This post is co-authored with Brian Connolly of Otten Johnson Robinson Neff + Ragonetti, contributor author to the Rocky Mountain Sign Law (www.rockymountainsignlaw.com) blog. 

Late last month, a federal district court in Pennsylvania ruled that directional signs to a church, which contained images of a cross and bible, did not violate the Establishment Clause of the First Amendment.

The borough of Shickshinny, Pennsylvania installed a sign in a borough right-of-way that was designed and produced by a third party and which read “Bible Baptist Church Welcomes You!”  The signs contained images of a cross and bible, and a directional arrow pointing motorists to the church.  The sign was approved by the borough council.  The plaintiff in the case, Francene Tearpock-Martini, is a former borough council member who voted against the sign.  The sign is within sight of her house.

In 2013, the district court granted the borough’s motion to dismiss on statute of limitations grounds.  In 2014, the Third Circuit affirmed the dismissal of the plaintiff’s Equal Protection and Free Speech claims, but reversed on the plaintiff’s Establishment Clause claim.

On summary judgment, the district court held that the sign constituted a “religious display” because it contains religious symbols.  The court analyzed the Establishment Clause claim under what is known as the “endorsement” of religion test, which asks “whether a reasonable observer of the sign who is familiar with the history and context of the display would perceive it as an endorsement of religion.”  The court found that the sign did not constitute an endorsement of religion by the borough because it was merely a sign pointing in the direction of a church and a reasonable observer would perceive it as “a sign to a church and nothing more.”  The court rejected the claim that government employees’ assistance in placing the sign, as well as the fact that the borough may have used its own cement for the sign, was an illegal endorsement of religion.

Out of an “abundance of caution,” the court also reviewed the Establishment Clause claim under a separate test established by the Supreme Court in Lemon v. Kurtzman.  The Lemon test looks to whether: (a) the government practice has a secular purpose; (b) the principal effect of the government’s action either advances or inhibits religion; and (c) the government created an excessive entanglement of government with religion.  Here, the court found that the church sign passed this test as well – there was a secular purpose (providing direction to people); the principal effect did not inhibit but only very slightly advanced religion by providing directions to the church; and the government was not entangled with religion, as it only approved the sign and helped install it.

Interestingly, the decision in Tearpock-Martini did not address the government speech doctrine, which would have been highly appropriate in this case given the factual similarities to the U.S. Supreme Court case of Pleasant Grove City v. Summum.  In that case, the Supreme Court held that a Ten Commandments monument in a public park constituted government speech and was therefore not subject to First Amendment scrutiny.

Tearpock-Martini v. Shickshinny Borough, ___ F. Supp. 3d ___, 2016 WL 3959034 (M.D. Pa. Jul. 22, 2016).

*Brian J. Connolly and Otten, Johnson, Robinson, Neff + Ragonetti are not affiliated with Robinson + Cole, LLP.

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Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Photo of Karla Chaffee Karla Chaffee

Karla L. Chaffee is a member of Robinson+Cole’s Real Estate + Development Group and is based in the Boston office, focusing on a variety of land use and environmental matters. Karla’s interest in RLUIPA began in law school when she co-authored, “Six

Karla L. Chaffee is a member of Robinson+Cole’s Real Estate + Development Group and is based in the Boston office, focusing on a variety of land use and environmental matters. Karla’s interest in RLUIPA began in law school when she co-authored, “Six Fact Patterns of Substantial Burden in RLUIPA: Lessons for Potential Litigants,” (with Dwight Merriam) published in Albany Government Law Review (Spring 2009). Karla has continued to write and speak on RLUIPA and has represented clients in several federal proceedings, including RLUIPA, First Amendment, and Equal Protection claims. In addition to her RLUIPA practice, Karla has litigated complex environmental matters, defending claims under Massachusetts Chapter 21E. Karla’s transactional experience includes pre-acquisition and pre-financing due diligence, environmental risk assessment and risk mitigation. She also represents clients seeking local zoning approvals and counsels them on the impact of proposed or recently enacted land use legislation, as well as on land use trends across the country.

Karla is also a proud member of Robinson+Cole’s Pro Bono Committee and is dedicated to maintaining pro bono work as part of her practice. Her pro bono clients include individuals and families seeking asylum in the United States. She has also represented nonprofit organizations in obtaining tax-exempt status and has served as legal counsel in a zoning appeal for a nonprofit association created to support and protect a national park.

Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.