A federal judge on Monday reluctantly ordered the removal of the Bayview Cross from a public park in Pensacola, Florida, explaining that U.S. Supreme Court precedent left him little choice.
Senior U.S. District Judge Roger Vinson gave the city 30 days to remove the cross, which has stood in various forms in a corner of Bayview Park for about 75 years, even though he said the Founding Fathers “would have most likely found this lawsuit absurd.”
“I am aware that there is a lot of support in Pensacola to keep the cross as is, and I understand and respect that point of view,” said the judge, a Reagan appointee, in his 23-page ruling. “But, the law is the law.”
He also ordered the city to pay $1 in damages to the four residents represented by the American Humanist Legal Center.
“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,” said Judge Vinson.
Monica Miller, senior counsel for the AHA’s Appignani Humanist Legal Center, cheered the court’s decision. Both sides had argued for summary judgment in oral arguments Thursday in Pensacola.
“We are pleased that the Court struck down this Cross as violative of the First Amendment,” Ms. Miller said in a statement. “The cross was totally unavoidable to park patrons, and to have citizens foot the bill for such a religious symbol is both unfair and unconstitutional.”
Vernon Stewart, spokesman for Pensacola Mayor Ashton Hayward, said city staff was reviewing the decision, and the mayor was traveling and would “ultimately be the one to decide how to proceed.”
The cost of maintaining the white, 34-foot concrete cross was $233 per year, or about .03 percent of the city’s annual maintenance budget. Donated by the Pensacola Jaycees in 1969, the concrete cross replaced the original wooden cross.
“Even though the cross costs very little to maintain, has hosted tens of thousands of people, and has stood on public property in one form or another for approximately 75 years (apparently without incident), four people — Amanda Kondrat’yev; Andreiy Kondrat’yev; David Suhor; and Andre Ryland — contend they are ‘offended’ by it and want it removed,” the judge said in his 23-page ruling.
He said the cross failed the “Lemon test,” the three-prong standard laid out by the Supreme Court in its 1971 decision in Lemon v. Kurtzman, the first prong of which holds that such public symbols must have a secular purpose in order to pass constitutional muster.
Judge Vinson also cited the U.S. Court of Appeals for the 11th Circuit’s 1983 ruling against a cross on government property in Rabun County, Georgia, that relied on the Lemon test.
“Lemon is routinely criticized, but it is still the law of the land and I am not free to ignore it,” the judge said in his ruling. “Nor am I free to ignore Rabun County, which expressly states that Lemon provides the ‘correct’ analytical framework in cases such as this. And consistent with that directly-on-point and binding case law, the Bayview Cross fails the first prong of the Lemon test and, thus, runs afoul of the First Amendment as currently interpreted by the Supreme Court.”
The city had argued that the cross was not exclusively religious in nature, but the judge said the 11th Circuit was unlikely to agree.
The mayor defended the cross after the AHA sent a letter calling for its removal in 2015, telling the Pensacola News Journal: “Personally, I hope there is always a place for religion in the public square. I surely don’t want to remove it.”
The city has other options. Pensacola could allow worshippers to use a temporary cross for Easter services, or sell or lease the land holding the cross to a private property “so long as the transfer was bona fide and not a subterfuge,” the judge said.
“However, after about 75 years, the Bayview Cross can no longer stand as a permanent fixture on city-owned property,” said the ruling.
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