Clint W. Harris and the Society of Separationists, Inc.,plaintiffs-appellees, v. City of Zion, Lake County, Illinois, Mayor of Zion and Zioncity Council, Defendants-appellants.theodore M. Kuhn and the Society of Separationists, Inc.,plaintiffs-appellants, v. City of Rolling Meadows, Mayor of Rolling Meadows Androlling Meadows City Council, Defendants-appellees, 927 F.2d 1401 (7th Cir. 1991)

In these two appeals, consolidated for decision in the district court, we are asked to determine whether the Establishment Clause of the first amendment prohibits the use of sectarian religious symbolism on a municipality's corporate seal. In both cases, we find that sectarian religious imagery simply has no place on municipal seals.

In Kuhn v. City of Rolling Meadows and Harris v. City of Zion, both at 729 F. Supp. 1242 (N.D. Ill. 1990), the Society of Separationists ("Society") and two of its members, Theodore M. Kuhn and Clint W. Harris, filed suit against the cities of Rolling Meadows and Zion, respectively, as well as against their mayors and members of their city councils in their official capacities, under 42 U.S.C. § 1983. Both suits seek declaratory and injunctive relief. The plaintiffs in each case claim that the seal of Rolling Meadows and the seal, emblem and logo of Zion violate the Establishment Clause of the first amendment because they contain Christian symbolism. All parties moved for summary judgment under Fed. R. Civ. P. 56.

The district judge drew a fine distinction between the two cases. In Kuhn, the district court found that, although the official seal of Rolling Meadows contains a Latin cross, it does not violate the first amendment. Thus, the court denied the plaintiffs' motion and later entered judgment for the City of Rolling Meadows. In Harris, however, the district court found that Zion's seal, emblem and logo do present constitutional violations. The court granted the plaintiffs' motion for summary judgment, enjoining Zion from further use of its current seal, emblem and logo. Theodore M. Kuhn and the Society (plaintiffs in Kuhn) and the City of Zion (defendant in Harris) appealed. Finding that both the seal of Rolling Meadows and the seal, emblem, and logo of Zion represent unconstitutional uses of religious imagery, we reverse the district court judgment in Kuhn, and affirm in Harris.¹ 

Rolling Meadows adopted its current seal in 1960, in celebration of the City's fifth anniversary. The seal was designed as a school art assignment by Cheryl Knudsen, then an eighth grade student at the Salk School in Rolling Meadows.²  Knudsen simply drew the things she saw in Rolling Meadows: inside her design of a four-leaf clover, she drew a tree in one section, a bird in another, a school in the third, and the new church being built in her neighborhood in the last section. The anniversary committee that presented the winning design to the City Council for approval altered Knudsen's design somewhat. The tree was changed to a leaf, and the bird was replaced by a water tower and two industrial buildings. The neighborhood church was retained. This final design was approved by the Rolling Meadows City Council in June 1960. (See Appendix A for Rolling Meadows seal.) The Rolling Meadows seal is displayed on all City-owned vehicles, including police patrol cars. The seal is also found on City letterhead, on the shoulder patches worn by uniformed members of the Rolling Meadows Police Department, on the residents' garbage sacks, on vehicle tax stickers, and in the City Council chambers.

Kuhn and the Society sued, objecting to the Latin cross (i.e. a cross whose base stem is longer than the other three arms) in the right quadrant of the Rolling Meadows seal. This cross stands prominently before a one story building--the church that was under construction in Cheryl Knudsen's neighborhood back in 1960. While the building depicted in the right quadrant of the seal is not obviously a church (its flat appearance could suggest another industrial building or a school), there is no doubt that the structure in front of the building is a Latin cross. There also can be no doubt that a Latin cross is the principal and unmistakable symbol of Christianity as practiced in this country today. See American Civil Liberties Union v. City of St. Charles, 794 F.2d 265, 267 (7th Cir.) (enjoining St. Charles' prominent display of a lighted Latin Cross as part of the municipality's annual Christmas display), cert. denied, 479 U.S. 961, 107 S. Ct. 458, 93 L. Ed. 2d 403 (1986).

Kuhn and the Society claimed that the presence of the cross on the Rolling Meadows seal promotes or endorses Christianity and, thus, violates the first amendment which prohibits any law "respecting the establishment of religion." U.S. Const. amend. I. The district court found that, in the context of the Rolling Meadows seal, the relation between the cross and Christianity is weak. The court believed that the other images in the seal--specifically, the leaf, the industrial scene and the school--"neutralize" the sectarian impact of the cross and preclude any unconstitutional endorsement of Christianity. Kuhn, 729 F. Supp. at 1248. From this decision, Kuhn and the Society appealed.

To understand the genesis and design of Zion's corporate seal, emblem and logo, we must consider the rather unique history of the City. In 1896, the Reverend John Alexander Dowie founded the Christian Catholic Church, an evangelical protestant sect that still flourishes today in a world-wide fellowship. Six years after the founding of the Church, Reverend Dowie established the City of Zion in Lake County, Illinois, in March 1902. The May 3, 1902 edition of "Leaves of Healing," the Church newsletter edited by Dowie, explains the reasons for which Zion was founded: "Zion City ... is being built for the purpose of the extension of the kingdom of God upon earth ... where God shall rule in every department of family, industry, commercial, educational, ecclesiastical and political life."

At the first meeting of the Zion City Council on May 6, 1902, Reverend Dowie, who had assumed the title "General Overseer of the Christian Catholic Church in Zion," presented the new City Council with a proposed corporate seal. This proposed seal consisted of a shield draped with a ribbon that reads "God Reigns" and encircled by the words "Corporate Seal" and "City of Zion, Illinois." The shield lies in the center of the seal and is divided into four sections. Each section contains a different symbol. The left section contains a Latin cross; the upper section contains a dove carrying a branch; the right section contains a sword and a crown; and the lower section contains the name "Zion." In presenting the proposed seal to the Zion City Council, Reverend Dowie urged:

I ask you to accept (this seal) and use it reverently. Let no hand ever hold this lever and put this seal to anything that God does not approve. Let the officer who uses this seal feel, as he pulls this lever and makes this impression, "God Reigns," that the document must be such a one as God approves.

May every commission of every officer which bears the seal of this City be looked upon as solemn thing; that it is a commission to bear such authority, however small or great, as God's minister--God's minister in law--God's minister in the Eternal Covenant in a measure.

Minutes of First Council Meeting, City of Zion, May 6, 1902. Reverend Dowie also explained the meaning of the symbols included in the seal:

Look at the Dove which is the emblem of the Holy Spirit, bearing the Message of Peace and Love over the seas. The Cross represents everything to us in Redemption, Salvation, Healing, Cleaning and Keeping Power. The Sword is the Sword of the Spirit, which is the Word of God. The Crown is the Crown of Glory, the Crown of Joy, the Crown of Righteousness, the Crown of Rejoicing.

Id.

The City Council unanimously approved Reverend Dowie's proposal, and his design has remained the corporate seal for the City of Zion until the present day.³  (See Appendix B for the Zion seal.) The Zion City Council later designed the City's emblem and logo. The emblem is simply the central part of the seal, consisting of the shield with its four sections, and the ribbon that reads "God Reigns." The logo also is derived from the seal. The logo is circular and contains a large "Z." To the left of the "Z" lies a Latin cross; to the right of the "Z" lies the crown and the scepter; and above the "Z" flies the dove carrying the branch. (See Appendices C and D for the Zion emblem and logo.) The seal or emblem appears on the City flag, on the City letterhead, in the City Council chambers, on City vehicle stickers of all vehicles operated by Zion residents, and on the shoulder patches of City police officers and fire fighters. The logo appears on the Zion water tower and on City street signs.

The district court found that the images displayed on the Zion seal, emblem, and logo function as strong symbols of a particular sect of Christianity with nothing to "neutralize" the religious message. "The City of Zion's seal, emblem and logo have the effect of endorsing a Christian message. Nothing more is required to demonstrate a violation of the Establishment Clause." Harris v. City of Zion, 729 F. Supp. at 1250 (quoting County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 109 S. Ct. 3086, 3105, 106 L. Ed. 2d 472 (1989)). Thus, the district court granted the motion for summary judgment of Harris and the Society and permanently enjoined the display of Zion's seal, emblem or logo in their current forms. The City of Zion appealed.

The first issue we must consider is whether the plaintiffs have standing to maintain this suit. Because Article III of the Constitution limits the "judicial power" of the United States to the resolution of "cases and controversies," the authority of federal courts "cannot be defined, and indeed has no substance, without reference to the necessity to adjudge the legal rights of litigants in actual controversies." Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 471, 102 S. Ct. 752, 758, 70 L. Ed. 2d 700 (1981) (quoting Liverpool S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S. Ct. 352, 355, 28 L. Ed. 899 (1885)). See also Allen v. Wright, 468 U.S. 737, 750, 104 S. Ct. 3315, 3324, 82 L. Ed. 2d 556 (1983). To have standing, the plaintiff must have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 703, 7 L. Ed. 2d 663 (1962).

In order to establish a "personal stake" in the case, a plaintiff must show that he has suffered "some threatened or actual injury resulting from the putatively illegal action...." Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 2205, 45 L. Ed. 2d 343 (1975) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S. Ct. 1146, 1148, 35 L. Ed. 2d 536 (1973)). See also Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166-67, 92 S. Ct. 1965, 1968-69, 32 L. Ed. 2d 627 (1972); Flast v. Cohen, 392 U.S. 83, 101, 88 S. Ct. 1942, 1953, 20 L. Ed. 2d 947 (1968). That injury must be fairly traceable to the challenged action of the defendant, and it must be likely to be redressed by a favorable decision. Valley Forge, 454 U.S. at 472, 102 S. Ct. at 758. The requirement that the plaintiff allege an "injury-in-fact," whether economic or non-economic, excludes simple indignation as a basis for Article III standing. That the plaintiffs may be offended by the defendants' conduct is not enough to confer standing. St. Charles, 794 F.2d at 268. See also Allen, 468 U.S. at 751, 104 S. Ct. at 3324 ("The injury alleged must be 'distinct and palpable,' and not 'abstract' or 'conjectural' or 'hypothetical.' ") (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S. Ct. 1601, 1608, 60 L. Ed. 2d 66 (1979) and Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S. Ct. 1660, 1664-65, 75 L. Ed. 2d 675 (1983)); People Organized for Welfare and Employment Rights v. Thompson, 727 F.2d 167, 171 (7th Cir. 1984) ("The injury brought about by a violation of law must ... affect one's possessions or bodily integrity or freedom of action, ... and not just one's opinions, aspirations or ideology.") The federal courts simply are not constituted as "ombudsmen of the general welfare." Valley Forge, 454 U.S. at 487, 102 S. Ct. at 767.

With these general considerations in mind, we turn to the plaintiffs' claims. Because the Society alleges no injury to itself, its standing depends on that of its members: the individual plaintiffs Kuhn and Harris. Valley Forge Christian College, 454 U.S. at 476 n. 14, 102 S. Ct. at 761 n. 14; Warth, 422 U.S. at 511, 95 S. Ct. at 2211; St. Charles, 794 F.2d at 267. Kuhn and Harris each allege several direct burdens imposed on them by the presence of the religious symbols in the City seals.⁴  Kuhn claims he is injured by the requirement that he display the Rolling Meadows seal, which is depicted in the municipality's vehicle tax sticker, on the windshield of his automobile; that he is likewise required to dispose his household refuse in garbage sacks that display the seal; and finally, that he "mightily strives to avoid any visual contact" with the Rolling Meadows seal by utilizing alternative travel routes. Harris alleges similar types of injury--that he is required to display on his automobile the Zion vehicle tax sticker which, like the Rolling Meadows sticker, contains the City's seal, and that he too "mightily strives" to avoid viewing Zion's seal, emblem or logo by altering his travel routes. Specifically, Harris alleges that he avoids the particular route that brings him within visual contact of Zion's water tower which exhibits the Zion logo. Following our decision in St. Charles, 794 F.2d 265 (concluding that the ACLU had standing to challenge the lighted cross in St. Charles' Christmas display), the district court held that both Kuhn and Harris alleged sufficient injury to confer standing on these plaintiffs. We agree.

Regardless of the overstated language of the complaints, the plaintiffs' alleged injuries, however slight, are indeed judicially cognizable. As the Supreme Court stated, "An identifiable trifle is enough for standing to fight out a question of principle; the trifle is the basis for standing and the principle supplies the motivation." United States v. SCRAP, 412 U.S. 669, 689 n. 14, 93 S. Ct. 2405, 2417 n. 14, 37 L. Ed. 2d 254 (1972) (quoting Davis, Standing: Taxpayers and Others, 35 U. Chi. L. Rev. 601, 613 (1968)). The injuries claimed by Kuhn and Harris are little more than "identifiable trifles." As noted above, the fact that the plaintiffs may be offended by the seals of Rolling Meadows and Zion does not confer standing. It is the willingness of the plaintiffs to incur a tangible, albeit small cost that validates the existence of genuine distress and warrants the invocation of federal jurisdiction. St. Charles, 794 F.2d at 268. See also Saladin v. City of Milledgeville, 812 F.2d 687, 690-692 (11th Cir. 1987) (appellants had standing to challenge the constitutionality of the Milledgeville seal which contained the word "Christianity" in the center of the seal).

For the purposes of standing, we need not consider if the plaintiffs can prove injury. It is enough that the plaintiffs Kuhn and Harris have pleaded good-faith allegations of damage that can be remedied by the federal courts. The test for standing, as for jurisdiction generally, is what the complaint alleges, not what the evidence shows. St. Charles, 794 F.2d at 269. "If a plaintiff merely fails to prove injury, his failure goes to damages (or in an equity case like this, to the right to obtain an injunction), rather than to jurisdiction." Id. That the allegations of a complaint may be sufficient to confer standing also is supported by South East Lake View Neighbors v. Department of Housing and Urban Development, 685 F.2d 1027, 1034 (7th Cir. 1982), where this court declared:

A challenge to standing does not justify an inquiry into the strength of a complaint. Questions of standing deal exclusively with whether the plaintiff alleged facts satisfying the constitutional and prudential limitations of the doctrine. The ability of the complaint on its merits to survive a summary judgment motion or support an award in law or equity after a full trial is irrelevant.... Consequently, the district court considering a motion to dismiss for lack of standing accepts all material allegations in the complaint as true and liberally construes the document in favor of the plaintiff.

Id. at 1034 (citations omitted). Thus, Kuhn and Harris have sufficiently alleged a personal stake in this litigation to justify the exercise of the court's remedial powers on their behalf. The litigants, then, have standing to maintain these suits.

In his dissent, infra at 1419, Judge Easterbrook disagrees with our analysis. He doubts that Kuhn and Harris experience the sort of injury necessary for standing. Judge Easterbrook cites Lujan v. National Wildlife Federation, --- U.S. ----, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990), to suggest that Kuhn and Harris may not sufficiently have "proved" their injuries. We disagree with this interpretation. Conferring standing upon Kuhn and Harris in no way conflicts with Lujan. On the contrary, Kuhn and Harris fully satisfy the logic of Lujan.

In Lujan, a national wildlife group challenged the entire "land withdrawal review program" of the Bureau of Land Management. This program determined the status of public land and its availability for private uses such as mining. The plaintiffs claimed a right to challenge the Bureau's decisions under Sec. 10(a) of the Administrative Procedure Act, 5 U.S.C. § 702, which provides: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." The Supreme Court determined that the plaintiffs did not satisfy Sec. 702's requirements for judicial review because they failed to identify an "agency action" within the meaning of Sec. 702. The court held that neither the allegations of the complaint nor the supporting affidavits "enable the respondents to challenge the entirety of the so-called 'land withdrawal review program.' " Id. The Supreme Court, then, denied standing because the plaintiffs failed to meet the statutory requirement that they be adversely affected or aggrieved by an agency action.

We note that in its discussion of standing, the Lujan Court focused on the allegations of the complaint and turned to the affidavits to search for any saving support. At no time did the Court state that well-pleaded allegations of the complaint, if they appropriately identified an "agency action," would not be sufficient to confer standing. See 110 S. Ct. at 3189-93. The failure of the plaintiffs--evident in both the complaints and affidavits--was that they sought "wholesale improvement of the [Bureau's] program by court decree, rather than in the offices of the Department [of the Interior] or the halls of Congress, where programmatic improvements are normally made." Id. at 3190.⁵ 

Thus, when the dissent suggests that, after Lujan, Kuhn and Harris "must do more than allege; in response to a motion for summary judgment, they must produce affidavits showing the essential kind of injury," it blurs the distinction between the allegations sufficient to confer standing and the evidence necessary to support a motion for summary judgment. As to the former, our above review of the plaintiffs' well-pleaded allegations makes clear that Kuhn and Harris have adequately alleged palpable injuries. But as to the latter, we need consider further both the governing law and the record to assess the dissent's argument that Kuhn and Harris have not sufficiently proved their allegations of injury. Such an examination leads us to conclude that the claims of Kuhn and Harris do not suffer from a failure of proof.

Rule 56(e) states:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

Fed. R. Civ. P. 56(e). These two sentences were added in 1963 to overcome the line of cases, chiefly in the Third Circuit, which had impaired the utility of the summary judgment device by permitting the adverse party to rest on the pleadings, which on their face may present a genuine issue for trial. Rule 56 requires, then, that the adverse party present some evidence to block a grant of summary judgment for the movant. See Notes of Advisory Committee on Rules, Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986) (" [Rule 56] requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.") (quotations omitted).

A close examination of the record demonstrates the correctness of the district court's finding that no material facts were in dispute, making summary judgment an appropriate resolution of these cases. The Cities of Rolling Meadows and Zion simply failed to challenge the factual allegations of injury that Kuhn and Harris declared in their affidavits. For instance, in its answer to Kuhn's motion for summary judgment, Rolling Meadows neglected to oppose Kuhn's statements that he seeks to avoid contact with the Rolling Meadows seal and that the City would not collect his personal refuse because he refused to place the garbage in the official bag that depicts the objectionable seal. Instead, the city argued that the seal does not endorse religion. To that end, Rolling Meadows submitted affidavits from several individuals to demonstrate the absence of any sectarian endorsement.⁶  By its failure to challenge the declarations of injury in Kuhn's affidavit, the City of Rolling Meadows accepted those statements as true, and waived any claim that Kuhn's allegations of injury present a triable issue.

Similarly, in Harris, the City of Zion also failed to challenge Harris's declarations of injury contained in his affidavit. Harris stated that he avoids certain routes that bring him within visual contact of the Zion seal. Nowhere does the City challenge these averments. Thus, like Rolling Meadows, Zion must be deemed to have accepted these declarations; therefore, there is no genuine issue of fact suitable for trial concerning Harris's injuries. As Fed. R. Civ. P. 56(e) and Celotex instruct us, one of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses. 477 U.S. at 324, 106 S. Ct. at 2553. The district court correctly employed the mechanism of summary judgment in determining that Kuhn and Harris provided sufficient, uncontested allegations of injury.⁷ 

The dissent also employs a touch of hyperbole to add vigor to its arguments. When discussing why the Harris case "looks like a put-up job," the dissent compares Harris's claims of injury with the allegations in St. Charles and Doe v. Village of Crestwood, 917 F.2d 1476 (7th Cir. 1990). The dissent describes how the plaintiffs in those earlier cases were compelled by religious scruples "to change the pattern of their lives." For Harris, the seal is only "an attractive nuisance, not an irritant compelling changes of the sort we discussed in St. Charles and Crestwood." Infra at 1420. But what, in fact, were the injuries in St. Charles and Crestwood that so outweigh the injuries of Kuhn and Harris? In St. Charles, the plaintiffs argued that "they were so offended by the lighted cross that they departed from their accustomed routes of travel to avoid seeing it." 794 F.2d at 267. Such an injury was sufficient to confer standing on that plaintiff. (We note that the objectionable government exhibit in St. Charles, the lighted cross on top of the firehouse, was displayed only at Christmas time for, at most, five weeks per year.) In Crestwood, the injury that provided standing was simply that John Doe, a resident of the Village of Crestwood, could not enjoy the use of a beer garden for a few hours one afternoon each year. 917 F.2d at 1478. Hardly the kind of injury that would lead to a change in the very pattern of one's life.

Kuhn and Harris at least endure as much of an injury as did the plaintiffs in St. Charles and Crestwood. If anything, Kuhn and Harris probably suffer an even greater degree of distress due to the fact that the seals of Rolling Meadows and Zion are displayed year-round, throughout the cities, causing these plaintiffs to alter permanently their behavior. Cf. Friedman v. Board of County Commissioners of Bernalillo County, 781 F.2d 777, 782 (10th Cir. 1985) (Comparing the challenged seal of Bernalillo County to the creche display in Lynch v. Donnelly, 465 U.S. 668, 104 S. Ct. 1355, 79 L. Ed. 2d 604 (1984), the Tenth Circuit noted, "The seal, unlike the creche, pervades the daily lives of county residents; [the creche] is displayed once a year for a brief period on a single parcel of government land. [The seal] appears on all county paper work, on all county vehicles, even on county sheriff's uniforms."). Kuhn and Harris even offer claims of injury that did not exist in St. Charles. Kuhn alleges (and the City of Rolling Meadows admits) that he is required to dispose of his refuse in garbage bags that depict the seal. Both Kuhn and Harris allege (and both cities admit) that they are required to display their Cities' tax sticker, which contains the challenged seals, on their car windshields.⁸ 

The dissent also argues that conferring standing on Kuhn and Harris represents a departure from circuit precedent, citing Judge Flaum's opinion in Freedom from Religion Foundation, Inc. v. Zielke, 845 F.2d 1463 (7th Cir. 1988). We disagree. On the contrary, Zielke provides additional support for our analysis and holding in the instant cases. Zielke supports the proposition that well-pleaded allegations of palpable injury will satisfy the standing requirement. The reason that the plaintiffs in Zielke failed to obtain standing was not due to a "failure of proof." Instead, the Zielke plaintiffs failed to satisfy the standing requirement because they were unable to allege any true injury. In Zielke, this court declared:

Provided a litigant alleges the existence of a distinct and palpable injury, even a minor injury can satisfy the case or controversy requirement of Article III.... [The plaintiffs] allege that the display [of a monument depicting the Ten Commandments in a public park] is a rebuke to their religious beliefs and that they are offended by its presence; but they admit that they have not altered their behavior as a result of the monument. The psychological harm that results from witnessing conduct with which one disagrees, however, is not sufficient to confer standing on a litigant.

845 F.2d at 1467 (citations omitted). Zielke supports conferring standing upon Kuhn and Harris. The Zielke plaintiffs never argued that they changed their behavior, as Kuhn and Harris have stated in both their complaints and affidavits.

Behind this exposition of the case law "lies the practical recognition that if the injury, tenuous though it be, suffered by the involuntary audience for a display alleged to constitute an establishment of religion does not confer standing to sue, there will be no judicial remedy against establishments of religion that do not depend on public funds." St. Charles, 794 F.2d at 268. This "practical recognition" in no way suggests that Kuhn and Harris have not satisfied the legal standards necessary for standing. Instead, this notion only points out that if Kuhn and Harris are not permitted to sue, then there is simply no way to test the constitutionality of the city seals.

We turn now to the merits of these appeals. Because there were no material issues in dispute, the district court appropriately resolved these cases on summary judgment. It remains for us to correct the district court's reluctance to apply the full breadth of Establishment Clause freedoms and to reiterate our commitment to an energetic first amendment.

The first amendment provides that "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. It is generally accepted that the framers had two purposes in mind when they drafted the above quoted language: "to prevent the establishment of a national church, and to forbid a national preference of one Christian sect over another." American Jewish Congress v. City of Chicago, 827 F.2d 120, 123 (7th Cir. 1987) (holding that the placement of a nativity scene in Chicago's City Hall fostered an identification of the City with Christianity, thus violating the Establishment Clause).

Perhaps originally the Religion Clauses merely sought to protect the diversity of faiths and practices within Christianity itself. Thus, Joseph Story could fairly write that "the real object of the [first] amendment was, not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to a hierarchy the exclusive patronage of the national government." 2 J. Story, Commentaries on the Constitution of the United States Sec. 1877 at 594 (1851) (quoted in Wallace v. Jaffree, 472 U.S. 38, 52 n. 36, 105 S. Ct. 2479, 2487 n. 36, 86 L. Ed. 2d 29 (1985)). See also American Jewish Congress, 827 F.2d at 123-24. But when the principles of religious freedom and tolerance were examined "in the crucible of litigation," the Supreme Court "unambiguously concluded that ... the first amendment embraces the right to select any religious faith or none at all." Wallace, 472 U.S. at 52-53, 105 S. Ct. at 2487-88.

In addition to the individual's complete freedom of conscience, " [t]he Religion Clauses also have come to stand for the principle of governmental neutrality, meaning not only that government should not favor one religion over another, but also that government should not favor religion over nonreligion." American Jewish Congress, 827 F.2d at 124. With the incorporation of first amendment freedoms into the Due Process Clause of the fourteenth amendment,⁹  " [t]he modern Supreme Court has treated the establishment clause as a directive to the courts to strike down all public acts, federal, state, and local, whose primary purpose or predominant effect is to promote one religious group at the expense of others or even promote religion as a whole at the expense of the nonreligious, a position that treats even the nonreligious simply as another sect." St. Charles, 794 F.2d at 270.

Needless to say, determining if a given public act promotes a particular religious sect (including, as we have said, the sect of nonbelievers) is no easy task. Yet, in this delicate area of constitutional adjudication, we are reminded that the first amendment does not merely prohibit the establishment of a state church or a state religion; instead, it demands that there should be no law even respecting the establishment of religion. A given law or governmental practice might not establish a state religion but nevertheless be one "respecting" such a religion, and hence offend the first amendment. See Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S. Ct. 2105, 2111, 29 L. Ed. 2d 745 (1971) (holding that the statutory programs of Rhode Island and Pennsylvania that provide state aid to church-related elementary and secondary schools are unconstitutional). At the same time, "it has never been thought possible or even desirable to enforce a regime of total separation between religion and government." Committee for Public Education v. Nyquist, 413 U.S. 756, 760, 93 S. Ct. 2955, 2959, 37 L. Ed. 2d 948 (1973). As a consequence, cases arising under the Religion Clauses of the first amendment have presented some of the most perplexing questions in constitutional law. Id. Our task, then, is to assess the seals of Rolling Meadows and Zion in light of these constitutional principles.

To determine if the challenged government conduct does indeed offend the constitution, we rely upon the now familiar three-prong test that was first annunciated in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105 and recently reconfirmed in County of Allegheny v. American Civil Liberties Union, 109 S. Ct. 3086.¹⁰  If a statute or practice that touches upon religion is to be permissible under the Establishment Clause, then 1) it must have a secular purpose (i.e. its purpose must not be to advance particular religious beliefs); 2) it must neither advance nor inhibit religion in its principal or primary effect; and 3) it must not foster an excessive entanglement with religion. County of Allegheny, 109 S. Ct. at 3100; Lemon, 403 U.S. at 612-613, 91 S. Ct. at 2111. The challenged practice or statute--here the corporate seal of Rolling Meadows and the seal, emblem and logo of Zion--must pass each of these tests to be found constitutional.

The district court correctly limited the examination of the constitutionality of the Rolling Meadows seal to the second prong of Lemon; the seal neither evinces an illegitimate purpose nor fosters any religious entanglement. Thus, the "effects" element forms the critical inquiry of this appeal.

Briefly, as to the first Lemon element, it is clear that Cheryl Knudsen, the school girl who essentially designed the seal, acted with no unconstitutional purpose in mind. Knudsen simply drew what she saw as she observed her growing community. And in adopting Knudsen's design in celebration of the City's fifth anniversary, Rolling Meadows did not abandon its fundamental neutrality. See American Jewish Congress, 827 F.2d at 126. The City Council adopted the child's entry in order to provide the City with a pleasing design for its seal. There is no evidence to suggest that the city sought to encourage religion in general or Christianity in particular with the adoption and use of the seal. That the City needed an official Rolling Meadows seal to identify city property and correspondence is without question. Thus, the secular purpose element of the Lemon analysis is satisfied, as the City's intent in adopting the seal was neither to advance nor inhibit religious practice. See Edwards v. Aguillard, 482 U.S. 578, 585, 107 S. Ct. 2573, 2578, 96 L. Ed. 2d 510 (1987). See also Lynch v. Donnelly, 465 U.S. 668, 690, 104 S. Ct. 1355, 1368, 79 L. Ed. 2d 604 (1984) (O'Connor, J., concurring).

Similarly, the Rolling Meadows seal creates no entanglement with religion. The fact that the seal happens to depict a church in Ms. Knudsen's neighborhood, the Community Church of Rolling Meadows, does not necessarily entangle the city's business with the mission of the depicted church. There is no evidence in the record to suggest that the Community Church ever intruded into the affairs of the City or that the City ever participated in the policies or operations of the Community Church. Thus, the third prong of the Lemon test is also satisfied.

The second, "effects" element of Lemon, however, is not so easily met. The aim of the "effects" or endorsement element is to prevent "government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.... Whether the word is endorsement, favoritism, or promotion, the essential principle remains the same: the Establishment Clause prevents the government from appearing to take a position on questions of religious belief." County of Allegheny, 109 S. Ct. at 3101 (quotation omitted). See also Edwards, 482 U.S. at 593, 107 S. Ct. at 2583 ("Because the primary purpose of the Creationism Act is to advance a particular religious belief, the Act endorses religion in violation of the first amendment.").

In County of Allegheny, the Supreme Court found that a Christmas nativity scene displayed on the Grand Staircase of the Allegheny County Courthouse endorsed a patently Christian message, thus violating the Establishment Clause. By displaying the creche on the most prominent part of the seat of county government, the county sent an unmistakable message that it supported and promoted Christian praise to God. 109 S. Ct. at 3104. In the same way, the obvious presence of a Latin cross on the corporate seal of Rolling Meadows also endorses or promotes a particular religious faith. It expresses an unambiguous choice in favor of Christianity. It presents to any observer a clear endorsement of all those beliefs associated with a Latin cross in violation of the Establishment Clause of the first amendment.

Like the seat of county government in County of Allegheny, or the City Hall Building in American Jewish Congress, the corporate seal of a municipality is "plainly under government control ... (and is) a clear symbol of government power." American Jewish Congress, 827 F.2d at 128. In fact, the Rolling Meadows seal presents a more compelling case for finding the challenged display unconstitutional. The City's seal is a permanent statement that is viewed year-round, while the creche is displayed only seasonally amidst the secular celebration of Christmas. The Latin cross on the seal, then, brings together church and state in a manner that suggests their alliance perhaps even more ardently than the unconstitutional creche displays in County of Allegheny or American Jewish Congress. The seal of Rolling Meadows acts as the City's imprimatur for official correspondence, property and business. The conspicuous depiction of the pre-eminent symbol of a particular faith on that seal conveys a message of approval that is simply inconsistent with the first amendment.

Relying on the presence of other images on the seal, the district court found that "the relation of the challenged image before us, in the context we receive it, to ... religion, or more specifically Christianity, is weak.... The remaining pictures sufficiently neutralize the seal to avoid any religious message a lone or prominent cross would convey." Kuhn v. Rolling Meadows, 729 F. Supp. at 1248. Although we agree that the context surrounding the challenged image is crucial,¹¹  we do not agree that the particular context in this case--the other images on the seal--save the cross on the seal from an unconstitutional endorsement of Christianity. The images on the seal are not just neutral snapshots of the community; they are charged with endorsement. The City tries to hide behind the fact that a young girl essentially designed the seal with no attempt to endorse a particular faith. Yet, regardless of its origins, the Rolling Meadows seal does promote the selected images it depicts. To any observer, the Rolling Meadows seal expresses the City's approval of those four pictures of City life--its flora, its schools, its industry and commercial life, and its Christianity.¹² 

It is this last expression of approval--Rolling Meadows' endorsement of Christianity--that simply cannot withstand constitutional scrutiny. The City argues that the cross on the seal invokes Christianity no more than conventional public acknowledgements of religion that continue to pervade American culture, such as the slogan "In God We Trust" on U.S. currency. See, e.g., Lynch, 465 U.S. at 675, 104 S. Ct. at 1360 ("Our history is replete with official references to the value and invocation of Divine guidance in deliberations and pronouncements of the Founding Fathers and contemporary leaders."). Yet, in the line-drawing process that erects a "blurred, indistinct, and variable barrier" between legitimate invocations of the deity and unconstitutional infringements, we have found that "the more sectarian the display, the closer it is to the original targets of the Establishment Clause, so the more strictly the clause is applied." St. Charles, 794 F.2d at 271. See also Lemon, 403 U.S. at 614, 91 S. Ct. at 2112. The Latin cross on the Rolling Meadows seal is surely a sectarian display. As such, we hold that it endorses Christianity in violation of the first amendment.

In Harris v. City of Zion, the district court found that Zion's seal, emblem and logo violates the "effects" or endorsement element of the Lemon test. 729 F. Supp. at 1250. The district court suggested that the Zion seal, emblem and logo might also violate the "purpose" element as well. Id. at 1249-50. We agree with the district court's analysis. First, the purpose for the adoption of Zion's unique seal was primarily sectarian. In its adoption of its seal, Zion abandoned fundamental neutrality and acted with the intent to advance a particular religious viewpoint. See American Jewish Congress, 827 F.2d at 126 (quoting Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 107 S. Ct. 2862, 2868, 97 L. Ed. 2d 273 (1987)). Second, the seal, emblem, and logo continue to endorse and promote that sect of Christianity that founded the city and designed the seal in clear violation of the first amendment.¹³ 

As to the first point, Zion argues that, no matter what the original City Council's purpose in adopting the seal in 1902, the current City Council voted to retain the seal strictly for historical purposes. The City maintains that because the City Council has the authority to modify the seal at any time, the fact that the Council chose to retain the seal for valid reasons provides a new, wholly secular purpose to the seal's adoption. Thus, the City argues, Reverend Dowie's glowing explanation of the seal's religious significance is no longer relevant. The City relies on our statement in American Jewish Congress that the original purpose of Chicago's 1959 creche display does not form the purpose of a similar display in 1985. See American Jewish Congress, 827 F.2d at 126 (quoting Mayor Daley's 1959 comment on the Chicago nativity scene,¹⁴  and concluding that, "although perhaps relevant to the original purpose of the nativity scene, [Mayor Daley's comment] reveals little about the purpose behind the 1985-86 display.").

The district court distinguished Zion's seal from the Chicago nativity scene by noting that the creche must be erected and dismantled each Christmas season, a practice that requires a new purpose every year. The Zion seal, on the other hand, was adopted by one legislative decision on May 6, 1902, and has remained essentially unaltered. Nevertheless, the City points to a May 20, 1986 resolution in which the Council voted to retain the seal for historical reasons. The 1986 resolution, the City argues, is the true expression of purpose for the Zion seal. We are not persuaded. "While the court is normally deferential to a state's [or municipality's] articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham." Edwards, 482 U.S. at 586-87, 107 S. Ct. at 2579. See also Wallace, 472 U.S. at 64, 105 S. Ct. at 2493 (Powell, J., concurring); id. at 75, 105 S. Ct. at 2499 (O'Connor, J., concurring in judgment). The minutes from the May 20, 1986 Council meeting offer, at best, meager evidence to demonstrate that the decision to retain the current seal was prompted by a desire to honor Zion's history. With such explicit religious design behind the seal's original adoption in 1902, something more than a perfunctory appeal to history is required to legitimatize the underlying purpose of this particular seal.

Even if we accept the 1986 resolution as an "historical" revision of purpose, the Zion symbols constitute an unconstitutional endorsement of Christianity, specifically, the Christian Catholic sect that still flourishes in Zion. The Zion seal presents the quintessential violation of the "long-standing constitutional principle that government may not engage in a practice that has the effect of promoting or endorsing religious beliefs." County of Allegheny, 109 S. Ct. at 3115. The City argues that the symbols in the seal--the shield, the sword or scepter, and the dove--do not convey a religious message. The City maintains that to the average resident who is not aware of Zion's history, the shield connotes achievement, the sword or scepter represents power or authority, and the dove suggests peace. The City concedes, however, that the Latin cross is singularly religious.

We are not convinced. It may be true that each symbol (with the exception of the cross), if taken individually, possesses several meanings, some religious and some secular. But when all the symbols, including the cross, are depicted in a single design under a flowing ribbon which reads "God Reigns," there is no question that the message conveyed is not only religious, but also sectarian.¹⁵  The cross, shield, sword, scepter, dove, and crown are perhaps the most dominant and recurring images of Christianity. Depicting these patently religious symbols on a corporate seal that is wholly owned and controlled by the City connotes the City's approval for the message conveyed. See American Jewish Congress, 827 F.2d at 128 ("Because City Hall is so plainly under government ownership and control, every display and activity in the building is implicitly marked with the stamp of government approval.") With its Christian imagery, therefore, Zion's corporate seal, emblem, and logo inevitably create an unmistakable impression that the local government tacitly endorses Christianity.

Perhaps Zion's strongest argument lies in its claim that its seal, emblem and logo merely commemorate the historical origins of the City and, thus, convey no unconstitutional endorsement. The seal does not advance religion, Zion maintains, but only celebrates the City's roots. This argument is buttressed by the fact that the City of Zion can indeed boast a unique history, which this court respects. This religious heritage may deserve commemoration. Nevertheless, the City may not honor its history by retaining the blatantly sectarian seal, emblem, and logo. These symbols transcend mere commemoration, and effectively endorse or promote the Christian faith.

In Friedman, the only other case on record that involves a seal containing a Latin cross, the Tenth Circuit held that the county's seal violated the Establishment Clause because its depiction of a golden cross under the Spanish motto, "CON ESTA VENCEMOS" ("With This We Conquer"), clearly endorsed Christianity as its principal or primary effect. The Tenth Circuit enjoined the county's use of the challenged seal even though the religious imagery in the seal was said to commemorate the role of the Catholic Church in the settlement of the Southwest. See 781 F.2d at 779. The City of Zion seeks to distinguish its corporate seal from the seal of Bernalillo County by noting that the Latin cross in the Zion seal is smaller and shares space on the seal with a crown, a scepter and a dove. We find this argument a baseless attempt at distinction. Instead, we choose to follow the fundamental reasoning of the Tenth Circuit: "If the challenged practice is likely to be interpreted as advancing religion, it has an impermissible effect and violates the Constitution, regardless of whether it actually is intended to do so." Id. at 781.

Zion's seal, emblem, and logo do indeed endorse Christianity. As the district court found, nothing within the four corners of Zion's seal, emblem or logo detracts from their sectarian message. No appeal to history can abate that message when the images in the seal are abstract symbols of a particular Christian sect. The Establishment Clause, at the very least, "prohibits government from appearing to take a position on questions of religious belief." County of Allegheny, 109 S. Ct. at 3101. The resulting endorsement of religion need not be material or tangible; an implicit symbolic benefit is enough. Friedman, 781 F.2d at 781 (construing Larkin v. Grendel's Den, 459 U.S. 116, 125, 103 S. Ct. 505, 511, 74 L. Ed. 2d 297 (1982)). Thus, Zion's use of its current seal, emblem, and logo must be discontinued due to their unconstitutional endorsement of Christianity.

We hold that the corporate seal of the City of Rolling Meadows and the seal, emblem and logo of the City of Zion represent unconstitutional endorsements of a particular religious faith. Accordingly, we affirm the district court's judgment in Harris v. Zion, and reverse in Kuhn v. City of Rolling Meadows. Thus, both cities are permanently enjoined from continued use of their seals (and in Zion's case, its emblem and logo as well) in their present unconstitutional forms.

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