specially concurring.
I concur in the majority decision that the constitutional issue must be decided and I further concur in the majority decision that neither the Constitution of Oregon nor the Constitution of the United States requires that the cross be removed. I believe I base my decision upon slightly different reasoning than that used by the majority.
I consider the problem as one arising under the “establishment clause” of the First Amendment, rather than under the “free exercise” clause. Therefore, I would pose the issue: Does the city foster the establishment of the Christian religion by permitting private persons to erect a cross in a city park and to light the cross during the Christmas and Easter season? In my opinion it does not.
In Niemotko v. Maryland, 340 US 268, 71 S Ct 325, 95 L Ed 267 (1951), the city Park Commissioner refused to give a Jehovah’s Witnesses group a permit to hold Bible talks in a city park. The group held such a meeting without a permit and Niemotko, a member of the group, was arrested and later found guilty of disorderly conduct. The Court reviewed its early decisions and stated:
“* * * In those eases this Court condemned statutes and ordinances which required that permits be obtained from local officials as a prerequisite to the use of public places, on the grounds that a license requirement constituted a prior restraint on freedom of speech, press and religion, and, in the absence of narrowly drawn, reasonable and definite standards for the officials to follow, must be.invalid. *” 340 US at 271.
The Court found that' thé city had not given Niemotko a permit because the City Council disliked or disagreed *531■with the Witnesses’ views. The conviction was reversed. The Court expressly rejected the argument, “that state and city officials - should have the power to exclude religious groups, as such, from the use of the public parks.” 340 US at 272.
Fowler v. Rhode Island, 345 US 67, 73 S Ct 526, 97 L Ed 828 (1953), similarly held Jehovah’s Witnesses had a right to hold religious services in a city park where other religions were permitted to hold services. The holding rested upon the First and Fourteenth Amendments.
Both of these decisions concern the free exercise portion of the First Amendment; however, they accept without question the proposition that a city does not violate the establishment clause of the First Amendment by permitting religious groups to hold religious services in public parks. If a city can validly permit groups to hold religious services in parks, why can it not validly permit persons to erect a religious symbol, a cross, in a park?
The Establishment Clause prohibits the state, or any subdivision, from either aiding or appearing to aid the general cause of religion or any one religion. The appearance of fostering religion is to be prohibited as much as the actual fostering of religion: Both have a coercive effect.
Accepting the proposition that permitting religious services in a public park neither fosters nor appears to foster the establishment of religion, in my opinion issuing a revocable permit for the erection and the occasional lighting of a cross in a public park also does not foster or appear to, foster the establishment of religion. ,
*532Whether the state action or permission appears to foster a religion is a question of degree. If the city had given a religious groxip a revocable permit to build a cathedral in the park, the appearance of city aid to religion would, in my opinion, be so strong as to require a decision that such permission was in aid of; the establishment of religion and that, therefore, it was invalid. I do not believe permission to erect the Eugene cross falls into this category.