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Cross on County Seal Upheld Under New Supreme Court Precedent (2)

Aug. 8, 2019, 3:50 PMUpdated: Aug. 8, 2019, 7:38 PM

A Pennsylvania county can continue to display a memorial cross on its seal, a federal appeals court ruled in the first test of the U.S. Supreme Court’s most recent decision on the role of religion in a pluralistic society.

The unanimous ruling Aug. 8 by a three-judge panel of the U.S. Court of Appeals for the Third Circuit found that the Lehigh County seal didn’t violate the Constitution’s prohibition against government endorsement of religion.

Adopted 75 years ago, the seal includes the cross in the center surrounded by nearly a dozen secular symbols of historical, patriotic, cultural, and economic significance to the community, Judge Thomas Hardiman’s opinion emphasized.

“It is only right that Lehigh County can continue honoring its history and culture,” said Diana Verm, an attorney with the non-profit Becket Fund for Religious Liberty which represented the county.

“It is common sense that religion played a role in the lives of our nation’s early settlers,” Verm added.

These kinds of cases, involving longstanding religious symbols, are going to be a “slam dunk” for localities following the Supreme Court’s June ruling, said former Michigan Solicitor General John Bursch, who’s organization, Alliance Defending Freedom, filed a friend-of-the-court brief supporting the county.

The next fight is going to be over newer symbols, like those put up in the past 20 to 25 years, Bursch said.

Checking the Boxes

The outcome wasn’t a surprise after the Supreme Court’s ruling June in the case of a World War I memorial cross in Maryland situated on public land, said Annie Laurie Gaylor, of the Freedom From Religion Foundation that filed suit on behalf of four of its members who live in Lehigh County.

The high court’s 7-2 decision in Am. Legion v. Am. Humanist Ass’n found that the display of the 32-foot cross at a suburban intersection didn’t run afoul of the First Amendment.

Challengers in Pennsylvania argued that the Lehigh County seal violated the Constitution’s prohibition against government endorsement of religion, and that the new presumption of constitutionality for longstanding monuments didn’t apply.

But that argument was a “nonstarter,” the Third Circuit said.

“In American Legion, the Supreme Court held that the presumption applies to all ‘established, religiously expressive monuments, symbols, and practices,’” the appeals court said. “Lehigh County’s seal checks those boxes.”

Still, Gaylor said the Third Circuit and Supreme Court rulings are “not only a blow to the Constitution but to the 30 percent of Americans today who are non-Christian"—including 24% who identify as nonreligious.

“Lehigh County is not a Christian county, Pennsylvania is not a Christian state and the United States, contrary to all the myths out there, is not a Christian nation,” Gaylor said.

“It was a pinnacle principle of the founding of the United States of America that we were to be a secular nation,” she said.

The case is Freedom From Religion Found. v. Cty. of Lehigh, 3d Cir., No. 17-3581, 8/8/19.

(Adds addition quotations in paragraphs 7 and 8)

To contact the reporters on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com; Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com