Latest Attempt to Prevent City from Removing Cross from Public Park Fails On Procedural Grounds

Lion's Club of Albany, California v. City of Albany, (ND CA, March 9, 2023), is the latest installment in the ongoing litigation over the removal of a 28-foot tall, illuminated Latin cross located in a park which the city has purchased. (See prior related posting.) The Lioin's Club has an easement allowing it access to the cross to maintain it. After a prior decision finding that the city violated the Establishment Clause when it purchased the park and left the cross standing, the city instituted eminent domain proceedings in state court to acquire the easement so it could remove the cross. The state trial court judge granted the city prejudgment possession of the easement so the city could take down the cross and store it in a safe place pending the outcome of the eminent domain proceedings. The Lion's Club asked the state court of appeals to stay the trial court's order. That petition was denied for technical reasons that could have been cured. Instead, the Lion's Club came back to federal court seeking a temporary restraining order to prohibit removal of the cross.  In this decision, the court denied that request invoking the Rooker-Feldman doctrine which requires a federal court to dismiss a case when the plaintiff is essentially attempting to appeal a state court decision through the lower federal courts rather than by filing appeals through state court channels.

Cross On Park Land Must Remain While State Court Reconsiders Its Eminent Domain Ruling

 In Lions Club of Albany, California v. City of Albany, (ND CA, Nov. 17, 2022), a California federal district court clarified its 2018 ruling in which it held that the city of Albany violated the Establishment Clause by acquiring for a public park a 1.1 acre parcel of land that includes a large cross. Originally the cross was on private property, and the Lion's Club held an easement to maintain the 20-foot high cross and to illuminate it each Christmas and Easter. In its earlier ruling the court said that the city could cure its Establishment Clause problem in one of several ways, one of which was by taking the Lion's Club easement by eminent domain. (See prior posting.) In May 2022, the city began state court eminent domain proceedings.  The state court permitted the city to take prejudgment possession of the Lion's Club easement and take down the cross and store it in a safe place. The Lion's Club than filed the present federal court action seeking a preliminary injunction, contending that its free speech and free exercise rights were being violated. The court said in part:

The City wants to keep the park and remove the cross, not sell the land. Further, as revealed at our hearing, there is and has been no current offer by the Lions Club to purchase a parcel that includes the cross. These considerations are relevant in weighing hardships and, as explained above, the question of provisional relief is wholly in the hands of the [state court] Judge Chatterjee. He is free to rule either way without offending any order or dictum by this court. 

At our hearing, however, it also developed that the City cannot say with any certainty whether it can put the cross back up after its provisional removal, should the City ultimately lose the eminent domain jury trial.... Thus, as the Court sees things, this is not just a decision merely pending litigation, but rather practically, once the cross is down, it is down for good. This raises a serious exercise of religion problem and in considering this issue, Judge Chatterjee’s ruling appears to have been based on a misunderstanding of this Court’s prior ruling. Therefore, until such time as Judge Chatterjee can reassess the motion for prejudgment possession, taking into consideration the correct understanding of the June 2018 Order, removal of the cross is ENJOINED.

11th Circuit: Pensacola Cross May Stay

In Kondrat'yev v. City of Pensacola, Florida, (11th Cir., Feb. 19, 2020), the U.S. 11th Circuit Court of Appeals, in a case with a complicated procedural history, held that a 34-foot cross in Pensacola's Bayview Park does not violate the Establishment Clause. Originally a 3-judge panel of the 11th Circuit, relying on past precedent, reluctantly ordered the cross removed. (See prior posting.)  The case was appealed to the Supreme Court which summarily vacated the judgment and remanded the case to the 11th Circuit for further consideration in light of its decision in American Legion v. American Humanist Assn. (See prior posting).  Now the 11th Circuit has decided that the cross may stay.  However, two of the judges filed a concurring opinion questioning the circuit's precedent on when plaintiffs have standing to bring an Establishment Clause challenge, saying in part:

we should—whether in this case or some other— convene en banc in order to bring our own Establishment Clause standing precedent into line with the Supreme Court’s and to clarify that  offen[se],”“affront[],” and “exclu[sion]” fail to satisfy Article III’s injury-in-fact requirement.

Pensacola News Journal reports on the decision.

3rd Circuit Upholds Cross On County Seal

In one of the first cases to rely on the U.S. Supreme Court's decision in June rejecting an Establishment Clause challenge to the 94-year old Bladensburg Cross, the U.S. 3rd Circuit Court of Appeals yesterday rejected a challenge to a Latin cross on the 75-year old official seal of Lehigh County, Pennsylvania. In Freedom From Religion Foundation, Inc. v. County of Lehigh, (3d Cir., Aug. 8, 2019), the 3rd Circuit said in part:

American Legion confirms that Lemon does not apply to “religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.”... Instead, informed by four considerations, the Court adopted “a strong presumption of constitutionality” for “established, religiously expressive monuments, symbols, and practices.”...

WFMZ News reports on the decision. [Thanks to Tom Rutledge for the lead.]

Supreme Court GVR's Case On Cross In Public Park

Today the U.S. Supreme Court granted the petition for certiorari in Pensacola, Florida v. Kondrat'yev (Docket No. 18-351, GVR 6/28/2019) (Order List), summarily vacated the judgment and remanded the case to the 11th Circuit for further consideration in light of American Legion v. American Humanist Assn. decided earlier this month. (See prior posting.) In the remanded case, the 11th Circuit reluctantly ffirmed a Florida district court's Establishment Clause decision ordering Pensacola to remove a 34-foot Latin cross from a public park. (See prior posting.)

Early Analysis of Supreme Court's Bladensburg Cross Ruling

Here are some early commentaries on yesterday's U.S. Supreme Court decision in American Legion v. American Humanist Association:

• Amy Howe, Justices Allow "Peace Cross" To Stand
• Harvey Weiner, The Cross May Stand, Though It Offends
• Ira Lupu and Robert Tuttle, A Splintered Court Leaves the Bladensburg Cross Intact
• Adam Bonin, Supreme Court Effectively Grandfathers In Most Older Religious Displays On Public Land

Supreme Court Allows Bladensburg Cross To Remain In Flurry of Opinions

The U.S. Supreme Court today, in a case generating seven separate opinions spanning 87 pages, rejected an Establishment Clause challenge to the 94-year old Bladensburg Cross that serves as a Veterans War Memorial on public land in Maryland.  In American Legion v. American Humanist Association, US Sup. Ct., June 20, 2019), Justice Alito delivered an opinion for the Court that was joined by Chief Justice Roberts and Justices Breyer, Kagan and Kavanaugh. As summarized by the Court's syllabus, the majority held:

At least four considerations show that retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones. First, these cases often concern monuments, symbols, or practices that were first established long ago, and thus, identifying their original purpose or purposes may be especially difficult.... Second, as time goes by, the purposes associated with an established monument, symbol, or practice often multiply.... Even if the monument’s original purpose was infused with religion, the passage of time may obscure that sentiment and the monument may be retained for the sake of its historical significance or its place in a common cultural heritage. Third, the message of a monument, symbol, or practice may evolve.... Familiarity itself can become a reason for preservation. Fourth, when time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance, removing it may no longer appear neutral, especially to the local community. The passage of time thus gives rise to a strong presumption of constitutionality.

Another portion of Justice Alito's opinion was joined only by Chief Justice Roberts and Justices Breyer and Kavanaugh. They explicitly rejected the notion that the Lemon test should be applied to all Establishment Clause challenges, saying that instead the Court has sometimes used other approaches.

Justice Breyer filed a separate concurrence joined by Justice Kagan, saying:

The case would be different, in my view, if there were evidence that the organizers had “deliberately disrespected” members of minority faiths or if the Cross had been erected only recently, rather than in the aftermath of World War I.... Nor do I understand the Court’s opinion today to adopt a “history and tradition test” that would permit any newly constructed religious memorial on public land.

Justice Kavanaugh wrote a concurring opinion in which he said that the majority was applying a "history and tradition" test.

Justice Kagan also filed a concurring opinion, explaining why the portions of Justice Alito's opinion which she did not join go too far in rejecting the Lemon test.

Justice Thomas filed an opinion concurring only in the judgment, and taking the position that the Establishment Clause applies only to the federal government and is not incorporated by the 14th Amendment to apply to the states. He went on to contend that even if the Establishment Clause does apply to the states, the Bladensburg Cross is constitutional.

Justice Gorsuch wrote a separate opinion concurring in the judgment, joined by Justice Thomas.  He argues that the American Humanist Association lacks standing, and rejects the "offended observer" theory of standing.

Justice Ginsburg, joined by Justice Sotomayor, wrote a 20-page dissent, saying in part:

As I see it, when a cross is displayed on public property, the government may be presumed to endorse its religious content....

The Commission urges in defense of its monument that the Latin cross “is not merely a reaffirmation of Christian beliefs”; rather, “when used in the context of a war memorial,” the cross becomes “a universal symbol of the sacrifices of those who fought and died.”... The Commission’s “[a]ttempts to secularize what is unquestionably a sacred [symbol] defy credibility and disserve people of faith.”

AP reports on the decision. SCOTUSblog has further analysis of the decision.

Town Says It Will Keep Crosses On Courthouse

LifeSite News reported yesterday on the latest controversy over crosses on pubic property.  Freedom From Religion Foundation has complained to authorities over the four crosses on the courthouse in the small town of Coldspring, Texas. Last week, the County Commissioners Court voted unanimously to keep the crosses after a three-hour public comment period attended two-thirds of the town's 900 population. Now officials are illuminating the crosses at night to support the decision.

Supreme Court Will Hear Oral Arguments Today In Bladensburg Cross Case

This morning the U.S. Supreme Court will hear oral arguments in American Legion v. American Humanist Association.  In the case, the U.S. 4th Circuit Court of Appeal, in a 2-1 decision, held that the 40-foot high Bladensburg Cross that has stood for over 90 years as a World War I Veterans' Memorial, violates the Establishment Clause. (See prior posting.) The Circuit Court, by a vote of 8-6, then denied en banc review. (See prior posting). Some 47 amicus briefs have been filed in the case. Here is the SCOTUS blog case page for the case, with links to the briefs, other filings and commentary.  I will post the full transcript of today's oral arguments when it becomes available, probably this afternoon.

Supreme Court Agrees To Review Bladensburg Cross Case

The U.S. Supreme Court yesterday granted certiorari in two appeals stemming from the same 4th Circuit opinion. The petitions for review were granted in American Legion v. American Humanist Association (Docket No. 17-1717) and Maryland-National Capital Park and Planning Commission v. American Humanist Association (Docket No.  18-18). (Cert. granted, 11/2/2018). (Order List). In the case, the U.S. 4th Circuit Court of Appeal, in a 2-1 decision, held that the 40-foot high Bladensburg Cross that has stood for over 90 years as a World War I Veterans' Memorial, violates the Establishment Clause. (See prior posting.) The Circuit Court, by a vote of 8-6, then denied en banc review. (See prior posting). Here is the SCOTUS blog case page for the cases, with links to filings in the case.  WTOP News reports on the grant of review.

Cert. Petition Filed In Case On Cross In Public Park

A petition for certiorari was filed with the U.S. Supreme Court yesterday in City of Pensacola, Florida v. Kondrat'yev. In the case a 3-judge panel of the 11th Circuit Court of Appeals, feeling bound by prior 11th Circuit and Supreme Court precedent, affirmed a Florida district court's Establishment Clause decision ordering Pensacola to remove a 34-foot Latin cross from a public park. (See prior posting). Becket issued a press release announcing the filing of the petition for review.

11th Circuit Affirms Order To Remove Cross From Park, But Expresses Disagreement With Precedent

In Kondrat'Yev v. City of Pensacola, (11th Cir., Sept. 7, 2018), a 3-judge panel of the 11th Circuit Court of Appeals, feeling bound by prior 11th Circuit and Supreme Court precedent, affirmed a Florida district court's Establishment Clause decision ordering Pensacola to remove a 34-foot Latin cross from a public park. Two judges each wrote lengthy concurring opinions explaining their disagreement with existing precedent. One of those judges, District Judge C. Ashley Royal sitting by designation on the case, wrote a 53-page concurrence that includes a long history of religious establishments.  Here is an excerpt from Judge Royal's interesting opinion:

[T]he history of the idea of the religious conscience was central to the history of religious freedom in early America and in Europe. But religious conscience was not understood as separate from religious action. It was not simply some psychological phenomenon or something that you had on your mind. Protestants and Catholics did not fight the Wars of Religion for almost 100 years because some religious image made them feel uncomfortable, unwelcome, or uneasy. Furthermore, in the 16th, 17th, and 18th centuries, men and women were not burned at the stake, beheaded, hung, flogged, banished, jailed, beaten, taxed, had their ears cropped, or were divested of their property or their rights as citizens because of their state of mind. It was because of their actions and because their actions arose out of their religious convictions. To counter dissidents’ religious actions, churches and governments imposed penalties, and that is what the Establishment Clause was designed to protect against. 

You can listen to this march of horrors, abuse, cruelty, and death and recognize that it was not a walk in the park. And despite the fact that I am careful to avoid trite statements in my orders, all this case is about is a walk in the park.... Some courts have lost sight of why so many fought for so long at such great cost for religious freedom. It was not to protect people from looking at crosses in public parks. That demeans and debases the sacrifices of millions of people....

3rd Circuit Hears Arguments On Cross In County Seal

Yesterday, the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full arguments) in Freedom From Religion Foundation v. County of Lehigh.  In the case, a Pennsylvania federal district court reluctantly held that a large, central Latin cross in the seal and flag of Lehigh County, Pennsylvania violate the Establishment Clause under the Lemon test and the endorsement test.  Daily Journal reports on the oral arguments.

Amicus Briefs In Bladensburg Cross Cert Petitions Now Available

Links (via SCOTUS blog) are now available to the numerous amicus briefs (as well as briefs of the parties) in the certiorari petition in Maryland-National Capital Park and Planning Commission v. American Humanist Association.  In the case, the 4th Circuit, in a 2-1 decision, held that the 40-foot high Bladensburg Cross that has stood for over 90 years as a World War I Veterans' Memorial, violates the Establishment Clause. (See prior posting). Links are also available to the largely overlapping set of briefs in the related cert. petition in American Legion v. American Humanist Association.

Cert. Filed In Bladensburg Cross Challenge

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in American Legion v. American Humanist Association. In the case, the U.S. 4th Circuit Court of Appeals in a 2-1 decision held that a 40-foot tall Latin Cross on government property created as a World War I Veterans' Memorial (Bladensburg Cross) violates the Establishment Clause.  (See prior posting.) En banc review was denied by a vote of 8-6. (See prior posting).  First Liberty Institute issued a press release announcing the filing of the cert. petition.

City Violated Establishment Clause By Acquiring Cross Site As Park Land

In Lions Club of Albany, California v. City of Albany, (ND CA, June 15, 2018), a California federal district court held that a city violated the Establishment Clause by acquiring for a public park a 1.1 acre parcel of land that includes a large cross. Originally the cross was on private property, and the Lion's Club held an easement to maintain the 20-foot high cross and to illuminate it each Christmas and Easter.  The city acquired the 1.1 acres along with adjacent land in exchange for approving a high rise project nearby. The court said in part:

While the City portrays itself as a victim of the easement, the fact is that the City must bear responsibility. To repeat, the City could have rejected the deal, burdened as it was by the easement. The First Amendment ran against the City, not the private parties. Once the City accepted title and began converting the land into a public park, it then could have solved its Establishment Clause problem by condemning the easement (and paying its value) under its power of eminent domain, selling off, if feasible, a subdivided parcel containing the cross to a private party (and keeping the rest for a park), or by possibly imposing zoning restrictions against all religious displays on public land.

11th Circuit Hears Arguments In Challenge To Cross In City Park

On Wednesday, the U.S. 11th Circuit Court of Appeals heard oral arguments in  Kondrat'yev v. City of Pensacola, Florida.  (Audio of full oral arguments).  In the case, a reluctant Florida federal district court judge held that a 34-foot concrete Latin Cross that has stood in a city park for decades violates the Establishment Clause. (See prior posting.)  Pensacola News Journal reports on the oral arguments.

In Bavaria, State Buildings Will Display A Cross

According to Evangelical Focus, in Germany this week the Minister President of the state of Bavaria has ordered every state administration building to hang a Christian cross in the building entrance.   Minister President of Bavaria, Markus Söder says that the cross is "a fundamental symbol of the Christian Western identity" and is an "expression of the spiritual and cultural character of Bavaria."  The order does not apply to municipal and regional district buildings, but they are encouraged to follow the example set by the state government. Opposition political parties in Bavaria criticized the order.

Cert. Denied In Challenge To City's Removal of Cross

The U.S. Supreme Court yesterday denied certiorari in Dawson v. Grand Haven, MI, (Docket No. 17-1024, cert. denied 4/2/2018). (Order List).  In the case, the Michigan Court of Appeals in Dec. 2016 upheld a decision by the city of Grand Haven to stop display of a cross on a city-owned sand dune.  In the case, Dawson v. City of Grand Haven, the Michigan court had said in part:

More than 50 years ago, the "Dewey Hill monument" was donated to defendant as a memorial for those who served and died in the Vietnam War. The monument was placed on Dewey Hill, a sand dune that defendant owned on the Grand River. The Dewey Hill monument consisted of an elaborate lifting mechanism and foundation that was designed to maintain the sand dune. When the lifting mechanism is raised, a cross is displayed. The cross can be made into an anchor by placing attachments on the bottom and top of the cross. For many years, defendant raised the lifting mechanism to display the anchor or the cross when requested by individuals in the community. For many years, First Reformed Church, where several of the plaintiffs are members, paid the required fee and requested that the cross be displayed for its Worship on the Waterfront services, which were held at the waterfront stage and bleachers across the Grand River from Dewey Hill.

In January 2015, defendant passed Resolution 15-013. Pursuant to the resolution, the lifting mechanism of the Dewey Hill monument could only be raised to display the anchor....

Because the Free Speech Clause does not regulate government speech ..., and because the freedom of government to speak includes the right to removal of speech with which the government disapproves, ... Resolution 15-013, which prohibited the lifting mechanism of the Dewey Hill monument from being raised to show the cross, did not violate the Free Speech Clause.

Grand Haven Tribune reports on yesterday's denial of review by the Supreme Court.

4th Circuit Denies En Banc Review On Bladensburg Cross

The U.S. 4th Circuit Court of Appeals, by a vote of 8-6, has denied an en banc rehearing on the constitutionality of the 40-foot high Bladensburg Cross that has stood for over 90 years at an intersection in Prince Georges County, Maryland. Last October a panel of the 4th Circuit, in a 2-1 decision, held the Latin Cross, created as a World War I Veterans' Memorial, violates the Establishment Clause. (See prior posting.) Yesterday in American Humanist Association v. Maryland- National Capital Park Planning Commission, (4th Cir., March 1, 2018), the full court's denial of review was accompanied by 4 separate opinions-- one a concurring opinion and 3 dissenting opinions.

Judge Wynn's concurring opinion said in part:

To allow this Court to circumscribe the Bladensburg Cross’s meaning and power, as the Commission and its amici request, would empower this Court to diminish the Latin cross’s many years of accrued religious symbolism, and thereby amount to the state degradation of religion that the Framers feared and sought to proscribe. Indeed, were this Court to accept that the Latin cross’s predominantly sectarian meaning could be overcome by a plaque, a small secular symbol, and four engraved words, as the Commission maintains, we would necessarily grant the government—and the judiciary, in particular—broad latitude to define and shape religious belief and meaning. Surely, the Constitution does not contemplate endowing the government with such extraordinary power to determine and prescribe individual citizens’ religious beliefs and religious communities’ joint understandings, appreciations, and teachings.

Judge Wilkinson's dissent, joined by Chief Judge Gregory and Judge Agee, said in part:

The dead cannot speak for themselves. But may the living hear their silence. We should take care not to traverse too casually the line that separates us from our ancestors and that will soon enough separate us from our descendants. The present has many good ways of imprinting its values and sensibilities upon society. But to roil needlessly the dead with the controversies of the living does not pay their deeds or their time respect.

This memorial and this cross have stood for almost one full century. Life and change flow by the small park in the form of impatient cars and trucks. That is disturbance enough. Veterans Memorial Park may not be Arlington National Cemetery, but it is the next thing to it. I would let the cross remain and let those honored rest in peace.

Washington Post, reporting on the decision, says that the case will be appealed to the Supreme Court.