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.”