Cooper v. U.S. Postal Service, No. 07-4825 (2d Cir. 2009)
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07-4825-cv (L); 07-4826-cv (Con) Cooper v. U.S. Postal Service 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Argued: March 20, 2009 Decided: August 20, 2009) Docket No. 07-4825-cv (L); 07-4826-cv (Con) - - - - - - - - - - - - - - - - - - - -X BERTRAM COOPER, Plaintiff-Appellee, -v.- 07-4825-cv 07-4826-cv U.S. POSTAL SERVICE, JOHN E. POTTER, as Postmaster General, RONALD G. BOYNE, as Postmaster, Manchester, Connecticut Post Office, Defendants-Appellants, FULL GOSPEL INTERDENOMINATIONAL CHURCH INC., DR. PHILIP SAUNDERS HERITAGE ASSOCIATION, INC., SINCERELY YOURS INC., Intervenors-DefendantsAppellants, GARY CHIPMAN, KIMON KARATH, LESLIE STRONG, Intervenors. - - - - - - - - - - - - - - - - - - - -X Before: JACOBS, Chief Judge, WESLEY, Circuit Judge, 1 2 3 4 This case raises an Establishment Clause challenge to 5 religious displays in a contract postal unit operated by a 6 church in Manchester, Connecticut. 7 or CPUs, are postal facilities operated by private 8 entities on private property (such as general stores or 9 private homes) pursuant to contracts with the United States and CROTTY, District Judge. * Contract postal units, 10 Postal Service. 11 resident, sued the United States Postal Service, the 12 Postmaster General, and the Postmaster of Manchester, for 13 declaratory and injunctive relief alleging discomfort with 14 encountering religious materials displayed at the Manchester 15 CPU. 16 operates the CPU pursuant to a revenue-sharing contract with 17 the government, intervened as a Defendant. 18 for summary judgment, the district judge concluded that (i) 19 the CPU is a state actor, (ii) the contractual relationship 20 between the government and the Church is permissible under 21 the Establishment Clause, and (iii) the religious displays 22 at the CPU violated the Establishment Clause. Plaintiff Bertram Cooper, a Manchester The Full Gospel Interdenominational Church, which * On cross-motions Accordingly, The Honorable Paul A. Crotty of the United States District Court for the Southern District of New York, sitting by designation. 2 1 the district court ordered removal of the religious 2 displays. 3 Relief was stayed pending this appeal. We conclude that Cooper had standing to raise the 4 Establishment Clause challenge and that an Establishment 5 Clause violation occurred, but as to relief, we require no 6 more than that the postal counter be free of religious 7 material, and that visual cues distinguish the space 8 operating as a postal facility from the space functioning as 9 purely private property. We vacate the judgment of the 10 district court and remand for further proceedings consistent 11 with this opinion. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 JEFFREY A. SHAFER, Benjamin W. Bull, Jordan W. Lorence, Matthew S. Bowman, Alliance Defense Fund, Washington, D.C., Joseph P. Secola, Secola Law Offices, Brookfield, Connecticut, for Appellant. AARON S. BAYER, Kevin M. Smith, Alex J. Glage, Wiggin and Dana LLP, New Haven, Connecticut, Daniel Mach, American Civil Liberties Union Foundation, Washington, D.C., David McGuire, Connecticut Civil Liberties Union Foundation, Hartford, Connecticut, for Appellees. Murad Hussain, Ronald L. Johnston, Arnold & Porter LLP, Los Angeles, California, Ayesha N. Khan, Alex J. Luchenitser, 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Americans United for Separation of Church and State, for Amicus Curiae Americans United for Separation of Church and State. Jeffrey I. Pasek, Cozen O Connor, New York, New York, Theodore R. Mann, Jewish Social Policy Action Network, Philadelphia, Pennsylvania, for Amicus Curiae Jewish Social Policy Action Network. Steven M. Freeman, Steven C. Sheinberg, Anti-Defamation League, New York, New York, for Amicus Curiae Anti-Defamation League. DENNIS JACOBS, Chief Judge: 21 This case raises an Establishment Clause challenge to 22 religious displays at a contract postal unit operated by a 23 church in Manchester, Connecticut. 24 or CPUs, are postal facilities operated by private 25 entities on private property (such as general stores or 26 private homes) pursuant to contracts with the United States 27 Postal Service. 28 Manchester resident, alleged discomfort with encountering 29 religious materials displayed at the Manchester CPU and sued 30 the United States Postal Service ( USPS ), the Postmaster 31 General of the United States (John E. Potter ( Potter )), Contract postal units, Plaintiff Bertram Cooper ( Cooper ), a 4 1 and the Postmaster of Manchester, Connecticut (Ronald G. 2 Boyne ( Boyne )) for declaratory and injunctive relief. 3 Full Gospel Interdenominational Church (the Church ), which 4 operates the CPU pursuant to a revenue-sharing contract with 5 the United States government, intervened as a Defendant. 1 6 The Manchester CPU is a purpose-built storefront with postal 7 facilities on one side and the Church s outreach and 8 ministry efforts on the other, with some spillover. 9 The On cross-motions for summary judgment, the district 10 judge initially decided that the religious displays at the 11 CPU violated the Establishment Clause, ordered removal of 12 the religious displays from the premises, and issued a 13 permanent injunction preventing the Church--and proprietors 14 of other CPUs--from displaying religious materials in 15 contract postal units. 16 the district court concluded that Cooper lacked standing to 17 challenge Postal Service policies as to other CPUs and the 18 decision was amended to apply only to the Manchester CPU. On a motion to amend the judgment, 1 The term Church refers collectively to the intervenordefendants who consist of: (1) the Full Gospel Interdenominational Church; (2) the Dr. Phillip Saunders Heritage Association (a Connecticut not-for-profit created by the Church to hold and manage its real estate); and (3) Sincerely Yours, Inc. (the not-for-profit entity incorporated to operate the CPU). 5 1 2 The injunction is stayed pending this appeal. On appeal, the Church argues that the grant of partial 3 summary judgment to Cooper was error because the displays: 4 (i) were erected without involvement or encouragement by the 5 USPS, (ii) do not violate regulations governing the 6 appearance of CPUs, and (iii) constitute private speech. 7 Cooper, in turn, contends that the CPU is a state actor 8 because (i) the USPS delegated to it an exclusively public 9 function and (ii) the extensive and detailed contracts which 10 accompany participation in the CPU program sufficiently 11 involve the state in the CPU s activities. 12 that as state action, the religious displays violate the 13 Establishment Clause. 14 entered a nursing home, but the suit has continued on behalf 15 of three intervenors who are similarly aggrieved. 16 Cooper argues Cooper stopped using the CPU when he We now affirm in part and reverse in part. We conclude 17 that Cooper had standing to raise an Establishment Clause 18 challenge and that an Establishment Clause violation 19 occurred at the Manchester CPU, but that any such violation 20 is limited to the area of the CPU performing the public 21 function; all other areas of the CPU remain the province of 22 the private entity. Accordingly, by way of remedy, we 6 1 require that the postal counter be free of religious 2 material, and that visual cues distinguish the space 3 operating as a postal facility from the space functioning as 4 the private property of the Church. 5 6 I 7 (A) The Post Office 8 Article I, Section 8 of the Constitution provides that 9 Congress shall have power . . . [t]o establish Post Offices 10 and post Roads. 11 Post Offices to the USPS, 39 U.S.C. § 404(a)(3), awarded the 12 USPS a monopoly over the carriage of letter mail, see 13 Private Express Statutes, 18 U.S.C. §§ 1693-1699; Air 14 Courier Conf. of Am. v. Am. Postal Workers Union AFL-CIO, 15 498 U.S. 517, 519 (1991), and forbidden the establishment of 16 post offices without authority from the Postal Service, 18 17 U.S.C. § 1729. 2 18 Service to serve as nearly as practicable the entire 19 population of the United States. Congress has delegated the power to create Congress has also directed the Postal 2 39 U.S.C. § 403(a). That Services like UPS and Federal Express operate pursuant to an exception to the monopoly which allows private carriers to provide services for extremely urgent letters. See 39 C.F.R. § 320.6. 7 1 directive includes establish[ing] and maintain[ing] postal 2 facilities of such character and in such locations, that 3 postal patrons throughout the Nation will, consistent with 4 reasonable economies of postal operations, have ready access 5 to essential postal services. 6 entails a maximum degree of effective and regular postal 7 services to rural areas, communities, and small towns [even] 8 where post offices are not self-sustaining. 9 § 101(b). 39 U.S.C. § 403(b)(3). This 39 U.S.C. 10 11 (B) CPUs 12 In order to comply with the Congressional mandate, the 13 USPS uses both traditional post offices (or classified 14 post offices) as well as CPUs, postal facilities operated by 15 private parties on private property pursuant to revenue- 16 sharing contracts with the government. 17 postal services to places where it is not otherwise 18 geographically or economically feasible to build and operate 19 official classified post offices. 20 contract stations, CPUs have been used by the Postal 8 The CPUs furnish Originally called 1 Service since the 1880s. 3 2 The Glossary of Postal Terms defines a CPU as: 3 4 5 6 7 8 9 10 11 12 13 United States Postal Service Glossary of Postal Terms, 14 Publication 32, May 1997 (Updated With Revisions Through 15 July 5, 2007) at 27. 4 16 are in locations as diverse as private homes, gas stations, 17 seminaries, groceries, gift shops, and hardware stores. 18 Defendants Statement Pursuant to Local Rule 56 of the 19 Southern District of New York ( Local Rule 56(a)1 20 Statement ), ¶ 6, December 27, 2004; Postal Accountability 21 and Enhancement Act § 302 Network Plan, June 2008, at 42- 22 43. 5 A postal unit that is a subordinate unit within the service area of a main post office. It is usually located in a store or place of business and is operated by a contractor who accepts mail from the public, sells postage and supplies, and provides selected special services (for example, postal money order or registered mail). . . . Five thousand CPUs across the country Several are operated by faith-based entities. See See 3 See USPS Postal History, Post Offices and Facilities, Stations and Branches, available at: http://www.usps.com/postalhistory/_rtf/StationsBranches.rtf. 4 The Glossary is available at: http://www.usps.com/cpim/ftp/pubs/pub32.pdf 5 The Network Plan is available at: http://www.usps.com/postallaw/_pdf/PostalServiceNetworkPlan. pdf#search='post offices cpu . 9 1 Defendants Local Rule 56(a)1 Statement, ¶ 16. 2 3 4 (C) Postal Regulations According to postal regulations, a CPU must not be 5 located in, or directly connected to, a room where 6 intoxicating beverages are sold for consumption on the 7 premises. 8 Postal Units. 9 Contract Postal Unit Operations Guide, a training and 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Standard Operating Procedures for Contract Beyond that, instruction is provided by the operations manual for proprietors of CPUs: The appearance of your [CPU] reflects not only on you as a businessperson, but also on the Postal Service. Your unit should be organized and clean, conveying a professional image to your customers. It is very important to the success of your unit that our customers can recognize you as an official United States Post Office contract unit. The Postal Service has dedicated exterior and interior signage that will help you establish this identity. CPUs are regulated by these few guidelines, which are 25 mainly words of encouragement. 26 the other hand, are governed by exacting regulations. 27 them are limitations on the presence of religious displays, 28 messages and symbols. Classified post offices, on Among For example, the Postal Operations 10 1 Manual ( POM ) provides that [e]xcept for official postal 2 and other governmental notices and announcements, no 3 handbills, flyers, pamphlets, signs, posters, placards, or 4 other literature may be deposited on the grounds, walks, 5 driveways, parking and maneuvering areas; exteriors of 6 buildings and other structures; or on the floors, walks, 7 stairs, racks, counters, desks, writing tables, window 8 ledges, or furnishings in interior public areas on postal 9 premises [of classified post offices]. POM § 124.55. 6 10 Bulletin boards and other posting space in Post Office 11 lobbies and other public access areas may not be used for 12 posting or display of . . . [r]eligious symbols . . . . 13 Id. 14 out in the margin 7 ). Seasonal holiday displays are tightly regulated (as set No such regulations govern CPUs. 6 This section of the POM is available at: http://www.nalc.org/depart/cau/pdf/manuals/POM/pomc1.pdf. 7 a. [Seasonal] Displays should relate to the business of the Postal Service, such as promoting the use of postal products and services and encouraging customers to send greetings and gifts. b. The Postal Service must avoid the appearance of favoring any particular religion or religion itself. c. Symbols identified with a particular religion, including but not limited to nativity scenes, crosses, or the Star of 11 1 (D) The Manchester CPU 2 For more than 15 years, the Postal Service has relied 3 on CPUs to supplement postal service in Manchester, 4 Connecticut. 5 Community Place, an outreach organization. 6 Place suspended operation in 2001, the USPS solicited bids. 7 There were two bidders: Manchester Hardware, Inc., and the 8 Full Gospel Interdenominational Church. 9 assigned scores to each based on location, premises, and Prior to 2001, the CPU was located in the When Community The Postal Service 10 ability to provide services. 11 suitability score of 97" to Manchester Hardware s 91, and 12 the CPU contract was awarded to the Church on November 21, 13 2001. 14 business, Sincerely Yours, Inc. ( SYI ), for the purpose of 15 operating the CPU. 16 operation of the CPU; other than offering USPS products and 17 services, it serves no commercial function. The Church earned a The Church then incorporated a not-for-profit The sole business of SYI is the David, shall not be displayed on postal property. . . . d. Printed expressions Season s Greetings and Happy Holidays should be used in lieu of Merry Christmas or Happy Hannukkah. POM § 124.57 (emphasis added); see also POM § 124.56. 12 1 The standard CPU contract requires that all Contract 2 Postal Units . . . reflect a uniform image. 3 the contract specifies that [a]mbient lighting shall be at 4 least 80 footcandles anywhere at the service and/or work 5 counter areas, and individual CPU owners/entities must 6 [c]learly indicate any [and] all deviations from [the] 7 noted . . . requirements on submitted drawings/documents so 8 they may be evaluated along with the balance of the 9 proposal. For example, In order to achieve the desired uniform image, 10 the USPS--per the CPU contract--agrees to pay for (among 11 other things) the construction of postal service counters 12 and other build-out requirements, all according to detailed 13 specifications. 14 items at SYI. 15 The USPS paid for the construction of such All money collected at the CPU is the property of the 16 Postal Service, and SYI is paid for its share of contractual 17 earnings at the end of the relevant accounting period: 18% 18 of sales of USPS products and services, and 33% of post 19 office box rental fees. 20 USPS, and must be professionally attired, wear name tags, 21 and project a favorable image of the supplier as the 22 operator of the Contract Postal Unit, but SYI retains the Employees of SYI are trained by the 13 1 2 authority to hire and fire all SYI employees. The USPS reserves the right, without prior notice, to 3 conduct audits and customer surveys and to review and 4 inspect the supplier s performance and the quality of 5 service at any time during the operating hours of the 6 [CPU]. 7 Representative (or COR ) as a liaison between the USPS and 8 the CPU, to ensure compliance with the CPU contract and 9 governing regulations, and to provide general oversight. 10 Defendant Ronald Boyne--the Manchester Postmaster (and a 11 Church member)--was appointed to this position at SYI. 12 his deposition, he testified that one of his 13 responsibilities was to ensure that SYI projected a 14 positive image of the USPS and complied with all postal 15 regulations. 16 present a positive image or were not permitted to be 17 displayed or sold in a CPU, Boyne replied that through his 18 COR training he learned that only two items were prohibited 19 by regulation: alcohol and pornography. 20 The USPS also appoints a Contracting Officer s At When asked to name items which would not As for the displays at the CPU, the contract states 21 that SYI will be posting advertisements for local non- 22 profit community outreach agencies such as MARC, Inc., Heart 14 1 Association, Flu Clinics, Cancer Agencies, etc. 2 displays are not mentioned. 3 SYI opened in June 2002. Religious It is located on Main Street 4 in Manchester and is marked with various signs identifying 5 it as the Sincerely Yours, Inc. Contract Postal Unit. 6 exterior of the building (which faces the street) has one 7 such sign along with the familiar eagle logo of the Postal 8 Service. 9 The The interior of the CPU contains (among other things) a 10 postal counter manned by SYI employees, a waiting area for 11 customers, post office boxes, and a shelving unit containing 12 official USPS postal supplies, paperwork, and mailing boxes. 13 SYI offers a variety of postal services including Express, 14 Priority, and First Class domestic mail; international mail; 15 insurance, certification, and delivery confirmation 16 services; Post Office Box rentals; and sales of stamps, 17 stationery, and other packaging products. 18 these products and services are set by the USPS. The prices for 19 20 (E) The Religious Displays 21 Also located in the CPU are religious materials: 22 displays informing customers about prayer requests; prayer 15 1 cards; a box--located on the postal counter--into which 2 postal service customers can deposit prayer requests; a 3 framed advertisement for World-Wide Lighthouse Missions 4 (the missionary organization to which the SYI CPU s profits 5 are donated); a donation box for the World-Wide 6 organization; pamphlets and flyers advertising the mission, 7 which include biblical passages and religious messages; a 8 World-Wide Lighthouse Missions donation jar on the postal 9 counter; a television monitor displaying Church-related 10 videos on one side of the postal counter; various 8 1/2" x 11 14" photographs of Church events; and pictures of Wally --a 12 cartoon character who conveys religious messages. 13 14 A sign in the middle of the postal counter bears the official USPS logo and a disclaimer: 15 16 17 18 19 The United States Postal Service does not endorse the religious viewpoint expressed in the materials posted at this Contract Postal Unit. 20 (F) Cooper s Objections to the CPU 21 Plaintiff Bertram Cooper is a 77-year-old (former) 22 resident of Manchester, Connecticut. 8 8 Cooper used the SYI While this appeal was pending, Mr. Cooper moved out of Manchester and into a nursing home in West Hartford, Connecticut. Because the move created potential 16 1 CPU because it was closer to his home than the next 2 available post office. 3 religious displays at SYI made him very uncomfortable, and 4 when he registered a complaint, he was told that [he] could 5 go somewhere else if [he didn t] like it. 6 alleges that he reasonably perceive[d] SYI s religious 7 expression to be governmentally-sponsored and supported 8 religious activity. As Cooper s affidavit recounts, the The complaint 9 10 (G) The Lawsuit 11 Cooper filed his complaint on October 3, 2003, seeking 12 declaratory and injunctive relief against the USPS, the 13 Postmaster General, and the Postmaster of Manchester, 14 Connecticut. 15 district court s Memorandum and Order deciding the parties 16 cross-motions for summary judgment (issued April 18, 2007), 17 concluded that: 18 19 20 21 The Church intervened as a defendant. The (1) for the purposes of First Amendment and Establishment Clause jurisprudence, the SYI CPU is a state actor; jurisdictional problems, this Court s June 18, 2008 order allowed other Manchester residents to intervene as appellees. They are Gary Chipman, Kimon Karath, and Leslie Strong. 17 1 2 3 4 5 6 7 8 Initially, the District Court granted Cooper s request for a 9 declaratory judgment covering all CPUs nationwide: 10 11 12 13 14 15 16 17 18 19 20 To the extent that [SYI], and all other individuals or entities, in the course of operating [CPUs] . . . act in a manner that proselytizes or advances religion, including, but not limited to, the posting of religious displays that proselytize or advance religion, such conduct violates the First Amendment to the United States Constitution. On Cooper s request for an injunction, the district court 21 directed that: (i) SYI remove all religious displays and 22 cease from acting in a manner that proselytizes or advances 23 religion; (ii) the USPS provide notice to all CPUs that 24 they shall not act in a manner that proselytizes or 25 advances religion ; and (iii) the USPS institute adequate 26 monitoring procedures to ensure compliance with the order. 27 Both the Postal Service and the Church moved to alter (2) the contractual relationship between the USPS and the Church does not violate the Establishment Clause; and (3) the religious displays at the SYI CPU violate the Establishment Clause. 28 or amend the judgment. 29 district court rejected the Church s offer to cure the 30 Establishment Clause violation by removing the two large 31 signs and one small sign containing the words United States By order dated August 28, 2007, the 18 1 Post Office, and by adding a sign indicating that SYI was a 2 private entity. 3 The Postal Service argued that the findings were 4 insufficient to support relief against the USPS generally 5 and to any CPU other than SYI. 6 its decision, commenting that it could find[] nothing in 7 the record indicating the Plaintiff has suffered a concrete 8 and particularized injury that is either actual or imminent 9 at any CPU other than the SYI CPU. 10 11 12 The district court amended The relief was narrowed accordingly. All Defendants appealed, but the USPS dropped out, leaving the Church alone as Appellant. 13 14 II 15 Article III of the Constitution limits the judicial 16 power of the United States to the resolution of cases and 17 controversies. 18 is effectuated through the requirement of standing. 19 Forge Christian Coll. v. Ams. United for Separation of 20 Church and State, Inc. ( Valley Forge ), 454 U.S. 464, 471- 21 72 (1982). 22 waiver . . . : We are required to address the issue even if U.S. Const. art. III, § 2. This limitation Valley The question of standing is not subject to 19 1 the courts below have not passed on it, and even if the 2 parties fail to raise the issue before us. 3 v. Hays, 515 U.S. 737, 742 (1995) (quoting FW/PBS, Inc. v. 4 Dallas, 493 U.S. 215, 230-31 (1990)). 5 [t]here are three Article III standing requirements: (1) 6 the plaintiff must have suffered an injury-in-fact; (2) 7 there must be a causal connection between the injury and the 8 conduct at issue; and (3) the injury must be likely to be 9 redressed by a favorable decision. United States It is axiomatic that Kendall v. Employees 10 Ret. Plan of Avon Prods., 561 F.3d 112, 118 (2d Cir. 2009). 11 The injury requirement is the linchpin in Establishment 12 Clause cases: [A]t an irreducible minimum, Art. III 13 requires the party who invokes the court s authority to 14 show that he personally has suffered some actual or 15 threatened injury as a result of the putatively illegal 16 conduct of the defendant. 17 (quoting Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 18 91, 99 (1979)). 19 grievance is insufficient; the plaintiff must demonstrate a 20 distinct and palpable injury . . . that is likely to be 21 redressed if the requested relief is granted. 22 (quoting Gladstone, 441 U.S. at 100). Valley Forge, 454 U.S. at 472 A demonstration of a generalized 20 Id. at 475 1 Standing is often a tough question in the Establishment 2 Clause context, where the injuries alleged are to the 3 feelings alone. 9 4 display cases where the fact of exposure becomes the basis 5 for injury and jurisdiction. 6 observed, [n]o governing precedent describes the injury in 7 fact required to establish standing in a religious display 8 case . . . . 9 358 F.3d 1020, 1028 (8th Cir. 2004). This is often the case in religious As the Eighth Circuit has ACLU Nebraska Found. v. City of Plattsmouth, 10 Several times, the Supreme Court has considered the 11 problem of standing in the Establishment Clause context, but 12 so far the Court has announced no reliable and handy 13 principles of analysis. 14 Supreme Court concluded that plaintiffs lacked standing to 15 bring their Establishment Clause claim challenging the 16 conveyance, at no cost, of 77 acres of federal property to a 17 Christian college. 18 that the challengers had standing merely as citizens, For example, in Valley Forge, the The Third Circuit had earlier concluded 9 A broad swath of litigants can demonstrate standing under Flast v. Cohen, 392 U.S. 83 (1968), which permits litigants to raise claims on the ground that their tax money is being extracted and spent in violation of specific constitutional protections. Id. at 106. The issue is far more difficult where, as here, the alleged injuries are non-economic and taxpayer status is not the basis for jurisdiction. 21 1 claiming injury in fact to their shared individuated right 2 to a government that shall make no law respecting the 3 establishment of religion. 4 F.2d 252, 261 (3d Cir. 1980)). 5 reversed because: 454 U.S. at 470 (quoting 619 But the Supreme Court 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Valley Forge, 454 U.S. at 485-86 (quotations, citation, and 30 emphasis omitted). 31 not, without saying what standing is in these kinds of 32 cases. 33 and determine somewhat arbitrarily whether that threshold 34 has been reached. They fail[ed] to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III, even though the disagreement is phrased in constitutional terms. It is evident that respondents are firmly committed to the constitutional principle of separation of church and State, but standing is not measured by the intensity of the litigant s interest or the fervor of his advocacy. That concrete adverseness which sharpens the presentation of issues, is the anticipated consequence of proceedings commenced by one who has been injured in fact; it is not a permissible substitute for the showing of injury itself. This passage explains what standing is Lower courts are left to find a threshold for injury Chief Justice Rehnquist recognized that 22 1 the question of standing in the Establishment Clause context 2 is vexed: [T]here are serious arguments on both sides of 3 this question, the Courts of Appeals have divided on the 4 issue, and the issue determines the reach of federal courts 5 power of judicial review of state actions. 6 v. Robinson, 517 U.S. 1201, 1203 (1996) (dissenting in the 7 denial of certiorari; joined by Justices Scalia and Thomas). 8 In short, there is uncertainty concerning how to apply the 9 injury in fact requirement in the Establishment Clause 10 11 City of Edmond context. Cooper alleged that the discomfort he suffered when he 12 viewed the religious displays at SYI was so great that he 13 was inclined to drive to another postal unit. 14 question is whether that amounts to a sufficiently distinct 15 and palpable injury for standing purposes. 16 case on Establishment Clause standing is Sullivan v. 17 Syracuse Housing Authority, 962 F.2d 1101 (2d Cir. 1992), in 18 which the Syracuse Housing Authority (the Authority ) 19 contracted for a faith-based entity to operate a religious 20 after-school program in the community center of the public 21 housing development where the plaintiff lived. 22 court dismissed the case for lack of standing, but the 23 The initial Our leading The district 1 Second Circuit found a cognizable spiritual First Amendment 2 injury and reversed. 3 analysis was whether Sullivan had a direct and personal 4 stake in the controversy. 5 Morton, 405 U.S. 727 (1972), and Valley Forge, we concluded 6 that the Authority s conduct deprived Sullivan of his right 7 to use and enjoy the community center, that Sullivan 8 [found] the alleged establishment of religion offensive, 9 and that the Authority s actions essentially established 10 religion in a place functionally analogous to Sullivan s 11 own home. 12 circumstances, Sullivan s allegations amounted to a 13 sufficiently direct and personal stake in the dispute to 14 confer standing, and the case was reinstated and remanded to 15 the district court. 16 Id. at 1108. Id. The touchstone of the Relying on Sierra Club v. Sullivan, 962 F.2d at 1108. 10 Under those Applying Sullivan, we must conclude that Cooper has 17 alleged a sufficiently direct and personal stake in the 18 controversy to confer standing. 19 made uncomfortable by direct contact with religious displays 10 Cooper claims that he was Separately, the Circuit also concluded that Sullivan s status as a parent whose child had been taught religious songs in the after-school program gave him an additional, independent ground sufficient to support standing. Sullivan, 962 F.2d at 1109. 24 1 that were made a part of his experience using the postal 2 facility nearest his home, and that upon complaint, he was 3 advised to alter his behavior. 4 allegations state an injury in fact sufficient to support 5 standing. Under Sullivan, these 6 7 III 8 (A) State Action 9 The Due Process Clause of the Fourteenth Amendment 10 provides: [N]or shall any State deprive any person of life, 11 liberty, or property, without due process of law. 12 Const. amend. XIV, § 1. 13 immune from the restrictions of the Fourteenth Amendment, 14 and the Amendment offers no shield against private 15 conduct, however discriminatory or wrongful. 16 Metro. Edison Co., 419 U.S. 345, 349 (1974) (quoting Shelley 17 v. Kraemer, 334 U.S. 1, 13 (1948)). 18 only to state action. 19 U.S. 3 (1883). 20 incorporates the First Amendment, so [t]he Fourteenth 21 Amendment, and, through it, the First . . . Amendment[], do 22 not apply to private parties unless those parties are U.S. By its terms, private action is Jackson v. The Amendment applies Id.; see also Civil Rights Cases, 109 The Fourteenth Amendment, in turn, 25 1 engaged in activity deemed to be state action. 2 Broad. Co., Inc. v. Commc ns Workers of Am., AFL-CIO, 860 3 F.2d 1022, 1024 (11th Cir. 1988). Nat l 4 Actions of a private entity are attributable to the 5 State if there is a sufficiently close nexus between the 6 State and the challenged action of the . . . entity so that 7 the action of the latter may be fairly treated as that of 8 the State itself. 9 146 (2d Cir. 2008) (quoting Jackson, 419 U.S. at 351). United States v. Stein, 541 F.3d 130, The 10 close nexus test assure[s] that constitutional standards 11 are invoked only when it can be said that the State is 12 responsible for the specific conduct of which the plaintiff 13 complains. 14 U.S. 991, 1004 (1982)). 15 this issue have not been a model of consistency. Id. at 16 147 (quoting Edmonson v. Leesville Concrete Co., 500 U.S. 17 614, 632 (1991) (O Connor, J., dissenting)). 18 surprisingly, therefore, there is no single test to identify 19 state actions and state actors. 20 facts that can bear on the fairness of an attribution of a 21 challenged action to the State. 22 Library Ass n, 362 F.3d 147, 151 (2d Cir. 2004) (quotations Id. at 146-47 (quoting Blum v. Yaretsky, 457 However, Supreme Court cases on 26 Not Rather, there are a host of Horvath v. Westport 1 2 and citations omitted). A nexus of state action exists . . . when the state 3 exercises coercive power, is entwined in the management or 4 control of the private actor, . . . or when the private 5 actor operates as a willful participant in joint activity 6 with the State or its agents, is controlled by an agency of 7 the State, has been delegated a public function by the 8 state, or is entwined with governmental policies. 9 541 F.3d at 147 (quotations, citations, and emphases Stein, 10 omitted). 11 fairly attributable to the state merely because the private 12 entity is a business subject to extensive state regulation 13 or affected with the public interest. 14 Life Ins. Co. of Vermont, 318 F.3d 105, 112 (2d Cir. 2003) 15 (quoting Jackson, 419 U.S. at 350). 16 action may not be premised solely on the private entity s 17 creation, funding, licensing, or regulation by the 18 government. However, conduct by a private entity is not Cranley v. Nat l A finding of state Id. 19 20 1. 21 SYI s contract with the government does not 22 Government Contracts convert its conduct into state action. 27 The government 1 enters into contracts for all kinds of goods and services 2 without converting its contractors into state actors; 3 architects designing federal buildings or engineers building 4 bridges do not thereby become government actors. 5 Rendell-Baker v. Kohn, 457 U.S. 830, 841 (1982) (the [a]cts 6 of . . . private contractors do not become acts of the 7 government by reason of their significant or even total 8 engagement in performing public contracts ). 9 a private entity performs a function which serves the See The fact that 10 public does not make its acts state action. 11 The contract itself is insufficient to render all of the 12 contractor s conduct state action, and the CPU contract here 13 is not enough by itself to make SYI a state actor. Id. at 842. See id. 14 15 2. 16 Since the contract alone does not convert the CPU The Public Function Test 17 into a state actor, we must explore whether and to what 18 extent the CPU is a state actor while performing its 19 contractual tasks. 20 considered a state actor for constitutional purposes is by 21 exercis[ing] powers that are traditionally the exclusive 22 prerogative of the State. One way that a private entity may be Blum v. Yaretsky, 457 U.S. 991, 28 1 1005 (1982) (quoting Jackson, 419 U.S. at 353). 2 action may be found in situations where an activity that 3 traditionally has been the exclusive, or near exclusive, 4 function of the State has been contracted out to a private 5 entity. 6 imprison individuals as punishment for the commission of 7 crimes. 8 9 State For example, only the State may legitimately Horvath, 362 F.3d at 151. In West v. Atkins, the Supreme Court concluded that the conduct of a private medical doctor attending to prison 10 inmates pursuant to a government contract was fairly 11 attributable to the State for the purposes of 42 U.S.C. 12 § 1983. 13 functional: 14 15 16 17 18 19 20 21 22 23 24 25 26 487 U.S. 42, 57 (1988). 11 The approach is The fact that the State employed [the doctor] pursuant to a contractual arrangement that did not generate the same benefits or obligations applicable to other state employees does not alter the [state action] analysis. It is the physician s function within the state system, not the precise terms of his employment, that determines whether his actions can fairly be attributed to the State. Id. at 55-56 (emphasis added). 11 State action analysis is The inmate brought a § 1983 action against the doctor alleging an Eighth Amendment violation on the ground that the doctor failed to provide adequate treatment for an ankle injury. 29 1 2 thus guided by the nature of the services supplied. SYI is a state actor under this public function test. 3 Congress granted to the USPS the exclusive duty to create 4 and operate Post Offices with responsibility to accept and 5 process mail, sell postal products, and, of course, 6 participate in the safe carriage of mail. 7 § 404(a)(3). 8 the Postal Service a complete monopoly. 9 U.S.C. § 1693. See 39 U.S.C. As to safe carriage, Congress has conferred to See, e.g., 18 That monopoly entails the sale of postage 10 for letters, acceptance of mail for transmission, and the 11 marking and processing of mail for delivery: all functions 12 performed by SYI and other CPUs. 13 that SYI is a state actor under the public function test 14 because it performs--at least in some parts of the facility- 15 - activit[ies] that traditionally ha[ve] been the exclusive, 16 or near exclusive, function of the State. 17 F.3d at 151. 18 Accordingly, we conclude Horvath, 362 That is not to say, however, that all of SYI serves a 19 public function, any more than selling shovels becomes a 20 public function when a CPU is located in a hardware store. 21 SYI is an independent, separate and distinct not-for-profit 22 entity incorporated for the Church s private use and 30 1 purposes. 2 with the performance of the public function, which here is 3 limited to those areas where the business of the CPU is 4 conducted. 5 portal identifies the shop (or home or seminary) as a place 6 where federal postal services are rendered. 7 a state actor pursuant to the public function test, but only 8 as to those areas of its facility where the public function 9 takes place, namely the postal counter, the postal boxes, The extent of state action correlates directly This is so notwithstanding that signage at the In sum, SYI is 10 and the shelving unit that stores and displays postal 11 materials. 12 Having determined that at least part of SYI is 13 operating as a state actor under the public function test, 14 we consider whether that state action violated the 15 Establishment Clause. We conclude that it does. 16 17 18 IV The Establishment Clause of the First Amendment 19 provides that Congress shall make no law respecting an 20 establishment of religion. 21 Amendment contains no textual definition of establishment 22 and the term is certainly not self-defining. U.S. Const. amend. I. 31 But the McCreary 1 County, Ky. v. ACLU of Ky., 545 U.S. 844, 874-75 (2005). 2 In the absence of precisely stated constitutional 3 prohibitions, we must draw lines with reference to the three 4 main evils against which the Establishment Clause was 5 intended to afford protection: sponsorship, financial 6 support, and active involvement of the sovereign in 7 religious activity. 8 (1971) (quoting Walz v. Tax Comm n, 397 U.S. 664, 668 9 (1970)). Lemon v. Kurtzman, 403 U.S. 602, 612 One significant factor in upholding governmental 10 programs in the face of Establishment Clause attack is their 11 neutrality towards religion. 12 Cent. School, 533 U.S. 98, 114 (2001) (quoting Rosenberger 13 v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 839 14 (1995)). 15 attributable to the State and indoctrination that is not, 16 [the Court has] consistently turned to the principle of 17 neutrality, upholding aid that is offered to a broad range 18 of groups or persons without regard to their religion. 19 Id. (quoting Mitchell v. Helms, 530 U.S. 793, 809 (2000) 20 (plurality opinion)). 21 22 Good News Club v. Milford In distinguishing between indoctrination that is Did the presence of the religious displays here violate the Establishment Clause? It is clear that for certain 32 1 displays, in certain places, the government s religious 2 object is unmistakable and a violation apparent. 3 545 U.S. at 869. 4 violation occurred, but given the fact that the state action 5 is limited to a part of the premises, the violation--and the 6 remedy--are limited in the same way and to the same extent. McCreary, We conclude that an Establishment Clause 7 8 (A) The Government Contract 9 The Supreme Court has never held that religious 10 institutions are disabled by the First Amendment from 11 participating in publicly sponsored social welfare 12 programs. 13 It long has been established . . . that the State may send 14 a cleric . . . to perform a wholly secular task. 15 Bd. of Pub. Works of Md., 426 U.S. 736, 746 (1976). 16 analysis is governed by the principle of neutrality: the 17 government may not favor one religion over another, or 18 religion over irreligion, religious choice being the 19 prerogative of individuals. 20 Bowen v. Kendrick, 487 U.S. 589, 609 (1988). Roemer v. The McCreary, 545 U.S. at 875-76. With respect to the CPU program, the government has 21 espoused a neutral position: it will contract for CPU 22 services with both religious and secular entities; and, as 33 1 to religious entities, the government makes no distinctions 2 between faiths or sects. 3 a religious facility, or sponsored by a religious entity, or 4 that its revenues benefit a particular faith, does not 5 offend the Establishment Clause. 6 from the specific conditions of SYI s structure and space, 7 and its religious displays. The fact that a CPU is located in Any violation must arise 8 9 10 (B) The Lemon Test The primary means of evaluating an Establishment Clause 11 challenge to a religious display remains the beleaguered 12 Lemon test, articulated by the Supreme Court in Lemon v. 13 Kurtzman, 403 U.S. 602 (1971). 14 government action that interacts with religion must: (1) 15 have a secular purpose, (2) have a principal effect that 16 neither advances nor inhibits religion, and (3) not bring 17 about an excessive government entanglement with religion. 18 Westchester Day School v. Vill. of Mamaroneck, 504 F.3d 338, 19 355 (2d Cir. 2007) (citing Lemon, 403 U.S. at 612-13); see 20 also Agostini v. Felton, 521 U.S. 203, 218 (1997). Under [the] Lemon [test], 21 Both parties submit that the Lemon test is the 22 appropriate test for evaluating the Establishment Clause 34 1 challenge here (and the District Court agreed), though a 2 review of relevant case law demonstrates that Lemon is 3 difficult to apply and not a particularly useful test in 4 determining what is permissible under the Establishment 5 Clause. 12 6 Court into reconsidering its precedent by an aggressive (or 7 fanciful) ruling on a vital subject. 8 406 F.3d 159, 177 (2d Cir. 2005) (Jacobs, J., dissenting 9 from the denial of rehearing en banc). 10 Still, it is not our role to provoke the Supreme Landell v. Sorrell, Accordingly, we proceed to a straightforward application of the Lemon test. 12 In 2000, the Supreme Court denied certiorari in an Establishment Clause case, but Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, dissented from the denial, expressing frustration with the Lemon test. See Tangipahoa Parish Bd. of Educ. v. Freiler, 530 U.S. 1251 (2000) (Scalia, J., dissenting from the denial of certiorari) ( Like a majority of the Members of this Court, I have previously expressed my disapproval of the Lemon test. I would grant certiorari in this case if only to take the opportunity to inter the Lemon test once for all. ) (citations omitted). Other Justices and courts have expressed similar frustrations. See Comm. for Pub. Educ. & Religious Liberty v. Regan, 444 U.S. 646, 671 (1980) (Stevens, J., dissenting) (lamenting the sisyphean task of trying to patch together the blurred, indistinct, and variable barrier described in Lemon v. Kurtzman ) (quotations omitted); Roark v. S. Iron R-1 School Dist., --F.3d ---, No. 08-1847, 2009 WL 2045683, at *4 (8th Cir. July 16, 2009) (observing that the Lemon test has had a checkered career ) (quoting Van Orden v. Perry, 545 U.S. 677, 700 (2005)); Access Fund v. U.S. Dep t of Agric., 499 F.3d 1036, 1042 (9th Cir. 2007) ( We recognize that the Lemon test has hardly been sanctified by the Supreme Court. ). 35 1 We first ask whether there is a secular purpose for 2 displaying religious material on the postal counter. 3 cannot think of one. 4 the religious material is to raise awareness for the mission 5 sponsored by the Church and to spread the Church s Christian 6 message. 7 the postal counter soliciting prayer requests and 8 advertising the mission express a distinctly religious 9 purpose, and that they fail spectacularly under the first We The express and admitted purpose of We have no trouble concluding that the displays on 10 inquiry of Lemon. 11 there is no need to proceed further in the Lemon test, 12 although it is no great stretch to say that the religious 13 materials on the postal counter would also have a principal 14 effect of advancing religion (and might arguably entangle 15 the government excessively with religion). 16 displays on the postal counter clearly fail the Lemon test. 17 18 Having failed at the first juncture, The religious Nevertheless, the analysis is complicated by a disclaimer on the postal counter: 19 20 21 22 23 24 While the presence of this disclaimer informs our review, 25 the precise impact of a disclaimer on Establishment Clause The United States Postal Service does not endorse the religious viewpoint expressed in the materials posted at this Contract Postal Unit. 36 1 analysis is not at all clear, and this Circuit has not 2 directly addressed the issue. 3 Supreme Court jurisprudence on disclaimers is not 4 determinative. 5 (1989), the Supreme Court reviewed the constitutionality of 6 [i] a crèche inside of a courthouse, and [ii] a menorah and 7 Christmas tree displayed outside of a city building. 8 a split decision: the crèche was unconstitutional, but the 9 menorah/Christmas tree display was not. 10 In County of Allegheny v. ACLU, 492 U.S. 573 It was The presence of a disclaimer, however, did not save the crèche: 11 12 13 14 15 16 17 18 19 20 21 Id. at 600. 22 of Univ. of Va., 515 U.S. 819 (1995), the Supreme Court 23 permitted the use of public university student-activity 24 funds to print a newspaper for a religions student group. 25 Justice O Connor s concurrence took note of an explicit 26 disclaimer as a justification for the outcome. 27 (O Connor, J., concurring). The fact that the crèche bears a sign disclosing its ownership by a Roman Catholic organization does not alter [the] conclusion [that the display violates the Establishment Clause]. On the contrary, the sign simply demonstrates that the government is endorsing the religious message of [the] organization . . . . However, in Rosenberger v. Rector and Visitors Id. at 852 The Ninth Circuit has likewise 37 1 noted that the perception of impermissible religious 2 endorsement was less likely . . . because of the [presence 3 of] express disclaimers that [a religious] activity [was] 4 not school-sponsored. 5 Dist. No. 48, 329 F.3d 1044, 1056 (9th Cir. 2003). 6 disclaimer arguably distances [government] officials from 7 sponsoring [religious] speech . . . . 8 Pleasanton Unified School Dist., 320 F.3d 979, 984 (9th Cir. 9 2003). Hills v. Scottsdale Unified School [A] Lassonde v. The Sixth Circuit has also cited the presence of a 10 disclaimer as a basis for permitting the display of a Latin 11 cross in a public square during the Christmas season. 12 Pinette v. Capitol Square Review & Advisory Bd., 30 F.3d 13 675, 679 (6th Cir. 1994) ( Of course, the display at issue 14 here is not a government sponsored display; it is, in fact, 15 privately funded and privately maintained, and carries an 16 express disclaimer of any government support. ). 17 Id. However useful the disclaimer is, the law does not 18 unambiguously allow us to draw the conclusion that the 19 disclaimer prevents or cures a violation. 20 21 V 22 As a general matter, federal courts have leeway to 38 1 fashion appropriate relief, and [a]ppellate tribunals have 2 accorded district courts broad discretion to frame equitable 3 remedies [for constitutional violations] so long as the 4 relief granted is commensurate with the scope of the 5 constitutional infraction. 6 n.7 (2d Cir. 1977). 7 context, courts must endeavor to craft remedies that 8 correspond to the violations. 9 U.S. 589, 620 (1988) ( The District Court . . . identif[ied] 10 certain instances in which it felt [federal] funds were used 11 for constitutionally improper purposes [under the 12 Establishment Clause], but . . . the court did not 13 adequately design its remedy to address the specific 14 problems it found . . . . ); see also Mitchell v. Helms, 530 15 U.S. 793, 865 (2000) (O Connor, J., concurring) 16 ( [E]xtensive violations . . . will be highly relevant in 17 shaping an appropriate remedy . . . . 18 which we have declared an entire aid program 19 unconstitutional on Establishment Clause grounds solely 20 because of violations on [a] minuscule scale . . . . ) 21 (quotations and citations omitted). 22 Todaro v. Ward, 565 F.2d 48, 54 Especially in the Establishment Clause See Bowen v. Kendrick, 487 I know of no case in Here, the district court ordered SYI to remove . . . 39 1 any and all religious displays, prayer cards, 2 advertisements, donation solicitations, and 3 telecommunication videos or broadcasts that proselytize or 4 advance the religion of the [Church]. 5 was also directed to prohibit SYI from posting such 6 materials as long as it was in the course of operating the 7 [CPU]. 8 would render the premises a single-use post office, and 9 would prevent the second legitimate use to which the The Postal Service However, the removal of all religious messages 10 premises are dedicated. 11 the scope of the violation and the resulting harm. 12 This remedy does not correspond to The gravamen of the complaint is that Mr. Cooper was 13 made to feel that he was an unwilling participant in a faith 14 not his own when he entered a space dedicated to two 15 separate functions, only one of which was apparent from the 16 outside. 17 synagogues or monasteries or mosques, customers are alerted 18 to the facility s religious status by cues such as 19 ecclesiastical architecture, schedules of religious 20 services, and religious iconography or statuary. 21 no visual cues to alert its customers to its function as a 22 Christian outreach facility. Ordinarily, when CPUs are housed in churches or SYI gives So a customer walking into SYI 40 1 might become bewildered as to whether a chapel has been made 2 into a post office, or a post office has been made into a 3 chapel. 4 The district court erred by extending the violation-- 5 and then the remedy--to the entire facility. 6 CPU is not a classified post office and need not be 7 regulated as such, but the public function it performs is in 8 tension with its (otherwise permissible) sectarian message. 9 A direct, effective and complete remedy for the violation is The Manchester 10 one that limits the public function to designated public 11 spaces and returns the remainder of the facility to SYI s 12 private purposes. 13 frustrating either the postal function or the other lawful 14 purposes which the Church pursues on the premises. 15 This can be accomplished short of Since the extent of the state action (and the extent of 16 the Establishment Clause violation) is limited to that part 17 of the CPU fulfilling the Postal Service s mandated public 18 function, a sufficient remedy need extend no further or 19 elsewhere. 20 acceptance of mail, the processing of mail and packages for 21 delivery, and the sale of postal goods and services. 22 are performed or fulfilled at the postal counter, in the Here, the public functions include the 41 These 1 post office boxes, and on the shelving housing postal 2 products; so the postal counter and the surfaces of the post 3 office boxes and shelving units are zones in which the 4 function of religious outreach is out of place. 5 counter, post office boxes and shelving units must therefore 6 be free of prayer cards and messages and must be cleared of 7 religious material. 8 differentiating the public space and function from the 9 private one, it should remain. 10 The postal Since the disclaimer is helpful in In order to differentiate the primary area serving the 11 public function from the remainder of the space operating as 12 a private ministry, SYI is directed to create and install a 13 barrier in front of the postal counter that is a visual cue 14 and gives a sense of passage from one area of the space into 15 another, thereby delineating space exclusively dedicated to 16 the public function from space dedicated to other things. 17 Separation and visual cues will not keep the video from 18 being seen and overheard by postal patrons, but the source 19 will unambiguously emanate from a zone distinct from the 20 post office functions. 21 specifications of the barrier, but it would do to use such 22 things as stanchions with hanging ropes (of the kind used in We need not prescribe the 42 1 a theater), or a low railing. 2 cleared and visual cues installed, no more is required to 3 cure the Establishment Clause violation. Once the postal counter is 4 5 6 CONCLUSION For the foregoing reasons, the judgment of the district 7 court is vacated and the case remanded for the creation of 8 an injunction consistent with this opinion. 43
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