A Tale Of Two Seals

Like many governmental entities, the County of Los Angeles, California, uses a seal as a representation of its imprimatur. Conflict about its seal has been simmering since the 1950’s, and legal and political activity about it came to a head last week.

 

The Seals of Los Angeles County

In 1887, Los Angeles County — or more specifically its elected governing body — adopted an official seal. As depicted to the right, the original seal’s emblem is a large cluster of grapes. This was fine for the time, but especially after the Second World War, a big ol’ bunch of grapes wasn’t particularly representative of the complex economic and cultural life of the region. This isn’t Napa County we’re talking about here. But even then, the diversity of people and activities in the area made consensus on a new design difficult.

It took a powerful local political figure, Kenneth Hahn, to make it happen and come up with an idea for a re-design that would stick. He worked with a prominent and to this day well-regarded California artist named Millard Sheets, and together they came up with a design proposed to the rest of Hahn’s colleagues of the Board of Supervisors and pushed through by the sheer force of Hahn’s charisma, popularity, and political abilities in 1957. Hereinafter, this will be referred to as the “1957 Seal.”

Allow me to offer a few interpretive notes, guided in part by Mr. Sheets’ interpretive notes of the emblem. Central image: that European-looking blonde woman is the Roman goddess Pomona.  She stands on the shore of the Pacific Ocean, with the San Gabriel Mountains in the background. Upper left section: purportedly this quasi-Masonic imagery actually represents the aerospace industry. Middle left section: Juan Rodríguez Cabrillo’s galleon San Salvador, evoking the memory of sixteenth-century European exploration. Lower left section: that’s a tuna, and he doesn’t have a name. Upper right section: derricks representing the discovery of oil below Signal Hill. Let’s skip the middle right section for a moment, and quickly go to the lower right: unlike the anonymous tuna, this is a particular dairy cow, a championship Guernsey named “Pearlette.” Pearlette may well have been the most awesome cow California has ever seen, before she eventually became someone’s meal (Los Angeles has a long-standing love affair with burgers). Shamefully, Pearlette seems to have hailed from neighboring Ventura County and is therefore something of an interloper on Los Angeles County’s seal.

 

About That Cross…

Go back to the middle right section, the one opposite the San Salvador. There are three graphic elements here: the concentric semicircles are the dish of the Hollywood Bowl, and the two stars represent the music and motion picture industry, representative of the emergence of the region as a world-class cultural center. These are uncontroversial.

Above the Hollywood Bowl in the middle right section, you will notice a Latin cross. What’s that doing there? In Sheets’ original interpretive notes that accompanied his winning submission, he described the cross as representing “Religion.” No other words, narrative, explanation, or adjectives. Capitalized (as were other words and phrases, like “Dairy Farming” and “Fishing”). Alternatively, as suggested by the County of Los Angeles in the litigation at hand, it might represent small-“r” “religion,” or it might refer more particularly to the historical importance of the missions in Los Angeles County.

Were you to go visit Hollywood today, you’d see a cross up on one of the hills, which illuminates at night. To my knowledge, a church has displayed a cross there since at least the 1940’s. As I recall, were you to attend a concert at the Hollywood Bowl, you could see this cross, although you’d have to look over your shoulder, away from the stage, to see it, and then you’d only just barely see a part of it. There is not (and to my knowledge never has been) a cross that’s visible over the dish behind the stage on the Bowl as you look forward towards the performance.

But various religious activities centered in Los Angeles have been of national and indeed international importance. In particular, the missions. The original settlement of El Pueblo de Nuestra Señora la Reina de los Ángeles del Río de Porciúncula was principally the center of scattered beanfields, vineyards, and cattle ranches. The missions named for San Gabriel and San Fernando brought culture and education and commerce. Along with them came El Camino Real, making significantly easier transportation, commerce, and communication with the then-better-developed areas of Mexico. It is simply a fact of history, readily acknowledged by this atheist and indeed by everyone involved in the ongoing dispute about the cross on the seal, that the Roman Catholic Church and its Franciscan Missions have been greatly important in the history of this part of the world.

 

Litigation Threats Initiate An Update

With that said, the cross in the 1957 seal nevertheless seems a bit odd to some contemporary sensibilities about government. The American Civil Liberties Union in 2004 wrote the Los Angeles County Board of Supervisors, threatening to sue for an Establishment Clause violation. This precipitated a debate which included some discussion of whether a Roman goddess, depicted as a blond European woman, was a good personification of the County, among other things. But mainly, the debate was about the Latin cross floating above the Hollywood Bowl in the center-right section of the seal.

At the time, the nominally nonpartisan Los Angeles County Board of Supervisors consisted of two Republicans and three Democrats. Voting obviously proceeded along partisan lines, initially in closed session, to obtain the advice of counsel regarding the threat of litigation, on June 1, 2004. After the vote, the Board instructed County Counsel to engage with the ACLU concerning whether the threatened lawsuit could be avoided if the Latin Cross imagery were replaced “with a depiction of a California Mission.”

 

The Legislative Record

A regularly-scheduled public meeting of the Board took place one week later. Undoubtedly after some organization among area churches, a great many people stepped forward to offer defenses of the Latin Cross, offering public comments such as…

“If you, under the current circumstances, bow to the threatened litigation from the A.C.L.U., to any reasonable observer, you will be manifesting a hostility to religion that itself violates the Establishment Clause.” ¹

“This is an attack on the body of Christ.”

“My lord and savior died on that cross and it would be horrible for me to just let it be erased.”

“The cross represents not just the passion that are presenting today but the Passion of Christ and this is a Christian nation.”

“It’s a symbol of the love of Christ.”

…All of which sounds pretty explicitly Christian to me, although there was also plenty of comment offered in favor of the 1957 seal that was not explicitly Christian. If you click on the link in the above block quote, you’ll go to video and a transcript of the entire raucous hearing. The pro-cross Supervisors entered their own public statements into the record after the public comments, including the following:

“The cross is a part of a historical fact with the founding of the County of Los Angeles, just as the Star of David on the Sheriff’s badge is a reflection of … the Judaic heritage and laws of Moses.”

“If you replace [the cross] with a mission without a cross that’s not a mission anymore.”

“The issue is, where does it all end? And I think this Board needs to stand up and say, wait a minute. We have a great history in this County. We have a great history of our people in this County, in this state, and enough is enough.”

Against them, three other pro-Mission supervisors spoke in favor of the proposed change:

“[Hahn and Sheets] didn’t say it was part of our history, to represent our history. It was one word. They said Religion.”

“If you don’t believe that a mission is a sufficient symbol to represent the history, if you believe alternatively … that the only way to represent the history of L.A. County, as it relates to the missionaries, is with a religious symbol of the Latin cross, you’ve got a constitutional problem.”

“[This hearing is] a religious frenzy.”

“[I]f this case goes to trial, I would hate for them to play this hearing because, if there’s any question of what was being moved forward and what the objection was to the vote that had been taken, it was clearly, it was a religious one.”

“It doesn’t reflect who I am or who we are as a County. … I feel very strongly voting to change the seal is upholding the Constitution.”

After this deliberation, the move to a new seal was affirmed, by a 3-2 party-line vote, at an ultimate expense of $700,000. ² As you can see from the image above, there were three significant changes from the old seal. First, Pomona was replaced by a native woman holding a bowl of some unidentified food. Second, the oil derricks were removed, and the Hollywood Bowl (sans cross) took their place in the upper right. Third, the right middle quadrant now depicts the Mission San Gabriel Arcángel, for which the city of San Gabriel is named.

Look closely at the drawing of the Mission in the 2004 seal, and you’ll notice it has no Latin crosses. If you go to the actual building in San Gabriel today, you’ll see a thin but attractively-crafted wrought-iron cross atop its gable. It is, after all, a working Roman Catholic church, where Masses, baptisms, weddings, confirmations, funerals, and confessions are held frequently.

It seems trivially obvious to point out that there has almost always been a Latin cross atop this building since its original creation in 1771, because this building has been a working Roman Catholic Church for basically that entire time. As it happens, in 2004 there was no cross there, because it had fallen over in an earthquake, and for some reason no cross was returned to the gable until 2009.

Thus, the 2004 seal depicted the east façade of Mission San Gabriel Arcángel without a Latin cross on its gable.

 

Re-Crossing The Mission

By 2014, one member of the County Board of Supervisors, who had been in the pro-Mission faction of the 2004 vote, had retired. Sensing opportunity for success and political advantage, the pro-cross Supervisors persuaded her successor to join them in an effort to revisit the issue. After another contentious hearing, the Board voted, 3-2, to change the seal again.

The resulting 2014 seal is pictured to the right. The 2014 seal differed from the 2004 seal in only a single detail: the 2014 seal depicts a Latin cross on the gable of Mission San Gabriel Arcángel.

The ACLU promptly filed the lawsuit which it had threatened ten years previously. Litigation ensued. On April 7, 2016, the ACLU won a ruling from U.S. District Judge Christina Snyder that the 2014 seal did indeed violate the Constitution, including the Federal Establishment Clause but also on somewhat more interesting grounds, discussed below. The ACLU has made a complete copy of the opinion available on its website.

 

It’s All In The Framing

All this church-state stuff is, in my opinion, inherently fascinating. Friends and colleagues ask why I get so excited about it. After all, it’s of little practical use except to a small handful of lawyers who get to actually argue cases like these. So, here is a lesson that can be used by lawyers, and in particular for law students, from this case.

Look at the 2014 seal. Ask yourself whether or not it endorses the religion of Christianity. Kind of a stretch to say that it does, right? The cross makes up a tiny part of the emblem; the unchallenged presence of the building itself from the 2004 seal is still unquestionably and instantly identifiable as a mission and therefore a Christian church; the multiple and diverse images of the seal clearly attempt to depict a diverse variety of elements of the County’s civic, cultural, and economic realities. Taken as a whole and on its own, the 2014 seal really doesn’t seem to endorse, ³ prefer, aid, or Establish Christianity. So how could the ACLU have won on this claim?

The ACLU won this case when it got Judge Snyder to look not at the image of the cross, but to look at the legislative addition of that cross. The question is not whether, taking the 2014 seal as sui generis, it endorses religion. The only visual difference between the 2004 and the 2014 seals is the addition of the cross on the mission’s gable. So it’s not as much the cross itself as an intentional decision by the County to add that cross that she analyzed. Since the only change the County made was to add the cross, Judge Snyder’s intellectual focus was on adding an explicitly religious symbol to an otherwise-unchallenged governmental imprimatur.

So even if, unlike me, you don’t find the Constitutional concept of church-state separation to be inherently interesting, there’s a lesson here for any lawyer. If you ask the right question the right way, you can get the answer you want. That’s how you win lawsuits.

 

No Aid, No Preference

Of course Judge Snyder had to refer to law to justify her ruling. The most decisive law she found is something called the “No Aid Clause” in the California Constitution. This is a mostly-flies-under-the-radar law, and it’s not clear to me how many other state constitutions have clauses like this:

Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, 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, or help to support or sustain any school, college, university, hospital, or other institution controlled by any religious creed, church, or sectarian denomination whatever; nor shall any grant or donation of personal property or real estate ever be made by the State, or any city, city and county, town, or other municipal corporation for any religious creed, church, or sectarian purpose whatever … .

Cal Const. Art XVI sec. 5 (some exceptions apply to charities supporting orphans and the blind).

While it’s rarely cited or relied upon, this clause has been part of the California Constitution since at least the current constitution’s drafting and approval in 1879. (I can find no cognate in the 1849-1850 Constitution.) Judge Snyder found only about a half dozen cases interpreting this provision of the California Constitution. Most critically, she came up with Paulson v. San Diego (9th Cir. 2002) 294 F.3d 1124, 1129. Paulson concerned another cross, this one formerly in a San Diego public park.

Paulson interpreted the No Aid Clause very broadly. The “aid” forbidden by the clause need not be a “…financial benefit or tangible aid in order to violate the provision; they violate it by doing no more than lending their ‘prestige and power’ to a ‘sectarian purpose.’” Nor does the intent of the governmental action matter. Even if sincerely advanced for a secular reason, if an unintended effect of the action is sectarian benefit, it violate the state Constitution. Thus, a state action violates this section of the state constitution if it…

(1) grant[s] a benefit in any form (2) to any sectarian purpose (3) regardless of the government’s secular purpose (4) unless the benefit is properly characterized as indirect, remote, or incidental. A sectarian benefit that is ancillary to a primary secular purpose may qualify as “incidental” if the benefit is available on an equal basis to those with sectarian and those with secular objectives.

With that understanding of the law, Judge Snyder proceeds to flunk the 2014 addition of the cross under this test. The 2014 modification of the seal doing nothing but adding the cross devotes County resources and lends the County’s prestige to the primary symbol of the religion of Christianity.

 

Some Lemons With That Cross?

Judge Snyder spent 10 pages (pages 21-30 of the slip opinion) analyzing and applying the No Aid Clause to the County’s adoption of the 2014 seal, and found them at odds with one another. She could have stopped right there, but did not, no doubt anticipating that her ruling would be reviewed on appeal. She goes on to another state constitutional term, the “No Preference Clause.” While all 49 other states and the Federal Constitution have Establishment and Free Exercise Clauses concerning church-government relations, California addressed this fundamental right in a just a bit differently than most, if not all, of her sister states. See if you can spot the difference between the Federal Free Exercise Clause and the California cognate:

Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State. The Legislature shall make no law respecting an establishment of religion.

A person is not incompetent to be a witness or juror because of his or her opinions on religious beliefs.

Cal. Const. Art. I, sec. 4.

Again, this phrasing isn’t some sort of new trick of contemporary anti-theists; it’s been part of the state Constitution since the very beginning of the state in 1849. Judge Snyder’s research reveals that there is no definitive test or comprehensive checklist of factors to analyze when someone claims this term of the state constitution has been violated. There are some guidelines, though, including in the context of a religious display on public property (in fact, more crosses on hilltops in and around San Diego, including the one that later was at issue in Paulson). In that case, five factors were thought relevant for examination:

… [1] the religious significance of the display, [2] the size and visibility of the display, [3] the inclusion of other religious symbols, [4] the historical background of the display, and [5] the proximity of the display to government buildings or religious facilities.

Ellis v. City of La Mesa (9th Cir. 1993) 990 F.2d 1518, 1525.

Judge Snyder indicates that another case, East Bay Asian Local Dev. Corp. v. California (2000) 24 Cal.4th 693, 719, indicates that if a given state action is permissible under the Federal Establishment Clause, making specific mention of the classic test in Lemon v. Kurtzman (1971) 403 U.S. 602, then it will also survive challenge under the “No Preference” clause of the State constitution. So she does a Lemon analysis, which offers us a collateral benefit of advising whether the County violated the Federal Establishment Clause by adding the Latin cross to the seal. Recall that the Lemon test is a three-prong, must-pass-all analysis:

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, finally, the statute must not foster an excessive government entanglement with religion. Lemon, supra at 612-613.

It’ll not surprise anyone at this point that Judge Snyder flunks the addition of the Latin cross in 2014 to the seal on all three prongs. The addition of the cross was specifically to commemorate the Christian nature of the church, so the legislative purpose was not secular. The effect of adding the cross was to include an explicitly religious symbol in a governmental imprimatur. And, least convincingly, the deliberate addition of the symbol entangled the County with Christianity. Note, though, that here is the first time Snyder addresses what a “reasonable observer” would have thought, because the case law interpreting the “No Aid” clause treated that analysis as irrelevant.

 

What’s Next?

The County has the ability to file an appeal through May 5, 2016, 30 days after entry of Judge Snyder’s order. I’d be rather surprised if it declined to do so. Contrary to popular mythology of the wildly liberal Ninth Circuit, the likelihood of drawing a relatively conservative panel is reasonably high. What’s more, the case obviously possesses enough sex appeal to interest the Supreme Court.

I’m dubious, though. If the case really is fully and completely resolved on grounds of the California Constitution, that’s an area in which the U.S. Supreme Court has very little room to maneuver. Other than to say if a provision of a state constitution violates the Federal constitution, the U.S. Supreme Court consistently defers interpretation of a state’s constitution to that state’s Supreme Court.

Unlike the Federal courts, the California Supreme Court is empowered to, and often does, render advisory opinions to the Ninth Circuit on questions of California law. Rather than decide what the California Constitution means on its own, the Ninth Circuit could refer the matter to the California Supreme Court to ask whether the District Court applied the correct tests interpreting the No Aid and No Preference Clauses. Whichever side of the case, whether that be ACLU or LACO, believes it draws an unfavorable panel on appeal will seriously contemplate requesting an advisory opinion even if the Ninth Circuit doesn’t do so on its own.

The decisive ruling in this case will therefore probably come from San Francisco, not Pasadena or Washington.

 

Postscript

In researching this post, ⁴ I also came across the official song of Los Angeles County. Fellow Los Angeles County residents will no doubt be as surprised as I was to learn that there even is an official song, and has been since 1965. And here’s the first verse of “Seventy-Six Cities“:

God made the world and then He looked around 
To find Him a county and this is what He found.
A land of sea and mountain and desert wilderness.;
And he made an earthly paradise He called Los Angeles.

I’ll leave the application of Judge Snyder’s take on the No Aid Clause to this fine piece of songwriting for your own contemplation and analysis. For the record, the song is out of date: there are presently eighty-eight incorporated cities in Los Angeles County.

1. In fact, a taxpayer did later file suit against the County on a similar theory, specifically that removing the cross was hostility to Christianity. The lawsuit lost decisively before both the trial court and on appeal. Vasquez v. Los Angles County (9th Cir. 2007) 487 F.3d 1246, 1248.
2. Yes, I know that seems like a lot of money for something like this. It’s a big county, with lots of bureaucracy and buildings and stationery and vehicles and stuff. Was $700,000 in change-of-heraldry costs cheaper than litigation would have been? No one will ever know.
3. The Endorsement Test of Lynch v. Donnelly, which I favor as the judicial lens truest to the text and purpose of the First Amendment, was rejected by the Supreme Court in 2013. Many who cheered when this happened were generally proponents of weaker application of the Establishment Clause, but here, it looks to me like the Endorsement Test would have given the 2014 seal a pass.
4. Specifically, trying to identify the artist who drew the 2004 modifications to the seal. I failed; couldn’t find the name anywhere.