Request By:
Gail Linville, Vice President
St. Joseph's Area Association, Inc.
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Jennifer L. Carrico, Assistant Attorney General
OPINION OF THE ATTORNEY GENERAL
The Grotto and Garden of Our Lady of Lourdes is an important artifact in Kentucky history, architecture, archaeology and culture, and the Establishment Clause of the United States Constitution permits its restoration in order to preserve the heritage of the City of Louisville and the Commonwealth of Kentucky. The government has a valid secular purpose for preserving this registered historical landmark, and its restoration by a private neighborhood association does not convey a message of governmental endorsement of religion.
ANALYSIS
The Saint Joseph's Area Association, a private neighborhood association, requests the Opinion of the Attorney General on whether the Association may use private funds to restore the Grotto and Garden of Our Lady of Lourdes. The Grotto and Garden of Our Lady of Lourdes is a registered Kentucky historical landmark that is religious in nature and is located on property owned by the University of Louisville.
The Establishment Clause of the First Amendment to the United States Constitution, which applies to the Commonwealth of Kentucky by way of the Fourteenth Amendment, provides that: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." U.S. CONST. amend. I. According to the U.S. Supreme Court, the Establishment Clause "prevent[s], as far as possible, the intrusion of either [the church or state] into the precincts of the other." Lynch v. Donelly, 465 U.S. 668, 672 (1984) quoting Lemon v. Kurtzman, 403 U.S. 602, 614 (1971). The Establishment Clause, therefore, prohibits the government from affiliating itself with or promoting any religious doctrine or organization, discriminating among persons on the basis of their religious beliefs and practices, delegating governmental power to religious institutions, or becoming involved too deeply in the internal affairs of a religious organization. Allegheny v. ACLU, 492 U.S. 573, 590 (1989).
On the other hand, the Supreme Court recognizes that "total separation between church and state is not possible in an absolute sense," and "some relationship between government and religious organizations is inevitable." Lynch, 465 U.S. at 672. The Court emphasizes that "no significant segment of our society and no institution within it can exist in a vacuum or in total or absolute isolation from all the other parts, much less from government," and "it has never been thought either possible or desirable to enforce a regime of total separation." Id. at 674 quoting Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 760 (1973). Because religion ever is present in the public domain, courts must "reconcile the inescapable tension between the objective of preventing unnecessary intrusion of either the church or the state upon the other, and the reality that . . . total separation of the two is not possible." Lynch, 465 U.S. at 672.
In Lemon v. Kurtzman , 403 U.S.602 (1971), the Supreme Court created the three- part " Lemon test" to help courts achieve this delicate constitutional balance: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion. " Lemon, 403 U.S. at 612-613. Since the time it was adopted, the Supreme Court has modified the Lemon test to two primary inquiries: A governmental act is constitutional under the Establishment Clause if (1) it has a valid secular purpose, and (2) its principal or primary effect neither advances nor inhibits religion. Allegheny 492 U.S. at 573. The Supreme Court has applied the Lemon test inconsistently over the years; however, courts continue to use the test to identify governmental practices that comport with the Establishment Clause. See e.g., Board of Ed. of Westside Community Schools v. Mergens, 496 U.S. 226 (1990).
Under the first prong of the Lemon test, a governmental act is permitted by the Establishment Clause if it has a secular legislative purpose. Witters, 474 U.S. 481 (1986); Bowen v. Kendrick, 487 U.S. 589 (1988); Board of Ed. of Westside Community Schools, 496 U.S. at 226; Edwards v. Aguillard, 482 U.S. 578 (1987). When the state articulates a plausible secular legislative purpose, that purpose is entitled to deference. Wallace, 472 U.S. at 38 (1985). The state is not required to have "exclusively secular" objectives because "if such a requirement existed, much conduct and legislation approved . . . in the past would be invalid." Id. Therefore, if the state advances a secular legislative purpose, the display is valid under the Establishment clause unless the context indicates that it is "entirely motivated by a purpose to advance religion. " Id.; Coles v. Cleveland Bd. of Educ., 171 F.3d 369 (6th Cir.1999).
Under the second prong of the Lemon test, more commonly referred to as the "effects test," a governmental act is permitted by the Establishment Clause if it does not create the "effect" of governmental endorsement of religion. Allegheny, 492 U.S. 594. The Supreme Court decides whether a governmental act has the effect of endorsing religion by examining the act through the eyes of a "reasonable person. " In her concurrence in Capitol Square Review Advisory Board v. Pinette, 515 U.S. 753 (1995), Justice O'Connor described a "reasonable person" for purposes of the Establishment Clause:
He is not to be identified with any ordinary individual, who might occasionally do unreasonable things; he is a prudent and careful man, who is always up to the standard. Nor is it proper to identify him even with any member of the very jury who are to apply the standard; he is rather a personification of a community ideal of reasonable behavior, determined by the jury's social judgment.
Id. quoting William L. Prosser, The Law of Torts 154 (3d ed. 1964).
In American Civil Liberties Union v. Capitol Square Review Advisory Board, 243 F.3d 289, 303 (6th Cir. 2000), the Sixth Circuit Court of Appeals upheld the constitutionality of the Ohio motto "With God All Things Are Possible" based on the objective perspective of the reasonable observer. The court stated:
It is probably not the case . . . that the idealized observer ought to be deemed as ill-informed as he or she almost certainly would be in real life . . . proper application of the endorsement test requires that the reasonable observer be deemed more informed than the casual passerby.
Id. In fact, the court assumes under the second prong of the Lemon test that the reasonable observer is deemed aware of the history of the display itself:
As a matter of law . . . it may well be that the reasonable observer ought to be deemed to know about [official] press releases and other official literature identifying the source of the motto, as well as being credited with detailed knowledge of the text of the New Testament. Plus some familiarity with the religious and philosophical traditions of the various peoples, ancient and modern, who have contributed to the religious, cultural and philosophical heritage of the State of Ohio.
Id. Therefore, the relevant issue under the second prong of the Lemon test is "whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement. " Wallace v. Jaffree, 472 U.S. 38, 76 (1985)(O'Connor, J., concurring).
The Supreme Court permits governmental displays of religious symbols under this two-part Lemon test. In Lynch v. Donnelly, 465 U.S. 668 (1984), the City of Pawtucket, Rhode Island, displayed a creche in a public park along with certain secular symbols of Christmas. Id. at 681. The express purpose of the Lynch display was to "celebrate Christmas" and "depict the origins" of that secular holiday. Id. at 681. The Court accepted this purpose under the first prong of the Lemon test because courts reject an express secular purpose only when there is "no question that the statute or activity [is] motivated wholly by religious considerations." Id. at 680 (emphasis added). The Lynch Court observed: "Were the test that the government must have 'exclusively secular' objectives, much of the conduct and legislation this Court has approved in the past would have been invalidated." Id. at 681, n.6 (emphasis added). The Court also found the creche constitutional under the second prong of the Lemon test because of its secular historical value, which, to a reasonable person, makes the display "no more an endorsement of religion than such governmental 'acknowledgments' of religion" as legislative prayers and the national motto. Id. at 693.
In Allegheny v. A.C.L.U., 492 U.S. 573, 590 (1989), the Court permitted the County of Allegheny, Pennsylvania, to display a menorah and a Christmas tree on the front steps of the City-County Building. Id. at 614. The menorah and tree were accompanied by a plaque proclaiming the display a "salute to liberty." Id. at 616. The Court accepted the city's stated purpose that the menorah was a "celebration of liberty," explaining that "if the city celebrates both Christmas and Chanukah as secular holidays, then its conduct is beyond the reach of the Establishment Clause." Id. at 615. The Court also found that the display passed the second prong of the Lemon test, concluding that the context of the display created an "overall holiday setting . . . that simply recognizes that both Christmas and Chanukah are part of the same winter holiday season, which has attained a secular status in our society." Id. at 616. These two Supreme Court cases illustrate that the government may display a religious symbol on public property if it has a valid secular purpose for doing so, and a reasonable person who knows the secular history and context of the display would not believe the government is endorsing religion.
In practical application, courts generally limit the types of public displays that are permitted under the Lemon test. See, e.g. A.C.L.U. v. City of Birmingham, 791 F.2d 1561 (6th Cir. 1986) (display with no secular explanation or purpose is unconstitutional); ACLU v. McCreary County, 96 F.Supp.2d 679 (E.D.Ky. 2000) (obvious effort by government officials to endorse religion) . However, courts also recognize the special value of symbols or landmarks that preserve or illustrate "this country's long and deeply entrenched tradition of civic piety," A.C.L.U. v. Capitol Square Review and Advisory Board, 243 F.3d 289, 300 (6th Cir. 2001) (Ohio motto "With God All Things are Possible" is constitutional); or that are deeply embedded in our history and tradition. See Marsh v. Chambers, 463 U.S. 783 (1983) (opening legislative sessions with prayer is constitutional).
Thus, in the extraordinary circumstance such as the present where the state owns a registered historical landmark that is religious in nature, courts will look to Suhre v. Haywood, 55 F.Supp.2d 384 (W.D.N.C. 1999). In Suhre , the court considered a marble plaque of the Ten Commandments located behind a judge's bench in a county courthouse. Id. The plaque was installed as part of a larger display dedicated in 1932 upon the completion of the county courthouse. Id. at 387. Forty years later, the courthouse, including the display, was entered on the National Register of Historic Places by the United States Department of the Interior. Id. It was recognized as property "significant in American history, architecture, archaeology and culture - a comprehensive index of the significant physical evidences of our national patrimony." Id. at 388. The property "deserves to be preserved by their owners as part of the cultural heritage of our nation." Id.
The court found the display constitutional, stating:
The display in the Haywood County Courthouse no more violates the First Amendment than the frieze [of the Ten Commandments] on the south wall of the Supreme Court. The marble plaques are "part of an architectural and aesthetic unit that has been in place more than sixty years . . . like the frieze on the wall of the Supreme Court, this display is protected by law . . . the Haywood County Courthouse has been placed on the National Register of Historic Places and thus enjoys a protected status.
Id. at 398-399.
Like the decalogue in Suhre , The Grotto and Garden of Our Lady of Lourdes is a registered city and state historical landmark. According to the following paraphrase of the history of the structure provided by the St. Joseph's Area Association, the structure is an important historical artifact in the City of Louisville:
The small, triangular-shaped neighborhood of St. Joseph's, named for the now-demolished St. Joseph's Infirmary, is where the Grotto and Garden of Our Lady of Lourdes [is] located. The Grotto and Garden comprise a rustic designed historic landscape feature that is located on the former site of the St. Joseph's Infirmary Complex . . .
Around 1910, Eastern Parkway was laid out by Olmsted Brothers on the site of Samuel Churchill's rural farm. Easy access lead to development, and the area was soon subdivided for residential and commercial uses. The Sisters of Charity of Nazareth, needing additional space and seeking to move from bustling Fourth Street to a more tranquil setting, purchased one of the unimproved lots. By 1926, the Sisters had constructed a state-of-the-art, 325-bed hospital, which was the largest health-care facility in the region. Later, an additional hospital wing was constructed and a nursing student dormitory and all-purpose gymnasium-auditorium complex was added. The Infirmary's Grotto and Garden were designed as part of this complex to be a secluded place of quiet contemplation for the hospital's staff, patients, and visitors. The new Infirmary improved healthcare in the city and spurred further development in the area.
. . . inspiration for the St. Joseph's Infirmary Grotto is the Grotto of Our Lady of Lourdes in southern France. The Grotto of Our Lady of Lourdes at the St. Joseph's Infirmary site was, according to hospital records, ". . . as nearly like the famous shrine in France as could be made, and is built into the side of a little knoll . . ."
The St. Joseph's Grotto is a designed historic landscape feature that is defined by its walled enclosure and the rows of evergreens flanking either side. It is formal in the symmetry of its plan, yet rustic in the use of brick, stone, and rubble building materials. The Garden forms a rectangular, roofless "nave" enclosed by masonry walls with semi-circular paved areas as its terminating ends . . . . A stream of water once flowed from the high stone back of a bench facing the Grotto to a goldfish pool (now planting beds) on the central axis of the Garden. Pathways lined by flower beds complete the Garden enclosure. The pedestrian entrance at one end of the Garden is aligned with the two-story, half-domed apse forming the Grotto, in which statues . . . were originally placed around a hidden "spring" flowing to a pool of water. The Grotto consists of a reinforced concrete shell with stone and rubble facing on the inside.
Verification of the architect of the St. Joseph's Grotto is provided by two architect's drawings dating from 1927. The title block indicates that D.X. Murphy and Brothers, Architects, were the architects of record. D.X. Murphy (1853-1933) formed the firm in partnership with his brothers James C. Murphy (1865-1935) and Peter J. Murphy (1869-1955). They succeeded the firm of Henry Whitestone. D.X. Murphy and his brothers . . . designed numerous buildings and landmarks in Louisville and around the region. Among their noted works was . . . the Churchill Downs Grandstand and twin spires (1895). They also designed the Louisville General Hospital (1914), which was referred to as the "Million Dollar Hospital," as a reference to the expense of building a comparable facility for African Americans on the same site.
[St. Joseph's Grotto is a unique local example of a grotto. ] No other examples of grottos of this scale and high-style design are believed to exist in the City of Louisville or in Jefferson County.
In 1970, the Sisters of Charity sold their hospital building to the local hospital chain, Humana Inc. Humana operated their hospital in the old Infirmary Building for 10 years. When Humana vacated the site and relocated to Poplar Level Road (in what is now known as Humana Hospital Audubon), Humana demolished the Infirmary's main building and donated the site to the University of Louisville. Meanwhile, the hospital's old nursing dormitory was renovated by the City of Louisville Housing Authority into Lourdes Hall, a senior citizen's residence. The old St. Joseph's multi-purpose building was renovated into a recreation center. UL later leased a portion of the old hospital site to Brown-Noltemeyer, who developed the 224-unit University Park Apartments.
Because of its special historical status, the proposed renovation of The Grotto and Garden of Our Lady of Lourdes meets the requirements of the Establishment Clause as set forth in the Lemon test and applied in Suhre . The renovation will occur in order to preserve an important local and state historical landmark. According to the Supreme Court, this kind of secular purpose, which is an official acknowledgement or recognition of the influence of religion in history and culture, is a valid secular purpose under the first prong of the Lemon test. In Lynch v. Donnelly , the Supreme Court confirmed that recognizing the historical impact of religion is a valid secular purpose, stating:
There are countless other illustrations of the Government's acknowledgment of our religious heritage and governmental sponsorship of graphic manifestations of that heritage.
Id. at 677 (emphasis added). The Lynch court emphasized that the "unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789," and stated that "our history is replete with official references to the value and invocation of Divine guidance in deliberations and pronouncements of the Founding Fathers and contemporary leaders." Id. at 675. Both Lynch and Suhre indicate that preserving an important state historical artifact is a valid governmental purpose under the first prong of the Lemon test.
Under the second prong of the Lemon test, no reasonable person who understands the history and context of the Grotto and Garden of our Lady of Lourdes would believe the government has endorsed religion. The structure itself is maintained in secular context by the University of Louisville. It is not located in or near a government building or courthouse. See, e.g., Allegheny, 492 U.S. at 599-600 ("The creche sits on the Grand Staircase, the "main" and "most beautiful part" of the building that is the seat of county government . . . no viewer could reasonably think that it occupies this location without the support and approval of government."). The state does not promote the structure to the public. See e.g. Allegheny, 492 U.S. at 600, n.50 ("The county's own press releases made clear to the public that the county associated itself with the creche. "). The funding for the renovation will be provided by a private organization, and the only expenditure by the state is routine maintenance of the grounds, which certain courts consider de minimus. Lynch, 465 U.S. at 684.
To neutralize the religious message of the structure, the neighborhood association proposes to fund the installation of a sign describing the history of The Grotto and Garden of Our Lady of Lourdes and informing observers that its renovation and maintenance is not intended to endorse religion. This plainly visible secular explanation will enhance the historic nature of the structure. In Allegheny , the Supreme Court noted that that an explanatory plaque "may confirm that in particular contexts the government's association with a religious symbol does not represent the government's sponsorship of religious beliefs." Id.
Similarly, in ACLU v. Wilkinson, 895 F.2d 1098, 1104 (6th Cir. 1990), the Sixth Circuit Court of Appeals permitted a stable for live nativity scenes during the Christmas season. The creche was accompanied by a plaque stating "this display . . . does not constitute an endorsement by the Commonwealth of any religion or religious doctrine." Id. The Court decided that "the Commonwealth has given the observer a plain and straightforward answer to the question whether the display constitutes an endorsement of religion or religious doctrine." Id. See also Brooks, 222 F.3d at 266 ("We believe that the plaque explaining the secular meaning of the display helps to negate any inference of endorsement that might otherwise arise.").
The reasonable observer also will know that the Grotto and Garden of Our Lady of Lourdes is one of many historical, religious artifacts that the Commonwealth of Kentucky maintains on public property in state parks. In Monroe County, the Commonwealth maintains the Mill Creek Baptist Church, also called the Old Mulkey Meetinghouse, as a state historic site. A pamphlet describing the history of the church is provided to visitors as they enter. Portions of that pamphlet follow:
The Old Mulkey Meetinghouse [may have been established in 1765 (pre-Daniel Boone)], thus being the first church located west of the Appalachian Mountains.
It is . . . the oldest wooden building of its kind in the state. The Old Mulkey Church, located about two miles from present-day Tompkinsville, was established by a small band of pioneer Baptists from North and South Carolina . . . . Those who organized the church acquired six acres of land and built a log meetinghouse on the banks of Mill Creek, about 200 yards from its present site. The oldest church minutes are dated September 11, 1798 . . . and . . . the first preacher mentioned in the 1798 minutes was John Mulkey.
The Mill Creek Church grew rapidly and soon the old building became inadequate for the congregation. In April 1804, a committee of seven men was appointed to make plans for building a new meetinghouse . . . [The new] crude log structure, with puncheon floor, pegleg seats, chinked and daubed walls, clapboard shutters, and handriven shingles was built with 12 corners and in the shape of a cross with three doors. Many historians believe that the 12 corners represent the 12 apostles, while others believe that they represent the 12 tribes of Israel. The three doors are symbolic of the Godhead . . . .
[In 1925, a] board of trustees was established, public donations were made to rebuild and restore the building to its original condition, and within the framework of the original logs, the structure was restored . . . to its 1804 form . . . In 1931, this pioneer structure with its adjoining cemetery was declared one of Kentucky's state parks for perpetuation as an historical and religious site.
Kentucky Department of Parks, Old Mulkey Meetinghouse State Historic Site , Pamphlet, May, 2001.
Like the Old Mulkey Meetinghouse, the Commonwealth of Kentucky also maintains the church/ meetinghouse at Constitution Square State Historic Site in Danville, Kentucky; the Chapel at Old Fort Harrod; and the Baptist Church in the Levi Jackson Wilderness Road State Park. Each of these sites, including the Grotto and Garden of Our Lady of Lourdes, undeniably is an important symbol to the particular religion it represents. However, each site also is valuable to all citizens of Kentucky, regardless of religion, because it is a tangible recognition of an important influence in the history of the Commonwealth of Kentucky.
Kentucky courts permit public displays of religious symbols like The Grotto and Garden of Our Lady of Lourdes and other historical landmarks maintained by the Commonwealth in public parks. In American Civil Liberties Union of Kentucky v. Wilkinson, 895 F.2d 1098 (6th Cir. 1990), the plaintiffs challenged the state's yearly practice of building a life-size stable on capital grounds during the Christmas season. Id. at 1099. The stable was used for live nativity scenes and was open thereafter for use by community groups. Id. at 1101. The court decided in part that the display was a valid acknowledgement of the role of religion in the secular celebration of Christmas, and emphasized that a reasonable observer who understands the history and context of the display would not believe the government is endorsing religion. Id. at 1104.
In Doe v. Clawson, 915 F.2d 244 (6th Cir. 1990), the City of Clawson displayed a nativity scene along with other Christmas symbols on the front lawn of the City Hall. Id. at 245. The court concluded that "[a] reasonable observer of the display would likely conclude 'that the combined display is an effort to acknowledge the cultural diversity of our country.'" Id. at 249. Similarly, in Kunselman v. Western Reserve Local School District, 70 F.3d 931 (6th Cir. 1995), students and their parents sued the school district to enjoin the school district's use of the "Blue Devil" as the school's athletic mascot. The court noted that the "Blue Devil" mascot derived from an elite corps French alpine soldiers who fought in World War II. Id. at 932. The court concluded that "no reasonable person would think that the school authorities here are advocating Satanism anymore than the [World War II soldiers], or that numerous other schools are encouraging worship of the devil when they use the name and symbol. " Id. at 932.
Finally, in Brooks v. City of Oak Ridge described above, the City of Oak Ridge erected a four ton bronze "Friendship Bell" in a public park. Brooks, 222 F.3d at 262. The Court acknowledged that the bell is a significant symbol in the Buddhist religion, but nevertheless concluded that "the reasonable observer would determine that the City of Oak Ridge intended to endorse peace and friendship with Japan, not the Buddhist religion" because:
We assume that the reasonable observer would know about the bell casting ceremony, as well as the history of the bell's adoption for Oak Ridge's fiftieth birthday and the city's official statement of secular purpose to commemorate Oak Ridge's historic connection to Japan and to express a desire for international peace and friendship.
Id. at 266. Thus, according to state and federal precedent, the restoration and maintenance of the Grotto and Garden of Our Lady of Lourdes is constitutional because it is merely an official acknowledgement of the important role that the St. Joseph's Infirmary and the Sisters of Charity of Nazareth played in history of the City of Louisville and the Commonwealth of Kentucky.
CONCLUSION
The Grotto and Garden of Our Lady of Lourdes is a significant artifact that is deeply embedded in the history and tradition of the City of Louisville, and it deserves to be preserved by its owner as part of the cultural heritage of the Commonwealth of Kentucky. The Grotto and Garden represents the contribution of the St. Joseph's Infirmary and the Sisters of Charity of Nazareth to the City of Louisville and surrounding communities. It is one of many historical sites maintained by the Commonwealth on public property that is religious in nature. The structure itself is not located in or near a government building, and it is not promoted in any manner by the Commonwealth. Most importantly, the proposed renovation is to be funded by the St. Joseph's Area Association, a private organization. A reasonable person that knows the history and secular context of this structure would not believe the Commonwealth is endorsing religion by permitting the St. Joseph's Area Association to undertake its renovation.