Twice, judges have made it clear that they were holding their noses as they ruled a cross displayed a Pensacola park must come down. Now Pensacola has asked the U.S. Supreme Court to clear the air.
In legal terms, the city has filed a writ of certiorari, asking the Supreme Court to take up a recent ruling by the panel of the 11th Circuit Court of Appeals. The city's hope is that the nation's highest court will overturn an understanding of First Amendment Establishment Clause precedent seen as binding even by judges who have called it "wrong," "a wreck" and "historically unmoored, confusing, [and] inconsistent."
While the judges might have disavowed their own ruling, those on the winning side of the appeal have seen it as a solid interpretation of fundamental principles. Freedom From Religion Foundation Co-President Annie Laurie Gaylor said the appeals court had "affirmed that individuals of minority faiths or no faith at all are full citizens of this country and may not be excluded or proselytized by their government."
The battle began in 2016 when four people, supported by the American Humanist Foundation and other organizations, sued the city of Pensacola. They said they were offended by the 34-foot cross, which has stood for decades in Bayview Park. In June 2017 Senior U.S. District Judge Roger Vinson ruled that the cross had to come down.
Vinson took great pains to make clear that he wasn't happy with his own ruling. Among other things, he described the body of law related to the Establishment Clause as "historically unmoored, confusing, inconsistent, and almost universally criticized by both scholars and judges alike."
"It is still the law of the land and I am not free to ignore it," wrote Vinson, who even hinted that the city might get around it by selling or leasing the land around the cross to a third party. "The law is the law."
Pensacola, supported by the Becket Fund for Religious Liberty and other groups, appealed. The case has continued to draw interest in Alabama and other states. In October 2017, Alabama Attorney General Steve Marshall announced that he had taken the lead in filing an amicus curiae (friend of the court) brief in that appeal. He was joined by the attorneys general of Florida, Georgia, Indiana, Kansas, Louisiana, Missouri, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, South Carolina and Utah.
Marshall argued that the ruling was wrong on several points and that "To continue down the road of the lower court's reasoning would open the door to challenges of religious symbols on thousands of monuments and memorials on public property across the country."
Oral arguments in the appeal were heard in May. In early September a panel of three judges on the 11th Circuit Court of Appeals affirmed Vinson's ruling -- and his tone. The unanimous decision occupies a brisk 10 pages, wrapping up with a complaint that "our hands are tied." To that, U.S. Circuit Judge Kevin Newsom and U.S. District Judge Charles Ashley Royal adding 72 more pages explaining how dissatisfied they are with the status quo that compelled them to decide as they did.
"The Court's Establishment Clause jurisprudence is, to use a technical legal term of art, a hot mess," wrote Newsom.
Royal agreed with that and added, "I think of it more like a wilderness with misdirecting sign posts and tortuous paths. The bad signposts and twisted paths are the various Establishment Clause tests .... all used at one time or another, in one case and then not in another."
Royal in particular argued that the next step should be for the 11th Circuit Court of Appeals as a whole to take up consideration of the matter decided by the three-judge panel. "I urge the Court to take this case en banc so that we can take a first step toward an Establishment Clause analysis that is not only more rational, but also more consistent with prevailing Supreme Court precedent," he wrote.
Whether that wish will bear fruit remains to be seen, and the same is true of the petition to the Supreme Court. According to information provided by Becket, which is providing free representation for Pensacola, the city is asking the Supreme Court to combine the Pensacola Cross case with a similar one involving a Maryland WWI memorial, the Bladensburg Peace Cross.
"Religious symbols aren't like graffiti that the government has to erase as soon as someone complains," said Luke Goodrich, vice president and senior counsel at Becket. "The Constitution lets the government recognize the important role of religion in our history and culture."
"Pensacola is a diverse city that welcomes people of all faiths and none," said Pensacola Mayor Ashton Hayward, a defendant in the original complaint. "The cross is a valuable part of our history; tearing it down would needlessly signal hostility toward religion. The city looks forward to a victory in the Supreme Court."
Parties seeking the removal of the cross have said that because precedent is so definitive, the city's case is pointless. The American Humanist Association reiterated that after the appeals court ruling, describing the appeal as a waste of taxpayer funds and described as a "major victory" for itself and the Freedom From Religion Foundation.
"The decision harmonizes with decades of Establishment Clause precedent finding similar government cross displays unconstitutional," AHA Senior Counsel Monica Miller said of the appeals court ruling.