The Supreme Court today made a decision regarding a different case involving a Giant Christian Cross on public property in Pensacola, Florida.
In short, they vacated an earlier ruling that said a Giant Christian Cross was unconstitutional and sent the case back to the Eleventh Circuit for further examination based on what they decided last week.
Let’s talk about what that means in English.
This case centers around a Giant Cross in Pensacola’s Bayview Park. In 2015, the American Humanist Association’s Appignani Humanist Legal Center and the Freedom From Religion Foundation separately sent letters to city officials saying the Cross had to go, based on information that its origins were purely religious.
“By prominently displaying a Christian cross at Bayview, a public park, the city is promoting Christianity over all other religions and religion over non-religion,” said Monica Miller, an attorney with the Appignani Humanist Legal Center…
Pensacola officials never responded to them. So in May of 2016, the two groups filed a joint lawsuit against the city, saying the Bayview Cross “sends a clear and exclusionary message of government preference for Christianity over all other religions.”
In June of 2017, a U.S. District Court judge agreed with them, saying it was unconstitutional and had to come down within 30 days. (Hallelujah!)
But even though the city of Pensacola — i.e. the taxpayers — had already ponied up more than $130,000 to fight this battle, city officials appealed the decision. They had the help of 14 attorneys general from across the country, all of whom said the Giant Christian Cross should be considered a totally secular monument.
Their argument was that we use crosses to honor heroes and create makeshift memorials when people die, therefore it’s not always about promoting Christianity. Furthermore, when the Giant Christian Cross has been up for 75 years without a challenge, we should be able to assume it reflects “cultural heritage” rather than religion. (They glossed over how the mayor once said of this display that there will “always [be] a place for religion in the public square.”)
But they didn’t make that decision happily. In fact, the judges said they were “bound by existing Circuit precedent” and “constrained to affirm.” In other words, they didn’t want the monument to come down, but the law said it had to come down, and HEY SUPREME COURT, MAYBE YOU SHOULD LOOK AT THIS.
… our hands are tied. Absent en banc reconsideration or Supreme Court reversal, we are constrained to affirm the district court’s order requiring removal of the Bayview Park cross.
Two of the judges wrote concurrences that urged the Supreme Court to allow religious monuments at taxpayer expense if they have “historical” value. (All the more reason atheists should sue over these violations immediately and often.) One judge even said SCOTUS needed to reverse precedent on this because their “Establishment Clause jurisprudence is, to use a technical legal term of art, a hot mess.” That judge, Kevin Newsom (nominated for his seat by Donald Trump) elaborated further, laying out five things he knew for sure:
1. That the Supreme Court’s Establishment Clause jurisprudence is a wreck;
2. That as a lower court, we are nonetheless obliged to do our best to discern and apply it;
3. That in the last decade, the Supreme Court has increasingly emphasized the centrality of history and tradition to proper Establishment Clause analysis, culminating in its statement in Greece that “the Establishment Clause must be interpreted ‘by reference to historical practices and understandings’”…
4. That there is a robust history — dating back more than a century, to before the time of the adoption of the Fourteenth Amendment, by which the First Amendment would eventually be applied to state and local governments — of cities, states, and even the federal government erecting and maintaining cross monuments on public land; and
5. That our now-35-year-old decision in Rabun — which invalidated a cross situated in a state park and, in so doing, summarily dismissed “historical acceptance” as a reliable guide for Establishment Clause cases — is irreconcilable with intervening Supreme Court precedent.
As we all know, last week, the Supreme Court granted that wish. Justice Samuel Alito, writing for the majority, said a different Giant Christian Cross, in Maryland, was legal precisely because of its historical nature. Even if it was once purely Christian, the passage of time had made it “indisputably secular”… somehow.
Even Justice Neil Gorsuch, in a concurrence, questioned the logic of that, asking, “How old must a monument, symbol, or practice be to qualify for this new presumption?” (We don’t know.)
So how does last week’s ruling affect the Pensacola case?
Earlier today, the Supreme Court decided to toss out the Eleventh Circuit’s ruling… but instead of taking up the case themselves, they asked the same judges to give it another shot in light of what they said about the Bladensburg Cross. In other words, now that there’s new precedent on this issue, will it change the earlier decision?
It’s not hard to read the tea leaves here.
The Supreme Court has given the Eleventh Circuit judges all the tools they need to allow the Pensacola Cross to remain in place simply by virtue of its age.
The American Humanist Association says they’ll continue fighting this:
“The lower courts properly ruled that a city violates our constitution’s Establishment Clause when it displays and maintains a towering standalone Christian cross in a popular city park for exclusively religious ends,” said Monica Miller, senior counsel for the American Humanist Association and counsel of record on the case.
Today, the Supreme Court reversed the rulings of the lower courts and remanded the case to a lower court to reevaluate the arguments in light of last week’s Bladensburg Cross ruling. Miller explained, “We remain confident in our legal position given the still firmly settled precedent finding religious displays maintained for exclusively religious purposes unconstitutional. The Bladensburg cross decision does not impact the decades of Supreme Court precedent holding government action motivated by a religious purpose unconstitutional.”
“It is our long held position that community parks should be just that: welcoming to every member of the community,” commented Roy Speckhardt, executive director at the American Humanist Association. “While we’re disappointed by the Supreme Court’s failure to affirm that, we are optimistic that the City of Pensacola will finally include all residents in its urban planning.”
Miller highlights the key difference between the two crosses. The Bladensburg monument was a war memorial in the shape of a cross. It was secular on paper, but religious to any reasonable person, and the Supreme Court allowed it because it’s been there for a long time.
In Pensacola, however, officials aren’t even pretending this is a secular memorial. This was and always has been a monument to Christianity. The passage of time hasn’t made it “indisputably secular,” as Alito said in the other case, because there has never been a secular purpose for it.
As the AHA argued in their Pensacola brief to the Supreme Court, “the Cross has consistently been used as the centerpiece for annual Christian services.”
There is no purpose for the Cross other than to serve as the holy object for Christian worship services. The City admitted that the Cross was always intended to be a “permanent marker” for Easter Sunrise services, and remains “primarily associated with the Easter Sunrise Service.” City officials refer to the Cross site as the “Sunrise Service Area.”
As for the passage of time, while Pensacola officials say it’s been up for 75 years, AHA says it’s more like 48 because the earlier versions of it were temporary makeshift crosses for religious services — and in some years, they didn’t even bother putting up the cross. So Gorsuch’s question really does come into focus here.
If a Giant Christian Cross isn’t that old, and only has a religious purpose, can you still say it’s legal?
Once again, the answer ought to be obvious: NO. There are clear reasons why this Giant Cross should come down even if the Bladensburg Giant Cross gets to remain up. But the Eleventh Circuit judges were begging the Supreme Court to give them an excuse — any excuse — and now they have one. The question is whether they’ll shove the Supreme Court’s reasoning into their particular box, where it clearly doesn’t fit.
I’m pessimistic. But legally speaking, there’s no reason the Bayview Cross should remain up.
(Portions of this article were published earlier)