- The Washington Times - Thursday, August 8, 2019

The focal point of the official seal of Lehigh County, Pennsylvania, is a Latin cross — and that’s perfectly fine, a federal appeals court ruled Thursday, saying it does not constitute an entanglement between church and state.

The ruling by the 3rd Circuit Court of Appeals is the first major decision since the Supreme Court this year upheld a century-old cross on public property in Bladensburg, Maryland.

In a 3-0 decision, the 3rd Circuit said the seal, designed in 1944 and also depicting a bell, livestock and other cultural images surrounding the cross, has the weight of history on its side.

“The Lehigh County seal fits comfortably within a long tradition of state and municipal seals and flags throughout our republic that include religious symbols or mottos, which further confirms its constitutionality,” wrote Judge Thomas Hardiman — who had been one of those in the running for a Supreme Court spot under President Trump.

Joining Judge Hardiman in his 18-page opinion were Judges Stephanos Bibas, a Trump appointee, and Cheryl Ann Krause, an Obama appointee.



The ruling is an early signal that courts will give broad latitude to religious symbols with long histories.

It’s also the first application of the Supreme Court’s 7-2 decision in June upholding the constitutionality of the Peace Cross, a memorial erected in Bladensburg after World War I to honor the memory of local soldiers.

In that case, Justice Samuel A. Alito Jr. said religious symbols that have the weight of years of history behind them have a “strong presumption of constitutionality.”

The Freedom From Religion Foundation, which challenged Lehigh’s county seal, had argued it was different from the Bladensburg cross because the seal was a creation of government. The Peace Cross, meanwhile, was erected by the American Legion and later turned over to the government, which now maintains it.

But Judge Hardiman said the county seal checks off the same boxes as the Bladensburg cross, so the Supreme Court’s ruling does apply.

The 3rd Circuit ruling could prove important as courts around the country grapple with the fallout from the Bladensburg decision.

Crosses from Kansas to New Mexico are also under fire, and the Freedom From Religion Foundation vowed to press its arguments, calling Thursday’s decision wrong and saying it sends an “exclusionary message.”

“The county should be welcoming of all residents regardless of religion — and it’s appalling that the court didn’t prod county officials to move in that direction,” said Annie Laurie Gaylor, co-president of the group.

Her group is still fighting a white wooden cross erected in 1941 in a public park in Pensacola, Florida. That case had risen to the Supreme Court, but the justices sent it back to the 11th Circuit to revisit in light of the Bladensburg cross ruling.

The 11th Circuit Court of Appeals originally had ruled the Florida cross must go, saying it violated the Establishment Clause, which forbids the endorsement of a particular religion by the government.

Religious liberty activists hope the judges will reverse themselves, given the more recent legal action.

“The circuit courts pay close attention to how other circuits rule, and they try to avoid disagreeing with each other. The 3rd Circuit’s decision gives the 11th Circuit a clear path for ruling in favor of Pensacola,” said Luke Goodrich, an attorney with Becket Religious Liberty for All, which is representing Pensacola’s efforts to keep the cross in the park.

Robert Tuttle, a law professor at George Washington University, doubted Thursday’s ruling will affect the 11th Circuit and said there’s other precedent to rule against Pensacola’s cross.

“Even before the Bladensburg decision a bunch of lower courts had rejected challenges to religious imagery on municipal seals,” he told The Washington Times.

The cross has been used in Easter sunrise services, which could be a reason for judges to distinguish it from the Bladensburg or Lehigh rulings.

“That’s consistently been the usage and primary reason for maintaining it in the public park,” said Monica Miller, an attorney with the American Humanist Association, which wants the cross taken off public land.

Brett Harvey, an attorney with Alliance Defending Freedom, noted the 11th Circuit might not issue its decision for months.

“You would think typically whoever loses would go back to the Supreme Court,” he said, suggesting another cross case may come before the justices when they return for the 2019 term.

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