The U.S. Court of Appeals for the Eleventh Circuit, affirming a decision by a federal district court in Florida, has ruled that the City of Pensacola, Florida, must remove a 34-foot Latin cross from a public park. The circuit court concluded that the city’s maintenance of the cross violated the First Amendment’s Establishment Clause.
A wooden cross was erected in the park in 1941. It was replaced in 1969 with the 34-foot version and subsequently donated to the city, which lights and maintains it at a cost of around $233 per year. Over the years, the cross has served as the location for an annual Easter sunrise program, and it also has been used as a site for remembrance services on Veteran’s and Memorial Days.
In their lawsuit challenging the city’s support of the cross, the plaintiffs asserted that the cross’ presence on city property violated the Establishment Clause. The district court agreed, and the city appealed to the Eleventh Circuit, arguing that the cross did not violate the Establishment Clause under current U.S. Supreme Court precedent.
The Eleventh Circuit agreed with the district court.
In its decision, the circuit court referred to the “three-prong Establishment Clause test” announced by the U.S. Supreme Court in Lemon v. Kurtzman, which asks whether (i) the challenged action has a secular purpose; (ii) the “principal or primary effect” is one that neither “advances nor inhibits religion”; and (iii) the action fosters “an excessive entanglement with religion.”
The Eleventh Circuit then concluded that the cross violated the Establishment Clause as set forth in Lemon.
The Eleventh Circuit acknowledged that the Supreme Court’s more recent Establishment Clause decisions seemed to have “substantially weakened” Lemon, but it pointed out that the Supreme Court had not “directly overruled” Lemon and, therefore, that its hand were “tied,” requiring it to affirm the district court’s order requiring removal of the cross.
Importantly, the Eleventh Circuit’s decision may not be the end of the matter. That’s because the U.S. Supreme Court soon may decide to hear a case involving the Peace Cross – a memorial to American servicemen who died in World War I – located in Bladensburg, Maryland. If the Court accepts that case, Maryland-National Capital Park and Planning Commission v. American Humanist Association, it may clarify its Establishment Clause jurisprudence, with implications not only for the Peace Cross itself but perhaps also for the Pensacola cross.
The Eleventh Circuit’s decision is Kondrat’yev v. City of Pensacola.