Daniel DONNELLY, et al., Plaintiffs-Appellees, v. Dennis M. LYNCH, et al., Defendants-Appellants, 691 F.2d 1029

FAIRCHILD, Senior Circuit Judge. The question is whether the City of Pawtucket’s ownership and use of a life-sized Christian nativity scene as part of a city-sponsored outdoor Christmas display situated on private property violates the Establishment Clause of the First Amendment. The district court held that it does and permanently enjoined the City from continuing the practice. We affirm that determination. The relevant facts and the arguments of the parties have been carefully and exhaustively detailed in Chief Judge Pettine’s opinion at the district court, and thus need not be repeated here.

We turn directly to those issues raised on appeal which we think merit discussion. I. Standing The district court opinion stated: [T]his Court finds that the plaintiffs Kriebel, Goodwin and Frazier have standing to litigate this case. Even before Flast v. Cohen, 392 U.S. 83 [88 S.Ct. 1942, 20 L.Ed.2d 947] (1968), recognized the standing of federal taxpayers to challenge governmental expenditures on establishment clause grounds, municipal taxpayer standing had been permitted in this area. See e.g. McCollum v. Board of Education, 333 U.S. 203, 206 [68 S.Ct. 461, 462, 92 L.Ed. 649] (1948), citing Coleman v.

Miller, 307 U.S. 433 [59 S.Ct. 972, 83 L.Ed. 1385] (1938). Cf. Frothingham v. Mellon, 262 U.S. 447, 486-87 [43 S.Ct. 597, 601, 67 L.Ed. 1078] (1923) (contrasting stake of federal taxpayer with that of municipal taxpayer for standing purposes). Thus, there is little doubt that Kriebel, Goodwin and Frazier, who pay taxes to Pawtucket, can challenge the City’s maintenance of the creche. 525 F.Supp. at 1162. Defendants argue on appeal that the district court’s analysis of standing is undercut by the Supreme Court’s subsequent decision in Valley Forge Christian College v.

Americans United for Separation of Church and State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). They claim that Valley Forge, severely limiting federal and state taxpayer standing, leaves no room for a distinction between federal and state taxpaying status on one hand and municipal taxpaying status on the other. We do not agree. At issue in Valley Forge was the transfer of a former military hospital, valued in excess of a half million dollars, to petitioner, a church-related college.

The Department of Health, Education, and Welfare, pursuant to the terms of a statute enacted by Congress under the Property Clause of the Constitution, had declared the facility surplus real property and then permitted petitioner to acquire the property without making any financial payment because of a 100% “public benefit allowance” computed under the statute. Respondents, an organization dedicated to the separation of church and state, and several of its employees, brought suit to challenge the conveyance as violative of the Establishment Clause.

The Supreme Court held that respondents lacked standing, within the meaning of

Article III, as either taxpayers or citizens. In concluding that respondents were without standing as federal taxpayers, the Court distinguished its earlier decision in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). As an exception to the Frothingham v.

Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), general rule disfavoring federal taxpayer standing, Flast had held that a federal taxpayer will be a proper party to allege the unconstitutionality of an exercise of congressional power under the Taxing and Spending Clause where the enactment exceeds specific constitutional limitations on the taxing and spending power. Flast thus permitted taxpayer plaintiffs to challenge certain expenditures of federal funds under the Elementary and Secondary Education Act of 1965 as violative of the Establishment Clause. Relying on United States v.

Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974), and Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974), the Court in Valley Forge declined to interpret Flast as creating a broad right for taxpayers to challenge all federal bestowals of largesse for religious purposes. 454 U.S. at 464 n.20, 102 S.Ct. at 765 n. 20.

Rather the Court embraced a narrower reading of Flast and- found the facts before it distinguishable inasmuch as they involved not congressional action under the Taxing and Spending Clause, but action of an executive department pursuant to legislation adopted under the Property Clause.

The Court concluded that respondents lacked standing, in effect holding that the alleged deprivation of the constitutional use of their tax dollars failed to state a cognizable personal injury different from the harm purportedly sustained by taxpayers generally- In addition, the Court held that the respondents in Valley Forge could not claim standing simply by reason of their citizen status. It reasoned that the assertion of a personal constitutional right to a government that does not establish religion is insufficient to satisfy the requirements of

Article III, at least in the absence of identifiable personal injury suffered as a consequence of the alleged constitutional error. The Court expressly noted that the psychological consequence presumably produced by observation of conduct with which one disagrees is not sufficient to confer standing even though the disagreement may be phrased in Constitutional terms and the litigant’s interest in the Constitutional principle intense. Taking care not to retreat from earlier holdings that standing may be predicated on noneconomic injury, the Court distinguished various cases, including Abington School District v.

Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). Schempp had invalidated certain laws which required Bible reading in public schools.

The Court in Valley Forge cautioned that Schempp cannot be construed to mean that any person asserting an Establishment Clause claim possesses a “spiritual stake” sufficient to confer standing. “The plaintiffs in Schempp had standing, not because their complaint rested on the Establishment Clause ... but because impressionable schoolchildren were subjected to unwelcome religious services or forced to assume special burdens to avoid them.” 454 U.S. at 464 n.22, 102 S.Ct. at 766 n. 22.

The Court found that the respondents in Valley Forge failed to allege a comparable injury, or indeed any “injury of any kind, economic or otherwise, sufficient to confer standing.” 454 U.S. at 464, 102 S.Ct. at 766 (emphasis in original). The Valley Forge decision, and particularly its reading of Flast, may be fairly understood as a restrictive view of the scope of federal taxpayer standing. So too, certain approving references in the opinion to Doremus v.

Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952), a taxpayer suit challenging a state Bible reading statute which was dismissed for lack of standing, might arguably be interpreted as meaning that similar limitations on standing apply to state taxpayers. See, e.g., 454 U.S. at 464, 102 S.Ct. at 764. We find no indication, however, that the majority in Valley Forge intended to overrule the long line of cases establishing that municipal taxpayers, in contrast to federal or state taxpayers, have standing to sue to challenge allegedly unconstitutional use of their tax dollars.

Nearly sixty years ago, the distinction was made clear in Frothingham v. Mellon, supra, the seminal decision on federal taxpayer standing. Justice Sutherland wrote for a unanimous Court: The interest of a taxpayer of a municipality in the application of its moneys is direct and immediate and the remedy by injunction to prevent their misuse is not inappropriate. It is upheld by a large number of state cases and is the rule of this Court. Crampton v. Zabriskie, 101 U.S. 601, 609 [25 L.Ed. 1070]____ But the relation of a taxpayer of the United States to the Federal Government is very different.

His interest in the moneys of the Treasury — partly realized from taxation and partly from other sources — is shared with millions of others; is comparatively minute and indeterminable;- and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity. 262 U.S. at 486-87, 43 S.Ct. at 601 (emphasis added). Later Supreme Court decisions, including those cited in the above quotation from the district court opinion, have expressed or impliedly acknowledged the persistence of this dichotomy.

Most recently, Justice Brennan’s dissent in Valley Forge, which was joined by Justices Marshall and Blackmun, and relevant portions of which were endorsed by Justice Stevens’ separate dissent, repeatedly noted the vitality of the municipal taxpayer standing rule. Though the majority opinion took issue with various aspects of the Brennan dissent, see, eg., 454 U.S. at 464 n.20, 102 S.Ct. at 765 n. 20, it made no challenge to the dissent’s

interpretation of this line of precedent. In short, we find no clear intent in Valley Forge to overturn the long-established rule of municipal taxpayer standing. If, as the dissenters in Valley Forge suggested, there is a logical or jurisprudential inconsistency between that rule and the reasoning of the majority in Valley Forge, it must be left for the Court to resolve on another occasion. We conclude that Valley Forge did not alter the principle of municipal taxpayer standing plainly established by numerous prior Supreme Court decisions.

This is the same course taken by at least one district court subsequent to the Valley Forge decision. See Board of Education of Valley View Community Unit School District No. 365U v. Bosworth, No. 81-C-3403 (N.D.Ill. Apr. 5, 1982). Accordingly, we hold that the district court did not err in finding that the plaintiffs had standing as municipal taxpayers to challenge the City’s ownership and use of the creche.

We find it unnecessary to consider the individual plaintiffs’ arguments that they have sustained non-economie injuries sufficient to confer standing or the argument of the plaintiff branch of the American Civil Liberties Union that it has standing to represent the interests of its members. II. Establishment of Religion A.

The district court’s assessment of the merits began with its rejection of defendants’ claims that no Establishment Clause problem was raised because a Christian “nativity scene has become [a] largely ‘secularized’ [symbol] so that its nature or function within the .. . display is not primarily religious,” 525 F.Supp. at 1163 (brackets added), and because, in any event, “the erection of the creche has not involved the City in religious activity to any significant degree,” id.

On the first point, the court reasoned that unlike other Christmas symbols such as a star, a bell, or a tree, which “attains a religious dimension only if the viewer understands that it is intended to connote something more than its facial significance, and possesses the key to unlock that secondary meaning,” the “creche is more immediately connected to the religious import of Christmas because it is a direct representation of the full Biblical account of the birth of Christ,” 525 F.Supp. at 1167; that while the creche may represent non-sectarian ethical aspirations of peace and goodwill that “independent, secular meaning ... is subordinate to, and indeed flows from ... [its] fundamentally religious significance,” id. (brackets added); and that the creche did “not lose its power to make a theological statement” merely because it was erected amidst non-religious decorations in the City’s outdoor display, id. at 1168.

As to the other argument, the court concluded that although the Christmas holiday has gained secular significance, it “remains a major spiritual feast day for most sects of Christians,” id. at 1163; that “[i]f government can, consistent with the Establishment Clause, declare and celebrate Christmas as a national holiday, it is precisely because . . . the religious elements .. . can be separated out and the secular elements presented more or less in isolation,” id.; that the presence of a secular dimension to Christmas does not justify government entry into the religious dimension, id. at 1164; and that therefore the City’s conduct could not be dismissed at the threshold as insignificant.

We find no error in the court’s treatment of these points. Having concluded that an Establishment Clause problem was raised, the district court proceeded to examine the City’s conduct under the familiar tripartite test announced in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). There the Supreme Court stated that for a statute to avoid the prohibition of the Establishment Clause: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v.

Allen, 392 U.S. 236, 243 [88 S.Ct. 1923, 1926, 20 L.Ed.2d 1060] (1968); finally, the statute must not foster ‘an excessive governmental entanglement with religion.’ Walz [v. Tax Commission, 397 U.S. 664, 674, 90 S.Ct. 1409, 1414, 25 L.Ed.2d 697 (1970)]. 403 U.S. at 612-13, 91 S.Ct. at 2111 (brackets added). The district court here found that the City’s ownership and use of the outdoor nativity scene was unconstitutional under each of the three tests.

With respect to the first test, the City had chiefly argued that the purposes of including the creche in the display, like the purpose of the display as a whole, were economic and cultural or traditional. The court readily rejected the economic justification, based on testimony in the record by merchants that the creche contributed nothing to the value of the display as a commercial draw to shoppers. 525 F.Supp. at 1170.

After more lengthy consideration, the court also concluded that the creche had not been included merely for cultural or traditional reasons as an example of how Americans celebrate the holiday, for it found that no attempt had been made to disclaim any endorsement of the religious message, and more importantly that the only religious heritage and customs acknowledged by the display were those of the Christian majority of Pawtucket’s citizenry. Id. at 1172. The court expressly held that the City had “tried to endorse and promulgate religious beliefs by including a nativity scene in its display.” Id. at 1173.

With respect to the effect test under Lemon, the court first found that “people knew that the ... display was sponsored at least in part by the City” and that “viewers would not regard the creche as an insignificant part of the display.” Id. at 1176.

Relying then on statements of citizens contained in testimony or exhibits concerning their opinions about or reactions to the use of the creche, see id. at 1178 n.40, and on the absence of evidence of any attempt to present the creche in a broad, neutral, education contest, see id. at 1177 and n.38, or “to shift the viewer’s attention away from the creche’s religious message,” id. at 1177, the court concluded that “despite its ‘passive nature,’ erection of the creche has the real and substantial effect of affiliating the City with the Christian beliefs that the creche represents,” id.

The court wrote: Even if the creche does advance the nontheological goals of peace, charity, and goodwill, the Court finds that the appearance of official sponsorship of Christian beliefs that the creche conveys confers more than a remote and incidental benefit on Christianity. By using a religious symbol in a seasonal celebration of a holiday having religious significance for some groups, the City has given those groups special status. It has singled out their religious beliefs as worthy of particular attention, thereby implying that these beliefs are true or especially desirable.

This aura of governmental approval is a subsidy as real and as valuable as financial assistance. Id. at 1178. Finally, the court found that while administrative entanglement between government and religious organizations had not occurred, the City’s ownership and display of the nativity scene engendered division of the polity along religious lines and thus resulted in excessive entanglement between government and religion.

Appraising the facts before it, the court wrote: “In sum, the atmosphere has been a horrifying one of anger, hostility, name calling, and political maneuvering, all prompted by the fact that someone had questioned the City’s ownership and display of a religious symbol.” Id. at 1180. The court acknowledged that the “Supreme Court has never held that the potential for political divisiveness is alone sufficient to invalidate a government’s action under the Establishment Clause,” id. at 1180, but found that it may properly be interpreted as a “warning signal” that the First Amendment has been compromised.

Viewing this warning signal of political divisiveness in conjunction with its earlier findings of improper purpose and impermissible effect, the court concluded that the Establishment Clause had been violated. B. Subsequent to both the decision by the district court and oral argument in this court, the Supreme Court decided Larson v.

Valente, 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982), a case involving a challenge to a state statute which denied an exemption from certain registration and reporting requirements to religious organizations receiving more than half of their total contributions from non-members. In striking down the 50% rule as violative of the Establishment Clause, the Court made clear what theretofore had perhaps not been readily apparent, namely that: “the Lemon v.

Kurtzman ‘tests’ are intended to apply to laws affording a uniform benefit to all religions, and not to provisions ... that discriminate among religions.” 456 U.S. at 252, 102 S.Ct. at 1687 (emphasis in original). To statutes, such as the one before it, effectively granting a denominational preference, the Court found appropriate a test of “strict scrutiny,” which requires invalidation unless the provision in question “is justified by a compelling governmental interest” and “is closely fitted to further that interest.” 456 U.S. at 246-252, 102 S.Ct. at 1684-1687.

Though the lower courts in Larson had proceeded under the Lemon tests, the Supreme Court applied strict scrutiny analysis. It struck down the challenged 50% rule because even assuming that the state had shown a sufficiently compelling governmental interest in curbing abusive practices in charitable solicitation, the rule was not closely fitted to furthering the asserted interest.

The Court noted that while application of the Lemon tests was not necessary to disposition of the ease before it, “those tests do reflect the same concerns that [warrant] the application of strict scrutiny.” 456 U.S. at 252, 102 S.Ct. at 1687 (brackets substituted). To that extent, the court observed that its analysis and result were consistent with application of the excessive entanglement test to the state statute. C. Larson makes clear that because the City’s ownership and use of the nativity scene is

an act which discriminates between Christian and non-Christian- religions it must be evaluated under the test of strict scrutiny. Though (as in Larson) the district court did not utilize this standard, we think it can be employed on appellate review (as the Supreme Court did in Larson) because of the thorough analysis in the district court’s opinion, and because, at least on the present facts, the district court’s negative resolution of the first Lemon test — with which we agree — foreordains the result under the identification of compelling governmental interest prong of strict scrutiny.

Specifically, the district court found that defendants, after fair opportunity to do so, were unable to advance any legitimate secular purpose for inclusion of the creche in the outdoor display and that by such action the City in fact had “tried to endorse and promulgate religious beliefs.” 525 F.Supp. 1173. We find no error in this part of the district court’s analysis. That being so, it follows inexorably that defendants established no compelling governmental interest in erection of the nativity scene.

If one is unable to demonstrate any legitimate purpose or interest, it is hardly necessary to inquire whether a compelling purpose or interest can be shown. We conclude therefore that the first prong of strict scrutiny test is not met, and of course find it unnecessary to address the second prong. The judgment of the district court must be affirmed. We note that our result is consistent with the district court’s finding — with which we agree — that erection of the creche had a primary effect of advancing religion and therefore was unconstitutional.

However, we are unwilling to place much weight on the court’s determination that the City’s actions risked political divisiveness along religious lines. As the court noted, this factor alone has never been held sufficient to invalidate governmental action, and First Amendment scholars have questioned and criticized the political divisiveness strand of the entanglement test on historical and prudential grounds. See Gaffney, Political Divisiveness Along Religious Lines: The U.L.J. 205 (1980); Ripple, The Entanglement Test of the Religion Clauses — A Ten Year Assessment, 27 U.C.L.A.

L.Rev. 1195 (1980); but see Larson v. Valente, supra, 456 U.S. at 252-255, 102 S.Ct. at 1687-1688 (1982) (discussing in dicta “risk of politicizing religion”). We find it unnecessary to rely on the political divisiveness analysis in the district court’s opinion. D. Finally, we are aware that our decision is apparently at odds with a recent decision of the United States District Court for the District of Colorado. In Citizens Concerned for Separation of Church and State v.

City and County of Denver, 526 F.Supp. 1310 (D.Col.1981) (hereafter “Citizens Concerned"), that court expressly declined to follow the district court opinion in the present case and held that the erection of a nativity scene as part of the City and County of Denver’s annual Christmas lighting display did not violate the Establishment Clause. The court intimated that the difference in result was in part accounted for by the nature of the evidence adduced in the two cases. See id. at 1311, 1313.

In any event, however, we think it sufficient to note that we have considered the reasoning in Citizens Concerned and, to the extent it is legally inconsistent with the present decision, find it unpersuasive. Accordingly, the judgment appealed from is AFFIRMED. . Donnelly v. Lynch, 525 F.Supp. 1150 (D.R.I.1981). . A footnote to the last-quoted sentence added: “These plaintiffs submitted affidavits stating that they are now and have been during the time period relevant to this suit taxpaying residents of Pawtucket. The defendants have agreed that the Court may admit these affidavits into evidence.” .

In our case, plaintiffs challenge direct expenditures which, though small in amount, in certain respects parallel the disputed expenditures in Flast. . In Larson, the Supreme Court found that the 50% provision: effectively distinguished] between ‘well-established churches’ that have ‘achieved strong but not total financial support from their members,’ on the one hand, and ‘churches which are new and lacking in a constituency, or which, as a matter of policy, may favor public solicitation over general reliance on financial support from members,’ on the other hand. 456 U.S. at 246 n.23, 102 S.Ct. at 1684 n.23. .

It perhaps bears noting that the court in Citizens Concerned apparently misread the district court decision in Donnelly, at least to the extent that it found that Donnelly held that a “nativity scene is so exclusively religious that its use by the state is per se objectionable.” 526 F.Supp. at 1313. The Donnelly decision left open various possibilities, such as government use of a nativity scene as part of a museum display, 525 F.Supp. at 1169, or in a truly educational context, id. at 1177 n.38.