Court case may finally bring merciful end to "Cross as Memorials" lawsuits

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Court case may finally bring merciful end to "Cross as Memorials" lawsuits

I'll start with the news story and then do a little deeper explanation for those interested in First Amendment jurisprudence.

From The Washington Times:

A federal court on Wednesday allowed the World War II-era Bayview Cross to remain standing at a public park in Pensacola, Florida, reversing its previous decision in light of a recent Supreme Court ruling in favor of another Christian symbol, the Bladensburg Cross.

In its decision, the Eleventh Circuit Court of Appeals said that the Supreme Court’s ruling last year in American Legion v. American Humanist Association adopted “a strong presumption of constitutionality” for “established, religiously expressive monuments, symbols, and practices.”

“We won’t bury the lede,” said the 42-page opinion. “Having reconsidered this case in light of American Legion, we conclude (1) that the Supreme Court’s decision abrogates Rabun’s analysis and holding with respect to the merits of the Establishment Clause claim there and (2) that when American Legion (rather than Rabun) is applied, Pensacola’s maintenance of the Bayview Park cross does not violate the First Amendment.”

Now this case wasn't strictly about war memorials, but if the previous Bladensburg case (now just called American Legion) killed such cases, this one here pretty much seals the tomb as well.

Just as a Constitutional refresher, here's your wiki explanation of the Lemon Test:

The Court's decision in this case established the "Lemon test" (named after the lead plaintiff Alton Lemon), which details legislation concerning religion. It is threefold:

  1. The statute must have a secular legislative purpose. (Also known as the Purpose Prong)
  2. The principal or primary effect of the statute must neither advance nor inhibit religion. (Also known as the Effect Prong)
  3. The statute must not result in an "excessive government entanglement" with religion. (Also known as the Entanglement Prong)

If any of these prongs are violated, the government's action is deemed unconstitutional under the Establishment Clause of the First Amendment to the United States Constitution.

Becket Law, the religious liberty group that defended Pensacola has a pretty good video up regarding the bascis of the Establishment Clause and what happens under the Lemon Test:

When I was in law school the only thing that annoyed me more than the Lemon Test was anything dealing with the Commerce Clause.  (Essentially if Congress said it was doing something to regulate commerce, even if that really wasn't what they were doing, they were able.  For instance, our entire Affordable Care Act was predicated on the Commerce Clause, even though commerce wasn't the main focus.)

Anyway, it feels nice to work for an organization that has at least knocked the Lemon Test back a bit.  I had hoped Bladensburg would spell the absolute end to it entirely, or that the Court would enunciate a new rule that actually made sense to someone (anyone) but alas it wasn't meant to be.  But here in Pensacola case, the Eleventh Circuit did at least brush it back again.

Here's the most relevant portion of the decision with the citations omitted:

While the City’s petition was pending, the Supreme Court decided American Legion v. American Humanist Association, holding—as already noted—that a 32- foot tall Latin cross on public land in Bladensburg, Maryland does not violate the Establishment Clause. We’ll take a deeper dive later, but for present purposes, it suffices to say that American Legion did two important things.

First, as we will explain, it jettisoned Lemon v. Kurtzman—at least for cases involving “religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies”—in favor of an “approach that focuses on the particular issue at hand and looks to history for guidance.”

Second, informed by “four considerations”—which, again, we’ll explore in greater detail—the Supreme Court adopted what it called “a strong presumption of constitutionality” for “established, religiously expressive monuments, symbols, and practices.” The Court described the pertinent considerations as follows: (1) that “identifying the[] original purpose or purposes” of a longstanding monument “may be especially difficult”; (2) that “as time goes by, the purposes associated with an established monument, symbol, or practice often multiply”; (3) that “the message conveyed” by the monument likewise “may change over time”; and (4) that “when time’s passage imbues” a religious monument with “familiarity and historical significance, removing it may” appear “hostile” (rather than neutral) toward religion.

So, there you have it.  Probably an end to lawsuits against local governments for having something like a cross as a veterans memorial.  This was odious not just because it was bad law, but more often than not the local community had to decide whether to fight it out (and incurring HUGE legal expenses passed on to residents via taxes) or to just cave.  And being stewards of the public trust, they often chose the latter and quit the field.

So, three cheers for the Eleventh Circuit and a return to sanity.

ADDENDUM: The National Commander has issued a press release on this now too:

Citing The American Legion’s “historic victory” during an important Supreme Court ruling last year, the head of the nation’s largest veterans organization welcomed another court decision yesterday as a sign that veterans memorials will now have permanent legal protection.

“Last year, The American Legion easily prevailed by a 7-2 ruling protecting a veterans memorial in Bladensburg, Md.,” said American Legion National Commander James W. “Bill” Oxford. “We said at the time that the ruling in The American Legion v. American Humanist Association was not simply about one cross. It was about protecting the religious freedom of those wishing to honor and memorialize veterans. Thankfully, the Eleventh Circuit Court of Appeals used our earlier victory to reverse a previous decision that called for the removal of a World War II-era cross at a park in Pensacola. The Bayview cross in Florida will remain in place. The American Legion is grateful to our friends and allies in the veterans and legal community who have helped us in this long struggle to protect these precious memorials.”

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News from the World of Military and Veterans Issues. Iraq and A-Stan in parenthesis reflects that the author is currently deployed to that theater.