A Florida city this week called on the U.S. Supreme Court to allow a 75-year-old cross monument to stand. The appeal came after a federal appeals court earlier this month reluctantly ruled against Pensacola, Fla. In a 3-0 decision in Kondrat’Yev v. Pensacola, a panel of judges on the 11th U.S. Circuit Court of Appeals said their hands were tied by precedent in upholding a decision that the cross on city property violates the Establishment Clause of the First Amendment of the U.S. Constitution. The judges called on the city to appeal the ruling to the full court and the Supreme Court, and Pensacola on Monday asked the high court to join their plea to that of another cross memorial targeted for removal in Maryland.
The same atheist group filed suits against the Florida and Maryland city governments, alleging the existence of the crosses on public land and maintenance by government entities violates the Constitution and offends non-Christians. But the defenders of the monuments are demanding the high court remedy convoluted Establishment Clause jurisprudence and a lax standard of accepting lawsuits by complainants disturbed by the presence of crosses on public property.
The Sept. 7 ruling by the 11th Circuit in the Florida case demonstrates the legal morass.
A Latin cross in Pensacola’s Bayview Park overlooking Bayou Texar has been the gathering site for the community’s Easter sunrise services since 1941. The Junior Chamber of Commerce in 1969 replaced the original wooden display with a 34-foot white concrete cross.
Until 2016, the city had received only one complaint about the religious symbol according to the ruling. But in May 2016, four atheists, represented by the American Humanist Association, sued the city alleging the cross violated their psyches and the Constitution.
A federal district judge agreed with the atheist activist group, and, bound by their own circuit’s holding, the 11th Circuit on Sept. 7 could only concur.
But two of the three judges filed concurring opinions urging the entire circuit court to “correct the errors” the precedent perpetuates.
Circuit courts rarely grant en banc hearings, much less call them. But only the full 11th Circuit or the U.S. Supreme Court can reverse the precedent.
But a strikingly similar decision occurred in 1983 in American Civil Liberties Union v. Rabun County Chamber of Commerce.
In that case, the ACLU sued the State of Georgia in 1979, claiming an 85-foot, illuminated cross displayed at Black Rock State Park and maintained by the county caused “psychological, metaphysical, and spiritual” harm and violated the Establishment Clause. In 1983, a three-judge panel of the 11th Circuit ruled the atheist represented by the ACLU had been harmed by the cross’s presence on public land and said the First Amendment prohibited the display. But that finding ignored a 1982 Supreme Court decision that declared as insufficient mere “psychological consequences” as grounds for bringing a lawsuit. Complainants must prove concrete, “injuries in fact” resulting from government action in order to have standing. This winnowing process clears dockets of matters best resolved by local politicians.
In their concurring opinions in the Pensacola case, 11th Circuit Judges Kevin Newsom and Charles Royal argued the standing precedent set by ACLU v. Rabun lowered the concrete injuries to mere offenses and disregarded the actual state-sponsored religious oppression the Establishment Clause was designed to prevent. They took 72 of the decision’s 82 pages to lay out their frustrations.
Royal juxtaposed the comply-or-die consequences of centuries of oppressive government-established religions with the comparatively inconsequential slights currently accepted for standing. Newsom noted one plaintiff was less offended by the cross because he used it to express his own free exercise of religion—a satanic ritual.
“This opinion is a cry for help,” said Luke Goodrich, an attorney with Becket who is representing the city of Pensacola. “They want somebody to fix the mess that is modern Establishment Clause jurisprudence.”
Goodrich told me that since 1983, the Supreme Court’s Establishment Clause opinions have increasingly deferred to the historical context of religious symbols or practices intertwined with government entities. The high court has not reversed—only weakened—precedents that courts once relied upon in determining Establishment Clause violations.
Royal said this has left the courts “with the sense that you are walking on unsettled earth” in a “bog of concurring and dissenting opinions.” Newsom, who was one of the judges on President Donald Trump’s short list of potential Supreme Court nominees, simply called the high court’s Establishment Clause jurisprudence “a hot mess.”
A reversal of ACLU v. Rabun could affect countless lawsuits brought against government entities for displaying or maintaining religious symbols.
The Supreme Court could also provide clarity for lower courts if it takes up the case of American Humanist Association v. Maryland–National Capital Park and Planning Commission, which involves a World War I cross memorial in the town of Bladensburg, Md.
Self-correcting rulings from the full 11th Circuit and the Supreme Court that keep the historical Bladensburg and Pensacola crosses standing would allow a community’s past to speak to the present, even if it is a message those present do not want to hear, or see.