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Seventh Circuit Dismisses Religious Display Case Based on Lack of Standing - Real Estate and Land Use News

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Real Estate and Land Use News


Posted on: Oct 30, 2014

By David Adams, Bingham Greenebaum Doll LLP

Cabral v. City of Evansville, IN, 759 F.3d 639 (Seventh Circuit June 25, 2014) required the district court, and eventually the Seventh Circuit Court of Appeals, to decide whether or not a proposed prominent religious display on the city’s waterfront violated the Establishment Clause of the First Amendment.

Background
The ACLU of Indiana filed suit on behalf of two residents of Evansville in federal district court against the City of Evansville, Indiana asking the court to grant an injunction prohibiting a prominent religious display along the City‘s public Riverfront area that was proposed by local churches.  The planned display would have included up to 31 six-foot tall painted and decorated crosses.  After receiving the initial permit application, Evansville’s counsel suggested removing “Jesus Saves” from the display in order to avoid a violation of Evansville’s municipal code regarding First Amendment signs. Evansville’s Board of Public Works approved the display with this change and added an additional requirement – a disclaimer that stated “The City of Evansville does not endorse the display or its message. The display is sponsored and funded by a private entity”, which would have had to be erected at either end of the display.

The district court eventually ordered a permanent injunction, holding that Evansville’s “approval of this display of crosses constitutes an impermissible endorsement of religion that violates the Establishment Clause of the First Amendment.”  Evansville did not appeal; instead, one of the local churches filed an appeal as an intervenor in the district court, arguing that the injunction violated its own First Amendment rights.

Appealing the District Court’s Decision
The Seventh Circuit Court of Appeals determined that a decision did not need to be reached on those particular issues because the church lacked standing to bring the appeal.   The court found that it could not redress any injury that church might have suffered because Evansville was not a party to the appeal; in fact, Evansville could still prohibit The church’s intended display, regardless of any order the court issued. The court further held any First Amendment injury The church might have suffered from the injunction was not fairly traceable to, or caused by, Evansville. As a result, the court dismissed the church’s appeal.

Was the Prohibition of the Display Unconstitutional?
The Seventh Circuit proposed a scenario for the future – if the church applied for the permit and Evansville denied it, and the church filed suit to challenge that denial, the church would then have standing to proceed. However, the court questioned the viability of that potential suit, highlighting that a reasonable observer could be led to believe that the city was endorsing the religious message of the display based on the magnitude and nature of this display in such a public setting.  

This post was written by David Adams, Bingham Greenebaum Doll LLP. If you would like to submit content or write an article for the Real Estate and Land Use Section page, please email Mary Kay Price at mprice@indybar.org.

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