dissenting.
Plaintiffs filed suit against the Governor of Kentucky under 42 U.S.C. 1983 asserting violation of the establishment of religion clause of the First Amendment of the Constitution. The complaint sought injunc-tive and declaratory relief to prohibit further alleged unconstitutional conduct. The complaint alleged, among other things, that:
“On November 28, 1988 the state held a ceremony to unveil the structure. The ceremony took place on state property and used state funds.”
“At the ceremony, the stable was adorned to depict the Biblical version of Jesus’ birth....”
“The structure for housing nativity scenes stands as a separate entity and is not part of a comprehensive seasonal display.”
“In the entire area of the State Capitol, the only other Christmas decorations are a large evergreen tree with Christmas lights, which stands near the front entrance to the Capitol, approximately 100 yards from the structure, and a strand of evergreens which hang on the Capitol facade.”
The parties stipulated that the Commonwealth had erected “a nativity scene on the grounds of the State Capitol,” and that it had been “constructed by state workers on state time and at state expense” (approximately $2400 cost), and “at the direction of executive branch officials.” They further stipulated that:
“Operation of the State Capitol property is a function of the executive branch of government, under the ultimate authority and control of Governor Wilkinson.” “At all times relevant to this complaint, the defendant and his agents were acting under color of state law.”
They also stipulated that there was a lighted Christmas tree approximately one hundred yards away and that the nearest tree, decorated with white lights, was approximately 50 yards away, and that there were “no other decorations or adornments ... within one hundred (100) yards of the nativity scene.”
With regard to the alleged ceremony on November 28, 1988, the Commonwealth conceded that there had been “a live reenactment of the nativity scene,” with participating children from “Good Shepherd School ... affiliated with the ... Catholic Church,” which had been invited to furnish these participants. The Bible rendition of the birth of Jesus was reenacted. There had also been a parade.
The Commonwealth finally stipulated about “subsequent use,” as follows:
“The nativity scene remains on the State Capitol grounds and will remain there until around Christmas day.”
“The state has permitted and will permit groups to use the nativity scene for their own live reenactments.”
“The state will not permit the nativity scene to be used for any other purpose. Specifically, the state will not permit its use for secular reenactments of any kind, for reenactment of non-Christian themes, or for reenactment of Christian themes other than the nativity scene.” “Approval for use of the nativity scene must be secured from a state official in the executive branch.... ”
“A state official accepts requests over the telephone for use of the site for a live presentation of a nativity scene, and if no other group has previously scheduled the site for that time period, permission is granted....”
“The state has no written or oral regulation concerning the use of the land imme*1108diately adjacent to or in front of the nativity scene.”
The district court made findings upon personally visiting the site, but none should be taken in contravention of what the parties had stipulated.
I find first that plaintiffs had standing as Kentucky residents and concerned citizens to challenge the action taken by the Commonwealth of Kentucky and its Governor. County of Allegheny v. American Civil Liberties Union, 492 U.S. -, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989); School District of City of Grand Rapids v. Ball, 473 U.S. 373, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985); Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952); Hawley v. City of Cleveland, 773 F.2d 736 (6th Cir.1985). The challenged action which plaintiffs assert to be in violation of the establishment clause took place on State Capital grounds. The “sectarian use” of those grounds impaired the plaintiffs’ use and enjoyment of those public grounds, and thus gives these plaintiffs standing. Allegheny County, supra; Taub v. Commonwealth of Kentucky, 842 F.2d 912 (6th Cir.1988).
The factual setting of this controversy presented itself through the stipulation of the parties and the admissions of the Commonwealth, which left no doubt as to, and no room for interpretation of, the specific actions and intentions of the Commonwealth and its agents. That particular legal controversy was submitted to the district court based upon admitted facts and circumstances.
I, therefore, find no basis or warrant for considering the gloss placed by the district court on these stipulated facts which were based upon its own personal inspection.1 Viewing the scene from “differing perspectives” in my view is both unnecessary and immaterial in light of the facts and factors expressly relied on by the parties in submitting the legal controversy for decision. No one indicated, for example, that the stable scene and the structures were “designed to be viewed from afar;” no one indicated whether “a viewer would attempt to look into the structure” when there was no pageant in process.
Such a pageant, as had already occurred on several occasions, had to commemorate the familiar New Testament story of the birth of Jesus; the stable structure could not “be used for any other purpose.” (See Stipulation # 34). It could not be used for the “reenactment of non-Christian themes,” or for “Christian themes other than the nativity scene.” (Stipulation # 34). Approval for a pageant, or for other portrayals or “live reenactments,” using the structures provided and paid for by the Commonwealth of Kentucky, had to come from the Commonwealth. In fact, the Commonwealth specifically would not allow the structure to be used for any purpose except to demonstrate, memorialize, and celebrate a central theme of the Christian faith, the birth of Jesus Christ. The Commonwealth alone scheduled as well as approved these “live presentations” at the very steps of the State Capitol where previously there had occurred “demonstrations and other public events.”
In view of what are uncontroverted and stipulated facts, I find clearly erroneous the purported factual finding of the district court that “an objective observer viewing the stable structure in the context of the holiday season and of its physical surroundings would interpret it not as an endorsement of religion or any religious doctrine.” I find that what the court really did in making the above statement was to reach a legal conclusion based largely on the district court’s perceptions which apparently disregarded the express purpose and the particular religious use of the stable and the surrounding structures erected by the Commonwealth.2 The Commonwealth ad*1109mitted that the structures in question were either 50 or 100 yards away from trees with ornamental lights placed thereon as a sign of the season. These other decorations at a considerable distance from the structures used and intended to be used only for Christian nativity pageants and live presentations cannot be deemed to be part and parcel of the scene of the créche and the stable. See Allegheny County, 492 U.S. at -, 109 S.Ct. at 3104 (holding that the floral decoration surrounding the creche could not be viewed as equivalent to the secular symbols in the display in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984)); see also ACLU v. City of Birmingham, 791 F.2d 1561 (6th Cir.1986) (where the facts as to the display of a city-furnished nativity scene and figures of the “Christ Child, the Mother Mary, Joseph, three costumed shepherds, and several lambs” were not in dispute).
The majority takes note that the stipulations here were filed after the Third Circuit had indicated disapproval of a nativity scene and setting in ACLU v. Allegheny County, at 842 F.2d 655 (3d Cir.1988), and the Supreme Court had approved a creche and manger scene display in substantially different surroundings in Lynch, 465 U.S. 668, 104 S.Ct. 1355. The decision of the Third Circuit in Allegheny County, affirmed by the Supreme Court, made it evident that what had been stipulated in this ease by the Commonwealth violated the establishment clause. Instead, the district court here relied upon the “lodestar case,” Lynch, in reaching its decision, but it commented upon “the unfortunate, perhaps unavoidable, ambiguity in the majority opinion” in Lynch3
The district court noted this court’s opinion in ACLU v. City of Birmingham, but was apparently more impressed with Judge Nelson’s “strong dissent” therein, which criticized a “ ‘Santa Claus too’ test.” The district court also cited American Jewish Congress v. City of Chicago, 827 F.2d 120 (7th Cir.1987), but devoted equal space and attention to Judge Easterbrook’s “vigorous dissent” therein. The City of Chicago court reversed the district court and enjoined a créche and nativity scene in the Chicago City Hall.4 The district court took particular note of Judge Weis’ “scathing dissent” and criticism of this court’s opinion in ACLU v. City of Birmingham in Allegheny County, 842 F.2d at 669. The district court also referred to an article in the Kentucky Law Journal wherein the author concluded (the district court characterized it as “holds”) that “[ujnder this approach, governmental involvement with a Nativity scene will rarely violate the establishment clause,” 77 Ky.L.J. 61, 115 (1988).
Utilizing the “endorsement” test of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), the district court held (inter alia):
This court agrees with dissenting Judges Easterbrook and Weis that under Lynch there is no justification whatever for an automatic “seat of government” disqualification for a governmentally sponsored religious display.
This court holds that the fact that it [the Nativity scene] is located on the grounds of the State Capitol, rather than, say, a state park, is not per se determinative.
The district court stated:
Respectfully, albeit frankly, I don’t believe a federal judge has any business inspecting the Christmas decorations on state property to determine if there is enough tinsel, two plastic reindeer, Santa Claus too, or for any other reason unless it is absolutely required in order to protect and defend the Constitution and *1110laws of the United States. And I submit that it is not.
I submit that the approach of the Second Circuit in McCreary5 provides a model that avoids the necessity of such untoward intrusions by federal judges into state business.
... I read the opinion of the Birmingham majority as an attempt to be extra certain that no government sponsored religious display be interpreted as an official endorsement of religion.
Birmingham merely requires the near presence of some secular decorations. Decorations of the kind present on the Capitol grounds in Frankfort and the approaches thereto are sufficient under the Birmingham approach, and this court so holds. As indicated by the findings of fact herein, there are problems of perspective in applying the doctrine of Birmingham to this case....
The district court then stated that, based on the stipulations and supplemental stipulations submitted by the parties, “[cjonsti-tutionally, this presents an unacceptable situation, but one easily remedied.” (Emphasis added). Had the district court not added the underlined phrase, I would have agreed with its constitutional assessment, even without the added impact of the Supreme Court decision in Allegheny County, decided July 8, 1989. It seems evident that the stipulated facts clearly indicated a violation of the First Amendment establishment of religion clause by the Commonwealth of Kentucky.6
It was only after this statement that, for the first time, the district court mentioned that the “area at the foot of the Capitol steps is a traditional open forum.” This was not a part of the original stipulation but was directed by the district court to be added following the hearing on plaintiffs prayer for an injunction. It was the district court’s direction then to add this factor and to indicate that a “religious pageant or ceremony” could not be constitutionally excluded from such an area. This theory, however, ignores the holdings in Birmingham, American Jewish Congress, Stein v. Plainwell Community Schools, 822 F.2d 1406 (6th Cir.1987), and Allegheny County, that a city hall, a public park or stadium, and/or a county courthouse, despite the fact that they are open public places and public fori, may not be the site of a particular state endorsed and approved religious ceremony, observance, or display.
Widmar v. Vincent, 454 U.S. 263, 102 5.Ct. 269, 70 L.Ed.2d 440 (1981), relied upon by the district court and the majority, is not helpful to defendant. That ease merely held that a state university which regularly approved use by various student groups of school facilities upon request could not dis-criminatorily and in violation of the First Amendment exclude groups involved “in religious work and discussion.” 454 U.S. at 269, 102 S.Ct. at 274. In Widmar the Court found that there was a secular purpose and that no entanglement with religion existed and therefore held that there was no primary advancement of religion if the university acted to permit a religious group to meet. There is no proper analogy between the state’s action here in permitting exclusive use by a particular Christian religious enactment of items furnished at state expense, and the state university’s action in Widmar in dealing with a request by a religious group to share certain facilities with many other non-religious groups. In all respects, the “open forum” concept was an issue created by the district court to find a basis not to enjoin conduct which it found otherwise to be “constitutionally unacceptable.” I reiterate that the majority is in error in countenancing this procedure. The district court directed a supplemental stipulation that the state had “no regulation ” concerning the “use of the land immediately adjacent to ... the nativity scene.” (Emphasis added).
*1111The majority’s holding that it would interpret the district court’s rationale that the site “immediately adjacent to the structure” was available to any “responsible religious or civil groups,”7 as a kind of “open forum” to cure the stipulation whereby the Commonwealth limited the use of the stable scene only to approved Christian groups and the Christian theme of Christ’s birth is simply wrong and not supported by the uncontested facts. (“The state will not permit the nativity scene to be used for any other purpose.”) (Emphasis added).
The district court, in fact, concerned about “any misunderstandings regarding discriminatory usage of the structure by church groups which might be interpreted as endorsement of religion ...”8 required that a written notice be displayed by the defendant in the future explaining that the state was no longer doing what it had expressly stipulated it had been doing — giving approval only to certain religious groups to use the structure and nativity site for the specific Christian purpose.
The district court, then, to overcome what it at least strongly doubted was constitutional in the face of plaintiffs’ challenge, and to allay “fears that the Commonwealth is endorsing a religion,”9 decided to establish new factual criteria, set up by the district judge himself, by which to assess the constitutionality of practices and conduct already engaged in by the defendant, and the purpose of which had already been stipulated. By so doing, the district court rendered what amounted to an advisory opinion, and it, has done what it professed to be inappropriate for it to do — substitute its own views or perceptions for the stipulated facts and for the law in this area established by this court in Birmingham. Of course, the district court could not foretell the clarification of the law in this area by the Supreme Court, supporting the views expressed in Birmingham and through Allegheny County. To help assure that its approval of what the Commonwealth had done was not erroneous, the court required that expenditures conceded to have been already made by the Commonwealth (understandably to be “of some concern”) “be defrayed with private funds.” By this rearrangement of the facts, the district court observed then somehow that it “would constitute a minimal interference with state affairs,” and later added that it might be deemed an acceptable “expenditure of public funds for incidental religious purposes.”
That the district court was in error in its construction of the actual uncontroverted and stipulated facts, regardless of its unnecessary added “perceptions” and required conditions of disclaimer, repayment and opening the closed and exclusive “forum,” may be seen by its statement that “the initial ceremony” described in the findings of fact seems to the court to be an “excellent proper use of the facility.” That use referred to, of course, was exclusive, on the very steps of the State Capitol, and without any disclaimer about obvious endorsement by the Commonwealth, which had expended public funds to bring it about. This court should surely not put its stamp of approval on such a notion.
I must differ from my brethren in their effort to distinguish this case from Birmingham and Allegheny County. They agree, however, that, without the disclaimer heretofore discussed, “the unadorned stable would represent an impermissible endorsement of religion.” To that extent, *1112we are all in agreement at least, and I believe a reasonable reading of the district court’s opinion would also indicate its accord.
What the majority has mistakenly permitted, in my view, is the alteration of the extensive stipulated facts which set out clearly the intent of the Commonwealth in doing what it did, and substituting in their stead other facts and factors initiated by the district court on its own volition into this controversy. The court required disclaimer sets the real facts on their head. The disclaimer permits the Commonwealth to say “we didn’t mean what we said was the exclusive purpose of this Christian nativity display, and we didn’t spend the public funds we really spent to do it.” I cannot permit this kind of misrepresentation to be approved. This court also, by taking into account the facts and factors added by the district court, has issued an advisory opinion telling the Commonwealth that if it undoes what it has already done, if it says it did not intend what it plainly said it intended to do, and if it does what the court tells it to do about its approval and initiation of the Christmas nativity display in the future, we will approve its conduct.
Even if this kind of action based on the deceptive disclaimer and the phony defraying of public expenses were accomplished legitimately and appropriately, I would still not be able to affirm the action of the district court. Its judgment directed that “the area, as a public forum, is available to all responsible citizens and civic and religious groups....” We cannot say with assurance what area the district court was describing. I cannot construe the district court opinion in its entirety as directing that the nativity scene itself, rather than some indefinite surrounding area, was meant to be something it was never intended to be by the Commonwealth — exclusively designated and approved for live reenactments of a basic and sacred Christian celebration. What “responsible citizen” or “religious group”, except a Christian entity, would wish to present only a “live reenactment” of the Christian nativity story?
Also, the district court judgment requires the state to draft a “formal written policy” setting forth “reasonable restrictions” on the use of the structure. We are not advised about the content of this policy and the restrictions, but we already know what the previously stipulated policy of the Commonwealth was and has been with respect to the nativity site.
Finally, the district court judgment requires the state to determine just which ones among potential applicants (and I find it difficult to conceive of any but Christian groups or persons applying) are “responsible,” which may be “civic” whatever that term means, and which group is “religious.” It must also decide that what they propose to do at the nativity scene or site is a “holiday ceremony” or a “pageant” or a “display.” This judgment puts the Commonwealth in the business of approving, scheduling, and/or rejecting holiday proposals which, I submit, constitutes a separate First Amendment violation. I therefore would reverse and enjoin the Commonwealth’s activity in controversy. See Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980), and Allegheny County, supra.
Recently, the Second Circuit, in a comparable establishment clause controversy involving a menor ah displayed and a Jewish religious observance in a municipal public park, reversed the district court to declare such conduct and practice contrary to First Amendment principles. See Kaplan v. City of Burlington, 891 F.2d 1024 (2d Cir.1989). That court, correctly I submit, overruled the argument of that City that Board of Trustees of Scarsdale v. McCreary, 471 U.S. 83, 105 S.Ct. 1859, 85 L.Ed.2d 63 (1985), or Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), was controlling rather than Allegheny County:
As we see it, Allegheny teaches that display of a menorah on government property in this case conveys a message of government endorsement of religion in violation of the Establishment Clause.
Id. at 1028.
The Kaplan court, reciting the reasons I have attempted to articulate in this dissent, *1113reached its decision despite the existence of a purported disclaimer sign to the effect that the menorah was sponsored by a Jewish religious organization. The Kaplan court also observed, as is the situation in the instant case, that the public park, whether a traditional public forum or not, had never before been used for an express religious purpose and observance. I agree with Chief Judge Peinberg’s observation that to rule as the majority has in this case is to permit “the public forum doctrine [to] swallow up the Establishment Clause.”
I have written this dissent with some reluctance because I appreciate the difficulty of this kind of First Amendment controversy. I also realize that the district court acted without the benefit of the Allegheny County Supreme Court decision. I would, therefore, at a minimum, remand this case to the district court for further consideration in light of Allegheny County and the concerns herein expressed concerning its added perceptions to the full set of facts stipulated by the parties and submitted to the court.
. I would agree with this later observation in the district court opinion: "I submit that a federal judge should not be conducting inspections of Christmas decorations thought to be appropriate for its Capitol grounds by a sovereign state."
. From one "perspective," however, the district court conceded that an objective observer "might reach the conclusion that the presence of the stable constituted an endorsement of Christianity by the Commonwealth.”
. The district court quoted the observation in Lynch that "a Santa Claus house, reindeer ..., candy-striped poles, a Christmas tree ... such characters as a clown, elephant, and a teddy bear, hundreds of colored lights, and a large banner [with] SEASONS GREETINGS" were present with the creche and nativity scene. It is obvious that these secular symbols distinguish Lynch from the facts of this case.
. The majority observes that the district court may "have confused the facts in Allegheny County with those in American Jewish Congress v. City of Chicago, 827 F.2d at 123,” particularly with regard to a disclaimer sign also in the City Hall lobby.
. McCreary v. Stone, 739 F.2d 716 (2d Cir.1984), aff’d by an equally divided Court, sub nom., Board of Trustees v. McCreary, 471 U.S. 83, 105 S.Ct. 1859, 85 L.Ed.2d 63 (1985).
. The majority agrees with this conclusion, but believes that the "remedies” proposed by the district court were sufficient to cure the violation.
. Availability under these conditions will still impose upon the state the impermissible responsibility under the First Amendment to decide which petitioning group was "responsible” and which was "civic,” rather than irresponsible, unacceptable or not "civic” (perhaps a group of non-residents of Frankfort not “civic-minded” in the usual sense).
. The district court, then, was attempting by its own imposition of future conditions and requirements to make the nativity scene and adjacent area a public forum "available on an evenhanded basis.”
. The district court declared that "a disclaimer is necessary [so] that the structure is not to be construed as an endorsement of religion.” (The district judge “in the exercise of equitable powers” then prescribed the “forceful” language to be used in the disclaimer to make the conduct involved pass constitutional muster).