ATLANTA (CN) — Pensacola, Florida on Wednesday asked the 11th Circuit to reverse a lower court order requiring the city to remove a 34-foot-tall Latin cross from a public park.
Four Pensacola residents claimed in a 2016 lawsuit that the 49-year-old cross located in Pensacola’s Bayview Park is offensive and violates the Establishment Clause by showing governmental favor to Christianity.
The Latin cross is a widely recognized symbol of Christianity.
The case received national attention after 14 states, including Georgia, filed “friend of the court” briefs in support of the city.
The Bayview cross was erected by the Pensacola Junior Chamber of Commerce as a place to hold Easter services. The cross is currently maintained by the city at a cost of approximately $233 per year.
In June 2017, U.S. District Judge Roger Vinson ruled against the city, finding that the cross failed the Lemon test.
Derived from the Supreme Court’s 1971 ruling in Lemon v. Kurtzman, the Lemon test is a three-pronged test used to determine whether a government action violates the Establishment Clause. The Lemon test requires that government practices must have a secular purpose, must not advance nor inhibit religion, and must not foster an “excessive entanglement with religion” to be found constitutional.
Vinson ruled that the Latin cross in Bayview Park is “unmistakably a universal symbol of Christianity” since the cross has “never had any secular purpose” and its presence in the public park must be found unconstitutional under the Lemon test.
The judge pointed to the similarities between the Bayview cross case and the 11th Circuit’s 1983 decision in ACLU of Georgia v. Rabun County Chamber of Commerce.
In both cases, a private civic organization erected a tall Latin cross on government property. In Rabun, the court ruled that the cross violated the First Amendment and ordered its removal.
The district court also pointed to Pensacola Mayor Ashton Hayward’s public admission that he did not want the cross removed because he hoped there would “always [be] a place for religion in the public square” as further proof of the cross’s religious purpose.
On Wednesday, attorneys representing the city asked a three-judge 11th Circuit panel to reverse the district court’s decision.
“Pensacola’s actions are consistent with the Establishment Clause,” attorney Luke Goodrich argued on behalf of the city. “[The city] has acted completely neutrally toward religion. If affirmed, this ruling would send a message of hostility to religion.”
But Senior U.S. District Court Judge C. Ashley Royal, sitting by designation, expressed doubts, asking, “Don’t the facts support that [the purpose of the cross] was primarily religious?”
“A private entity created the cross to have Easter services there, right?”Senior U.S. Circuit Court Judge Frank Hull asked. “When the [previous] cross was replaced, the government helped pay for it. What was the government’s purpose?”
Hull was referring to the original 1941 wooden cross which was replaced with the current cement cross by the Pensacola Junior Chamber of Commerce in 1969.
“The government’s purpose was to commemorate an important aspect of its history,” Goodrich responded.
“But there’s no evidence in the record, no affidavits, as to the cross’s secular purpose?” Hull asked.
Goodrich admitted that there was not.
Monica Miller, arguing on behalf of the four Pensacola residents who brought the complaint, objected to the city’s claim that it acted “neutrally” towards religion, pointing out that the cross is used annually for Easter services by the Junior Chamber of Commerce.
“What was it specifically about the cross? What did that cross do to the plaintiffs in terms of standing?” Royal asked.
“Being subjected to unwanted religious messages while interacting with the government through public land is an offense,” Miller said.
“There’s no question that the cross is passive,” Royal continued. “It’s not doing anything to anyone. It’s just static. It’s unclear to me what the effect is on the plaintiffs. It’s been there for decades.”
“It tells them that they’re outsiders in the community,” Miller replied. “The fact that the cross has been up for decades is irrelevant. It’s the same way the cross affected the plaintiffs in Rabun, the feeling that the government is promoting a religion. It’s even more flagrant here than in Rabun because the government has helped maintain the cross.”
According to the original complaint, the large Latin cross is the only permanent religious display in Bayview Park.
“Religious symbols aren’t like graffiti that the government should erase as soon as someone complains,” Goodrich said in a statement today. “The Constitution allows the government to recognize the significant role of religion in our nation’s history and culture.”
The 11th Circuit panel did not indicate when it would release its decision.
If the panel affirms the district court’s decision, the city of Pensacola will have thirty days to remove the cross from Bayview Park.