Amendment. But, one of the difficulties in applying Lemon, especially in a non-statutory context as is present here, is knowing the proper scope or reach of "principal or primary effect". If we focus exclusively on the inclusion of the religious symbol, display, or practice, then every use of religious symbolism--and prayer--would fail. The plain wording of the First Amendment does not require this; nor does the Supreme Court. For example, as discussed in Lynch, 465 U.S. at 676-77, 104 S. Ct. at 1360-61:

Art galleries supported by public revenues display religious paintings of the 15th and 16th centuries, predominantly inspired by one religious faith. The National Gallery in Washington, maintained with Government support, for example, has long exhibited masterpieces with religious messages, notably the Last Supper, and paintings depicting the Birth of Christ, the Crucifixion, and the Resurrection, among many others with explicit Christian themes and messages. The very chamber in which oral arguments on this case were heard is decorated with a notable and permanent--not seasonal--symbol of religion: Moses with the Ten Commandments.

In addition, much more direct, as well as permanent, government use of religious acknowledgment, if not religious belief, is allowed: e.g., "In God We Trust" printed on United States Currency; opening court sessions with "God save the United States and this honorable court"; the pledge of allegiance; and legislative prayers. E.g., Lynch, 465 U.S. at 674-78, 104 S. Ct. at 1359-62; Jones v. Clear Creek Independent School Dist., 930 F.2d at 421. Indeed, the Supreme Court has rejected focusing exclusively on the religious component of a challenged action. E.g., Lynch, 465 U.S. at 678, 104 S. Ct. at 1362.

Conversely, if we need ask only if the City's insignia, as a whole, has the principal or primary effect of advancing or inhibiting religion, the answer must be no. Taken as a whole, the insignia has the principal or primary effect of identifying city activity and property and promoting Austin's unique role and history. But, appellants contend that the use of a Christian cross by the City in its insignia represents a more compelling challenge than the approved activities described above, such as nonsectarian prayer (even though, at a minimum, prayer implicates preference for religion over nonreligion), including the fact that it is permanent, as opposed to seasonal. Consistent with this contention, and " [h]owever history may affect the constitutionality of nonsectarian references to religion by the government, history cannot legitimate practices that demonstrate the government's allegiance to a particular sect or creed." County of Allegheny, 492 U.S. at 602, 109 S. Ct. at 3105.

Simply put, we do not find that Austin's insignia demonstrates a preference for Christianity. To the extent that the Establishment Clause prevents preferences for one religion over another, it likewise prevents preferences for religion over nonreligion. The creche (a Christian symbol) in Lynch, the menorah (a Jewish symbol) in County of Allegheny, the legislative prayer in Marsh, and the above-discussed references by government to God have been held not to transgress the Establishment Clause. We view any perceived preference by use of the insignia to be even more remote than in the above-referenced cases.

In Marsh, the Court upheld the Nebraska Legislature's practice of opening each session with a prayer by a state-employed clergyman, based on both the practice's unique history and the lack of any evidence tending to show that "the prayer opportunity [was] exploited to proselytize or advance any one, or to disparage any other, faith or belief." 463 U.S. at 794-95, 103 S. Ct. at 3337-38. The Court stated:

Standing alone, historical patterns cannot justify contemporary violations of constitutional guarantees, but there is far more here than simply historical patterns. In this context, historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress--their actions reveal their intent.

Id. at 790, 103 S. Ct. at 3335. The Court elaborated on the "weight to be accorded to history", citing Walz v. Tax Comm'n, 397 U.S. 664, 90 S. Ct. 1409, 25 L. Ed. 2d 697 (1970):

"It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it. Yet an unbroken practice ... is not something to be lightly cast aside."

Marsh, 463 U.S. at 790, 103 S. Ct. at 3335 (quoting Walz, 397 U.S. at 678, 90 S. Ct. at 1416). Because of the practice's history and the want of any evidence of an intent "to proselytize or advance any one, or to disparage any other, faith or belief," the Marsh Court concluded that the legislative prayer presented "no real threat" of an establishment of religion. Id. at 794-95, 103 S. Ct. at 3337-38; see also id. at 792, 103 S. Ct. at 3336.

Admittedly, we lack the kind of evidence of original intent present in Marsh. Yet this case does share some important similarities with Marsh: a long-standing unique history, absolutely no evidence of an intent to proselytize, or advance, any religion, and no threat of an establishment of religion. As stated in Lynch, 465 U.S. at 686, 104 S. Ct. at 1366: "Any notion that [this] symbol [ ] pose [s] a real danger of establishment of a state church is far-fetched indeed."

In County of Allegheny, the Court upheld the display of a menorah during the holiday season. It was placed outside the City-County building, next to a Christmas tree, and accompanied by a sign entitled "Salute to Liberty." The Court found the display did not have "the effect of promoting or endorsing religious beliefs" in its "particular physical setting." 492 U.S. at 621, 109 S. Ct. at 3115. By contrast, a closely divided Court held that the contemporaneous display of a creche in the County Courthouse did have an impermissible effect. Id.¹⁰  The Court was influenced heavily by the absence of anything to detract from the creche's religious message and its placement in the "main" and "most beautiful part of the building." Id. at 579, 109 S. Ct. at 3093.

The effect of the displays was analyzed under the earlier referenced endorsement test urged by Justice O'Connor in her concurrence in Lynch. Specifically,

[t]he effect of a display [or use of religious symbolism] depends upon the message that the government's practice communicates: the question is "what viewers may fairly understand to be the purpose of the display." That inquiry, of necessity, turns upon the context in which the contested object appears.... Every government practice must be judged in its unique circumstances to determine whether it [endorses] religion.

County of Allegheny, 492 U.S. at 595, 109 S. Ct. at 3102 (brackets in County of Allegheny) (citations omitted). To be considered is whether "the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices." Id. at 597, 109 S. Ct. at 3103 (quoting School District of Grand Rapids v. Ball, 473 U.S. 373, 390, 105 S. Ct. 3216, 3226, 87 L. Ed. 2d 267 (1985)). The greatly differing views in County of Allegheny notwithstanding, it appears that "the government's use of religious symbolism is unconstitutional if it has the effect of endorsing religious beliefs, and the effect of the government's use of religious symbolism depends upon its context." Id. "Under the endorsement test, the 'history and ubiquity' of a practice is relevant ... because it provides part of the context in which a reasonable observer evaluates whether a challenged governmental practice conveys a message of endorsement of religion." County of Allegheny, 492 U.S. at 630, 109 S. Ct. at 3120 (O'Connor, J., concurring in part and in the judgment).

In light of the guiding Supreme Court case law, and giving special consideration to the endorsement test used in County of Allegheny, we decline to hold that any time a municipality incorporates a religious symbol within its seal, insignia, or logo--regardless of the history, purpose, or context--the Establishment Clause is violated. To do so is inappropriate in the difficult area of Establishment Clause analysis dominated by subtle nuances, and it accords too little deference to both our nation's religious and cultural heritage and practices and the Supreme Court's guidance. In holding that Austin's insignia does not violate the First Amendment, we recognize that two of our sister circuits have found establishment clause violations when municipal seals included religious symbolism. We do not view this as a split with our circuit. Instead, it is further evidence, as discussed in Lynch, for example, that such cases must be decided on their facts.

In the most recent of the two cases, decided after County of Allegheny, the Seventh Circuit addressed challenges to the seals for the cities of Zion and Rolling Meadows, Illinois. Harris v. City of Zion, 927 F.2d 1401 (7th Cir. 1991), petitions for cert. filed, (U.S. July 19, 1991) (No. 91-141) and (U.S. Aug. 19, 1991) (No. 91-299). Zion's seal depicted a shield containing a cross, a dove, a crown, a scepter, and a banner across the top of the shield proclaiming "God Reigns". Id. at 1417 (appendix containing seal). Rolling Meadows' contained a cross in front of a one-story building, a water tower, two industrial buildings, and a leaf. Id. at 1403-04, 1416 (appendix containing seal). The Seventh Circuit recognized that the context of the displays was crucial, but nevertheless found that the seals could not be saved by other secular symbols and concluded that the "sectarian religious imagery simply [had] no place on municipal seals." Id. at 1402.

We may quickly dispense with any comparison between the insignia for Zion and Austin. Zion's contained only sectarian symbols and was adopted for an express religious purpose. Id. at 1403-04. There are also obvious distinctions between those for Rolling Meadows and Austin. For example, the size and placement of the cross in the Rolling Meadows' seal arguably conveys a message of its being a "Christian community". In fact, the one-story, industrial-appearing building depicted behind the cross in that seal is a depiction of a church that was being constructed when the proposed seal was adopted in 1960. 927 F.2d at 1403, 1416 (appendix containing seal). The cross is as tall as the water tower and taller than the building behind it. Id. at 1416 (appendix containing seal). The court concluded that " [t]he images on the seal [were] not neutral snapshots of the community; [but rather] they [were] charged with endorsement." Id. at 1412. This endorsement caused the seal to fail. Id. at 1413. However, we do not read Harris to hold that any use of a cross in a seal would cause the same result. Id.

In the second case, rendered prior to County of Allegheny, the Tenth Circuit addressed an Establishment Clause challenge to a municipal seal in Friedman v. Board of County Comm'rs of Bernalillo, 781 F.2d 777 (10th Cir. 1985) (en banc), cert. denied, 476 U.S. 1169, 106 S. Ct. 2890, 90 L. Ed. 2d 978 (1986). In Friedman, the seal contained the Spanish motto "Con Esta Vencemos" ("With This We Conquer" or "With This We Overcome") over a Latin cross, highlighted by edging and rays of light. The cross is above mountains and a plain, with eight sheep standing on the plain. Id. at 779, 783 (appendix containing seal). Whether the sheep represented a Christian symbol or the county's sheep-raising industry was disputed. Id. at 779. The cross was approximately half the length of the seal, making it, for example, approximately one foot tall when appearing on county vehicles. Id. at 779 & n. 1.¹¹  There was no record of either when the county adopted the seal or its purpose in doing so, but there was evidence that it was used intermittently in 1925, again in 1945 to 1956, and in 1973, when the county expanded the use of the seal by placing it on documents, stationery, motor vehicles, and sheriff's officers' uniforms. Id. at 779.

The Tenth Circuit concluded that the cross was not neutralized by its context, because the cross was "the only visual element on the seal [and] is surrounded by rays of light.... The motto may be fairly regarded as promoting the religion the cross represents. Indeed, that religion seems to be embraced as the instrument by which the county 'conquers.' " Id. at 782. As stated, we do not view our decision as conflicting with Friedman. Several distinguishing factors in the Friedman seal are readily apparent, most importantly: the lack of undisputed secular symbols within the seal; the accompanying phrase which translates "With This We Conquer"; the county's relatively recent expanded use of the seal; and that at least one county commissioner knew at that time that the cross represented the role of the Catholic Church in the settlement of the Southwest. Id. at 779.

Of interest is the reference to Friedman by Justice Kennedy in his concurrence and dissent in County of Allegheny:

But coercion need not be a direct tax in aid of religion or a test oath. Symbolic recognition or accommodation of religious faith may violate the [Establishment] Clause in an extreme case. I doubt not, for example, that the Clause forbids a city to permit the permanent erection of a large Latin cross on the roof of city hall. This is not because government speech about religion is per se suspect, as the majority would have it, but because such an obtrusive year-round religious display would place the government's weight behind an obvious effort to proselytize on behalf of a particular religion. Cf. Friedman v. Board of County Comm'rs of Bernalillo County, 781 F.2d 777 (CA10 1985) (en banc) (Latin cross on official county seal); American Civil Liberties Union of Georgia v. Rabun County Chamber of Commerce, Inc., 698 F.2d 1098 (CA11 1983) (cross erected in public park); Lowe v. Eugene, 254 Or. 518, 463 P.2d 360 (1969) (same)....

492 U.S. at 661, 109 S. Ct. at 3137 (footnote omitted). But, needless to say, our case is not an extreme one. To the contrary, in considering the Establishment Clause challenge to Austin's insignia, we must recognize the reason for the cross originally being in the coat of arms; that Austin did not have an improper purpose in adopting the insignia; its long and unchallenged use; its non-proselytizing effect; that in its context, it does not endorse religion in any true or meaningful sense of the word "endorsement"; and that requiring the City to remove all displays of the insignia, arguably evinces not neutrality, but instead hostility, to religion.

In sum, we hold that the insignia passes constitutional muster, whether under Lemon, because its principal or primary effect is not one that either advances or inhibits religion, or under the Supreme Court's more recent pronouncements, including Marsh, Lynch, and County of Allegheny. In so holding, we obviously cannot fashion a bright line test to apply in future challenges to government use or depiction of religious symbols. Instead, as we must, we decide only the case before us. And in doing so, we have considered, and balanced, the totality of its unique facts and circumstances. In the oft-quoted words of Justice Goldberg, "the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow." School Dist. of Abington Township v. Schempp, 374 U.S. 203, 308, 83 S. Ct. 1560, 1616, 10 L. Ed. 2d 844 (1963) (Goldberg, J., concurring). Today, we glimpse only that mere shadow, one created by the sustaining, indeed ever-increasing, brilliance of the First Amendment.

For the foregoing reasons, we VACATE the imposition of sanctions, and AFFIRM in all other respects.

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