dissenting:

San Diego has permitted a six-week, unattended, life-size display of eight scenes from the life of Jesus Christ and seven quotations from the New Testament to stand in the prominent Organ Pavilion of its Balboa Park. The City has waived over $18,000 annually in user fees for the private group sponsoring the display. San Diego has exempted the donation barrels and written requests for donations accompanying the display from its anti-solicitation ordinance. The City, which co-sponsored the display for 35 of the last 39 years, continues to award a permit to the Christmas Committee according to an unwritten, unannounced policy.

Despite the duration, size, history, and content of the display and the exemption of the Christmas Committee from the City’s fee and anti-solicitation ordinances, the majority does not believe that a reasonable observer is likely to perceive that the City of San Diego endorses the display’s Christian message. In what amounts to one paragraph of a lengthy opinion, the majority concludes that the Christmas Committee *900 display does not have the primary effect of endorsing religion because Balboa Park is a traditional public forum removed from the seat of government. Dismissing the possibility of an Establishment Clause violation in this cursory manner erroneously implies that the Free Speech Clause trumps the Establishment Clause. Moreover, San Diego’s unwritten, unannounced policy for awarding park permits is itself a violation of the Free Speech Clause because it gives government officials unbridled discretion over speech. Finally, viewing the evidence in the light most favorable to Kreisner, as we must on an appeal from summary judgment for the City, San Diego has in fact preferred the Christmas Committee display over another, first-in-time park permit application in violation of both the Establishment and Free Speech Clauses. Accordingly, I dissent.

I. Standard of Review for Summary Judgment.

The parties in this case submitted cross motions for summary judgment. We review the district court’s decision to grant the City’s motion for summary judgment de novo. High-Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 , 570 (9th Cir.1990). We also review de novo the decision to deny Kreisner’s motion for summary judgment. Mukherjee v. INS., 793 F.2d 1006, 1008 (9th Cir.1986). Our task is to “determine, viewing the evidence in the light most favorable to the opposing party, if there is any genuine issue of material fact and whether the law was correctly applied.” Palmer v. United States, 794 F.2d 534, 536 (9th Cir.1986) (emphasis added).

Several facts surrounding San Diego’s park permit application process remain disputed. As detailed in Section II.B, infra, at issue is whether the City has a first-come, first-served policy for issuing park permits, what information the City requires before it issues a permit, and whether the City in fact preferred the Christmas Committee's permit application over another, first-in-time application. The district court on remand arrived at conclusions to disputed questions after hearing contradictory testimony, 1 but the majority now accepts those conclusions- using the clearly erroneous standard of review. The majority’s decision to remand the case to the district court 2 does not alter its obligation to view the disputed facts in favor of Kreisner when reviewing the grant of the City’s summary judgment motion. We have not had a full trial on the merits.

The majority justifies its departure from the long-standing rule of considering only undisputed facts in a review of summary judgment by declaring this an extraordinary case. The majority contends that because it remanded the case for an eviden-tiary hearing on particular issues, we must apply the clearly erroneous standard to the factual findings made in the evidentiary *901 hearing. This argument misapprehends the nature and purpose of the remand order.

The majority’s remand order instructed the district court to make factual findings on San Diego’s policies for issuing permits for the use of Balboa Park and on any other developments which the parties regarded as “material to the issues in this appeal.” We amended the order to allow the district court to “amend its conclusions of law in light of any new factual findings.” 3 The issue on this appeal, of course, is whether granting summary judgment to the City and denying summary judgment to Kreisner was proper. Had the •majority chosen to remand the case for trial on the issue of whether San Diego had a first-come, first-served permit policy, it could have affirmed a partial summary judgment for the City on all but this issue. A full trial would have ensued on the issue of the City’s permit policy, and an appeal from the district court’s findings on the underlying disputed factual issues would then be reviewed for clear error as we would no longer have before us a case of summary judgment. We did not, however, follow this course. Instead, we chose to preserve the summary judgment question on this appeal. In opposing the City’s motion for summary judgment, therefore, Kreisner’s obligation on remand was to establish that a genuine dispute existed over San Diego’s permit policies. The district court on remand reiterated the conclusion of the original district court that the City was entitled to summary judgment.

We are therefore faced with reviewing the factual findings underlying a second district court’s order of summary judgment. “[The] limited purpose [of findings of fact in a district court’s order of summary judgment] is to pinpoint the undisputed facts supporting the summary judgment, not to weigh the evidence in the record.” Swarner v. United States, 937 F.2d 1478, 1481 (9th Cir.1991) (emphasis added). Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986), which the majority cites in support of its position, is simply inapplicable. Carter states the rule that we review a magistrate’s findings of fact underlying the denial of a petition for writ of habeas corpus and a district court’s adoption of such findings for clear error. Id. at 1375 . Carter was not a case of summary judgment. Indeed, no Ninth Circuit case has applied a clearly erroneous standard of review to a district court’s factual findings, on remand or otherwise, underlying an order of summary judgment. Accordingly, until the factual disputes in this case are resolved at trial, we must view them in the light most favorable to Kreisner for purposes of reviewing the grant of the City’s summary judgment motion.

II. The Establishment Clause.

County of Allegheny v. ACLU, 492 U.S. 573 , 109 S.Ct. 3086 , 106 L.Ed.2d 472 (1989) (“Allegheny County ”), instructs us to ap *902 ply the three-part test of Lemon v. Kurtzman, 403 U.S. 602 , 91 S.Ct. 2105 , 29 L.Ed.2d 745 (1971), to determine whether a private religious display on public property violates the Establishment Clause. “Under the Lemon analysis, a statute or practice which touches upon religion, if it is to be permissible under the Establishment Clause, must have a secular purpose; it must neither advance nor inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion.” Id. 492 U.S. at 592 , 109 S.Ct. at 3100 . The majority’s conclusion that San Diego’s permitting the Christmas Committee display was not “motivated wholly by an impermissible purpose,” Bowen v. Kendrick, 487 U.S. 589, 602 , 108 S.Ct. 2562, 2570 , 101 L.Ed.2d 520 (1988), is arguable. It is also arguable that this case does not reflect the type of “enduring entanglement” present in Lemon , 403 U.S. at 615— 22, 91 S.Ct. at 2112-15 . I disagree entirely with the majority, however, insofar as they fail to find at least a triable issue under the primary effect prong of the Lemon test.

A. Kreisner’s Motion for Summary Judgment.

1. Undisputed Facts.

In reviewing the district court’s denial of Kreisner’s motion for summary judgment, we examine the facts in the light most favorable to the City. No genuine issue of material fact is presented regarding the duration, size, or content of the Christmas Committee’s display or its prominent location in the City-owned Organ Pavilion. Also undisputed is San Diego’s historical co-sponsorship of the display, the fact that the display is unattended, and the exemption of the display from the City’s fee and anti-solicitation ordinances. We may consider these undisputed facts in determining whether the primary effect of the City’s granting a permit for the Christmas Committee display advances religion.

2. Religious Displays Under the Establishment Clause.

“[WJhen evaluating the effect of government conduct under the Establishment Clause, we must ascertain 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.’ ” Allegheny County, 492 U.S. at 597 , 109 S.Ct. at 3103 (opinion of Black-mun, J.) (quoting School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390 , 105 S.Ct. 3216, 3226 , 87 L.Ed.2d 267 (1985)). The scope of our inquiry encompasses not only the government’s current practice, but also the “ ‘history and ubiquity’ ” of that practice. Id. 492 U.S. at 630 , 109 S.Ct. at 3120 (O’Connor, J., concurring) (quoting Lynch v. Donnelly, 465 U.S. 668, 693 , 104 S.Ct. 1355, 1369 , 79 L.Ed.2d 604 (1984) (O’Con-nor, J., concurring)). The analysis admittedly is fact-intensive since “ ‘[ejvery government practice must be judged in its unique circumstances.’ ” Id. 492 U.S. at 595 , 109 S.Ct. at 3102 (quoting Lynch, 465 U.S. at 694 , 104 S.Ct. at 1370 (O’Connor, J., concurring)).

Beyond these broad proclamations, the jurisprudence surrounding the constitutionality of private religious displays on public property is splintered. In this evolving area of the law, we continue to grope for a sensible and practical framework with which to analyze the myriad factual permutations that confront us. After examining the various decisions regarding the constitutionality of religious displays, I conclude that the analysis can be organized around two principal questions. Although the cases do not specifically so hold, I believe that whether a religious display on public property has the primary effect of advancing religion in violation of the Lemon test is a function of the interplay between (1) the intensity of the religious message and (2) the nature of the government’s association with that message. Essentially, this interplay involves a sliding scale: the more intense the religious message, the less associated the government needs to be with that message to violate the Establishment Clause. Conversely, the less intense the religious message, the closer the government may be associated without crossing the divide between church and state. Ap *903 proaching the caselaw using this analytical framework helps to tame the factors that courts have found significant in determining the constitutionality of religious displays. 4

a. Intensity of the Religious Message.

The intensity of the religious message is a function of (1) the religious potency of the display itself; (2) whether secular symbols accompany the display; (3) whether the display is sectarian or plural; and (4) the size and duration of the display. Regarding the religious potency of the display itself, a creche depicting the Christian nativity scene, for instance, would be considered more potent than the display of a Christmas tree. Compare Lynch, 465 U.S. at 711 , 104 S.Ct. at 1379 (Brennan, J., dissenting) (“[A] nativity scene represents far more than a mere ‘traditional’ symbol of Christmas. The essence of the creche’s symbolic purpose and effect is to prompt the observer to experience a sense of simple awe and wonder appropriate to the contemplation of one of the central elements of Christian dogma — that God sent His Son into the world to be a Messiah.”) with Allegheny County, 492 U.S. at 616-17 , 109 S.Ct. at 3113 (“The Christmas tree, unlike the menorah, is not itself a religious symbol.... Numerous Americans place Christmas trees in their homes without subscribing to Christian religious beliefs _”). Thus, the more religiously potent the display, the more intense is the religious message conveyed.

A display unaccompanied by secular symbols also conveys a more intense religious message than does a religious display which is part of a larger secular presentation. In Lynch , for instance, the creche was surrounded by, “among other things, a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cut-out figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, [and] a large banner that reads ‘SEASONS GREETINGS.’” 465 U.S. at 671 , 104 S.Ct. at 1358 . Justice O’Connor’s concurrence concluded that the secular setting “ ‘change[d] what viewers may fairly understand to be the purpose of the display’ and ‘negate[d] any message of endorsement’ of ‘the Christian beliefs represented by the creche.’ ” Allegheny County, 492 U.S. at 596 , 109 S.Ct. at 3102 -03 (quoting Lynch, 465 U.S. at 692 , 104 S.Ct. at 1369 (O’Connor, J., concurring)). Compare Kaplan v. City of Burlington, 891 F.2d 1024, 1029 (2nd Cir.1989) (menorah “was displayed alone so that there was nothing to indicate that the thrust of its message was secular rather than religious”), cer t. denied, 496 U.S. 926 , 110 S.Ct. 2619 , 110 L.Ed.2d 640 (1990).

Furthermore, a display that represents the beliefs of a particular religious denomination conveys a more intense religious message than a display that “convey[s] a message of pluralism and freedom of belief during the holiday season.” Allegheny County, 492 U.S. at 635-36 , 109 S.Ct. at 3123 (O’Connor, J., concurring) (although creche standing alone was unconstitutional, menorah standing next to Christmas tree was constitutional because “[a] reasonable observer would ... appreciate that the combined display is an effort to acknowledge the cultural diversity of our country and to convey tolerance of different choices in matters of religious belief or nonbelief by recognizing that the winter holiday season is celebrated in diverse ways by our citizens”).

Finally, a religious display that is large and long-standing more intensely communicates a religious message than a smaller, more temporary display. “[A] private religious group may so dominate a public forum that a formal policy of equal access degenerates into endorsement_ [S]urely the City cannot allow a religious group to turn a public park into an enormous outdoor church.” Doe v. Small, 964 F.2d *904 611, 625 (7th Cir.1992) (en banc) (Cudahy, J., concurring); see also Allegheny County, 492 U.S. at 661 , 109 S.Ct. at 3137 (Kennedy, J., concurring and dissenting) (“I doubt not ... that the [Establishment] Clause forbids a city to permit the permanent erection of a large Latin cross on the roof of city hall.... [S]uch an obtrusive year-round religious display would place the government's weight behind an obvious effort to proselytize on behalf of a particular religion.”). Considering a display in light of these factors conveys a sense of the intensity of the religious message conveyed.

b. Nature of Government’s Association with the Religious Message.

The second principal inquiry, the nature of the government’s association with the religious message, depends upon (1) the ownership of the display; (2) the ownership of the display’s location; (3) the historical sponsorship of the display; (4) the extent to which the display is surrounded by government symbols; and (5) whether the display is unattended. Clearly, where the government owns the display itself, the government is closely associated with the content of the display. Where the display is privately owned but the government owns the property on which the display stands, the government still associates with the display’s message, although to a somewhat lesser degree. See Allegheny County, 492 U.S. at 600 , 109 S.Ct. at 3104 ; Kaplan, 891 F.2d at 1028 . This association, however, is strengthened when the government sponsored the display for many years. See Allegheny County, 492 U.S. at 630 , 109 S.Ct. at 3120 (O’Connor, J., concurring).

The government’s association with a private religious display becomes more pronounced when the display’s location is not only government-owned, but also symbolic of government itself. Thus, a religious display on the grand staircase of the county courthouse, Allegheny County, 492 U.S. at 579-80 , 109 S.Ct. at 3093 , or within sight of city hall, Kaplan, 891 F.2d at 1029 , or in front of a county building, Smith v. County of Albemarle, 895 F.2d 953, 954 (4th Cir.), cert. denied, 498 U.S. 823 , 111 S.Ct. 74 , 112 L.Ed.2d 48 (1990), symbolically is more closely associated with the government than a display located on unadorned government land.

Finally, where the private religious display is unattended, the government is more closely associated with the content of the display than if the display were attended. The reasonable observer of a religious display might naturally question whether the government subscribes to the religious message. When a private party actively and personally participates in a display, the passerby can readily attribute the religious message to a private citizen and thereby disassociate the government. Thus, the evangelist who preaches in a public park is less likely to be associated with the government than would an unattended display conveying the same sermon. Although a sign disclosing the owner of the religious display may help diffuse the misconception of government sponsorship, such a sign, by itself, will not negate the perception of government support for the unattended display. See Allegheny County, 492 U.S. at 600-01 , 109 S.Ct. at 3104-05 ; Smith, 895 F.2d at 958 (“It remains to be seen whether any disclaimer can eliminate the patent aura of government endorsement of religion.”).

c. The Sliding Scale between Religious Intensity and Government Association.

Once we assess the intensity of the religious message and the nature of the government’s association with that message, the inquiry turns to the interplay between these two factors. I believe the caselaw may be construed to support the characterization of this interplay as a sliding scale.

In Allegheny County, for example, the Court drew a line between the creche depicting the Christian nativity scene, which was held unconstitutional, and the menorah/Christmas tree display, which was held constitutional. In both instances, the government association with the display remained relatively constant: both displays were privately-owned, unattended, and lo *905 cated at the county courthouse, a structure symbolizing government. 492 U.S. at 578-79 , 109 S.Ct. at 3093 . The constitutional difference between the displays lay in the intensity of their religious messages. The creche was a potently religious display with a distinctly denominational, Christian message. Its manger had at its crest an angel bearing a banner proclaiming “Gloria in Excelsis Deo!,” meaning “Glory to God in the Highest.” Id. at 580 & n. 10, 109 S.Ct. at 3093 & n. 10. No secular symbols accompanied the creche. Id. at 580 , 109 S.Ct. at 3093 . The display stood for over six weeks, from late November to early January. Id. The menorah, on the other hand, was erected next to a Christmas tree. Although the menorah was a potently religious symbol of the Jewish faith, the combined display was expressly non-denominational. Id. at 635 , 109 S.Ct. at 3123 (O’Con-nor, J., concurring). Furthermore, the City’s sign accompanying the display stressed the secular theme of “liberty and pluralism.” 5 Id. Finally, the menorah stood for just over three weeks, from late December to mid-January. Id. at 587 , 109 S.Ct. at 3097 . Clearly, given the holding of the case, the government’s association with the message of the menorah/Christmas tree display was tolerable, but the government was too closely associated with the more intense religious message of the creche.

Similarly, other cases suggest that where the intensity of the religious message is constant, the constitutionality of a private religious display will turn on the nature of the government’s association with the display. In Chabad-Lubavitch of Georgia v. Miller, 976 F.2d 1386 (11th Cir.1992), the Eleventh Circuit held that permitting a private group to erect a menorah in the rotunda of the state capítol would violate the Establishment Clause. The Sixth Circuit, on the other hand, denied a motion to enjoin a private religious group from erecting a menorah in a public square in Cincinnati because it determined that such a display would be constitutional. Congregation of Lubavitch v. City of Cincinnati, 923 F.2d 458 (6th Cir.1991). The court distinguished the case from those situations in which the location of the display is close to symbols of government, holding that the Cincinnati square had “no connection with any government buildings or function.” Id. at 459-60 . Thus, where religious displays of identical intensity are involved, the Establishment Clause may be violated where the government has a relatively close association with the display, and not violated where the association is more remote. Taken together with Allegheny County, I believe these cases, while not articulating such an approach, support my characterization of the interplay between the intensity of the religious message and the nature of the government’s association with that message as a sliding scale.

The majority advances three arguments against the sliding scale test. First, the majority asserts that inquiring into the intensity of a religious message is similar to evaluating the centrality of a particular belief or practice to a faith, which is prohibited in analyzing a case under the Free Exercise Clause. Second is. the concern over whose perspective we use to determine intensity. Third, the majority contends that the consequence of the sliding scale analysis would be to dilute the religious messages allowed in public forums. These concerns are overstated.

Evaluating to what degree a message is religious differs from determining whether a belief or practice is central to a faith. The former inquiry merely asks what is being communicated, a question that courts face daily in such contexts as defamation and contract. Indeed, if we were prohibited from asking whether a message is religious, then we could never ask whether the government endorsed a religious message. In such a world, we would have no Establishment Clause.

Moreover, the Supreme Court has recognized that the intensity of a religious message is a necessary inquiry under the Es *906 tablishment Clause. See discussion of Allegheny County, supra. It is the variation in the intensity of the religious message that explains why a Christmas tree display was permitted in this very courthouse during the month of December when a creche in the same location would have been impermissible. See Allegheny County, 492 U.S. at 579-80 , 109 S.Ct. at 3093 (creche displayed on grand staircase of county courthouse violated the Establishment Clause).

Regarding the question of perspective in judging the intensity of a religious display, I would not depart from the “reasonable observer” standard that we use in current Establishment Clause jurisprudence, and many other contexts for that matter. As the Court stated in Allegheny County, we must examine a display from the perspective of both adherents and nonadherents of the controlling denominations. Id. at 597 , 109 S.Ct. at 3103 (opinion of Blackmun, J.). Although the majority criticizes the sliding scale approach because it allegedly lacks “manageable standards to apply in making these sensitive judgments,” Opinion at 889, I note that the same problem, if a problem at all, inheres in the current jurisprudence when evaluating whether government endorses a religious belief. From the perspective of the reasonable observer, courts have determined that a Santa Claus display is non-religious, but a menor ah display is religious. Compare Lynch, 465 U.S. at 671 , 104 S.Ct. at 1358 (Santa Claus display considered part of secular presentation) with Kaplan, 891 F.2d at 1029 (thrust of menorah display was religious message). Apparently, we have managed to overcome the difficulties associated with the question of perspective.

Finally, the majority’s conclusion that the sliding scale test would result in only diluted religious messages being allowed in public forums is oversimplified. Only intensely religious displays that are closely associated with the indicia of government are disallowed. In fact, one could rephrase the majority’s concern as follows: the sliding scale test would allow government to appear to endorse only diluted or non-religious messages, but not intensely religious messages. I believe this is precisely the result the Establishment Clause was intended to achieve.

3. The Christmas Committee Display.

Applying these principles to the present case, I conclude that the Christmas Committee display is unconstitutional and that Kreisner is entitled to summary judgment under the Establishment Clause. The religious intensity of the display’s message is unprecedented. 6 First, the display itself is potently religious and sectarian. The display’s eight booths are drawn from the New Testament’s account of the life of Christ. The first scene depicts “The Annunciation,” the sacred moment in Christian theology when, in the Gospel according to Luke, the Angel Gabriel informs the Virgin Mary that she will be the mother of God on earth. In the second scene, the expectant Mary and Joseph are being turned away at the Inn in a scriptural moment that represents mankind’s hostile reception of Christ. The third scene portrays the humble shepherds’ immediate acceptance of the divinity of Christ. The *907 fourth scene depicts the actual birth of Christ, which, when taken in the context of the parable, is a patently religious, rather than historical, moment. The fifth scene, portraying the three wise men in their journey to Bethlehem, “reflects the early [Christian] church’s experience of the Gentiles’ readiness to accept the gospel and the disappointing slowness of all Israel to receive it.” Daniel J. Harrington, College-ville Bible Commentary: The Gospel According to Matthew 17 (1983). The sixth scene depicts Mary, Joseph, and the newborn Christ fleeing from Herod, implicitly denoting “Jesus as the new Moses.” Hans Kung, On Being a Christian 451 (Edward Quinn trans., 1976) (emphasis omitted). The seventh scene shows “Christ in the Temple,” the moment when the religious mission of Jesus was first announced. See Harper’s Bible Dictionary 1029 (Paul J. Achtemeier ed., 1985). The eighth and final scene portrays Christ as an adult teacher, with young children drawing near to hear Christ’s lesson.

Not only does the display contain potent religious imagery, it also presents a series of passages from the New Testament. Thus the religious message becomes quite literal. Indeed, the seven scriptural quotations magnify the significance the Court attached to the single Latin phrase in Allegheny County. There, the Court explained that “[t]his praise to God in Christian terms is indisputably religious — indeed sectarian — just as it is when said in the Gospel or in a church service.” Allegheny County, 492 U.S. at 598 , 109 S.Ct. at 3103 .

Second, no secular symbols accompany the Christmas Committee display. The nearest secular symbols of the season reside in another area of the park separated by a wall, landscaping, and a road. The eight religious booths are indisputably their own display so that “[t]he presence of Santas or other Christmas decorations elsewhere ... fail[s] to negate the endorsement effect” of the display. Id. at 598-99 n. 48, 109 S.Ct. at 3104 n. 48. In fact, the Christmas Committee itself declares that the display is motivated by its “desire to present a non-commercial celebration of the true ‘Spirit of Christmas.’ ”

Third, the display contains no symbols of other, non-Christian religions. Finally, the display is large and enduring. Each of the eight booths contains life-size figures, with the display occupying both sides of the stage in the Organ Pavilion. The City permits the display to remain there for six weeks.

In summary, no court has been presented with a display of such blatant, denominational, and conspicuous religious intensity — a display which the majority characterizes as conveying an “overwhelming message of glorification of the divinity of Jesus Christ.” Opinion at 891.

Considering the intensity of the religious message, virtually any government association with the Christmas Committee display would break with the principles announced in the Establishment Clause. Admittedly, the symbols of the government’s association with the display may not be as pervasive as in Allegheny County or other cases in which the displays were located in the “seat of government.” Nevertheless, the undisputed facts in this case reveal that San Diego’s association with the display is more than incidental.

The ownership of the display is private, but the property on which the display rests is owned and maintained by San Diego’s taxpayers. The City has an historical involvement with the display. Prior to 1988, City employees erected, removed, and stored the display each year. Moreover, the property is adorned with structural symbols of government. Surrounding the Organ Pavilion in Balboa Park are the United Nations Building, the Hall of Nations, the House of Pacific Relations, the Museum of Man, the San Diego Museum of Art, the Space Theater and Science Center, and the Natural History Museum. The Organ Pavilion itself is a massive, ornate, semi-enclosed structure. The pavilion’s columns, arches, and elevated stage provide the backdrop for the display. This is not merely a religious exhibit isolated from in-dicia of city sponsorship. With eight large booths flanking both sides of the Organ Pavilion’s center stage, the display appears *908 to be an integral part of the City-owned structure. No reasonable observer could visit the Christmas Committee display without sensing the government’s presence. Furthermore, the display is unattended. 7 None of the Christmas Committee’s members remains with the display to help diffuse the government’s association with the religious message. Accordingly, the reasonable observer could easily take the government’s presence to be the government’s endorsement of the display. In light of the unprecedented religious intensity of this display, the real and symbolic association between San Diego and the religious message conveyed violates the Establishment Clause.

Any remaining doubts of an Establishment Clause violation are shattered when one considers the City’s exemption of the Christmas Committee display from its fee regulations and anti-solicitation ordinance. Ordinarily, the City’s park regulations require a non-profit or charitable organization to pay $440 per day for use of the Organ Pavilion, provided that the organization does not charge admission to members of the public who attend the function. The City waives the fee only for “a nonprofit community service agency or organization.” Such an organization is defined as “[a] recognized group, club, agency, or organization whose activities are of a service or character building nature, who give service to the community as a whole, and a group where no portion of the net earnings are used for or inure to the benefit of any individual or member of the group” (emphasis added).

The City argues, and the majority asserts, that the regulations require payment of user fees only for “exclusive use” of the Organ Pavilion and that the Christmas Committee display is a “non-exclusive use.” Although San Diego has few written regulations governing its park permit application process, it does have a detailed, written policy governing park fees and fee waivers. Nowhere in that policy does the City ever mention exclusivity as a prerequisite for imposing fees or “non-exclusive” use as a criterion for a fee waiver. This is yet another example of the City’s ad hoc approach to administering park permits, discussed in Section II.B, infra. I cannot join the majority in reading an exclusivity requirement into the City’s user fee regulations or in sanctioning the City’s departure from its own written fee policy. Indeed, it is the opinion of the City Attorney’s office itself that the City’s fee waiver is unconstitutional.

I agree with the City Attorney’s office that allowing the Christmas Committee to forego paying more than $18,000 in fees per year violates the Establishment Clause. It is questionable that the Christmas Committee is a “service or character building” organization, other than in the sense that any religious denomination considers itself to further such goals. It is unquestionable that the Christmas Committee’s intensely sectarian message does not serve “the community as a whole.” Indeed, the record shows that every other religious organization who used the Organ Pavilion between September 1987 and September 1989 paid a user fee. 8 Standing alone, San Diego’s conferring this unusual annual economic benefit only upon the Christmas Committee constitutes an unconstitutional endorsement of religion. See Gillette v. United States, 401 U.S. 437, 450 , 91 S.Ct. 828, 836 , 28 L.Ed.2d 168 (1971) (“[T]he Establishment Clause prohibits government from abandoning secular purposes in order to put an imprimatur on one religion, or on religion as such, or to favor the adherents of any sect or religious organization.... [T]he Establishment Clause stands at least for the proposition that when government activities touch on the religious sphere, *909 they must be secular in purpose, evenhanded in operation, and neutral in primary impact.”).

Finally, the City’s exempting the Christmas Committee from its anti-solicitation ordinance further manifests an endorsement of religion. A regulation and municipal ordinance both prohibit solicitation in San Diego’s public parks. Nevertheless, the City permits the Christmas Committee to place donation barrels and fliers soliciting contributions at the display.

The City maintains that these barrels and fliers do not meet its definition of “solicitation.” The relevant ordinance defines “solicitation” to “mean and include ... any direct oral or written request for money, property, or anything of value or any financial assistance of any kind.” San Diego’s claim is specious given this definition. The flier asks visitors to “Kelp Us Keep the Community Christmas Center Going!” and explains that “[t]o insure the continuing operation of the Community Christmas Center, voluntary contributions are essential.” The flier goes on to request that visitors make their checks payable to the Christmas Committee Center in pre-select-ed “membership categories” of $10, $25, $50, and $100. It concludes by instructing contributors to put the donations in the barrels or mail them to a given address. I find it difficult to imagine a more “direct ... written request for money.”

We should order that summary judgment be granted to Kreisner based upon the undisputed facts. “[T]he Establishment Clause prohibits precisely what occurred here: the government’s lending its support to the communication of a religious organization’s religious message.” Allegheny County, 492 U.S. at 601 , 109 S.Ct. at 3105 .

B. The City’s Motion for Summary Judgment.

For the same reasons that Kreisner is entitled to summary judgment, we should reverse the summary judgment for San Diego under the Establishment Clause based on the undisputed facts. The disputed facts, however, present additional reasons for reversing the City’s summary judgment.

The parties agree on, or do not deny, the following facts pertaining to the City’s park permit application practice. At oral argument before this court, counsel for San Diego represented for the first time in this appeal that the City grants park permits for long-term, unattended displays on a first-come, first-served basis. Betty Wheeler, Legal Director of the ACLU in San Diego, attended the oral argument. Wheeler was surprised by the City Attorney’s representations. She had worked regularly with attorneys and others whom she thought would be familiar with the City’s alleged first-come, first-served policy, yet neither she nor any of the colleagues she contacted were aware of such a policy.

Wheeler decided to test the veracity of the City’s representations. 9 The bicentennial celebration of the signing of the Bill of Rights would occur in December 1991, and Wheeler thought that a month-long, unattended display in the Organ Pavilion during December would both commemorate the event and test the City’s policy. 10 Wheeler instructed Janet Bergo, an administrative assistant for the ACLU, to hand-deliver a *910 letter to the City’s Park and Recreation Department and to obtain a permit for the display. The letter requested use of the area in the Organ Pavilion where the Christmas Committee display had traditionally been located. The letter also explained the time frame and content of the display, which would consist of “a series of panels illustrating the rights guaranteed to Americans by the Bill of Rights.” It noted that “[t]he panels would not block the view of the stage, or otherwise physically preclude other uses of the Organ Pavilion.” Wheeler attempted to draft the letter so that it clearly fell within the permit policy as the City Attorney had described it at oral argument. She even used the term “non-exclusive use permit” which had been used' by the City Attorney.

Bergo delivered the letter to and met with Penny Scott, the City’s district manager for Balboa Park, on April 4, 1991. Ber-go showed Scott a poster illustrating what the panels would look like. Scott was genuinely enthusiastic about the display until she realized that it might conflict with the Christmas Committee display. Scott said that she wanted to know “more details about how [the display] would look” and that she “needed to talk to her boss or the city attorney to work this out.” Bergo asked whether the ACLU would be able to have the location requested for the display. Scott responded that the Christmas Committee’s display was “always there.”

Bergo telephoned Scott later that same day. The parties disagree over the content of this telephone conversation. We must therefore accept Kreisner’s account of the conversation in reviewing the grant of the City’s summary judgment motion.

According to Kreisner, Bergo clarified during her telephone conversation with Scott that the size of the display would be the same as that of the Christmas Committee display. Scott responded that both the ACLU’s requested display and the Christmas Committee display could not possibly be at the same location simultaneously. Bergo asked whether the requested location had already been reserved. Scott responded, “Oh, yes, the Nativity scenes have come back for 20 to 25 years. It’s already booked. They will be there every year until they decide not to do it again.” In fact, the Christmas Committee did not request the Organ Pavilion until September 1991, almost five months later. Bergo then asked how soon she would need to contact the City about reserving the location for the next year. Scott again replied that the Christmas Committee was “always there.”

The majority accepts the district court’s conclusion that the ACLU’s permit application ultimately was rendered inactive because it lacked “specifics.” The only “specific” that was ever mentioned was the size of the display. However, after Bergo’s April 4 telephone conversation with Scott, it appears, accepting Kreisner’s account of the conversation, that Scott understood how large the ACLU display would be. When Bergo told Scott that the display would be the same size as the Christmas Committee’s display, Scott responded, “Oh, my god, those things are booths; they’re over your head; those are really big.” Indeed, Scott knew precisely that this meant each display would be 12 feet square. These were virtually the same dimensions that Wheeler provided to Scott in her October 2, 1991, follow-up letter. Oddly, this letter, mailed after the City had granted the permit to the Christmas Committee, satisfied Scott's “need” for specifics, but the same information provided before the Christmas Committee received its permit would not suffice.

The remaining series of events surrounding the ACLU’s permit application are undisputed. Bergo again contacted Scott by telephone in July 1991 to ask whether the ACLU’s permit had been granted. Scott responded that she needed some information and had taken no action. Wheeler also wrote to Scott in October 1991 inquiring about the status of the permit application. Scott responded in writing that the ACLU’s permit application had been deemed inactive because it lacked the necessary specifics. She also stated that the Christmas Committee had been given the location that the ACLU had previously requested.

*911 Considering these facts in the light most favorable to Kreisner, as we must, it becomes even clearer that the district court’s grant of summary judgment to the City was improper. Whether the City in fact had a first-come, first-served policy for long-term, unattended displays, whether the City embellished the policy with ad hoc requests for “specifics,” and whether the City favored the Christmas Committee’s application over the ACLU’s first-in-time application at minimum are triable issues of material fact. If we assume Kreisner’s version of the disputed facts, San Diego reserved the Organ Pavilion for the Christmas Committee display despite the ACLU’s first-in-time application and used its request for “specifics” as a subterfuge to render the ACLU's application inactive.

Although there may be room to debate the meaning of the Establishment Clause at its fringes, the core of its protection remains indubitable: the government can “effect no favoritism among [religious] sects or between religion and nonreligion.” School Dist. of Abington Township v. Schempp, 374 U.S. 203, 305 , 83 S.Ct. 1560, 1615 , 10 L.Ed.2d 844 (1963) (Goldberg, J., concurring); accord Allegheny County, 492 U.S. at 590 , 109 S.Ct. at 590 (“[Tjhis Court has come to understand the Establishment Clause to mean that government ... may not discriminate among persons on the basis of their religious beliefs and prac-tices_”); Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 27, 28 , 109 S.Ct. 890, 906 , 103 L.Ed.2d 1 (1989) (Blackmun, J., concurring in judgment) (“government may not favor religious belief over disbelief" or adopt a “preference for the dissemination of religious ideas”); Edwards v. Aguillard, 482 U.S. 578, 593 , 107 S.Ct. 2573, 2582 , 96 L.Ed.2d 510 (1987) (“preference” for particular religious belief constitutes an endorsement of religion); Wallace v. Jaffree, 472 U.S. 38, 70 , 105 S.Ct. 2479, 2497 (1985) (O’Connor, J., concurring) (Establishment Clause “preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred”). A finding that the City played favorites in reserving the Organ Pavilion for the Christmas Committee over the ACLU, therefore, would constitute an independent basis for concluding that San Diego has violated the Establishment Clause.

III. The Free Speech Clause.

Besides forbidding the government from making laws respecting the establishment of religion, the First Amendment also prohibits the government from making laws “abridging the freedom of speech.” U.S. Const, amend. I. Two doctrines that emerge from this clause are relevant to the case at hand. First, the public forum doctrine allows content-based regulation of speech in a public forum only where the “regulation is necessary to serve a compelling state interest and ... is narrowly drawn to achieve that end.” Widmar v. Vincent, 454 U.S. 263, 270 , 102 S.Ct. 269, 274 , 70 L.Ed.2d 440 (1981). The majority holds that this doctrine permits, and possibly requires, San Diego to allow the Christmas Committee display. Preventing San Diego from violating the Establishment Clause, however, is a compelling state interest, and an injunction in this case is necessary to achieve that end. Second, the prior restraint doctrine prohibits giving government officials unbridled discretion in licensing speech. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 755-56 , 108 S.Ct. 2138, 2142-43 , 100 L.Ed.2d 771 (1988). I believe that the City’s informal policy of awarding park permits gives park officials unbridled discretion to discriminate against speech in violation of the Constitution. 11 .

*912 A. The Public Forum Doctrine.

For purposes of analyzing whether the Free Speech Clause is violated, the Supreme Court uses the categories of traditional public, designated public, and nonpublic forum to determine whether government may prohibit speech in a particular location. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 , 103 S.Ct. 948, 955 , 74 L.Ed.2d 794 (1983). A traditional public forum is a place, such as a public street or park, which has “ ‘immemorially been held in trust for the use of the public and, time out of mind, [has] been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’ ” Id. (quoting Hague v. CIO, 307 U.S. 496, 515 , 59 S.Ct. 954, 964 , 83 L.Ed. 1423 (1939)). Designated public forums are public properties “which the State has opened for use by the public as a place for expressive activity.” Id. A non-public forum is “[pjublic property which is not by tradition or designation a forum for public communication.” Id. at 46, 103 S.Ct. at 955 . In both the traditional and designated public forums, a regulation excluding speech based on content must be narrowly drawn to achieve a compelling state interest. Id. at 45, 46 , 103 S.Ct. at 954, 955 .

There is no question that the Christmas Committee display would be unconstitutional if it stood within a county courthouse or in front of City Hall. In both cases, the display would violate the Establishment Clause. See Allegheny County, 492 U.S. at 579 , 109 S.Ct. at 3093; Kaplan, 891 F.2d at 1029 . Although the majority avoids reaching the issue, preventing such a violation is a compelling state interest which justifies a content-based regulation forbidding such a display, thereby satisfying the standard announced in Perry. Widmar, 454 U.S. at 271 , 102 S.Ct. at 275 (state University’s interest “in complying with its constitutional obligations may be characterized as compelling”). The question is whether placing the same display in the Organ Pavilion of San Diego’s Balboa Park alters the legal outcome.

In holding that “because the [Christmas Committee] display is private speech in a traditional public forum removed from the seat of government it does not have the primary effect of advancing religion,” Opinion at 891, the majority frames its Establishment Clause discussion in terms of public forum doctrine and thereby suggests that the resolution of an Establishment Clause challenge is dependent on the resolution of the public forum issue — in other words, that the Free Speech Clause trumps the Establishment Clause. The concurrence brings this point into sharp relief. According to the concurrence, “[r]e-ligious speech is speech, ... no more and no less.” Judge Kozinski, concurring, at 898. This statement ignores the Establishment Clause. As Justice Kennedy wrote for the majority in Lee v. Weisman, — *913 U.S. -, 112 S.Ct. 2649 , 120 L.Ed.2d 467 (1992):

Id. — U.S. at -, 112 S.Ct. at 2657-58 (citations omitted) (emphasis added). Accordingly, although “[t]he government has many good reasons for restricting racist speech, advocacy of Communism, pornography and various other kinds of speech that some might see as harmful,” Judge Kozinski, concurring, at 898, the government does not have the reason that the Constitution expressly forbids the government from appearing to endorse those kinds of speech. The Constitution does, however, forbid the government from appearing to endorse religious speech. 12 The principle, therefore, is clear: a violation of *914 the Establishment Clause can never be saved by the Free Speech Clause. Otherwise, the Establishment Clause would be emasculated.

I agree with the majority that the Organ Pavilion is a traditional public forum. The nature of a display’s forum, however, “is simply a factor to be taken into account in determining whether the context of the display suggests government endorsement.” Kaplan, 891 F.2d at 1029 ; accord Smith, 895 F.2d at 958 (“[WJhether the lawn is or is not a public forum is not dispositive. The critical gauge of any such content-related speech restriction is whether the overall context and nature of the restricted display conveys the impermissible message of governmental endorsement of religion.” (footnote omitted)).

Thus the critical question remains whether San Diego’s relationship with the Christmas Committee display violates the Establishment Clause. Having found an Establishment Clause violation, I conclude that a content-based injunction against the display does not offend the public forum doctrine. Holding the government to its obligations under the Establishment Clause constitutes a compelling state interest. Moreover, a prohibition limited to long-standing displays of solitary religious symbols on public property adjoining prominent city structures would be narrowly tailored to serve this interest. See Smith, 895 F.2d at 960 ; Kaplan, 891 F.2d at 1030 . Accordingly, the Free Speech Clause is satisfied.

B. The Prior Restraint Doctrine.

San Diego’s licensing scheme regulating the use of long-term, unattended displays in Balboa Park is a prior restraint of speech. “[I]t is the sort of system in which an individual must apply for multiple licenses over time, or periodically renew a license.” Lakewood, 486 U.S. at 759 , 108 S.Ct. at 2145 . A prior restraint of speech is not unconstitutional per se. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 , 95 S.Ct. 1239, 1246 , 43 L.Ed.2d 448 (1975). “Any system of prior restraint, however, ‘comes to this [ejourt bearing a heavy presumption against its constitutional validity.’ ” Id. (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 , 83 S.Ct. 631, 639 , 9 L.Ed.2d 584 (1963)). Accordingly, San Diego’s “licensing requirement is sufficiently threatening to invite judicial concern.” Lakewood, 486 U.S. at 760 , 108 S.Ct. at 2145 .

The City's scheme for regulating long-term, unattended displays is an unconstitutional prior restraint of speech if it “vests unbridled discretion in a government official over whether to permit or deny expressive activity.” Id. at 755 , 108 S.Ct. at 2143; see Shuttlesworth v. City of Birmingham, 394 U.S. 147 , 89 S.Ct. 935 , 22 L.Ed.2d 162 (1969) (invalidating ordinance allowing city to deny parade permit if city believed its public welfare, safety, health, morals, or convenience required denial). In determining whether unbridled discretion is present, we must examine both the nature of San Diego’s permit policy and the articulation of that policy. The nature of the permit policy must be to provide “narrow, objective, and definite standards to guide the licensing authority.” Shuttlesworth, 394 U.S. at 151 , 89 S.Ct. at 938 . As to articulating the policy, “the limits the city claims are implicit in its law [must] be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice.” Lakewood, 486 U.S. at 770 , 108 S.Ct. at 2151 . Viewing the facts in the light most favorable to the City, I find that Kreisner is entitled to summary judgment because San Diego’s permit policy is unconstitutional by nature. For the same reasons, I would reverse the City’s summary judgment. Regarding the City’s motion, I also find a triable issue of material fact as to whether San Diego has sufficiently articulated its permit policy.

1. The Nature of San Diego’s Permit Policy.

Viewing the facts in the light most favorable to San Diego, the City’s permit policy does not confine discretion. The City purports to take a “first-come, first-served” approach to issuing park permits. Further examination of the City's statements, however, reveals unwritten, unannounced embellishments to the policy: according to the *915 district court’s findings, which coincide with the City’s assertions, the request to use the park must be “reasonable,” the applicant must furnish “specifics” regarding the desired display, and the applicant must comply with the Park and Recreation Department’s permit requirements. What is “reasonable”? What are the requisite specifics? What permit requirements must be satisfied?

That a permit request be “reasonable” is itself an unconstitutional invitation of unbridled discretion. See, e.g., Lakewood, 486 U.S. 750 , 108 S.Ct. 2138 (upholding facial challenge to ordinance giving mayor discretion to deny newsrack permit applications and authority to condition a permit on any terms deemed “necessary and reasonable”). Moreover, although park official Penny Scott stated that she would like to know specifics such as the size and construction material of proposed displays for planning purposes, in the end she apparently had the authority to deny an application when she felt “uncomfortable” with the request. Freedom from unbridled discretion over speech “has a firmer foundation than the whims or personal opinions of a local governing body.” Niemotko v. Maryland, 340 U.S. 268, 272 , 71 S.Ct. 325, 328 , 95 L.Ed. 267 (1951). Finally, the City’s permit requirements, which appear in the Rules and Regulations Governing Park Use Permits, contain nothing to restrain the official’s discretion in deciding whether to grant a park permit. Rather, the regulations merely restrict the park user in the event the permit is granted. Thus, viewing the facts in the light most favorable to the City, San Diego does not provide “narrow, objective, and definite standards to guide the licensing authority.” Shuttlesworth, 394 U.S. at 151 , 89 S.Ct. at 938 .

Given the City’s intimate involvement with the display over the past several decades and the rebuttable presumption that systems of prior restraint are unconstitutional, it was incumbent upon the City to craft and articulate a narrow, objective, and definite park permit policy. San Diego has failed to do so.

2. San Diego’s Failure to Articulate its Permit Policy.

Even if San Diego’s purported first-come, first-served policy with its accompanying embellishments were constitutional by nature, the policy must be evident in a binding text, judicial or administrative opinion, or a well-established practice. The City’s permit policy for long-term, unattended displays is found in neither a binding text nor a judicial or administrative opinion. Although the City contends that its policy is a matter of well-established practice, this fact is disputed. Accordingly, a triable issue of material fact is presented, and we should reverse the summary judgment for the City.

As for binding texts, San Diego admits in its response to Kreisner’s interrogatories that there are no “documents which describe the official criteria and standards which are applied to applications for use of the [Balboa Park Organ Pavilion].” The district court on remand stated, and it is not disputed, that beyond the Park and Recreation Department’s fees and charges schedule, “the City has not presented any evidence of a written policy regarding the issuance of permits.” Findings at 4. The fees and charges schedule says nothing about the method or prerequisites for obtaining any kind of park permit. Moreover, neither the standard application form for obtaining a park permit nor the City’s Rules and Regulations Governing Park Permits contains anything regarding the City’s first-come, first-served policy or the specifics that applicants must furnish.

Furthermore, it is undisputed that no judicial or administrative opinion prescribes the City’s permit policy. The majority takes comfort in the fact that future applicants can go to court if the City fails to follow its purported permit policy so that, in effect, future judicial opinions will circumscribe the City’s discretion. Opinion at 895, n. 7. The Supreme Court, however, has stated explicitly that “[e]ven if judicial review [of a denied permit] were relatively speedy, such review cannot substitute for concrete standards to guide the decision-maker’s discretion.” Lakewood, 486 U.S. *916 at 771 , 108 S.Ct. at 2151 . Indeed, it is the potential for government abuse of discretion, rather than the abuse itself, that is so pernicious:

Thornhill v. Alabama, 310 U.S. 88, 97 , 60 S.Ct. 736, 741-42 , 84 L.Ed. 1093 (1940).

The City relies upon the idea that its permit policy is articulated via a well-established practice. Assuming the facts as presented by Kreisner, however, neither the patrons of Balboa Park nor park officials themselves seem familiar with any such practice. Betty Wheeler of the ACLU decided to test the City’s purported policy precisely because neither she nor her colleagues who regularly worked with people participating in expressive activities in San Diego had ever heard of such a policy. Jack Krasovich, the Deputy Director of San Diego’s Park and Recreation Department, was unsure of what type of permit a long-term, unattended display could receive. He testified at various points that unattended displays are granted “park facility use” permits, “park use” permits, and “special use” permits. Penny Scott, the District Manager for Balboa Park, had never heard of a “non-exclusive use” permit, which was the term that the City Attorney used at oral argument to describe what permit category suited a long-term, unattended display.

In fact, the City’s well-established practice seems to negate its claim to a strict first-come, first-served permit policy. As noted earlier, according to the ACLU’s version of its experience with the City, Scott stated that the Christmas Committee display was a tradition and that it would be in the Organ Pavilion until the Committee decided not to erect the display again. Moreover, despite the City’s co-sponsorship and intimate involvement with the holiday display for 35 of the last 39 years, the City Council has not explicitly articulated its permit policy for long-term, unattended displays. This undermines its claim of having a well-established first-come, first-served policy.

Kreisner’s account of the City’s rejecting the- ACLU’s permit application for the proposed Bill of Rights display demonstrates the dangers inherent in giving government officials unbridled discretion over speech. Among the risks that the prior restraint doctrine seeks to minimize are government censorship, self-censorship by speakers, and the unreviewability of constitutional challenges to licensing schemes. Lakewood, 486 U.S. at 757-59 , 108 S.Ct. at 2144-45 . All three risks are present here.

First, the prohibition of unbridled discretion is designed to control government censorship of speech. Id. at 757 , 108 S.Ct. at 2144; Southeastern Promotions, Ltd., 420 U.S. at 559 , 95 S.Ct. at 1246 . There is evidence that San Diego censored speech based on content when it gave priority to the Christmas Committee display over the ACLU’s proposed display. Scott’s references to the Christmas Committee display as “tradition,” her comment that the display was “already booked” when it was not, and her statement that the display “will be there every year until they [the Christmas Committee] decide not to do it again” all suggest the type of censorship that runs amuck over the First Amendment. That Scott offered the ACLU an alternative location for its proposed display does not absolve the City of constitutional liability. Southeastern Promotions, Ltd., 420 U.S. at 556 , 95 S.Ct. at 1245 (“ ‘[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.’ ”) (quoting Schneider v. State, 308 U.S. 147, 163 , 60 S.Ct. 146, 151-52 , 84 L.Ed. 155 (1939)).

Second, the City’s unwritten, unannounced permit policy raises the possibility that would-be sponsors of long-term, unattended displays in Organ Pavilion at Christmas time are censoring themselves. This is a constitutionally significant concern. *917 “[T]he mere existence of the licensor’s unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused.” Lakewood, 486 U.S. at 757 , 108 S.Ct. at 2144 . Many people may not be aware that they can apply for a permit to occupy the area of the Christmas display during December because written standards are absent. The reasonable San Die-gan who has seen the Christmas display for decades is probably unaware that one can display something at that site upon submitting a permit application.

Finally, San Diego’s invisible permit criteria make this case difficult to review. These circumstances have troubled the Supreme Court:

Id. at 758 , 108 S.Ct. at 2144. An unwritten, unannounced permit policy with ad hoc embellishments does not provide the concrete standards necessary to ensure sound judicial review of claims alleging First Amendment violations.

At bottom,

Niemotko, 340 U.S. at 271-72 , 71 S.Ct. at 327-28 ; see also Kunz v. New York, 340 U.S. 290, 293 , 71 S.Ct. 312, 314 , 95 L.Ed. 280 (1951) (ordinance requiring those who wished to hold public worship meetings on the streets to obtain permit from police commissioner gave “administrative official discretionary power to control in advance the right of citizens to speak on religious matters on the streets of New York ... [and therefore was] clearly,, invalid as a prior restraint on the exercise of First Amendment rights”).

CONCLUSION

“The lessons of the First Amendment are as urgent in the modern world as in the 18th Century when it was written. One timeless lesson is that if citizens are subjected to state-sponsored religious exercises, the State disavows its own duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people.” Lee , — U.S. at -, 112 S.Ct. at 2658 . Given the undisputed facts, San Diego’s interrelationship with this religious display of literally biblical proportions violates the Establishment Clause. Moreover, its unwritten, unannounced policy for administering park permits offends the Free Speech Clause. Therefore, I would hold that Kreisner is entitled to summary judgment on these grounds and would reverse the summary judgment for the City.

Furthermore, there is a triable issue under both the Establishment and Free Speech Clauses as to whether San Diego in fact favored the Christmas Committee over another, first-in-time permit applicant. Accordingly, I would reverse San Diego’s summary judgment for this additional reason.

*918 Appendix

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*919 [[Image here]]

*920 [[Image here]]

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*922 [[Image here]]

. Based upon the testimony of Penny Scott, the District Manager of San Diego’s Park and Recreation Department, and Jack Krasovich, the Deputy Director of the Central Division for the City of San Diego, the district court concluded that the City granted park permits on a first-come, first-served basis. This testimony, however, contradicted that of Janet Bergo and Betty Wheeler of the ACLU. The alleged policy was not documented or advertised. The district court’s conclusion, therefore, was expressly based upon its assessment of witness credibility. District Court’s Findings of Fact and Conclusions of Law 12/13/91 ("Findings”) at 4-5, 9 (stating that district court found certain witnesses to be "credible” and reached its "Findings of Fact” after “considering all of the evidence and observing the demeanor of the witnesses”). Determinations of credibility are inappropriate for summary judgment. Hanon v. Dataproducts Corp., 976 F.2d 497, 507 (9th Cir.1992).

The district court also concluded from disputed evidence that the City "reasonably requires specific information regarding the display, such as size and dimension before issuing a permit.” Findings at 5. The court reached this conclusion despite the absence of any requirement for such information in the City’s permit applications or its Park and Recreation Rules and Regulations. Once again, therefore, the district court based its conclusion on the credibility of the City’s witnesses.

. The majority’s decision to remand the case to the district court for further factual findings itself suggests that the district court’s granting summary judgment in favor of the City was inappropriate. A genuine issue of material fact must have existed to warrant an additional factual inquiry.

. We remanded this case to address the City’s assertion, raised for the first time at oral argument before this court, that it had a first-come, first-served policy for issuing park permits. The full text of the amended order remanding the case to the district court is as follows:

. Although the majority characterizes this approach as a new Establishment Clause test, I emphasize that I do not intend to replace the Lemon test but merely to refine the "effects" prong of Lemon in the limited context of judging the constitutionality of religious displays on government property. I believe my characterization of this approach finds support in the Establishment Clause jurisprudence as is evident in my citations throughout this discussion.

. The sign read: "During this holiday season, the City of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom." Id.

. Photographs of the Organ Pavilion and two booths representative of the display are included in the Appendix to this dissent.

I have found only one case, Doe v. Small, 964 F.2d 611 (7th Cir.1992) (en banc), involving a display which can even remotely approximate the religious intensity of the display in this case. Doe involved the exhibition of a series of religious paintings in a public park. Unlike the case at issue here, however, Doe did not involve life-size sculptures or a prominent display of passages from Christian scripture. In addition, the public park in which the display in Doe was located was unadorned with government-owned buildings or structures. Id. at 613 .

Doe is also distinguishable because the court never addressed whether the religious display at issue violated the Establishment Clause. Id. at 617, 622 (parties did not appeal Establishment Clause issue). Indeed, the Doe court was "not in agreement as to whether the City violated the Establishment Clause in its conduct." Id. at 617 . Hence, to the extent that the religious paintings in Doe are similar to the religious display in this case, the result in Doe cannot be considered even as persuasive authority on the Establishment Clause question.

. Although it is contended that the display contains a disclaimer sign attributing its sponsorship to the Christmas Committee, the content of the sign does not appear in the record. As noted earlier, however, such a sign cannot dissolve the perception of government support for the religious message of the display.

. The only possible exception is a fee waiver given to St. Augustine High School for a concert on May 6, 1989. This fee waiver, however, was consistent with waivers given to the other high schools who held concerts throughout the two-year period.

. The majority suggests that Kreisner and the ACLU inappropriately "create[d]” issues of material fact after the district court’s grant of summary judgment. I disagree. That San Diego had a first-come, first-served policy for issuing park permits for long-term, unattended displays was first asserted by the City at oral argument before this court. Thus, if any party "created” the issue, the City did. Indeed, the majority instructed the district court on remand to "make any further findings on factual developments which the parties regard as material to the issues in this appeal” (emphasis added). Accordingly, the district court appropriately heard testimony regarding the City’s purported first-come, first-served policy and the ACLU’s experience suggesting that no such policy existed.

. The majority’s statement that "the ACLU had no intention of erecting such a display” conflicts with Ms. Wheeler’s sworn statement that she obtained a commitment from her executive director to put on the display if the ACLU were awarded the permit. At minimum, Ms. Wheeler’s testimony presents a triable issue of fact.

. Although the factual issues underlying the prior restraint doctrine were addressed by the district court on remand and argued by the parties in the supplemental briefing to this court, Kreisner, who appeared pro se in the original proceedings, did not state his case in terms of the prior restraint doctrine until he, when represented by counsel, filed his supplemental reply brief.

Whether the City had unbridled discretion to issue park use permits is integral to analyzing whether the City in fact favored the Christmas Committee display over that of the ACLU in violation of the Establishment Clause. Furthermore, the unbridled discretion inquiry coincides *912 with whether the City provides equal access to speech under the Free Speech Clause. Therefore, whether the City exercised unbridled discretion over speech was implicitly at issue before the district court. Kreisner contended that the City had no articulated standards for issuing permits, and the parties had "an opportunity to dispute the facts material to that claim." Fountain v. Filson, 336 U.S. 681, 683 , 69 S.Ct. 754, 756 , 93 L.Ed. 971 (1949). Moreover, the issue is inextricably intertwined with the City’s and the majority's free speech justification.

To the extent that the prior restraint doctrine is considered an issue not presented to the district court, we have held that ”[e]xceptional cases or particular circumstances may prompt a reviewing court, where injustice might otherwise result or where public policy requires, to consider questions neither pressed nor passed upon below.” Nuelsen v. Sorensen, 293 F.2d 454, 462 (9th Cir.1961) (emphasis added). Justice and public policy require that we determine whether San Diego's permit application process is an unbridled prior restraint of speech:

Cohen v. California, 403 U.S. 15, 24 , 91 S.Ct. 1780, 1787-88 , 29 L.Ed.2d 284 (1971).

. The concurrence challenges this sentence, arguing that the Establishment Clause "forbids only the establishment of religion, not the mere appearance of doing so.” Judge Kozinski, concurring, at 899. The Supreme Court clearly supports my reading of the content of the Establishment Clause. Allegheny County, 492 U.S. at 574 , 109 S.Ct. at 3090 ("The [Establishment] Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief_”) (emphasis added); id. at 595 , 109 S.Ct. at 3102 ("[T]he question is 'what viewers may fairly understand to be the purpose of the display.’") (quoting Lynch, 465 U.S. at 692 , 104 S.Ct. at 1369 (O’Connor, J., concurring)) (emphasis added); id. at 597, 109 S.Ct. at 3103 ("[W]e must ascertain 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.’ ”) (quoting School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390 , 105 S.Ct. 3216, 3226 , 87 L.Ed.2d 267 (1985)) (emphasis added); Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226, 264 , 110 S.Ct. 2356, 2379 , 110 L.Ed.2d 191 (1990) (Marshall, J., concurring) (“If public schools are perceived as conferring the imprimatur of the State on religious doctrine or practice as a result of such a policy, the nominally ‘neutral’ character of the policy will not save it from running afoul of the Establishment Clause.") (emphasis added); Lynch, 465 U.S. at 692 , 104 S.Ct. at 1369 (O’Connor, J., concurring) ("It is only practices having [the effect of communicating endorsement or disapproval of religion], whether intentionally or unintentionally, that make religion relevant, in reality or public perception, to status in the political community.’’) (emphasis added); id. at 711 , 104 S.Ct. at 1379 (Brennan, J., dissenting) ("But when [government] officials participate in or appear to endorse the distinctively religious elements of this otherwise secular event [Christmas], they encroach upon First Amendment freedoms.”) (emphasis added); Widmar, 454 U.S. at 280-81 , 102 S.Ct. at 280 (Stevens, J., concurring) (“But since the record discloses no danger that the University will appear to sponsor any particular religion, ... the Court properly concludes that the University’s fear [of an Establishment Clause violation] is groundless.”) (emphasis added).

Moreover, although the concurrence asserts that the endorsement test applies only to situations where “the government is speaking," Judge Kozinski, concurring, at 899, Allegheny County rejects such a narrow interpretation of the Establishment Clause. 492 U.S. at 600 , 109 S.Ct. at 3105 (“[T]he Establishment Clause does not limit only the religious content of the government’s own communications. It also prohibits the government’s support and promotion of religious communications by religious organizations. Indeed, the very concept of ‘endorsement’ conveys the sense of promoting someone else’s message.” (citation omitted)). Accordingly, even though the creche in Allegheny County was owned and displayed by the Holy Name Society, a private Roman Catholic group, id. at 573, 109 S.Ct. at 3086, the Court found an Establishment Clause violation because observers were sufficiently likely to perceive the display as government endorsement of a religious message. Id. at 597, 601, 109 S.Ct. at 3103, 3105.