Chris Carr, Georgia attorney general (Courtesy photo)

This week's U.S. Court of Appeals for the Eleventh Circuit victory for the Bay View cross in Pensacola, Florida, could help preserve similar monuments in other states.

So says Georgia Attorney General Chris Carr, who joined colleagues from a dozen other states in an amicus filing supporting the cross.

"We strongly believe that memorials like this one do not violate the Constitution and should be protected and preserved," Carr said in a news release. "Today's ruling is a great win and provides clear guidance as we continue working to protect these kinds of memorials in Georgia."

Carr named two monuments in Georgia that could benefit from the ruling. One is a 12-foot cross along the trail of the Chickamauga Battlefield in Fort Oglethorpe. The other is a stone cross honoring local World War I veterans on a street median in Augusta.

Long lost is a similar cross from Rabun County's Black Rock Mountain that the Eleventh Circuit ordered removed in 1983. The Rabun County precedent led the Eleventh Circuit to rule against the Pensacola cross in 2018. But residents who sued to remove the Pensacola cross appealed to the U.S. Supreme Court, which sent the case back after ruling that a cross in another challenge did not violate the Constitution's prohibition against the establishment of religion.

The Eleventh Circuit reconsidered and changed its mind in light of the latest U.S, Supreme Court decision.

"In our earlier opinion in this case, we followed Rabun right down the line—as we were obliged to do," Judge Kevin Newsom wrote for a panel that included Senior Judge Frank Hull and District Judge Charles Ashley Royal of the Middle District of Georgia, sitting by designation. "In particular, given the factual parallels between the Black Rock Mountain and Bayview Park crosses—both 30-some-odd feet tall, both erected by private organizations, both dedicated in conjunction with Easter services, and both located on government property—we held that the latter, like the former, violated the Establishment Clause."

While Pennsacola's SCOTUS cert petition was pending, the Supreme Court decided American Legion v. American Humanist Association, "holding that a 32-foot Latin cross on public land in Bladensburg, Maryland does not violate the Establishment Clause," Newsom said. "The following week, the Supreme Court granted the City's petition for certiorari in this case, vacated our earlier decision, and remanded for further consideration in light of American Legion."

That further consideration resulted in the turnaround for the Pensacola cross Wednesday.

A key part of the decision was the assertion by lawyers for the city that the function of the cross broadened over the years. What started as a focal point for Easter sunrise services became a place for the community to gather in times of trial and celebration, Newsom said. The city even added a bandstand.

In one long sentence, Newsom summed up the change in position:

"Having carefully reviewed the American Legion opinion—or more accurately opinions (there are seven of them)—and having considered the parties' supplemental briefing, we now hold (1) that we remain bound by Rabun to conclude that plaintiffs have (or at least one of them has) Article III standing to challenge Pensacola's maintenance of the Bayview Park cross, but (2) that American Legion abrogates Rabun to the extent that the latter disregarded evidence of 'historical acceptance' and instead applied Lemon v. Kurtzman, 403 U.S. 602 (1971), and, further, that when American Legion—rather than Rabun—is applied, the cross's presence on city property doesn't violate the Establishment Clause." 

Newsom also offered a short version of the story.

"For present purposes, perhaps American Legion's clearest message is this: Lemon is dead," Newsom said. "Well, sort of. It's dead, that is, at least with respect to cases involving religious displays and monuments—including crosses." 

The attorneys who filed the suit said they are not willing to accept a "massive Christian cross" in a public park. 

"The court dealt a devastating blow to the Establishment Clause in the Eleventh Circuit," American Humanist Association Legal Director Monica Miller, lead counsel on the case, said in a news release after the ruling. "We are currently exploring all of our options."

Meanwhile, Florida Attorney General Ashley Moody agreed with Carr, her fellow friend of the court.

"This ruling is a notable victory, not only for our WWII veterans, but also for the protection and preservation of historical memorials in Florida," Moody said in an email to the Daily Report. "The Bayview Park cross has been a prominent staple to the Pensacola community for decades. I am pleased that our office joined our sister states in filing a brief supporting its constitutionality, and that the court provided further guidance supporting the protection of these cherished memorials going forward."