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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Boston’s City Hall Plaza. The flagpoles can be seen on the right in the photo. Source: Boston Globe.

The City of Boston has three flagpoles in the plaza in front of its city hall.  Typically, the city displays an American flag and POW/MIA flag on one pole and the flag of Massachusetts on the second pole.  The third pole is used for the City of Boston flag, or alternatively, the flag of a third party.  The third pole has been used for flags of foreign nations, civic organizations, the LGBT rainbow flag, and others.  Parties can submit applications to fly their flag on the third pole, and the city has guidelines that prohibits flags that involve illegal or dangerous activities or conflict with scheduled events.  The city reviews applications to determine whether a flag is consistent with the city’s message, policies, and practices, but does not have any guidelines as to the content of the flags.  When an applicant was denied the opportunity to place a “Christian flag” on the City Hall on the grounds that the city refrains from flying religious flags on the Plaza, he filed suit.

Late last month, on the plaintiff’s motion for preliminary injunction, a federal district court found for the city.  The court determined that the display of flags in front of City Hall constituted government speech.  Applying the factors established by the Supreme Court in Pleasant Grove City v. Summum and Walker v. Texas Division, Sons of Confederate Veterans, the court found that flags are a longstanding form of government speech, the flags in front of City Hall are likely understood to be government speech, and the city has effective control over the flags in front of City Hall.  Finding that the flags constitute government speech, that effectively ended the First Amendment inquiry.
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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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The advertisement that the Freethought Society wished to place on Lackawanna County buses. Source: ACLU of Pennsylvania.

In a decision last month, an atheist group lost its challenge to an advertising policy promulgated by the transit system for Lackawanna County, Pennsylvania, COLTS, that prohibited, among other things, religious messages.  Following a trial, a federal district court found in favor of the transit agency, on the grounds that its advertising space was a limited public forum and the policy was viewpoint neutral.  The decision follows several recent decisions that have found transit advertising policies constitutional.

Beginning in 2012, the atheist group, the Freethought Society of Northeastern Pennsylvania, sought to place advertising on buses owned by COLTS.  The Society’s initial advertising attempt was blocked by COLTS on the ground that its advertisement was controversial, in violation of the agency’s advertising policy.  The transit agency rejected similar advertisements submitted in 2013 and 2014 as well, even after COLTS changed its advertising policy to more explicitly prohibit political or religious messages.
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Although this blog often focuses on the First Amendment’s Free Speech clause, we occasionally wander into the First Amendment cases involving religious exercise as well.  A Hand of Hope Pregnancy Resource Center v. City of Raleigh, emerged from Raleigh’s determination that Hand of Hope could not operate a religious pregnancy counseling center in a residential zone district, and therefore offers a bit of both.

Hand of Hope had previously operated a pregnancy resource center in Raleigh, where it offered clients both spiritual guidance and reproductive health information.  Its services also included pregnancy testing and
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Last December, we reported on a federal district court’s denial of a motion for preliminary injunction relating to the Archdiocese of Washington’s unsuccessful efforts to post Christmas-season advertising on transit vehicles owned and operated by the Washington Metropolitan Area Transit Authority.  Unfortunately for the Archdiocese, Christmas did not come in July either.  Last week, the federal Court of Appeals for the D.C. Circuit affirmed the denial of preliminary injunctive relief.

The facts of the case are available on our post regarding the district court’s decision.

On appeal, the appellate court (which included as a panelist Supreme Court nominee Judge Kavanaugh) agreed with the district court.  First, the court agreed that the advertising space on WMATA transit vehicles constitutes a non-public forum, where the government can exercise greater control over content yet must adhere to requirements of viewpoint neutrality and reasonableness.  In so ruling, the D.C. Circuit joins a majority of federal appeals courts that have now ruled that transit advertising spaces are non-public fora.
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Klyde Warren Park in Dallas. Source: klydewarrenpark.org

Last month, the Fifth Circuit Court of Appeals ruled that a restriction on structures larger than four feet by four feet in a Dallas, Texas park did not constitute a violation of the First Amendment.  The plaintiff, an evangelical Christian who wished to spread his message in the park, was denied on his motion for a preliminary injunction.

Ricky Moore, the plaintiff, wished to use Klyde Warren Park in Dallas to share his religious message with others.  To do so, he uses a portable sketch board, which is four feet wide and six feet tall, on which he paints riddles.  The riddles are intended to attract people to stop by and ask him about them.  The park rules prohibit structures larger than four feet by four feet without a permit.  Beginning in 2013, Moore’s activities drew the attention of enforcement personnel at the park.  In 2015, he received a criminal trespass warning.  After the park’s regulators suggested that Moore could apply for a special event permit to erect his sketch board in the park, Moore sued the city on First Amendment grounds.
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Sam Shaw and one of his signs. Source: Indiana Public Media.

Last week, a federal district court in Indiana ruled that the enforcement of the City of Bedford’s sign ordinance would not be enjoined, finding that the sign code was content neutral, supported by a significant governmental interest, and narrowly tailored.  The court’s denial of the preliminary injunction indicates that the ordinance is likely to survive constitutional scrutiny.
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This post was originally authored by Evan J. Seeman of Robinson & Cole LLP on the RLUIPA Defense blog.  We have re-posted it here with permission.  The original post can be found here.  Any views expressed in this post are those of the author and do not necessarily reflect the views of Otten Johnson Robinson Neff + Ragonetti, P.C.

Last year, we reported about a case in which the city of St. Michael, Minnesota utilized RLUIPA’s “safe harbor” provision to avoid liability under the act’s substantial burden and equal terms provisions.  While the federal court found for the city as to Riverside Church’s RLUIPA claims at the summary judgment stage, the court concluded that there were genuine issues of fact regarding Riverside’s free speech claim that could only be resolved at trial.  Following a several-week-long trial, the court late last month issued its decision and found that the city’s zoning ordinance violated Riverside’s right to free speech under the First Amendment to the U.S. Constitution, and awarded Riverside $1,354,595 in damages.

Riverside identified property in the city’s B-1 district as an ideal satellite location to accommodate its growing congregation.  Riverside would use the new location much like a movie theater, where it would broadcast religious worship services being held at its primary church in Big Lake, Minnesota.  The property was already suited for Riverside’s intended use, since it had previously been operated as a 15-screen movie theatre, with nearly 2,800 seats, a maximum capacity of over 3,600 people, and having more than 91,000 square feet.  Although Riverside sought to use the property in much the same way as a movie theatre – an allowed use under the zoning code for this B-1 district – the city concluded that the proposed use was not allowed since “collective religious worship” was not among the uses permitted in this district.
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This weekend (May 6th-9th, 2017) brings us to the American Planning American’s National Conference in New York City.  Along with colleagues from around the country, we’ll be talking about everything land use and the First Amendment, from signs to adult businesses, religious land uses, and the public forum doctrine.  If you’re planning to be at