- - Wednesday, June 28, 2017

ANALYSIS/OPINION:

A judge doesn’t have to be waiting for an appointment to the U.S. Supreme Court to set an example for what a conscientious president is looking for. With vacancies in 106 federal district courts and 19 in appeals courts, President Trump might look to Pensacola, Fla., for a living example of the kind of judges he’s looking for.

Mr. Trump has appointed just 13 nominees for those seats. When he finds his men, and women, they should all understand the role of a federal judge the way U.S. District Court Judge Roger Vinson of Pensacola does.

Judge Vinson, appointed to the bench in 1983 by President Reagan, is senior judge for the Northern District of Florida, and he clearly believes in judicial restraint. He does not legislate from the bench, as certain other judges, high and not so high, have done.

He demonstrated in a case before him last week that he will follow the law and precedent even when he thinks the law and precedent are wrongheaded, as they sometimes are.

In the instant case, Amanda Kondrat’yev, et al. v. Pensacola, Florida, et al., he agreed with four anti-religious plaintiffs who demanded that a 34-foot concrete cross, a symbol of the sacrifice of Jesus Christ, should be removed from a public park where it had stood for seven decades. In his 23-page opinion, he said that a U.S. Supreme Court precedent dating to 1971 left him no alternative. He wrote that had the case come before him without judicial precedent tying his hands he would have dismissed the case. To underscore his point, he awarded to each of the four plaintiffs damages of a dollar (which might be approximately 75 cents too generous, it seems to us).

“Even though the cross has stood on public property in one form or another for approximately 75 years (apparently without incident),” Judge Vinson wrote, “four people contend they are ‘offended’ by it and want it removed.”

The precedent derives from Lemon v. Kurtzman, a 1971 case in which the Supreme Court set out a three-part standard to be used in cases involving the Establishment Clause of the First Amendment to the U.S. Constitution that now seems so obscure to so many judges.

Judge Vinson wrote that the so-called “Lemon test” stipulates, among other things, that religious symbols on public property must have a secular purpose in order to survive a constitutional challenge. The Pensacola cross lacks such secular purpose, he held, and thus, regrettably, “runs afoul of the First Amendment as currently interpreted by the Supreme Court.”

But he included a large asterisk. “The historical record indicates that the Founding Fathers did not intend for the Establishment Clause to ban crosses and religious symbols from public property. Indeed, ‘the enlightened patriots who framed our Constitution’ would have most likely found this lawsuit absurd,” Judge Vinson wrote. “And if I were deciding this case on a blank slate, I would agree, and grant the plaintiffs no relief. But, alas, that is not what we have here.”

He gave the City of Pensacola 30 days to remove the Bayview Cross, where it has stood in a corner of Bayview Park since the Pensacola Jaycees raised it in 1969 to replace an original wooden cross raised in 1941. “Count me among those who hope the Supreme Court will one day revisit and reconsider its Establishment Clause jurisprudence, but my duty is to enforce the law as it now stands.”

Duty can be onerous, as Judge Vinson, a graduate of the U.S. Naval Academy and the Vanderbilt University Law School, rightly observes, but honor demands allegiance to duty. There’s ample precedent for that, too.

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