This is disappointing: An Appeals Court has ruled in favor of a Christian logo representing a Pennsylvania county, overturning an earlier ruling that said (fairly obviously) that the symbol was a promotion of religion.
While city commissioners were given weeks to provide any evidence in defense of the cross, they failed to do so, so the judge gave them 180 days to stop using it.
The Lehigh County Commissioners, however, chose to appeal the decision… and that’s partly because Judge Edward Smith gave such a wishy-washy ruling on the matter.
Smith admitted the “inclusion of the cross lacked a secular purpose” and that “a reasonable observer would perceive the seal as endorsing Christianity.” However, he also said in his ruling that he didn’t want to rule in favor of the Freedom From Religion Foundation because he knew the County wasn’t trying to promote Christianity. Just look at how he wrote about the matter:
Just as the Supreme Court has upheld legislative prayer as “simply a tolerable acknowledgment of beliefs widely held among the people of this country” rather than an establishment of religion… the passive government symbol at hand acknowledges the values shared by the citizens of Lehigh County at the time of its founding without establishing a compulsory, county-wide religion. Courts need not strip communities of all religious sentiment in order to ensure that no national, state, or local churches are established.
Such hostility towards religion creates “the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid”… Seals and flags do not carry the force of law, and the citizens of Lehigh County need not fly the County Flag, or adhere to the values that it depicts. Just as the County’s citizens need not value education, agriculture, cement, or bison, they need not value Christianity. As long as citizens are free to practice any religion that resonates with them, or no religion at all, the fact that some might be offended by the Seal is an issue best addressed by elected officials, rather than the courts.
In short, as long as the county wasn’t forcing people to be Christian, then promoting Christianity shouldn’t be a big deal. It’s a weird kind of mental gymnastics that you would never see if we were talking about an Islamic or Satanic logo.
But the law required Smith to act like a “reasonable observer,” without knowledge of the county’s history. That hypothetical person would obviously see this as an establishment of religion. That’s why his decision was against the county, even if he ruled that way begrudgingly.
On appeal, the County’s attorneys argued that the giant cross in the seal was purely historical and had nothing whatsoever to do with promoting religion… even though there was “no documentation to connect it to that [historical] theme” according to FFRF attorneys.
Today, unfortunately, the 3rd U.S. Circuit Court of Appeals overturned the earlier ruling. Lehigh County will get to keep the Christian seal. And it’s all because of the recent Supreme Court ruling in the Bladensburg Peace Cross case. The judges said that, because the Giant Christian Cross in Maryland was deemed legal on account of its long history — Justice Samuel Alito said the memorial was clearly a Christian symbol, but the passage of time had diluted its religious meaning — the Lehigh County seal could remain unchanged for the same reasons.
The evidence does not show the sort of “discriminatory intent” in maintaining a symbol or “deliberate disrespect” in a design itself that American Legion suggested could overcome the presumption… So the seal is plainly constitutional under the most recent frameworks the Supreme Court has used to evaluate similar, established government symbols, monuments, and practices with religious elements.
The judges act like the only way a Christian cross on a government product can be illegal is if everyone in government gets together, holds hands, sings a hymn, and publicly announces how the symbol will honor the Son of God. Everything else gets a free pass.
FFRF sees this as further erosion of church/state separation:
The alarming nature of the U.S. Supreme Court’s Bladensburg judgment can be seen in this opinion. Instead of protecting the minority from the tyranny of the majority, [Judge Thomas] Hardiman rules that the majority can trample the First Amendment in the name of their religion, concluding that the seal “has become part of the community.”
“The appeals court decision validates a Lehigh County seal that sends a wrong, exclusionary message,” says FFRF Co-President Annie Laurie Gaylor. “The county should be welcoming of all residents regardless of religion — and it’s appalling that the court didn’t prod county officials to move in that direction.”
This result isn’t entirely shocking, in part because two of the three judges were appointed by conservatives. One of them was appointed by Donald Trump, and Hardiman was considered to be on the short list for a Supreme Court nomination by Trump. (Though it should be said even an Obama appointee joined their decision.)
By this court’s logic, it’s okay to break the law, in favor of Christianity, as long as the crime occurred a long time ago. It’s the same argument conservative Christians are using right now to install “In God We Trust” signs in schools and city halls. They say it’s patriotic, not religious (even though it’s totally about religion), and that the phrase has been our motto for several decades.
What a horrible ruling. And unfortunately, given the conservatives on the full Third Circuit and the conservative Supreme Court and the unanimity of this ruling, it’s unlikely this decision can be successfully appealed.
(Large portions of this article were published earlier)