At issue in this case is the official seal of the City of Edmond, Oklahoma. The circular seal contains four quadrants, of which one depicts a steam engine and oil derrick, one depicts the Old North Tower,(2) one depicts a covered wagon with the number 1889,(3) and the last quadrant depicts a Christian cross. . . .
Plaintiffs are non-Christians who live or work in Edmond. . . .
The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." U.S. Const. amend. I. . . .
Plaintiffs concede that the main issue in this case is whether the City seal violates the second part of the Lemon test: whether its primary effect is to advance or inhibit religion, or, in endorsement test terms, whether it conveys or attempts to convey the message "that religion or a particular religious belief is favored or preferred." Allegheny, 492 U.S. at 593 (quoting Wallace v. Jaffree, 472 U.S. 38, 70 (1985) (O'Connor, J., concurring in the judgment)).(6)
[Footnote: (6) Standing is of course always necessary in an Establishment Clause case, and it is sometimes a difficult issue. No one in this case disputes plaintiffs' standing. Under our case law, plaintiffs clearly have standing. See Foremaster, 882 F.2d at 1490 ("Foremaster's allegations of direct, personal contact suffices as non-economic injury.").]
In applying this "effects" test, we must consider the "`particular physical setting'" of the challenged action. Foremaster, 882 F.2d at 1491 (quoting Allegheny, 492 U.S. at 597). Further, we evaluate the effect "by an objective standard, which looks only to the reaction of the average receiver of the government communication or average observer of the government action." Friedman, 781 F.2d at 781; see also, Foremaster, 882 F.2d at 1491 ("We inquire what an average observer would perceive when viewing the action of the City.").
. . . We first addressed this issue in Friedman, in which the Bernalillo County seal containing a Latin cross and the Spanish motto "CON ESTA VENCEMOS" was challenged on Establishment Clause grounds. . . .The district court found no Establishment Clause violation, concluding that the cross was simply an historical depiction of the importance of the Catholic Church in settling the southwest. On appeal, we reversed, holding that under either a clearly erroneous or a de novo standard of review,(7) the lower court erred.
. . . the Seventh Circuit held that seal of the city of Rolling Meadows and the seal, emblem and logo of the city of Zion both violated the Establishment Clause. . . . It also rejected Zion's argument that the seal, emblem and logo "merely commemorate the historical origins of the City." Harris, 927 F.2d at 1414, stating that "the City may not honor its history by retaining the blatantly sectarian seal, emblem, and logo." Id. at 1415.
. . .Defendants argue that the City seal is permissible because it symbolizes "the unique history and heritage of Edmond." Appellees' Br. at 6. We agree with the Seventh Circuit's rejection of the identical historical argument in Harris: "the City may not honor its history by retaining the blatantly sectarian seal . . . . These symbols transcend mere commemoration, and effectively endorse or promote the Christian faith." Harris, 927 F.2d at 1415. Such an appeal to history also failed to save the Bernalillo County seal in Friedman, and is indeed an argument which could always "trump" the Establishment Clause, because of the undeniable significance of religion and religious symbols in the history of many of our communities. We rejected arguments in Friedman that the county seal was permissible because it was not intended to advance religion, stating "f the challenged practice is likely to be interpreted as advancing
religion, it has an impermissible effect and violates the Constitution, regardless of whether it actually is intended to do so." Friedman, 781 F.2d at 781. . . .
As we observed in Friedman,
It is not decisive that defendants' heraldic and historical experts, and lay witnesses who are members of Christian sects, reacted less emotionally to the seal. It is to be expected that members of Christian sects would be more comfortable with a seal endorsing their beliefs than would individuals who adhere to different beliefs. The comfort of the majority is not the main concern of the Bill of Rights.
Id. at 782. The relevant inquiry is the objective one of what the "average observer" would perceive when viewing the seal. Foremaster, 882 F.2d at 1491. On that issue, we must conclude that the average observer would perceive the same sort of endorsement of Christianity which we held such an observer would feel in Friedman, and the Seventh Circuit held such an observer would feel in Harris and Kuhn, when evaluating governmental seals with similarly distinctive crosses.
Finally, defendants attempt to distinguish the Edmond seal from the Bernalillo County seal at issue in Friedman by arguing that the other secular elements of the seal effectively neutralize any religious message conveyed by the cross. While we acknowledge that each case must turn on its own facts, and that the particular context and setting of a particular governmental seal or logo is relevant to its fate when challenged under the Establishment Clause, we decline defendants' invitation to carefully and minutely distinguish the Edmond seal from the Bernalillo County seal based upon the particular dimensions of the crosses in the two seals or the secular or non-secular nature of other elements of the seal. As the Seventh Circuit stated in rejecting the identical argument in Kuhn,
The images on the seal are not just neutral snapshots of the community; they are charged with endorsement. . . . [R]egardless of its origins, the [city] seal does promote the selected images it depicts. To any observer, the [city] seal expresses the City's approval of those four pictures of City life -- its flora, its schools, its industry and commercial life, and its Christianity.
Kuhn, 927 F.2d at 1412. We too decline to hold that some visible and clearly defined religious images are permissible while other identically visible religious images are not. "Otherwise, we judges will be immersed in the minutiae of graphic design, our rulers and calipers in hand, scrutinizing each symbol for acceptable proportion, color and gloss. With no principled basis for distinguishing one seal from the next, our opinions will be fastidiously fact-bound and our precedent hopelessly abstract." Murray, 947 F.2d at 170 (Goldberg, J., dissenting).
In sum, we hold that under applicable Tenth Circuit and Supreme Court authority, the Edmond City seal violates the Establishment Clause. The district court erred in concluding otherwise. We therefore reverse and remand for further proceedings consistent with this opinion.
Because we reverse and remand this case, and find in favor of plaintiffs, plaintiffs are now the prevailing parties for purposes of the attorneys fees provisions of 42 U.S.C. ยง 1988. This casts in a new light the determination of any fee awards in this case. We accordingly remand the issue of attorneys fees and costs to the district court for a redetermination in light of this opinion.
