Third Circuit Rules Cross on County Seal and Flag Not Discriminatory
Third Circuit Judge Thomas Hardiman reasoned that per the 2018 Supreme Court decision in American Legion v. American Humanist Association, a longstanding government symbol holds the presumption of constitutionality.
August 09, 2019 at 10:00 AM
6 minute read
The original version of this story was published on The Legal Intelligencer
A federal appeals court has rejected an atheist group’s challenge to Lehigh County’s official seal, ruling that the cross featured on it is not discriminatory to non-Christians.
On Thursday, the U.S. Court of Appeals for the Third Circuit reversed a lower court’s decision that the seal—showing a cross superimposed on a blue background in between a wreath of secular images—was unconstitutional.
After complaining to the county to no avail about the seal, which has been used since 1944, the Freedom From Religion Foundation filed a lawsuit in 2016. A federal judge agreed with the group’s argument that the cross had no secular purpose on the seal, and that a reasonable observer would see it as an endorsement of religion, in violation of the separation of church and state.
However, Third Circuit Judge Thomas Hardiman reasoned that per the 2018 Supreme Court decision in American Legion v. American Humanist Association, a longstanding government symbol holds the presumption of constitutionality.
“In American Legion, the Supreme Court held that the presumption applies to all ‘established, religiously expressive monuments, symbols, and practices,’” Hardiman wrote. “Lehigh County’s seal checks those boxes. It was adopted almost 75 years ago, so it is established. It depicts a Latin cross, so it is religiously expressive. And it represents the county and its government, so it is a symbol.”
Hardiman added that since the cross is pictured with secular images, such as a farm, a courthouse and factories, it can have a “dual significance partaking of both religion and government.”
“Courts are not to focus solely on the religious component in challenged government displays,” he said, “they should consider the overall message conveyed and the broader context in which the display appears.”
The judge said that religious symbols can be part of a community’s identity, “valued for more than just ‘their religious roots.’”
On the other hand, Hardiman reasoned, removing the cross would demonstrate hostility toward religion, “inviting disputes over similar longstanding symbols nationwide.”
Hardiman was joined by Third Circuit Judges Stephanos Bibas and Cheryl Ann Krause.
The case drew the attention and support of several advocacy groups for both sides in the way of amicus briefs. The FFRF was joined by the American Civil Liberties Union and the Anti-Defamation League, to name a few, while Lehigh County was supported by several religious liberty groups and a collection of 15 states including Alabama, Arizona, Arkansas, Colorado, Indiana, Kansas, Louisiana, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Utah and West Virginia.
Lehigh County is represented by the Becket Fund for Religious Liberty in Washington, D.C.
“It is common sense that religion played a role in the lives of our nation’s early settlers. Recognizing that is just as constitutional as honoring symbols like the Liberty Bell,” Diana Verm, senior counsel at Becket, said in a statement Thursday. “It is only right that Lehigh County can continue honoring its history and culture.”
FFRF’s attorney, Marcus B. Schneider of Steele Schneider in Pittsburgh, did not respond to requests for comment. Richard Katskee, a lawyer with Americans United for Separation of Church and State, which filed a brief in support of the FFRF on behalf of his organization and the ACLU, said the decision was not surprising given the Supreme Court’s stance on the issue.
As for the Third Circuit’s approach of looking at the whole seal, not just the cross, Katskee said case law states “you are supposed to take it into context, but when it’s a big cross surrounded by other stuff I don’t think that’s how it’s supposed to work.”
While noting that the case is essentially over, Katskee said the groups he represents will continue to take on similar issues.
“These are issues that matter to lots of people including us, issues like who we are as a country and who counts and who doesn’t. We’re always interested in cases that define the boundaries of religion and government because they deeply affect people,” he said.
Eugene Volokh, who teaches constitutional and church-state relations law at the University of California, Los Angeles School of Law, said the Third Circuit’s decision is in line with Supreme Court precedent and generally makes sense.
Volokh noted that before the Supreme Court’s American Legion decision, there was plenty of precedent that barred religious symbolism of any kind on government symbols, but those holdings are now obsolete.
He also agreed with the approach of looking at the seal as a whole in determining its constitutionality.
“It is certainly true that this isn’t just a cross,” Volokh said of the seal. “I do think if the seal was solely a Latin cross, somebody could say that there is something more untoward with that, because then it doesn’t look like just a seal any more.”
Volokh pointed out that, right or wrong, religious references and symbols in government permeate American history.
“Look at the Declaration of Independence; it has religious references in the opening and closing paragraphs,” Volokh said. “I take it that a city or county would be free to post the Declaration of Independence. Does it have a religious component? Yes. But that’s the way people talked back then.”
University of Virginia School of Law professor Douglas Laycock also agreed with the Third Circuit’s decision.
“These symbols are what remain from former establishments, whether or not the county would adopt such a symbol today or vote to establish Christianity in any other way today,” Laycock said. “But they are all protected by a grandfather clause for things adopted or erected long ago. And the judges are right that trying to eliminate all of them would be misunderstood by those who support such displays, and might be even more religiously divisive than leaving them in place.”
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllMeet the Judges: Senate Confirms 7 Superior Court Nominees in Final 2024 Session
3 minute readAG Had No Authority to Take Control of Paterson PD, Appellate Division Says
4 minute readTrending Stories
- 1Decision of the Day: Judge Reduces $287M Jury Verdict Against Harley-Davidson in Wrongful Death Suit
- 2Kirkland to Covington: 2024's International Chart Toppers and Award Winners
- 3Decision of the Day: Judge Denies Summary Judgment Motions in Suit by Runner Injured in Brooklyn Bridge Park
- 4KISS, Profit Motive and Foreign Currency Contracts
- 512 Days of … Web Analytics
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250