The Bladensburg cross. Source: The Humanist.

In a widely-anticipated decision, the U.S. Supreme Court ruled late last month that a large concrete cross located on public property at a major intersection in Bladensburg, Maryland, could remain in place.  The nearly 90-year-old cross, which was placed to honor victims of World War I, had been challenged by an atheist organization as a violation of the First Amendment’s prohibition on establishment of religion.

In a fractured decision, seven of the Justices agreed that the cross could stay.  Writing for a plurality of the Court, Justice Alito argued that, although the Latin cross has a religious meaning, its longtime placement at a major intersection as a war memorial meant that it had taken on a secular meaning as well.  In light of this longstanding history, he concluded that the cross was not a violation of religious liberty.  In rendering his opinion, Justice Alito eschewed use of the widely-criticized Lemon test, developed by the Supreme Court in 1971, which looks at the government’s purpose and the effect of a regulation to determine whether an unconstitutional establishment of religion is created.  Justices Breyer and Kagan concurred in the opinion, noting that each Establishment Clause case must be reviewed individually and observing that no particular judicial test works in every situation.
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A photo of the cross in Bayview Park. Source: Fox News.

Last week, a three-judge panel of the Eleventh Circuit Court of Appeals held that a 75-year old cross displayed in Pensacola, Florida’s Bayview Park was a violation of certain individuals’ constitutional rights under the First Amendment’s Establishment Clause, which prohibits the establishment of religion.  But the court’s decision was based entirely on its “prior panel precedent” rule—meaning that the court was bound by a 35-year old decision on nearly identical facts—and the panel openly questioned the correctness of its decision.

Three individuals, represented by the American Civil Liberties Union, brought the case in federal district court in Florida.  They alleged that they felt offended by the presence of the cross in the park.  Pensacola moved to dismiss on standing grounds, arguing that the plaintiffs’ injuries were sufficient ethereal so as not to pass muster under current-day standing doctrine.  The parties also filed cross-motions for summary judgment on the question of whether the cross violated the Establishment Clause.
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An aerial view of the Grand Haven cross. Source: Grand Haven Tribune.

Late last month, in an unpublished opinion, the Michigan Court of Appeals determined that a monument commemorating those who served and died in the Vietnam War, located on land owned by the City of Grand Haven, was government speech and not subject to First Amendment limitations.  The monument, placed on a sand dune along the Grand River, contains a lifting mechanism that allows the monument to display a cross or, when certain attachments are included on the monument, an anchor.  When members of the community requested that the monument be lifted to display the cross, the city would raise the lifting mechanism.

In 2015, the city passed a resolution allowing the monument to display only the anchor, not the cross.  Members of a local church challenged the resolution as violating the free speech and equal protection provisions of the Michigan Constitution.  The trial court granted summary judgment to the city on the grounds that the monument was government speech.
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