Howard T. Kreisner v. City of San Diego

1 F.3d 775 Howard T. KREISNER, et al., Plaintiffs-Appellants, v. CITY OF SAN DIEGO, Defendant-Appellee. No. 90-55354. United States Court of Appeals, Ninth Circuit. Argued April 3, 1991. Submission Deferred April 3, 1991. Submitted Feb. 19, 1993. Decided March 3, 1993. As Amended on Denial of Rehearing and Rehearing En Banc Aug. 2, 1993. Michael A. Jacobs, John F. Delaney, Susan St. Amour, Morrison & Foerster, San Francisco, CA, for plaintiffs-appellants. Mary Kay Jackson, Deputy City Atty., San Diego, CA, for defendant-appellee. Appeal from the United States District Court for the Southern District of California. Before: BOOCHEVER, KOZINSKI, and O'SCANNLAIN, Circuit Judges. ORDER 1 The majority opinion filed on March 3, 1993 is amended as follows: 2 A majority of the panel voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc. Judge Boochever would grant the petition for rehearing and recommended acceptance of the suggestion for rehearing en banc. 3 The full court was advised of the en banc suggestion. An active judge of the court requested an en banc vote. The case failed to receive a majority of the votes of the non-recused active…

ORDER

The majority opinion filed on March 3, 1993 is amended as follows:

A majority of the panel voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc. Judge Boo-chever would grant the petition for rehearing and recommended acceptance of the suggestion for rehearing en banc.

The full court was advised of the en banc suggestion. An active judge of the court requested an en banc vote. The case failed to receive a majority of the votes of the non-recused active judges. Fed.R.App.P. 35. With the above amendments, the petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.

OPINION

This appeal squarely presents a conflict between two of our most deeply cherished liberties: freedom of speech and freedom of religion. The question we must decide is whether the City of San Diego may, consistent with the Establishment Clause of the United States Constitution, permit a private group to erect a religious display in a public park during the Christmas season. Because the park is a traditional public forum removed from the seat of government, we hold that the City may permit the display provided it does so in a…

concurring:

This is a conversation that should never happen. Religious speech is speech, entitled to exactly the same protection from government restriction as any other kind of speech — no more and no less. See Widmar v. Vincent, 454 U.S. 263, 269 , 102 S.Ct. 269, 274 , 70 L.Ed.2d 440 (1981) (“[Rjeligious worship and discussion ... are forms of speech and association protected by the First Amendment.”). The 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. But the Free Speech Clause stands in the way. See, e.g., R.A.V. v. City of St. Paul , — U.S. -, 112 S.Ct. 2538 , 120 L.Ed.2d 305 (1992); Yates v. United States, 354 U.S. 298, 318-19 , 77 S.Ct. 1064, 1077 , 1 L.Ed.2d 1356 (1957); American Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7th Cir.1985), aff'd without opinion, 475 U.S. 1001 , 106 S.Ct. 1172 , 89 L.Ed.2d 291 (1986); Cohen v. California, 403 U.S. 15 , 91 S.Ct. 1780 , 29 L.Ed.2d 284 (1971); Collin v. Smith, 578 F.2d 1197 (7th Cir.), cert. denied, 439 U.S. 916 , 99 S.Ct. 291 , 58 L.Ed.2d 264 (1978). I can’t see how the fear that someone might — mistakenly—think…

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 display does not have the primary effect of endorsing religion because Balboa Park is a traditional public forum removed from the seat…