The Volokh Conspiracy
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No Establishment Clause Violation in Display of Taoist "Bagua Mirror"
From Magistrate Judge Autumn Spaeth (C.D. Cal.) Nov. 26 in Ngo v. City of Westminster (appeal pending); Westminster is a majority-Asian suburb of L.A. (in Orange County):
The following SAC [Second Amended Complaint] allegations are substantively identical to the allegations asserted in the FAC. A bagua mirror was displayed on a wall outside the Mayor's Office front entrance, a location that was part of city hall. The bagua mirror is an ancient Chinese religious symbol related to the beliefs of Taoism and Feng Shui. Plaintiff is a devout Catholic who was offended by the display of the bagua mirror (the "Bagua Mirror").
On September 25, 2024, Plaintiff [who was at the time running for City Council] held a press conference at the Westminster City Hall, with the intent to bring attention to the Bagua Mirror. During the press conference, Plaintiff removed the Bagua Mirror from the wall. Westminster police officers arrested Plaintiff. Following the press conference, the Mayor publicly criticized Plaintiff and claimed Plaintiff was not fit to be a member of the Westminster City Council due to Plaintiff's status as a criminal defendant….
The Supreme Court has ruled that government conduct which the framers of the First Amendment would have understood to establish a religion violates the Establishment Clause. Kennedy v. Bremerton Sch. Dist. (2022). Coercion, such as making a religious observance compulsory, forcing anyone to attend church, or forcing anyone to engage in formal religious exercise, are "hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment." By contrast, government conduct which in the history and understanding of the Establishment Clause was not considered impermissible coercion, does not violate the Establishment Clause. The "Establishment Clause must be interpreted by reference to historical practices and understandings." The Establishment Clause does not "compel the government to purge from the public sphere anything an objective observer could reasonably infer endorses or partakes of the religious."
The SAC alleges that the Bagua Mirror was a religious symbol displayed outside the Mayor's office on a city hall wall. The SAC alleges that "Plaintiff is a devout catholic who was offended by display" of the Bagua Mirror. Neither party has briefed in any detail how the Bagua Mirror display fits in the historical understandings and practices of this nation regarding the Establishment Clause. However, the Supreme Court has noted there "is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789." Lynch v. Donnelly (1984).
In Lynch v. Donnelly, the Supreme Court held that a city owned and displayed Christmas nativity scene including the Infant Jesus, Mary and Joseph did not violate the Establishment Clause. In that opinion, the Supreme Court opined on the long history and tradition of government sponsored and displayed religious symbols. For example, "[a]rt galleries supported by public revenues display religious paintings of the 15th and 16th centuries, predominantly inspired by one religious faith." "The National Gallery in Washington, maintained with Government support, for example, has long exhibited masterpieces with religious messages, notably the Last Supper, and paintings depicting the Birth of Christ, the Crucifixion, and the Resurrection, among many others with explicit Christian themes and messages."
The Supreme Court noted, "The very chamber in which oral arguments on this case were heard is decorated with a notable and permanent—not seasonal—symbol of religion: Moses with the Ten Commandments." There are countless examples of "governmental sponsorship of graphic manifestations of [religious] heritage."
From the Supreme Court's recounting, it is clear that government-sponsored and displayed religious symbols have long been part of this nation's history and practices, without violating the Establishment Clause. Therefore, the Court finds the allegation that a Bagua Mirror was displayed on City property insufficient to state a claim for violation of the Establishment Clause. In addition, the SAC's allegation that Plaintiff was offended at the sight of the Bagua Mirror does not amount to any degree of governmental coercion. Offense does not equate to coercion. Kennedy.
Plaintiff's second claim asserts a violation of the First Amendment's freedom of speech protections by the Police Chief and Mayor. Specifically, the FAC alleges that these defendants caused the Westminster Police Department to arrest Plaintiff during the press conference in retaliation for Plaintiff's exercise of speech…. However, the SAC also alleges that before his arrest, Plaintiff removed the Bagua Mirror from the public area outside the office of the Mayor….
Under California Penal Code section 594, a person is guilty of vandalism if he maliciously defaces, damages, or destroys any real or personal property not his own. Under California Penal Code section 484, a person is guilty of larceny if he steals, takes, carries, leads or drives away the personal property of another…. Upon [the] facts [as alleged by the FAC], a reasonably prudent person would conclude there was a fair probability Plaintiff committed larceny or vandalism in damaging the object or the wall. "That Defendant included some criticism of the government does not necessarily imbue his conduct with First Amendment protection." Because the SAC does not plead the absence of probable cause for Plaintiff's arrest, this claim fails and is dismissed….
Seems generally correct to me.
