Board of Trustees of Scarsdale v. McCreary

PETITIONER:Board of Trustees of Scarsdale
RESPONDENT:McCreary
LOCATION:New Mexico State Police Headquarters

DOCKET NO.: 84-277
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 471 US 83 (1985)
ARGUED: Feb 20, 1985
DECIDED: Mar 27, 1985

ADVOCATES:
Marvin E. Frankel – on behalf of the Petitioners
Marvin Schwartz – on behalf of the Respondents

Facts of the case

Question

Audio Transcription for Oral Argument – February 20, 1985 in Board of Trustees of Scarsdale v. McCreary

Warren E. Burger:

I think you may proceed whenever you are ready, Mr. Frankel.

Marvin E. Frankel:

Mr. Chief Justice, and may it please the Court:

In 1981 in Widmar against Vincent, this Court held that a public university, the University of Missouri, where it had opened its meeting rooms to over 100 various groups of students for various kinds of speech and discussion was forbidden by the free speech clause to deny such a meeting room to a group of students, a cornerstone group, wishing to hold prayer and religious discussion meetings.

In this case here on certiorari to the Second Circuit, that Court has held that the Village of Scarsdale in Westchester, under the rule of Widmar and Vincent, is compelled or required to allow a group of christian churches and their christian adherence to place and leave a creche or nativity scene in a small public park in the center of the village for a period of two weeks or so around the Christmas season.

Sandra Day O’Connor:

Mr. Frankel, I am concerned about your interpretation of the Court of Appeals’ opinion.

It seemed to me at least in looking at it the Court of Appeals said that the city could adopt reasonable time, place and manner of restriction.

Presumably those restrictions might incorporate a provision that unattended displays will not be permitted in the park.

Do you think that such a restriction would be one that the city could properly adopt under that opinion?

Marvin E. Frankel:

Your Honor, I think there are various ways the municipality could approach this problem.

Sandra Day O’Connor:

Well, do you think that that opinion would permit the city to adopt the regulation that I suggest?

Marvin E. Frankel:

Very possibly, Your Honor.

Sandra Day O’Connor:

It isn’t true that the Court of Appeals has required the city to permit unattended displays such as a creche.

Marvin E. Frankel:

Your Honor, it is as true that there is such a requirement here as it was in Widmar against Vincent which has been applied by the Circuit to this case.

When the case went back to the University of Missouri, presumably they could adopt time, place and manner regulations.

For example, they could have abolished their meeting rooms.

What we say is in this case that what Scarsdale has done without time, place and manner regulations so-called is constitutional; that there is no such thing required under the First Amendment as an open public forum for unattended statues, symbols, structures, and signs, and that therefore Widmar and Vincent does not apply to this case; that the Circuit should be reversed as things stand under the way that Scarsdale has run its parks up until now.

Sandra Day O’Connor:

Do you think that the display of a creche or a cross or something symbolic of that kind is symbolic speech?

Marvin E. Frankel:

Yes, Your Honor.

We have never denied that.

My friend says we dispute it.

We not only agree to it, Your Honor, but we embrace it as I hope to show in the argument as I might mention right now.

This is a free speech case.

It goes off on the free speech clause.

At some earlier point, there was a free exercise claim which was rejected properly and properly abandoned.

Under this conception of the free speech clause, if Scarsdale in its existing situation with such regulations as it has and doesn’t have must allow a creche, then it must allow a sign saying Vote Republican, it must allow a swastika, it must allow a sign saying Support Planned Parenthood.

Sandra Day O’Connor:

Well, I suppose if it is speech, we don’t normally suppress it on the grounds that some people find it offensive, do we?

Marvin E. Frankel:

We don’t normally, Your Honor, provided that you are dealing with a public forum where people are allowed to express themselves in the manner in question.

Sandra Day O’Connor:

Well, is the city park a public forum?

Could anybody go out there and speak in favor of Nazism or some other offensive topic?

Marvin E. Frankel:

Yes, Your Honor.

Marvin E. Frankel:

It is a public forum under Hague and the CIO and all the cases decided by this Court up to now, but not for unattended symbols that–

Sandra Day O’Connor:

Why doesn’t the city just say that and say we have a rule against unattended symbols?

Marvin E. Frankel:

–Your Honor, the city has said it in the first case that raised the problem in a controversial fashion.

If the first case had been an effort to place a hammer and sickle in Boniface Circle and the village had denied the request, it would have behaved properly provided it stated a principle that was decent and neutral.

As the Solicitor General of that city says, the village, which is not a legal institution, not less than the courts certainly, may proceed case by case to the problems as they come before it.

This, in the whole history of Scarsdale, appears to be the only object offered for placement on a park that has been controversial.

In the prior history of Scarsdale there have been about six kinds of things in the park and I might say, I hope without arrogating, that I think the Scarsdale park in this sense are like the parks of America generally that all of us know.

What you have had is friendly, communal and in some sense innocuous symbols like the Red Cross, the United Fund, Community Fund, American Field Service, and that is about it.

Sandra Day O’Connor:

Well, if the city rules, as you described it, one that says we will not allow unattended displays if they are controversial or if the engender confronters.

Marvin E. Frankel:

Your Honor, as of today I think the fair answer to Your Honor’s question is yes as the rule is evidence by practice.

That is to say it has had one controversial symbol presented to it.

I might say that in the non-controversial symbols, even the Red Cross, the United Fund and so on as this record shows, each one has been presented by the Village Manager to the Board of Trustees and they have considered each one for its aesthetic suitability which cities and municipalities can do in the use of their property, and, indeed, in the use of private property.

It is considered then in terms of their impact, as the record shows, on the sensibilities of the residents of the village and it has made it determinations accordingly, sometimes saying you may put the Red Cross on this piece of land, not Boniface Circle, which is the place that has always been demanded, but on some other park.

Our record shows that nobody thus far has ever tried to compel the village to emplace a symbol that it believes in its local judgment is offensive to a large proportion of the village residents for whom those parks are held in trust for all of them, who all support it and who all pay the expense of maintaining it.

William H. Rehnquist:

May I ask, Mr. Frankel… I think you perhaps read the judge… Judge Pierce’s opinion somewhat more broadly than I do.

I was just looking at what seems to me the operative sentence on page 25A of the Petition, the second sentence in the conclusion.

He says,

“We remand for the entry of an injunction prohibiting the village from relying on the establishment clause as a reason for prohibiting the erection of a creche at Boniface Circle, a traditional public forum, for a period of approximately two weeks. “

Now, if that was the reason the village gave, surely it could come back and give any number of other reasons other than that that the Second Circuit would probably sustain.

Marvin E. Frankel:

Your Honor, I want to say two or three things in response to that question.

First, Judge Pierce goes on and says

“it is remanded for action regarding a disclaimer sign or signs and for other such action as is consistent with our determination herein. “

Now, the locution the court used in Widmar could have been exactly the same one.

Missouri University had relied on the establishment clause as its defense against allowing cornerstone to use those rooms.

But, let me go further.

We argue that on our first and basic proposition that Widmar does not apply here.

Reversal is required without ever reaching the establishment clause because we say that the notion of an open, public forum in this case, which is a novel case after all, has never been applied to require municipalities to allow in their parks unattended symbols that are offensive to a great many of the people for whom those parks are held in trust.

William H. Rehnquist:

But, might not that depend on the reason you give for turning down the request for an unattended symbol?

Marvin E. Frankel:

Your Honor, we have given the reason first, of course, in our brief, but if you look through the record of this case you will find the reasons and they are not stated in the form of legal brief.

The village trustees, including one rather eloquent and articulate lawyer named Oman summarized their views under a number of headings and the main was that to place this christian symbol in the shared park was unneighborly and was offensive to a great many of the people who share those parks.

Marvin E. Frankel:

Another reason given was, according to one or more of the trustees, the establishment clause.

William H. Rehnquist:

Do you defend the right of the village to refuse to place the creche for two weeks on the grounds that it would violate the establishment clause?

Marvin E. Frankel:

We do, Your Honor, but we say that without that defense we win any way because just as we argue that the village does not have to allow a display like the one that was held “protective” in Brannenberg and Ohio.

A village in Mississippi does not have to allow a display showing some hooded Klan figures and a sign saying Send the Blacks Back to Africa and the Jews Back to Israel.

We say and I assert that no village in America has ever allowed such things and none is required to under the free speech clause.

We say by the same token though… I take the example of offensive symbols that are more widely offensive.

We say by the same token this is true of the creche.

The creche may well be and is to a majority not a hateful, but a cherished symbol.

William H. Rehnquist:

But what if the village in the past has allowed other uses of the park?

Marvin E. Frankel:

Your Honor, we have to look at those and I might say if I had to take one case of this Court’s precedence to rely on I think I would take Perry Education Association, both the majority and the dissent, and I think we would win on either one.

There you will recall it was held that the mail boxes were not a public forum for communication of the kind attempted although the incumbent union could communicate through them, the out union, the minority union, could not.

Now, that was sustained and the Court analyzed the kinds of public property… and that is what I use the case for… that we classify for this kind of purpose.

There is the open, public forum, there is a limited public forum, and there is the government property that is not a public forum at all.

Now, I say that the park in this case, for purposes of unattended structures and symbols, is not an open, public forum; that the uninhibited, robust, and wide-open debate that the First Amendment assures for speakers and speech does not extent to cluttering the parks with controversial symbols to stand there and beguile or benumb the residents as they walk in those places.

Therefore, I say that the doctrine of Perry applies here and Perry said it didn’t matter that the alleged forum, the communication device given by the government could be used by the YMCA and some other civic kinds of associations.

It still did not become an open, public forum.

At most the Court said if you restrict the use of this governmental communicative device to certain kinds of communications you may be required to allow similar kinds of communications.

Here we deal with a situation in that respect, in that doctrinal respect very like Perry.

The village is allowed a few charitable, educational, civic organizations to put up their signs and nobody disputes that.

If somebody with a similar sign wanted to put his up or hers, I suppose the village would have to be consistent.

But, within the terms of Perry, it is not required that the village allow a Klan symbol, a hammer and sickle, a sign that says God Doesn’t Hear the Prayers of Jews, or any other of the kinds of expression that people are free to make orally in public parks, but that we say has never been compelled under the free speech clause of the First Amendment, under the decisions of this Court which have never squarely reached this somewhat interesting question and we say never should be.

And, we say that the Circuit must be reversed without ever reaching its establishment clause argument though we reach it.

Byron R. White:

But, you do insist that leaving these unattended symbols in the park would be an establishment of religion, is that your position?

Marvin E. Frankel:

We do take that position and let me say that I will try to reach it and I will reach it in a few minutes.

Byron R. White:

Because that seems to me to be the heart of the Second Circuit’s decision which was that the city shouldn’t be able to rely on the establishment clause to keep–

Marvin E. Frankel:

It is, Your Honor, but the Second Circuit, with all deference–

Byron R. White:

–I understand your other argument, but–

Marvin E. Frankel:

–Well, it skipped point one.

It skipped point one and that is why I make it point one.

You don’t find a word in the Circuit’s opinion whether there is–

Byron R. White:

–I am not sure what the… If the city isn’t relying on… is forbidden to rely on the establishment clause, I just don’t know what the Second Circuit would do about refusals to allow this creche on other grounds.

Marvin E. Frankel:

–Your Honor, the other ground that I am giving–

Byron R. White:

They might agree with you completely.

Marvin E. Frankel:

–Well, they might, but the argument was made to them, Your Honor, and they skipped it.

What is a litigant to do when he says point one, Second Circuit, Widmar doesn’t apply?

If you would allow speech of this kind, which the village agrees with absolutely and allows, it doesn’t follow that you must permit an unattended structure or symbol.

Byron R. White:

They certainly disagreed with your argument that this unattended creche is an establishment.

Marvin E. Frankel:

They did.

Byron R. White:

They certainly disagreed with your position on that.

Marvin E. Frankel:

Yes, Your Honor, and I will come to that–

Byron R. White:

What else did they disagree with you on?

Marvin E. Frankel:

–I will come directly to that, but I want to preserve the important argument that you won’t find a word in the Circuit’s opinion about a subject in our view, rather eloquently treated by Judge Stewart in the District Court, about the difference between an unattended symbol setting on the land giving its message when its owners aren’t there, called the Scarsdale Creche Committee, though the majority of its proponents don’t even live in Scarsdale.

Byron R. White:

That is the way you avoid Widmar.

Marvin E. Frankel:

That is the way–

Byron R. White:

At least you say Widmar doesn’t cover a situation like that.

Marvin E. Frankel:

–That is correct, Your Honor.

Now, let me… We say Widmar doesn’t cover and logically because it doesn’t cover the Circuit must be reversed without reaching the establishment clause, but let me reach it.

That, of course, brings us to last year’s decision in Lynch against Donnelly and I want to state quickly what we think are the salient distinctions between that case and this one.

Warren E. Burger:

Before you get to that, Mr. Frankel, I am not sure I track your emphasis on unattended.

Suppose they had two persons, one on each side of the creche, ringing a bell or doing something, would that make any difference?

Marvin E. Frankel:

Yes, Your Honor, it would.

We think as an exercise of the right of a live speaker to speak the speaker may probably bring with him or her a symbol, a sign.

Warren E. Burger:

Then you think it would be all right?

Marvin E. Frankel:

I think it would be all right, because then it becomes clear that it is that speaker’s message that is being delivered.

Here–

William J. Brennan, Jr.:

How about once the speech is finished, he leaves.

He has to take the symbol with him.

Marvin E. Frankel:

–He takes the symbol with him, exactly, and that has been touched upon in more than one of this Court’s cases, most recently Taxpayers against Vincent.

Let me illustrate a little further, Your Honor.

One of the Plaintiffs in this case, Mr. Charles Butler, was asked and said he never goes down to Boniface Circle even to look at the creche.

Marvin E. Frankel:

He feels strongly and deeply that the creche must be there but he is not there.

Who is there?

Nobody is there.

Whose speech is this, Your Honor?

This is called the Scarsdale creche and I repeat half or more of the people who put it there don’t even live in Scarsdale.

Judge Stewart said–

Warren E. Burger:

Is that critical to your position?

Marvin E. Frankel:

–It is quite important.

Warren E. Burger:

Who the sponsors are?

Marvin E. Frankel:

No, Your Honor.

Warren E. Burger:

Or the residence of the sponsors?

Marvin E. Frankel:

No, Your Honor.

It is illustrative, it is illustrative in an interesting way and we look at the facts of a particular case of the point that this is the speech of the creche and the land.

This is Scarsdale’s creche.

Sandra Day O’Connor:

Well, there is a sign, is there not–

Marvin E. Frankel:

Pardon?

Sandra Day O’Connor:

–There is a sign presumably with the display that says that it is sponsored by the Committee.

Marvin E. Frankel:

It says it is placed there by the Scarsdale Creche Committee, the Scarsdale Creche Committee, a private organization.

Just as the–

Sandra Day O’Connor:

So, it is a little hard if you look at the sign to attribute the sponsorship to the city, isn’t it?

Marvin E. Frankel:

–No, it is not hard at all, Your Honor.

And, many of the people, as is stipulated in this record, find that it is a mingling of the public property with this private message that gives a kind of sense of sponsorship and identification.

Sandra Day O’Connor:

Well, do you think if the city allowed a speaker on the subject of christianity to speak at the park that the people would attribute that sponsorship to the city?

Marvin E. Frankel:

No, Your Honor, they would attribute it to that speaker, but, you know, in this case again we have to use the facts of the case.

This Creche Committee was offered by a group of christian clergymen the use of church properties to rotate the creche upon and they said, no, putting it at a church property would defeat the ecumenical aspect of their creche.

Well, they were asked, couldn’t you put a sign there and say this isn’t this church’s creche, this is the creche of the Scarsdale Creche Committee.

No, that was not an acceptable solution and they are right, Your Honor, because people walking by seeing the object there… Children don’t read the sign.

Others say, well, if it is the Scarsdale Creche Committee’s creche, what is it doing here?

The village must at least view it with benign approval or acquiescence or something.

The mingling is there undoubtedly and it is perceived as such by some of the people who share the ownership of this municipal property.

Marvin E. Frankel:

And it was held to offend on that ground by a majority of those people’s elected representatives.

Now, I want to answer Mr. Justice White and I want to do it by coming directly to Lynch against Donnelly which upheld by a close margin the right of Pawtucket’s city officials to have a creche on private property which the city owned, had spent $200 for, and sponsored.

Are there any distinctions?

We say there are critical distinctions if the Court please.

First, it is important that there the city wanted to put up the creche and had decided that it had a secular purpose for doing that.

This Court sustained that judgment of the local officials about the purpose and propriety of that creche.

Here, the local officials have concluded they don’t want a creche in the park.

They don’t see a valid secular purpose for it.

And, you have a court ordering them to place it there.

We say that is a significant distinction.

Sandra Day O’Connor:

I do object to that characterization of the opinion of the court below which again appeared at least to say the city could have a neutral restriction, for example, banning all unattended displays.

So, it is hard to turn that order of the court into what you say is an affirmative order to display it.

Marvin E. Frankel:

Your Honor, until the Solicitor General made that suggestion… and this doesn’t bind the court… let me say none of the parties have felt that this could go back and the Second Circuit could look at it again and the Scarsdale board could debate it some more.

We have all construed the opinion as saying Scarsdale must allow the creche.

Now, we could be wrong.

Let me assure the Court as a realistic matter that if this case goes back and it is affirmed it will be deemed an order to allow the creche.

And, I am assuring the Court as a legal matter–

Byron R. White:

That would depend a good deal on what the opinion of this Court would say.

Marvin E. Frankel:

–Oh, I guess so, Your Honor, I think so.

Byron R. White:

I think it would.

Marvin E. Frankel:

I am referring to just the way the Circuit wrote it.

We are affirmed on that–

Byron R. White:

Well, we probably won’t use just a one-word affirmance.

[Laughter]

Marvin E. Frankel:

–I feel I have accomplished something, Your Honor.

Let me pursue the distinctions of Lynch briefly.

Here you have a creche on the public land with all the problems of aura and identification to which I have spoken.

Here you have a creche that in this circle stands quite alone as the pictures show dearly in the record, is not surrounded by all the things in the display involved in Pawtucket.

Our friends, with all the rollicking humor that we lawyers enjoy, talk about count of reindeer and teddy bears and so on.

We don’t ask the Court to count them, but we say and the Court wrote is that the constant emphasis on that display it must be deemed in our view to be meaningful if not decisive in itself.

Marvin E. Frankel:

Finally, I want to say that in Scarsdale, in this record, you have a history of long, bitter divisiveness.

You have divisions in the Board of Trustees, you have voters, including one of the Plaintiffs, saying our vote is affected by the way the Trustees do with the creche, you have candidates for office telling their position on the creche, and we say you don’t have the prediction that the Chief Justice made in Lemon and Kurtzman but the fact of divisiveness of the kind that is a factor in our view in establishment clause questions.

Before I try to save two minutes, if the Court please, I want to say that I repeat what I started with.

If we are wrong in our establishment clause position, if the village may allow the creche, it does not follow that it must and we think the Circuit has held that it must and that it is wrong in that.

Thank you.

Warren E. Burger:

Mr. Schwartz?

Marvin Schwartz:

Mr. Chief Justice, and may it please the Court:

What the Second Circuit decided in this case was that the only two grounds offered by the village for denial of access to the creche were invalid.

The first ground which the village offered was the establishment clause.

The Second Circuit, I submit correctly, held that that argument could not survive Lynch.

The second argument made by the village in the Second Circuit and made explicitly in its brief was that even if the establishment clause was not an adequate justification for denial of access, then the village could not be required to post and to permit controversial device, sectarian symbol.

The Second Circuit made no mention in its opinion of that second ground and I respectfully submit that the reason for that is that the ground is so devoid of constitutional merit that it takes ingenuity and a facility and forensic skills such as only my friend possesses to advance it.

It is significant, may it please the Court, that the only effort to express a point of view which has been denied by the Village of Scarsdale for its park, the only effort to express which has been denied access is the creche.

For more than 25 years every application to display an unattended symbol in Scarsdale’s parks has been granted or the village Trustees have directed the use of a part of the park system other than Boniface Circle.

John Paul Stevens:

May I ask, Mr. Schwartz, your view?

If the village in response to the request had then adopted a regulation saying no more unattended symbols in the park and for that reason you may not show the creche, would that have been permissible in your view?

Marvin Schwartz:

That would depend, sir, upon several circumstances.

I agree that the village could impose reasonable time, place and manner restrictions.

John Paul Stevens:

Well, that is my restriction.

I have given you a specific example.

Marvin Schwartz:

But it would first of all have to be content neutral.

John Paul Stevens:

It is.

Marvin Schwartz:

And, secondly, it would have to justify a significant governmental interest.

John Paul Stevens:

Well, does it.

You are just rephrasing the question.

I am really interested in your answer.

Marvin Schwartz:

What could the village do if this Court affirm?

John Paul Stevens:

No.

I am just asking you under your view of the law before we decide.

Marvin Schwartz:

I doubt very much, sir, that this village could deny access to all of its parks for symbols and signs of all kinds.

Marvin Schwartz:

I find it difficult to perceive a substantial governmental interest which would be so served.

Warren E. Burger:

Wouldn’t there be something like a governmental interest if the recital… the preamble said that in order to minimize vandalism with respect to unattended symbols that no unattended symbols would be allowed?

Marvin Schwartz:

In a village which has a history for more than 25 years of freely permitted year after year the banners of the Red Cross, a symbol of the Red Cross, the banners of the American Field Service, the signs of the United Fund, and when the village itself displays Christmas lights and ornaments on its own lampposts, village employees decorate Christmas trees in the lobby of Village Hall, village employees ornament a living tree in Boniface Circle where this creche sat for 24 years, it seems difficult to me, though it is certainly conceivable, and one would have to wait and see what justification the village advanced, to determine if it advanced a significant governmental interest.

But, standing here, may it please the Court, I find it difficult to perceive a substantial governmental interest which would be legitimately served by a total ban of all unattended signs and symbols.

William H. Rehnquist:

Well, why can’t the… Supposing it had pursued the kind of policy you say for the last 25 years and it has resulted in having the creche up.

Now, the majority of the people in Scarsdale, let’s say, are Jews rather than Christians and they would rather just not have the parks used for any sort of symbols like that if they have to put up a creche.

I don’t see why they couldn’t have a neutral policy that says at least in Boniface Circle which is right in front of everybody, we are not going to have anything.

Marvin Schwartz:

Boniface Circle… I believe the village probably could say that there was a substantial governmental interest to be served by banning all unattended displays, but that isn’t the issue in this case, Your Honor.

William H. Rehnquist:

I realize that isn’t.

I don’t think that is what the village said.

Marvin Schwartz:

But, bear this in mind, Your Honor, the village manager testified in this case by deposition and his testimony is that in the 24 years the creche was displayed at Boniface Circle there was never a complaint that it was aesthetically displeasing, there was never a complaint that it constituted visual clutter, never a complaint that it interfered with traffic.

The only complaint ever made was that it was sectarian, divisive, offensive, and unneighborly.

It is difficult for me standing here to evaluate whatever reason the village might advance when this Court affirms for a new regulation.

All I say is it must be reasonable in time, place and manner.

It must not be content based or if it is content based, then there must be a compelling governmental interest to support it and I can’t conceive of any.

William H. Rehnquist:

Why can’t it say we just don’t want any content oriented messages in Boniface Park, it just causes too much hassle, one side is yelling, the other side is yelling?

We want to cut it out.

Marvin Schwartz:

That may well be permissible but it doesn’t solve the issue in this case.

That doesn’t solve the issue in this case.

Byron R. White:

Would you figure it would be consistent with the Second Circuit’s opinion and judgment if there was an injunction entered on remand ordering the city to allow this creche?

Marvin Schwartz:

I don’t think the District Court would enter such an order, Justice White.

Byron R. White:

Not under this?

Marvin Schwartz:

I don’t think so.

I think the order would simply state that the village may not rely upon the establishment clause or in its argument of divisiveness or offensiveness.

Byron R. White:

The Second Circuit has not mandated that the creche be in the park?

Marvin Schwartz:

It has not passed upon regulations which were not before it nor could it.

The only reasons offered, as I said a moment ago, were the establishment clause and offensiveness.

The Court rejected those.

Now, if next year the village postulates a regulation, someone will have to decide if it is a reasonable regulation designed narrowly to support a substantial governmental interest.

John Paul Stevens:

May I ask, the statement that is quoted at the end of your opponent’s reply brief says that the reason was it is inappropriate to use public property for religious expression which is not necessarily saying it would violate the establishment clause.

John Paul Stevens:

They just think as a matter of community policy it is inappropriate.

Supposing they relied on that reason and no other, what happens?

Marvin Schwartz:

I don’t think the Constitution would permit it, sir.

John Paul Stevens:

That would not be a sufficient reason?

Byron R. White:

Widmar would read on that, wouldn’t it?

Marvin Schwartz:

Yes, sir.

And, almost every First Amendment case–

John Paul Stevens:

Let me change the question a little bit.

Supposing they said… they made the controversial argument, we don’t want things like burning crosses, swastikas and the like, so we will not permit any symbol that might be considered inappropriate to a large segment of our community?

Marvin Schwartz:

–I think that is impermissible, Your Honor, for two reasons among others.

First, the First Amendment as this Court has construed it means anything, is that inhibitions of expression may not be content based absent a compelling governmental interest, so compelling that only a clear and present danger test, for example.

John Paul Stevens:

So your response to your opponent is his horrible examples about the swastikas and all that, those parade of horrors, yes, that is exactly what might be done.

Marvin Schwartz:

Not necessarily.

I can conceive of a content neutral, reasonable time, place and manner regulation which would leave the village latitude to ban a swastika.

The question would be does it pose a clear and present danger to peace and order?

The Scarsdale police force–

John Paul Stevens:

Assuming he doesn’t go that far, it just upsets a lot of people.

Marvin Schwartz:

–Religion is the opiate of the people.

There is a constitutional right to put that up, may it please the Court, so long as the Red Cross can put up its banners.

John Paul Stevens:

You don’t see a distinction between the Red Cross and symbols of that kind?

Marvin Schwartz:

I don’t think the Constitution can admit such a distinction, Justice Stevens.

Let me give you a more difficult case.

Let us assume that the Planned Parenthood organization is unpopular in Scarsdale for the views it maintains about a woman’s right to abortion.

Can Scarsdale permit the United Fund to put its banner up, the Red Cross to post its symbol and its banners and the Community Chest… Excuse me, the Cancer Crusade to put up a sword?

Can it do that and yet deny access to Planned Parenthood?

I think not unless the First Amendment has to be rewritten.

John Paul Stevens:

So, your view is that this decision means that Planned Parenthood has a right to put up the kind of sign you describe in this park?

Marvin Schwartz:

I would assume, Your Honor, no matter what this Court decides in this case, no municipality may inhibit speech on the basis of content unless it presents a clear and present danger of disorder, unless it interferes with other uses or unless, in the case of the explicit sexual statuary which my friend envisions, it is unsuitable for viewing by children.

But, even if this Court reverses here, the difficulties of line drawing will not be obviated.

If the Village of Scarsdale or any village anywhere in the land can ban this display because its content, its message is unpopular or offensive, or unwantable, where will it go next?

Marvin Schwartz:

The Liberal Party and the Conservative Party are on the ballot in my State of New York.

Relatively speaking they are minority parties.

Can their fund raising banners be banned because the majority of Scarsdale in its wisdom thinks the views of those two groups are extreme?

Can they ban banners of an anti-nuclear group because the majority believes that their views are inconsistent with–

Thurgood Marshall:

Could they put up a sign that says we don’t think the people of Scarsdale?

Marvin Schwartz:

–If you are going to permit the Red Cross, if you are going to permit the United Fund… Yes, sir.

Thurgood Marshall:

I don’t see where the Red Cross has ever said anything about Scarsdale.

Marvin Schwartz:

The banner–

Thurgood Marshall:

Suppose it said we don’t like the Jews who live in Scarsdale.

Marvin Schwartz:

–Unless that presented a clear and present danger of breach of the peace which the Scarsdale police were unable to deal with, I think there is a constitutional right to put it up so long as other banners are there.

And, I don’t think, Your Honor, that a sign which simply says the Red Cross or the Red Cross symbol is unintended to give a message.

When those banners are put up in March and when the symbol is put up in a railroad station in Scarsdale every March, the message which is intended to convey is please give money to the Red Cross.

That is a message, that is an entreaty, it is a prayer, it is expression.

William H. Rehnquist:

What if Scarsdale said in Boniface Circle or the railroad station or wherever they now have Red Cross banners in support of fund raising, we will let any fund raising group that is active for Scarsdale put up a banner but we are not going to have anything else?

Marvin Schwartz:

I think that is an unconstitutional distinction.

William H. Rehnquist:

Why?

Marvin Schwartz:

I don’t think… Let me put it another way, in an affirmative way.

When the state opens a place for the expression of views, it may not select those who may express those views.

William H. Rehnquist:

But the city’s response here would be we haven’t opened a place for expression of all views, all we have opened is a place for signs supporting fund raising drives.

Marvin Schwartz:

That, to me, is an expression of a view and I think it is constitutionally impermissible to say that I may ask for funds for the Red Cross, I may ask for funds for the PTA, but I may not express my views about a non-fund raising function.

I don’t think that is the kind of distinction.

After all, it is content based and this Court has held time and time again that only a compelling, a compelling government interest can justify a content-based exclusion from a public forum.

Warren E. Burger:

I take it from what you have said that if only the creche as a symbol were allowed, but all other faiths and religious symbols were prohibited that that would not stand.

Marvin Schwartz:

I agree with that, Chief Justice.

Now, let me spend just a moment, if I may, on the Perry case.

That case has nothing to do with the issue before the Court here.

In the first place, the Court explicitly noted that the mailboxes in the public school were not a public forum.

Denial of access, the Court said, was not because of the viewpoint of the non-certified union, it was based upon status.

The most important thing, I think, for me to note about the Perry case is the Court statement that a state may use property for its intended purpose or restrict its use so long as the regulation is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.

That, may it please the Court, is this case.

Marvin Schwartz:

What we have here is expression for which access is denied and for no other reason that some functionaries in the Village of Scarsdale find that the view sought to be expressed is controversial, unpopular, divisive and offensive.

I respectfully submit that the Constitution does not permit.

On the establishment clause, if I may–

John Paul Stevens:

Would you agree before you go on to the establishment clause that there is at least theoretically a basis for distinction between saying everything offensive shall be banned and saying I will ban it because I disagree with what you say?

Marvin Schwartz:

–There is a difference–

John Paul Stevens:

As I read the reason here, it wasn’t necessarily that they disagreed with the message of the creche, they just thought this was an inappropriate use of the religious symbol.

Marvin Schwartz:

–I think the total effect of reading the appendix is that it was rejected because some were offended by its display, that it was not considered neighborly to manifest a point of view which others did not share or which made them uncomfortable, and that it was thought to breach a wall which was thought erroneously we now know to exist between church and state.

I don’t find that very much different than saying since I don’t like what you propose to say I won’t let you say it.

There is a slight difference but I don’t think it amounts to a constitutional difference.

John Paul Stevens:

You don’t think, for example, a Catholic priest who would be clearly sympathetic with the message could ever oppose having the creche in the village square?

Marvin Schwartz:

I can conceive of a priest saying that I am so firmly devoted to the principle of non-intermingling of church and state that I don’t believe religious symbols should be displayed on public property.

I can understand that position.

He might very well entreat the village trustees not to permit it.

But, the Constitution here is the problem.

So long as the District Court found this village freely granted access to its parks for the display of unattended symbols, with that finding of the District Court which was explicitly sustained by the Second Circuit and is not challenged here, it was not challenged in the Second Circuit, I don’t think you can say, yes, to one symbol and no to–

John Paul Stevens:

You say the Constitution requires that all unattended symbols be treated as fungible?

Marvin Schwartz:

–Yes, sir, unless there is a compelling governmental–

John Paul Stevens:

You allow solicitation for the Red Cross, you must allow solicitation for legal advocacy groups and others like that?

Marvin Schwartz:

–Yes, sir, no matter how hateful, no matter how hateful.

On the establishment clause, may it please the Court, it seems to me, if I may be trite, clearly and without doubt that it is disposed of by Lynch.

If a city may itself erect and display a creche in the context of a Christmas celebration, then how, may I ask, how in the world is the establishment clause offended by permitting a private group to erect a creche in the context of a Christmas observance which was not unlike that of Pawtucket, not unlike that at all?

How can that be said to convey a message from the state to its citizens that the state was endorsing the christian religion?

I don’t think the argument can survive a reading of Lynch.

Let me close by alluding very briefly to the Christmas celebration in Scarsdale, which my friend said not a word about.

Boniface Circle was selected in 1957 or 1956 as the site for the creche display by the Scarsdale Creche Committee because that was the traditional site of Scarsdale’s Christmas observance.

At that place a local organization sang Christmas carols each year, much of the time on platforms provided by the city, and their voices were amplified over a sound system provided by the village.

Throughout the Christmas season, 25 years at least, the two lamp posts in Boniface Circle have been festooned with lights and Christmas ornaments.

The little park is in the center of the business district and every lamp post in the business district, village property, is likewise decorated with lights and ornaments.

Thurgood Marshall:

Do you see any difference between the creche and Christmas ornaments?

Marvin Schwartz:

I think there is a difference, but I don’t think it is a constitutional dimension.

Marvin Schwartz:

If I am right that symbols may not be differentiated because of content, I don’t think the fact that a Christmas light is three inches long and the creche nine feet wide should make any difference.

I think the basic question is under what circumstances may the state restrict the–

Thurgood Marshall:

What makes a creche a creche?

Marvin Schwartz:

–The Infant Jesus.

Thurgood Marshall:

Thank you.

Marvin Schwartz:

And Mary and Joseph and the sheep and the–

Thurgood Marshall:

You don’t have them on the lamp posts, do you?

Marvin Schwartz:

–Pardon me?

Thurgood Marshall:

You don’t have those up on the lamp posts, do you?

Marvin Schwartz:

I have never seen one, Your Honor, but conceivably they could be–

Thurgood Marshall:

Well, if you say the same thing goes on–

Warren E. Burger:

–I suppose those symbols are intended to convey the same general message, are they not?

Marvin Schwartz:

–I would have to concede, Mr. Chief Justice, that the message of the creche is far more religious than a string of Christmas lights or a wreath.

Warren E. Burger:

Or is it just more specific?

Marvin Schwartz:

It is more specific, but the significant thing to me is that it is in the context of observance of a national holiday; that the holiday is celebrated by people of all religious persuasions.

It is not only religious christians who buy gifts and exchange them and who exchange greetings of peace and goodwill, it is our society as a whole.

So, whether we like it or not, Christmas has come to be a holiday with a wide-spread secular acceptance.

I think it is in that context that the creche is part of the symbol of Christmas even though it emphasizes the religious aspect more than other decorations do.

John Paul Stevens:

May I take you back to your argument about the history in Scarsdale which I think you rely on rather heavily that there has been a history of symbols in the park.

Marvin Schwartz:

I think it is important.

John Paul Stevens:

And they can’t deviate from that.

Supposing you had a community which had no comparable history, had never allowed symbols.

I would assume you would not contend that they couldn’t continue that policy and refuse a creche?

Marvin Schwartz:

If a village had never allowed an unattended symbol because no one had ever requested permission to display it, then the question would be, when permission was denied, was this a reasonable time, place and manner restriction which supported a significant governmental interest?

Would it interfere with traffic, would it be aesthetically displeasing?

There are all sorts of grounds which a municipality might advance for saying no symbols of any kind.

But, of course, that isn’t the case here.

John Paul Stevens:

I understand, but I was wondering if you were willing to concede, and I guess you are really not quite willing to, that if there had been a total absence of symbols in the past, then they could continue that policy.

I was wondering what you would do in a community which had Scarsdale’s history, but then for a period of five or ten years they had no creches and nothing else, and then the controversy arose.

Which history would you look to?

Marvin Schwartz:

I think that history, Your Honor, is important principally to show that this could not really be offensive, this really could not be a fighting symbol.

John Paul Stevens:

You have a lawsuit here.

Marvin Schwartz:

Well, we have a lawsuit, Your Honor, because beginning in 1976 a lawyer who was associated with the New York Civil Liberties Union moved into Scarsdale and he brought a lawsuit and the matter has been in turmoil ever since that time regrettably so.

I think controversies of this kind should be settle locally with good will on both sides.

And, much as it is a honor and pleasure for me to be here, I regret that I am here.

John Paul Stevens:

Your clients didn’t want it to be settled locally.

Marvin Schwartz:

Not so, Your Honor, not so.

My clients, the Scarsdale Creche Committee, made it perfectly clear that it would be willing to display its creche on any suitable public park land in Scarsdale and, indeed, in 1981, when access to public parks were denied, they displayed this creche on a sidewalk across the street from the park where it was vandalized.

It seems in no circumstances a group which has displayed a creche the same place for 24 years, with exceptions being generated only in 1976, not on the ground of aesthetics or traffic or what-have-you, has a right to maintain to let’s get settled–

William H. Rehnquist:

All I was suggesting is that a judgment of the Court of Appeals for the Second Circuit isn’t ordinarily thought of as settling something locally.

Marvin Schwartz:

–My clients had no option, Your Honor.

My clients had no option.

Thurgood Marshall:

They could have put it on private property.

Marvin Schwartz:

I don’t think that is the answer, Justice Marshall.

Thurgood Marshall:

But the answer is yes.

Marvin Schwartz:

Oh, they could have, but that isn’t the answer.

Thurgood Marshall:

It wouldn’t have had the same effect on private property, would it?

Marvin Schwartz:

No, it would not, sir.

Thurgood Marshall:

You want it to get the imprimatur of the state.

Marvin Schwartz:

I don’t believe the record would support that conclusion.

Thurgood Marshall:

I am asking you.

Don’t you think that is what they wanted?

Marvin Schwartz:

No, sir.

The reason the creche was put in Boniface Circle in the first place was because that was the site of the village’s traditional Christmas observance where the lamp posts were strung with lights and where the carols were sung.

Now, once a tradition begins inertia continues.

It wasn’t until 1976 a fuss started.

When permission was denied in 1981, my clients did move their creche across the street.

But, what they seek is a level space in the center of town which is accessible to pedestrians.

It makes no point to put a creche in a church back yard where its view is obstructed by trees and shrubs.

Thurgood Marshall:

What about the front yard?

Marvin Schwartz:

The record here shows that only one church was centrally located and met that minimal requirement.

Thurgood Marshall:

Well, do any of the contributors to this creche fund own property?

Marvin Schwartz:

The record doesn’t show that.

It shows that five–

Thurgood Marshall:

Can’t we assume they do?

Marvin Schwartz:

–I assume so.

Thurgood Marshall:

Can’t we assume we can put it on their property?

Marvin Schwartz:

Nobody lives, Justice Marshall, in Boniface Circle or in a centrally located place where shoppers and pedestrians would see the creche throughout the season.

Harry A. Blackmun:

Do they all live in Scarsdale?

Marvin Schwartz:

Five of the seven do, but all of the seven have Scarsdale post offices and all seven of the churches are either in Scarsdale or in the immediate surrounding area with Scarsdale post office addresses.

No point was made of that, Your Honor, in any of the courts below.

With all respect–

Harry A. Blackmun:

Well, I think it ties into your comment about having it settled locally.

Marvin Schwartz:

–I meant within the forum of the Board of Trustees.

That is what I meant.

These people have been before the Board of Trustees on this subject year in and year out and it is regrettable it could not be resolved there.

Ultimately it will have to be.

Thank you.

Warren E. Burger:

Do you have anything further, Mr. Frankel?

Marvin E. Frankel:

I think I have about a minute and a half, Your Honor.

Warren E. Burger:

You have two minutes.

Marvin E. Frankel:

I think it is clear that Mr. Schwartz’s clients and another group brought this lawsuit after the village Board had settled locally its view on this subject.

I think the Court should know that the turmoil in Scarsdale which has grown begins in 1960, as the record shows, and continues and accelerates and does not begin with the lawsuit, the abortive lawsuit by the Civil Liberties Union person.

I think in answer to a question put by Justice Stevens, it should be said that this is not a case by any means of viewpoint discrimination.

You just have to read the somewhat anguished expressions of then Mayor Stone who had once voted to allow the creche and came to realize its significance standing there speaking for Scarsdale and changed her vote, who is a christian, who has a creche of her own, to realize that this is not an anti-christian expression.

You just have to read the statement of ten christian clergymen quoted at the end of our reply brief against offending their non-christian neighbors, against appropriating the public property for the practice of religion, against mingling religion with the state, even our own religion, to realize this is an effort to keep the village free of the kind of division that has erupted and is not in any sense a discrimination on the basis of viewpoint.

I think with all the back and forth, the line is clearly drawn and the potential significance for the parks in the cities and villages of America ought to be clean.

The first question is must they open those parks to unattended structures, to swastikas, to creches, to abortion controversies, or may they limit the parks as almost all American parks have been limited to community symbols that the people care about, restricting them in this fashion.

Thank you.

Warren E. Burger:

Thank you, gentlemen, the case is submitted.