Appeals Court Requests Reconsideration of “Lemon Test” to Save Historic Cross

Pensacola's World War II-Era Cross Must Go – Or Must It?

(photo: Becket Fund)

“Our hands are tied,” said a federal appeals court in Pensacola, Florida. The court ruled on Sept. 17 that a historic World War II-era memorial cross must come down, 75 years after its installation in a city park. The judges believed that they were bound by precedent – specifically, the controversial “Lemon Test,” which has been criticized as inconsistent with the historical meaning of the Constitution. Since the Lemon Test has never been directly overruled, the three-judge appeals court felt they had no choice but to order removal of the cross; but two of the three judges believed that the cross should remain, and they've asked the U.S. Supreme Court to help.


What Is the Lemon Test?

The Lemon Test is a three-part test enunciated in the case of Lemon v. Kurtzman. The test is used to assess whether a law violates the Establishment Clause of the First Amendment, which provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

The three criteria by which a law is evaluated under the Lemon Test are:

  1. Does the law have a secular purpose? If not, it violates the Establishment Clause.
  2. Is the primary effect either to advance religion or to inhibit religion? If so, it violates the Establishment Clause.
  3. Does the law foster an excessive governmental entanglement with religion? If so, it violates the Establishment Clause.

The Lemon Test is not immutable; since its passage in 1971, it has been criticized by scholars, by the general public, and even by Supreme Court justices. However, until the Court reviews it and takes further action to overrule it, the Lemon Law remains the law of the land.


What Is the Pensacola Cross?

A simple wooden cross was erected in Pensacola's Bayview Park in 1941 by the Jaycees, as the U.S. prepared to enter World War II. It is one of more than 170 displays in Pensacola's parks that commemorate the city's history and culture. The cross has been a popular gathering point for Pensacola citizens who meet at its base for sunrise services, Veteran’s Day and Memorial Day remembrances, and other voluntary gatherings.


Who Are the Complainants?

In 2016 four plaintiffs, represented by the American Humanist Association, filed a lawsuit in federal court to remove the cross. In Kondrat’yev, et al v. City of Pensacola, the plaintiffs, who are atheist, claim that simply seeing the cross is offensive. But they would have to go out of their way to actually see the offending structure: The 28-acre Bayview Park has a senior center, amphitheater, two dog parks, tennis courts, a bocce ball court, playground, several boat ramps and docks, walking trails, picnic areas, and a memorial to a local citizen who died in a water skiing accident. Tucked away in the northeast corner of the park is the memorial cross.

And the plaintiffs aren't likely to be bothered by the cross as they go about their daily lives: According to the Becket Fund for Religious Liberty, which is representing the city of Pensacola in the case, two of the plaintiffs live in Canada; one lives 7 miles away from the park. One of the complainants has held his own ceremonies at the cross.


What Happens Next?

The Pensacola cross case has the potential to finally clarify the relationship of religion and government in our pluralistic society. The 11th Circuit court of appeals ruled that it was “bound” by earlier precedent to rule against the cross; but at the same time, they urged the full 11th Circuit or the U.S. Supreme Court to uphold the cross. The court asked the Supreme Court to join the case of the Pensacola cross with another case currently on the Supreme Court's docket for fall 2018, the American Humanist Association's suit against Bladensburg Peace Cross, a World War I memorial in Maryland. The U.S. Court of Appeals for the 4th Circuit has ruled in favor of the atheist group, but the Supreme Court may overturn that ruling in the coming season.

If the Supreme Court does, in fact, merge these two cases – and if the justices rule in favor of preserving these historic monuments – it may resolve other controversies around the nation, including:

  • a case in Lehigh County, Pennsylvania, demanding that the county remove a cross from its seal. The 70-year-old Lehigh County seal features a number of objects that represent the community's unique history and culture: a bison, factories, cement silos, an oil lamp set on two books, a courthouse, bunting and flags. There is also a cross, commemorating the county's original settlers: Mennonites, Schwenkfelders, Dunkers, Moravians and Amish, religious minorities from Germany, Holland and other nations.
  • a complaint from a local resident in Michigan regarding a large white cross in the Waterloo Recreation Area in Jackson County, which serves as the site of an annual Easter worship service organized by the Grass Lake Ministerial Association. That cross was relocated to private property in May 2018, after the Michigan Department of Natural Resources chose to avoid possible legal action.
  • a pending complaint by a secularist group in Oklahoma, demanding that East Central University remove Christian-specific symbols including a Latin cross, Bibles and a Christian altar from their non-denominational chapel.

The list of cases goes on and on. At Benton High School in Bossier City, Louisiana, a paid advertisement for the Christ Fit Gym, purchased for $3,500, was removed from its football field this month because the ad featured a cross. The McKinney School System in Texas stopped holding their commencement ceremonies at a local megachurch because Plano's Prestonwood Baptist Church refused to remove the cross from its sanctuary – and the Freedom From Religion Foundation objected to the religious symbol being visible during a public school ceremony. Staff at East Lake Elementary School in Henry County, Georgia, received a directive to bleach religion from their classrooms. “You are hereby directed,” said the message,

…to remove all items which contain religious symbols, such as crosses, printed bibles, angels, bible verses, printed prayers, and biblical quotations from the common areas, hallways, classrooms, and office of East Lake Elementary School.

Further…religious and biblical references should not be included in notes to parents, email signature lines, or any other correspondence sent on behalf of East Lake Elementary School.

Finally, please remember that all references to holiday parties should comply with the Henry County School District’s Policy, Procedure and Practices for Holidays.

And the iconic yet controversial Pere Marquette cross monument in Ludington, Michigan, was saved after the Pere Marquette Memorial Association offered to purchase the monument, which was installed on public land, for $800. The offer was accepted, even as a higher offer from the Wisconsin-based Freedom From Religion Foundation, which had lodged the complaint against the cross, was refused. The cross, which marks the spot along Lake Michigan where Jesuit missionary Pere Jacques Marquette drew his last breath, remains standing.