Liberties Reporting on First Amendment freedoms

Court shuts down cross challengers

Religious Liberty | In reversal, judges allows historic cross to remain
by Steve West
Posted 2/25/20, 05:16 pm

A federal appeals court on Thursday said a 34-foot cross in a Florida public park will not have to come down after all. The court reversed its earlier decision after the U.S. Supreme Court sent the case back for another look. The cross’s 75-year presence in Pensacola’s Bayview Park doesn’t violate the establishment clause in the First Amendment to the U.S. Constitution, a three-judge panel of the 11th U.S. Circuit Court of Appeals ruled, ending a challenge by four atheists.

The Pensacola Junior Chamber of Commerce donated the cross in 1949 and dedicated it to one of its presidents. “There are a number of people who are not religious who see the cross as a unifying feature within the community,” said Dennis Louis, associate pastor at nearby McIlwain Memorial Presbyterian Church. The Presbyterian Church in America congregation holds its Easter sunrise service at the cross.

Taking a cue from U.S. Supreme Court Justice Samuel Alito’s plurality opinion in the 2019 case American Legion v. American Humanist Association, U.S. Circuit Judge Kevin Newsom threw out the use of the “Lemon test.” Established in the Supreme Court’s Lemon v. Kurtzman decision in 1971, the test asked judges to answer the murky question of whether a reasonable observer would interpret a state action as an establishment of religion.

“As a practical matter, these cases can now be resolved on a more objective basis, and there will be a lot less hostility in the courts toward religious symbols,” said Luke Goodrich, senior counsel for the Becket religious liberty law firm.

When it comes to religious displays and monuments, “Lemon is indeed dead,” Newsom wrote, adding that the latest Supreme Court case over a cross monument in Bladensburg, Md., emphasized the importance of history in applying the First Amendment. In that case, the justices rejected a request to take down a nearly century-old 45-foot cross in a local park. Alito argued for presuming that “longstanding monuments, symbols, and practices” are constitutional.

But the decision still leaves some questions unanswered, like how to handle newer religious displays, Goodrich said. He suggested that courts have an opportunity, in the absence of the Lemon test, to consider what establishing religion meant to the drafters of the Constitution. They likely wanted to avoid federally established churches, not disallow public religious symbols.

The court also left open whether the atheists suffered injury—and thus had the right to sue—because the cross “offended” them. In American Legion, Justice Neil Gorsuch, joined by Justice Clarence Thomas, argued psychological offenses should not give people standing to sue. Two of the three judges on the panel in the Pensacola case agreed in a separate concurring opinion.

This decision suggests less hostility from courts toward religious expression in the public square. Goodrich expects that while challenges may continue over newer displays, American Legion likely will discourage most lawsuits: “Groups that make money by suing over harmless religious displays will need to find a new line of work—or else learn to look the other way.”

Facebook/Shawnee State University Facebook/Shawnee State University The Shawnee State University campus in Portsmouth, Ohio

Pronoun mandate upheld

An evangelical philosophy professor at Shawnee State University last week lost a bid to address students by pronouns corresponding to their biological sex.

Tenured philosophy professor Nicholas Meriwether filed suit in 2018 against the Portsmouth, Ohio, university’s nondiscrimination policy. A magistrate judge wrote a recommendation saying the First Amendment to the U.S. Constitution did not protect how the professor addressed students because his statements in class were government speech. Earlier this month, U.S. District Judge Susan J. Dlott dismissed his lawsuit altogether.

The school disciplined Meriwether for using courtesy titles like “Mr.” and “Miss” with students’ last names. Meriwether believes that God created humans immutably male or female, but he addressed transgender students by their last names only to avoid giving offense.

The recent decision, if not overturned, may affect a pending Virginia lawsuit involving public school French teacher Peter Vlaming, who lost his job after refusing to address students by their chosen pronouns.

“Public universities have no business compelling people to express ideological beliefs that they don’t hold,” said Travis Barham of Alliance Defending Freedom, which is representing Meriwether. He said ADF was evaluating its next steps in the case. —S.W. Millennium Park in Chicago

Preach it

Student evangelists can continue to share the gospel in Chicago’s Millennium Park—for now. U.S. District Judge John Robert Blakey ruled on Thursday that the city’s restrictions “prohibit reasonable forms of expression in large areas of the park.” Wheaton College students Matt Swart, Jeremy Chong, Gabriel Emerson, and Caeden Hood sued the city of Chicago in September 2019, claiming its limits on speech in the park violated their First Amendment rights to evangelize and disseminate religious literature.

The rules in question divide the popular park into 11 imaginary “rooms” and restrict free speech to one small room. Blakey said he found no evidence that the students interfered with other people’s enjoyment of the park: “Without any specific evidence of an actual problem in need of solving, the city fails to show a compelling state interest to justify its significant restrictions.”

The court’s ruling means that the students may continue to preach until the case is resolved. —S.W.

California vs. Trump

The war of words between the Trump administration and the state of California over abortion continues. A letter sent on Friday from California Attorney General Xavier Becerra, a Democrat, to the U.S. Department of Health and Human Services disputes the agency’s recent assertion that the state violates federal law by requiring insurers to cover abortions.

“California has the sovereign right to protect women’s reproductive rights,” Becerra said.

Presumably, the state also wants to protect its $51 billion in federal health funding. HHS said it would assess the state’s response and pursue all appropriate remedies. —S.W.

Hope for families

The U.S. Supreme Court on Monday agreed to hear a case about the role of religious child-placing agencies in the foster care and adoption system. After the city of Philadelphia canceled Catholic Social Services’ foster care contract because it declined to compromise its Biblical beliefs and place children with same-sex couples, the agency sued. A lower court upheld the city’s decision. The Supreme Court will hear the case during its next term, beginning in October. —S.W.

Steve West

Steve is an attorney and freelance writer based in Raleigh, N.C. Follow him on Twitter @slntplanet or at his blog.

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  • JerryM
    Posted: Wed, 02/26/2020 04:35 pm

    "California has the sovereign right to protect women’s reproductive rights,” Becerra said.

    This argument makes no sense.  The federal government are pulling funding because of CA actions.  The state of CA can still go ahead and "protect women’s reproductive rights".  No sovereignty is being challenged, just who pays for it.

  • OldMike
    Posted: Wed, 02/26/2020 10:15 pm

    If someone has a right to sue, and an expectation of winning a lawsuit over “being offended,” we had better prepare to hire about 66 MILLION Judges and other court employees. 

    Because I estimate it would take about 1 out of 5 Americans employed by courts (and that estimate may be too conservative), to keep up with the business of trying lawsuits, if being offended is justification for a suit.