[authors: Arwen Johnson, Shareholder,  Kimberly Singer,  Associate - Caldwell, Leslie & Proctor, PC ]

On April 6, 2016, several local religious leaders and scholars obtained a permanent injunction against the County of Los Angeles, which had approved a measure in 2014 altering the official County Seal to include a Christian cross. Davies, et al. v. County of Los Angeles, et al., Case No. 2:14-cv-00907-CAS-FFM (C.D. Cal. Apr. 6, 2016).  The arguments presented in this widely-publicized case concerned a fundamental principle upon which both our federal and state constitutions are based: the separation of church and state, and when the actions of state or local government fail to respect that barrier.

This article highlights the following aspect of the Court’s ruling in Davies:  the importance of the California Constitution’s “No Aid Clause” in cases challenging government endorsement of religion, and how the framework used to analyze that clause differs from that under the federal “Establishment Clause.”

In Davies, the Court was asked to determine whether adding a depiction of a cross to the official County Seal violated the California and United States Constitutions.  In 1957, the County Board of Supervisors adopted a new official seal for the County of Los Angeles which depicted, among other items, a cross above an image of the Hollywood Bowl (the “1957 Seal”).  The 1957 Seal served as the official County seal until 2004, when the ACLU sent a letter to County officials arguing that the presence of the cross on the 1957 Seal reflected an impermissible endorsement of Christianity.  Following an emotional (and religiously-charged) debate, conducted over a series of public Board meetings, a divided Board voted to replace the depiction of the cross and Hollywood Bowl on the 1957 Seal with a depiction of the eastern façade of the San Gabriel Mission, without any cross atop its roof (the “2004 Seal”).  At the time, the actual San Gabriel Mission’s eastern façade was not adorned by a cross.

In 2009, a cross was placed atop the eastern façade of the actual San Gabriel Mission.  Four years later, on December 31, 2013, two members of the five-member Board introduced a motion to add a cross atop the depiction of the Mission on the 2004 Seal, for the stated purpose of rendering the Seal “artistically, aesthetically and architecturally correct.”  A divided Board ultimately voted on January 7, 2014 to approve the motion and add the cross—the only change it made to the Seal (the “2014 Seal”).

The Board’s decision prompted a group of religious leaders and scholars who objected to the inclusion of a cross on the seal to seek an injunction in federal court to stop the County from implementing the 2014 Seal.  Following a bench trial, the Honorable Christina A. Snyder of the Central District of California ruled in a 55-page opinion that the County’s addition of the cross to the 2014 Seal violated the No Aid Clause of the California Constitution and the Establishment Clause of the First Amendment to the United States Constitution.

California’s No Aid Clause provides that “[n]either the Legislature, nor any county . . . shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose.”  Cal. Const. art. XVI, § 5 (emphasis added).  By comparison, the federal Establishment Clause prohibits the government from making any law “respecting an establishment of religion” or undertaking any act that unduly favors one religion over another.  U.S. Const. amend. I.  Both clauses are premised on the same basic theory:  that the government should not promote or favor one religion over another—or over no religion—and that there should be a separation of church and state in this country.  As the Davies opinion confirms, however, courts use vastly different frameworks to analyze each clause, which can have a significant bearing on the outcome of the case.

Many are familiar with the so-called “Lemon” test for analyzing whether a government action violates the federal Establishment Clause:  Does the action:  (1) lack a secular legislative purpose, (2) have the principal or primary effect of advancing or inhibiting religion, or (3) foster an excessive entanglement with religion?  See Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).  The Lemon test is to be conducted through the vantage point of the so-called “objective observer,” and allows the Court to take into account traditional external signs that show up in the text, legislative history, and implementation of the statute or other comparable official act.  See McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 862, 866 (2005).  The Lemon test requires, however, a deference to the government’s articulation of its stated secular purpose, as long as an “objective observer” would find that purpose to be genuine, and not merely secondary to a religious objective.  Id. at 862, 864, 865.

By contrast, California’s No Aid Clause broadly prohibits the government from:  (1) granting any benefit, in any form, (2) to any sectarian purpose, (3) regardless of any secular purpose offered by the government, (4) unless the benefit is made available on an equal basis to those with sectarian and secular objectives, and can therefore be characterized as indirect, remote, or incidental.  See Paulson v. City of San Diego, 294 F.3d 1125, 1130 (9th Cir. 2002) (en banc).  It “does not mirror or derive from any part of the federal Constitution.”  Fox v. City of Los Angeles, 22 Cal.3d 792, 801 (1978) (Bird, C.J., concurring).  Thus, even a government action that has a secular purpose can violate the No Aid Clause if it also has a direct, immediate, and substantial effect of promoting a sectarian purpose.  Id. at 1130; see also Hewitt v. Joyner, 940 F.2d 1561, 1571 (9th Cir. 1991); Los Angeles Cnty. v. Hollinger, 221 Cal.App.2d 154, 158 (1963).  “Sectarian purpose” merely connotes a religious use, as opposed to a subjective state of mind.  Paulson, 294 F.3d at 1130, n.5.

The Davies opinion provides a helpful illustration of how the differences between the two clauses can matter.  To hold that the County’s decision to add a cross to the seal violated the No Aid Clause, the Court needed only to consider the evidence that the County had used public funds to add the cross to the 2014 Seal; the cross is the preeminent symbol of Christianity; the decision to add the cross—the only change to the 2014 Seal—came only ten years after the County had replaced the 1957 Seal, at significant expense, to avoid furthering a sectarian purpose; and the County’s seal carries an aura of prestige, authority, and approval that is not indirect, remote, or incidental.  Significantly, the Court did not need to evaluate whether the County’s stated secular purpose for adding the cross to the seal was genuine.  See Frohliger v. Richardson, 63 Cal.App.209, 217 (1923).  Nor was the Court bound by the “objective observer” standard applicable to federal Establishment Clause claims.  See Sedlock v. Baird, 235 Cal.App.4th 874, 889 n.30 (2015); Barnes-Wallace v. City of San Diego, 704 F.3d 1067, 1083-84 (9th Cir. 2012).

The Court’s federal Establishment Clause analysis in Davies, on the other hand, required a much more in-depth examination of the validity of the County’s proffered secular purpose for adding the cross to the seal and what a reasonable “objective observer” would understand about the County’s actions.  Indeed, the Court considered evidence about the accuracy of the other images on the seal; whether any constituents were confused by the depiction of the San Gabriel Mission without a cross on the 2004 Seal; the size of the cross on the 2014 Seal; and the significance of statements made by the Board and members of the public during Board meetings in both 2004 and 2014—evidence that the Court did not need to consider in conducting its analysis under the No Aid Clause.  The Court also had to determine what evidence in the record would, or would not, have been available to an “objective observer” under the McCreary standard.

While the Court in Davies ultimately concluded that the County’s addition of the cross to the 2014 Seal violated both the state and federal Constitutions, the No Aid Clause offered a more direct path to that result.  Because the No Aid Clause does not require an examination of the genuineness of the government’s stated purpose for its actions, nor a determination as to what an “objective observer” would perceive the purpose or effect of those actions to be, it places fewer restrictions on the court and offers a streamlined route to plaintiffs in California seeking to challenge potentially unconstitutional governmental endorsements of religion.  These distinctions have the potential to make the difference between being able to prove that a government’s actions impermissibly endorse one religion above others—or above no religion—or having to defer to the government’s stated secular purpose.  For residents of counties like Los Angeles, which comprises adherents of hundreds of faiths as well as non-believers, the No Aid Clause provides some additional comfort that the separation of church and state will continue to be honored.

1. The Court also ruled that the County had violated the No Preference Clause of the California Constitution, which it construed as coterminous with the federal Establishment Clause.