NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-3367
_____________
FRANCENE TEARPOCK-MARTINI,
Appellant
v.
SHICKSHINNY BOROUGH; JULE MOORE; MICHAEL STEEBER;
ROSALIE WHITEBREAD; JAMES WIDO
_____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
District Court No. 3-12-cv-02223
District Judge: The Honorable James M. Munley
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 19, 2016
Before: SMITH, Chief Judge, McKEE, and SHWARTZ, Circuit Judges
(Filed: January 4, 2017)
_____________________
OPINION
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SMITH, Chief Judge.
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
Shickshinny Borough erected a sign (the “Church sign”) on a right-of-way
near Francene Tearpock-Martini’s home. The sign states, “Bible Baptist Church
Welcomes You!” It has images of a cross and a book (presumably the Bible) and
an arrow pointing toward the Bible Baptist Church (the “Church”) with the phrase
“1 Block” written on the arrow. Tearpock-Martini alleges that the Borough’s
erection of this sign violates her rights under the Establishment Clause of the First
Amendment to the United States Constitution. Tearpock-Martini argues that the
Borough has endorsed the Church’s religion by favoring the Church over all other
entities that might or allegedly did seek to place a sign on rights-of-way in
Shickshinny.
On July 22, 2016, the District Court, applying the endorsement and Lemon
tests, granted summary judgment for the Borough. See Tearpock-Martini v.
Shickshinny Borough, No. 3:12cv2223, 2016 WL 3959034 (M.D. Pa. July 22,
2016). The District Court held that Tearpock-Martini failed to show a violation of
the Establishment Clause under the endorsement test because no reasonable jury
could find that the Borough had favored the Church when making decisions on
signs. See id. at *4. The District Court also held that Tearpock-Martini had not
shown an Establishment Clause violation under the three-part Lemon test. See id.
at *5. Because we agree that Tearpock-Martini failed to show that the Borough
treated the Church with any favoritism, we will affirm.
2
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343, and
we have jurisdiction pursuant to 28 U.S.C. § 1291.
We review the District Court’s disposition of a summary judgment motion
de novo, applying the same standard as the District Court. Doe v. Luzerne County,
660 F.3d 169, 174 (3d Cir. 2011). “Under this standard, a court will ‘grant
summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.’” Ramara,
Inc. v. Westfield Ins. Co., 814 F.3d 660, 666 (3d Cir. 2016) (quoting Fed. R. Civ. P.
56(a)). To show a genuine dispute of material fact, the nonmovant “must present
more than a mere scintilla of evidence; there must be evidence on which the jury
could reasonably find for the [nonmovant].” S.H. ex rel. Durrell v. Lower Merion
Sch. Dist., 729 F.3d 248, 256 (3d Cir. 2013) (quoting Jakimas v. Hoffman-La
Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007)) (internal quotation marks omitted).
When evaluating whether a government entity violated the Establishment
Clause outside the public education context, we use two tests: the endorsement test
and the Lemon test. See Modrovich v. Allegheny County, 385 F.3d 397, 400–01
(3d Cir. 2004) (describing the endorsement test and the Lemon test).
Under the endorsement test, we must determine whether “under the totality
of the circumstances, the challenged practice conveys a message favoring or
disfavoring religion.” Doe v. Indian River Sch. Dist., 653 F.3d 256, 284 (3d Cir.
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2011) (internal quotation mark omitted). “The relevant question under the
endorsement test is ‘whether a reasonable observer familiar with the history and
context of the display would perceive the display as a government endorsement of
religion.’” Borden v. Sch. Dist. of Twp. of E. Brunswick, 523 F.3d 153, 175 (3d
Cir. 2008) (quoting Modrovich, 385 F.3d at 401).
Tearpock-Martini argues that a reasonable observer would perceive the
Borough’s installation of the Church sign on the state right-of-way as an
endorsement of religion because, excepting a sign to a Borough-owned boat
launch, the Borough did not permit “signs of any kind within its borders” and
“even refused to permit the U.S. Postal Service” to erect its own sign. Br.
Appellant 3.1 In light of the fact that it is undisputed that the right-of-way
displayed signs with no religious content, Tearpock-Martini argues that the boat
launch sign is different because it directs individuals “to a property owned by the
Borough itself.” Reply Br. Appellant 6; see also JA000097, JA000101 (describing
boat launch sign). In addition to the boat launch sign, there is a sign for a Subway
restaurant. Tearpock-Martini notes that the Subway sign was not placed with the
approval of the Borough. These really seem like distinctions without a difference.
1
See also, e.g., Reply Br. Appellant 11 (“It is Shickshinny’s favoritism of the
Bible Baptist Church over all others who wish to erect signs which distinguishes
this sign from the others to which Shickshinny refers.”).
4
Tearpock-Martini attempts to manufacture the favoritism she needs to show
an Establishment Clause violation by comparing the Church sign to a hypothetical
post office sign that the Borough declined to erect.2 There are two steps in the sign
application process. First, an applicant must fill out a form and pay a twenty-five
dollar fee. Then, the Town Council has to approve the application. The Borough’s
30(b)(6) witness, Kathleen C. Llewellyn, stated that the post office sign was not
approved for two reasons: First, she said that a motion “was made” to approve a
post office sign, but “it wasn’t seconded.” JA000084. Second, she explained that
the Post Office failed to apply: “I don’t think the post office applied. I think it was
-- somebody may have come -- they may have gone to Kevin Morris, who is the
fire chief, and said, gee, you know, it would be helpful, you know, if we had signs
up. And he may have brought it up that way without any formalities of, you know,
applying for a permit. I don’t know that.” JA000086. Although Tearpock-
Martini raises an issue of fact as to whether the Church actually paid the fee and
therefore whether the Church complied with every step of the process, Tearpock-
2
Tearpock-Martini also tries to compare the Church sign to her “protest sign,”
which she placed on the town right-of-way without permission. See Br. Appellant
19.
5
Martini raises no doubt that the Post Office—unlike the Church—failed to fill out
the form.3
Tearpock-Martini failed to meet her burden to show a genuine issue of fact
regarding whether the Post Office was similarly situated since she failed to
produce evidence that shows why the Post Office sign was presented to the
Council in the way it was and whether this was of any consequence. In other
words, because Tearpock-Martini failed to meet her burden to show a genuine
issue of fact regarding whether the Post Office or anyone else was similarly
situated and treated worse than the Church, Tearpock-Martini has not shown that
the Borough “sen[t] a message to nonadherents that they are outsiders, not full
members of the political community,” Freethought Soc’y v. Chester County, 334
F.3d 247, 260 (3d Cir. 2003) (quoting Capitol Square Review & Advisory Bd. v.
Pinette, 515 U.S. 753, 773 (1995) (O’Connor, J., concurring in part and concurring
in the judgment)) (internal quotation mark omitted); she has only shown that the
Borough has not made its rights-of-way open to organizations that fail to comply
with the application process.
Even though Tearpock-Martini did not make a Lemon test argument on
appeal, we apply the Lemon test out of an abundance of caution as we have done in
3
The boat launch sign was not approved through the normal application process.
Instead, it was approved by motion at the request of the Mayor of Shickshinny.
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our Establishment Clause cases, even while acknowledging that it may be
unnecessary to continue to apply both.4 Under the Lemon test, derived from
Lemon v. Kurtzman, 403 U.S. 602 (1971), a “challenged action is unconstitutional
if (1) it lacks a secular purpose, (2) its primary effect is to either advance or inhibit
religion, or (3) it fosters an excessive entanglement of government with religion.”
Doe, 653 F.3d at 283. As a matter of law on this record, none of those prongs
show a violation in this case.
First, as the District Court held, the sign has a secular purpose: the sign
would aid people in finding a local institution. See Tearpock-Martini, 2016 WL
3959034, at *5.5
Second, the primary effect prong is neither to advance nor inhibit religion.
This Court has explained that the primary effect prong “is akin, if not identical, to
4
See, e.g., Doe v. Indian River Sch. Dist., 653 F.3d 256, 282–83 (3d Cir. 2011)
(noting that the Lemon test has been criticized and that we apply both tests);
Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144, 174–75 (3d Cir.
2002) (“Recent Supreme Court decisions, however, have not applied the Lemon
test. Instead, in cases involving Establishment Clause challenges to private
individuals’ use of government resources, the Court has applied the endorsement
test . . . .”); ACLU of N.J. v. Schundler, 104 F.3d 1435, 1444 n.6 (3d Cir. 1997)
(“[W]e merely reiterate that in Establishment Clause challenges to religious
displays, the Supreme Court has emphasized that the endorsement test—a
refinement of the ‘effects’ prong of Lemon—should be the focus of our analysis.”).
5
The Borough’s (30)(b)(6) witness testified: “This directional sign came up
because this church is out of the way. It’s not on the main street.” JA000115.
7
the endorsement test.” Doe, 653 F.3d at 284. Because there was no endorsement,
the primary effect of the sign is not to advance religion.
Finally, there is no excessive entanglement. This analysis can be redundant:
“[T]he factors employed to assess whether an entanglement is excessive are similar
to the factors . . . use[d] to examine effect.” Child Evangelism Fellowship of N.J.
Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514, 534 (3d Cir. 2004) (second alteration
in original) (quoting Agostini v. Felton, 521 U.S. 203, 232 (1997)) (internal
quotation marks omitted). Here, the most entanglement Tearpock-Martini can find
is that the Borough installed the sign and, when it fell over, reinstalled it. That is
not “entanglement,” let alone “excessive” entanglement.
For the reasons set forth above, we will affirm the judgment of the District
Court.
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