PHILADELPHIA — The Third Circuit Court of Appeals has unanimously ruled that a Christian cross included on a Pennsylvania county’s official seal does not violate the Establishment Clause of the U.S. Constitution, pointing to a recent ruling from the U.S. Supreme Court that allowed a cross veterans monument to remain on public property.
“The Establishment Clause’s original public meaning and the court’s most recent interpretation of it make two things clear: the Lemon endorsement test does not apply to Lehigh County’s seal, and this 75-year-old seal casts only that mere shadow. ‘It has become part of the community,’” wrote Judge Thomas Hardiman on behalf of the panel, quoting in part from American Legion v. American Humanist Association.
As previously reported, the Wisconsin-based Freedom From Religion Foundation (FFRF) had filed a lawsuit against Lehigh County in 2016 on behalf of four residents who asserted that the inclusion of the cross on the county seal, which appears on official documents and inside of government buildings, violates the separation of Church and State.
“As a resident of Lehigh County, Mr. Simpson has been subjected to viewing the seal, which he finds offensive,” the legal challenge read. “Mr. Simpson does not want his county government to be represented by a Christian symbol.”
“The display of the Latin cross by Lehigh County has the primary effect of both advancing religion and expressing Defendant’s preference for Christianity above all other religions and nonreligion,” it also contended. “The adoption and display of the Latin cross constitutes an endorsement of religion by Lehigh County.”
The following year, U.S. District Judge Edward Smith, nominated to the bench by then-President Barack Obama, reluctantly ruled against the seal, feeling that he had to follow the U.S. Supreme Court’s “Lemon test,” which is based on the 1971 ruling of Lemon v. Kurtzman.
“In this case, the reasonable observer would know that the cross is a symbol of Christianity, that the settlers of Lehigh County were Christian, and that Commissioner Hertzog designed the seal with the God-fearing people of the county in mind,” he wrote. “With this knowledge base in mind, the court must conclude that a reasonable observer would perceive the seal as endorsing Christianity.”
However, Smith candidly outlined that he doesn’t believe Lehigh County’s inclusion of a cross violates the Establishment Clause in the way that the Founding Fathers intended when they wrote the U.S. Constitution.
He explained that the prohibition on the establishment of religion only related to a national establishment similar to the Church of England, which the Puritans sought to escape so they could worship God according to the dictates of their own conscience.
“There is ample historical evidence to suggest that James Madison, the First Amendment’s drafter, was concerned with the establishment of a national religion similar to that of the Church of England that would encroach on citizens’ freedom of conscience, compel conformity, and levy taxes in its name,” he wrote.
In June, as it upheld a longstanding cross monument in Maryland that honors war veterans, the U.S. Supreme Court remarked that there are “shortcomings” with the Lemon test.
“It could not ‘explain the Establishment Clause’s tolerance, for example, of the prayers that open legislative meetings, . . . certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving,” explained Justice Samuel Alito on behalf of the 7-2 majority.
“The test has been harshly criticized by members of this court, lamented by lower court judges, and questioned by a diverse roster of scholars,” Alito noted.
He pointed to other monuments that have been upheld by the court that are of both a religious and secular nature, and also noted, “Religion undoubtedly motivated those who named Bethlehem, Pennsylvania; Las Cruces, New Mexico; Providence, Rhode Island; Corpus Christi, Texas; Nephi, Utah, and the countless other places in our country with names that are rooted in religion. Yet few would argue that this history requires that these names be erased from the map.”
On Thursday, the Third Circuit Court of Appeals referred to the Supreme Court ruling in upholding the cross symbol included in the Lehigh County seal. It also noted that Bethlehem, Pennsylvania — named after Bethlehem, Israel where Christ was born — is in Lehigh County.
“Requiring the cross’s extirpation … may very well exhibit ‘a hostility toward religion that has no place in our Establishment Clause traditions,’ inviting disputes over similar longstanding symbols nationwide,” Judge Hardiman, quoting in part from the nation’s highest court.
“[The Supreme] Court disapproved of eradicating religiously inspired places, symbols, and mottos — including Lehigh County’s own Bethlehem, Pennsylvania. Consistent with the Supreme Court’s admonition on this score, we too decline to invite such dissension.”
“It is common sense that religion played a role in the lives of our nation’s early settlers,” Diana Verm, an attorney with Becket, which represented the county, told Bloomberg. “It is only right that Lehigh County can continue honoring its history and culture.”
FFRF was not happy with the outcome.
“The appeals court decision validates a Lehigh County seal that sends a wrong, exclusionary message,” Co-President Annie Laurie Gaylor said in a statement. “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.”