Religious homeless shelters take the stage at Supreme Court

WASHINGTON – The Supreme Court heard a case today involving an Oregon city’s laws that penalize sleeping on public property. In City of Grants Pass v. Johnson, the U.S. Court of Appeals for the Ninth Circuit ruled against Grants Pass, reasoning that the city’s laws imposed “cruel and unusual punishments” because there were not enough shelter beds to house the entire homeless population. The court, however, refused to count religious homeless shelters when it assessed whether there were enough beds available in the city. Becket filed a friend-of-the-court brief explaining how the decision to discount religious shelters was based on a wrongheaded legal standard. 

“Ignoring the good work of religious homeless shelters flouts basic human decency and common sense,” said Daniel Chen, counsel at Becket. “These ministries should not be treated as suspect when they are on the front lines helping solve our nation’s homelessness problem.”

Becket’s brief argues that the Ninth Circuit’s ruling relied on a misguided legal standard known as the Lemon test that the Supreme Court set aside in its 2022 decision in Kennedy v. Bremerton School District. For decades, the Lemon test had caused courts to incorrectly apply the First Amendment’s Establishment Clause, driving religious people and religious ideas out of public life. Even though Lemon was disavowed, many lower courts continue to rely on it. Becket’s brief urges the Supreme Court to reject the Ninth Circuit’s misguided view of the Establishment Clause and reiterate that courts should apply a historical test based on what was understood as a religious “establishment” at the time of the Founding.

Lemon’s specter still casts a dark shadow across the country, including the Ninth Circuit,” said Chen. “The Justices should remind courts that it has already banished this phantom doctrine from our nation’s law so that it can no longer haunt religious people and institutions.” 

A decision is expected by the end of the Court’s term in June.

For more information or to arrange an interview with a Becket attorney, contact Ryan Colby atmedia@becketlaw.orgor 202-349-7219. 

Supreme Court overrules Lemon test, rules in favor of prayer for football coach

WASHINGTON – The Supreme Court ruled in favor of the high school football coach who fought for his right to pray after games, and overturned a decision that had long restricted religious expression in public schools. In Kennedy v. Bremerton School District, Bremerton School District fired Coach Kennedy from his coaching position after school officials decided his quiet, midfield post-game prayer was “coercive” and “divisive” speech that violated the Establishment Clause.  

Becket filed a friend-of-the-court brief in the case on behalf of the U.S. Conference of Catholic Bishops, explaining that “[t]he only way to escape future Establishment Clause confusion” is to overrule the Lemon test. In place of Lemon, Becket explained that the Court should apply our nation’s tradition of free exercise even on school or government grounds. Muslims and Sikhs wear beards, Orthodox Jews wear yarmulkes, and Catholics carry rosaries or wear crucifixes. Forcing prayer into a private booth—the “solution” offered to Coach Kennedy before the Supreme Court intervened—is contrary to the best traditions protected by the First Amendment. 

“We must always remember the importance of prayer in American life,” said Cardinal Timothy M. Dolan of New York, chairman of the U.S. Conference of Catholic Bishops’ Committee for Religious Liberty. “The freedom to pray is essential to the moral duty all people possess toward the truth. The Court’s decision to prevent the forced expulsion of voluntary prayer from public life is a major victory for all Americans who wish to discover and live the truth.” 

In its opinion, the Supreme Court wrote that “[r]espect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head.” Coach Kennedy, the Court held, was pursued by the government “for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses.” 

The Court also pointed out that Coach Kennedy had observed this tradition for years and did not force any of his players to join him. In addition, he made sure his team knew it was optional, and did not play favorites to those athletes that decided to partake in his prayer. All Kennedy wanted to do was retain his position as head coach while adhering to his faith, a right shared by all Americans. Nothing about this is unconstitutional coercion. As the Supreme Court held, “‘[o]ffense does not equate to coercion.’”  

Becket’s brief had also asked the Court to strike out the Lemon test, a vague legal standard used to decide Establishment Clause cases. The Court confirmed that Lemon has long been dead, and that the Establishment Clause is understood through America’s history and tradition of religious pluralism. 

“Since our Founding, our constitutional tradition upholds public religious expression as a natural part of human life and culture,” said William Haun, senior counsel at Becket. “Scrubbing religious expression from the public square, based on nothing more than offense, is as unnatural as it is unconstitutional.” 

Coach Kennedy was represented at the Supreme Court by First Liberty Institute, Paul Clement and Erin Murphy of Clement Murphy PLLC, Spencer Fane LLP, and The Helsdon Law Firm, PLLC.

For more information or to arrange an interview with a Becket attorney, contact Ryan Colby at media@becketlaw.org or 202-349-7219. Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian, and Spanish. 

Kennedy v. Bremerton School District

Fired for public prayer

For eight years, Coach Joseph Kennedy helped lead the football team at Bremerton High School, a public school in Washington. Win or lose, Kennedy would walk to the 50-yard-line after the game, kneel for a few seconds, and thank God in quiet prayer. Eventually, some players asked if they could join Coach Kennedy. He told them, “This is a free country,” and “You can do what you want.” The students soon noticed the tradition and would voluntarily join the coach on the field for an uplifting and unifying message, inviting players from opposing teams to listen in.

Despite receiving an outpouring of support for allowing Coach Kennedy to continue expressing his faith, the school district demanded Kennedy stop praying where anyone could see him because some onlookers might be offended and see it as an unacceptable school “endorsement” of religion. While the school district had no problem with Coach Kennedy inspiring his students, the school district soured on it altogether when it learned that Kennedy did so through prayer. Coach Kennedy refused the school’s censorship and was no longer welcome as part of the coaching staff.

Six years off the field and in court

Coach Kennedy filed a lawsuit against Bremerton School District in 2016 and asked to continue coaching while the case made its way through the court system. The request made it all the way to the United States Supreme Court, where it was ultimately denied and sent back down to the district court to further develop the case. In the decision, four Justices expressed serious concern about how the school district had interpreted the First Amendment.

After the lower courts again sided with the school district, the Supreme Court agreed to hear the case. Becket submitted a friend-of-the-court brief on behalf of the U.S. Conference of Catholic Bishops on March 2, 2022.

Public prayer is not a boogie man

The Ninth Circuit Court of Appeals ruled that the Constitution’s Establishment Clause required the school to ban Coach Kennedy from praying because permitting it would amount to government “endorsement” of religion. The school district’s lawyers have gone even further, labeling Coach Kennedy’s quiet prayers as “coercion” that the government must censor, because an onlooker might not feel comfortable seeing prayer in public.

But that’s not how the Constitution works. The First Amendment lets individual people—not the government—decide whether and how to pray. Becket’s friend-of-the-court brief at the Supreme Court explains a basic truth about public religious expression – it’s a normal and natural part of our culture and shared history as a country and is no more coercive than any other form of protected expression in the public square. Excluding religion—and only religion—from acceptable forms of public expression and inspiration says that something is inherently wrong and offensive about religion itself. The First Amendment takes that conclusion off the table. A coach doesn’t have to check his religion at the schoolhouse gates for fear that someone in the stands might feel offended.

On June 27, 2022, the United States Supreme Court ruled to protect Coach Kennedy, writing that Kennedy was pursued by the government “for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses.” In its decision, the Court also decided to eliminate the Lemon test, a vague legal standard used to decide Establishment Clause cases. The Court confirmed that Lemon has long been dead, and that the Establishment Clause is understood through America’s history and tradition of religious pluralism. The opinion, authored by Justice Gorsuch, pointed to his recent concurrence in Shurtleff v. Boston, where he adopted Becket’s proposal for Lemon’s replacement: a standard rooted in the history and tradition of the Establishment Clause. 

Coach Kennedy was represented by First Liberty Institute, Paul Clement and Erin Murphy (now of Clement & Murphy PLLC), Spencer Fane LLP, and The Helsdon Law Firm, PLLC.  

Photo credit: First Liberty Institute

Becket backs on-field prayer at Supreme Court

WASHINGTON – Becket just filed a friend-of-the-court brief in Kennedy v. Bremerton School District, urging the Supreme Court to protect a person’s right to pray in public.

The brief — filed on behalf of the United States Conference of Catholic Bishops — supports Joseph Kennedy, a high school football coach from Bremerton, Washington. Kennedy had a practice of quietly praying after the close of each football game but was ordered by school officials to stop praying or engaging in conduct that appeared religious in nature.

Public prayer has long been a staple of American life. Laymen, clergymen, statesmen and private citizens throughout American history have prayed publicly over everything from lunch to armed conflict. But Coach Kennedy was told by school officials that his personal prayers somehow violated the Constitution because onlookers might feel uncomfortable.

“The Constitution exists to protect public expressions of faith, not to stop Americans from praying in public,” said Lori Windham, senior counsel at Becket. “The idea that high school football players can handle a tough game, but not the sight of someone kneeling in prayer at the end of the night, is ridiculous.”

Unfortunately, Bremerton school officials suspended Coach Kennedy. When he filed a lawsuit in response, the school officials argued that his personal prayer after football games was an endorsement of religion by the school district and constituted “coercion” against those who might happen to see him praying. But visible outward expressions of faith are common, and even required in many religious traditions. Equating the public display of religion with “coercion” would effectively close the public square to Orthodox Jews who wear yarmulkes, Catholics who cross themselves and carry rosaries, and Muslims who grow beards. Becket’s brief points to history and Supreme Court precedent to show that these forms of religious expression have always been protected, not barred, by the Constitution.

“If there’s one thing more American than football, it’s religious freedom,” said Windham. “We hope the Supreme Court confirms what everyone with common sense knows: when a Christian coach kneels in prayer, or a Sikh schoolteacher wears a kirpan, or a Muslim principal fasts for Ramadan, they are expressing their faith, not establishing a religion.”

Coach Kennedy is represented at the Supreme Court by First Liberty Institute, Kirkland & Ellis LLP, Spencer Fane LLP, and The Helsdon Law Firm, PLLC.

For more information or to arrange an interview with a Becket attorney, contact Ryan Colby at media@becketlaw.org or 202-349-7219. Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian, and Spanish.

Shurtleff v. City of Boston

Permit application to raise a Christian flag denied  

Outside of Boston’s City Hall, three flagpoles stand. The city ordinarily flies the United States flag on one pole, the Commonwealth of Massachusetts flag on another, and the third flagpole’s flag often varies. In order to celebrate Boston’s diversity, the city allows outside, private groups to hold flag-raising ceremonies and display a flag of their choosing on the third pole. These flags can celebrate other countries, cultures and causes.

Between 2005 and 2017, the city approved all 284 flag requests it received. The first denial came in 2017 when Camp Constitution, a religious volunteer organization, asked to raise a flag featuring a red Latin cross to commemorate Constitution Day. Boston decided it would not allow a “religious” flag out of “concern for the so-called separation of church and state.” The message was clear—no religious speech allowed.

Boston’s decision was wrong, but it’s not alone. Government officials have used similar reasoning to exclude religious speech from public spaces and even to deny disaster relief funds to churches and synagogues damaged by hurricanes.

Courts ignore the Constitution

Harold Shurtleff, cofounder of Camp Constitution, sued the City of Boston for its discriminatory permit denial. Applying an outdated interpretation of the Establishment Clause called the Lemon test, the U.S. Court of Appeals for the First Circuit concluded that Boston was correct to censor religious speech. Shurtleff then appealed to the United States Supreme Court. The Court granted review of the case and heard oral argument on January 18, 2022.

Understanding the Establishment Clause

On November 22, 2021, Becket filed a friend-of-the-court brief in the case, pointing out that this mistake happened because Boston’s city officials (and the lower courts) misunderstand the Establishment Clause. Government officials who have an outdated understanding of the Establishment Clause often ban religious elements from the public square simply because they are religious.

This error isn’t limited to Boston. For years, government officials (with approval from lower courts) have been censoring religious expression from the public square in fear of violating the Constitution. Many mistakenly think that exclusion of religion is the safest option. This mistake goes beyond a flagpole—similar reasoning has been used to prohibit religious groups from advertising on trains and buses, exclude religious schools from generally available funding programs, and even deny FEMA aid to churches and synagogues damaged by hurricanes.

The widespread misunderstanding of the Establishment Clause dates back to the 1970s, when courts started to rely on the Lemon test. This legal test is a vague standard that not only ignores history but also has created a mess of Establishment Clause jurisprudence. Becket asked the Supreme Court to formally overrule Lemon so that the hostile censorship against religion in the public square is stopped, once and for all.

During oral argument on January 18, 2022, Justice Kavanaugh cited Becket’s brief and pointed out the failings of the Lemon test.  

On May 2, 2022, the Supreme Court unanimously ruled. Because the City of Boston had a “lack of meaningful involvement in the selection of the flags or the crafting of their messages,” the flag raising was deemed “private, not government, speech.” 

While the Court refrained from disposing of the Lemon test during this decision, Justice Gorsuch said that Lemon came from a “bygone era” and “produced chaos” for the Establishment Clause. He also adopted Becket’s proposal for Lemon’s replacement– a standard rooted in the text, history, and traditions of the Establishment Clause. The next month, in the case Kennedy v. Bremerton School District, the Supreme Court formally announced the end of Lemon.  

 

Nativity scenes win big in Indiana

WASHINGTON – It turns out the ACLU can’t cancel Baby Jesus. A federal appeals court just ruled that the nativity scene at the Jackson County courthouse can stay, making it one of the first federal appeals courts to apply the Supreme Court’s recognition that religious displays like nativity scenes are allowed their place in the public square. The three wise men and the shepherds can now rest easy.     

The Seventh Circuit Court of Appeals said that the County’s display “fits within a long national tradition of using the nativity scene in broader holiday displays to depict the historical origins of Christmas—a traditional event long recognized as a National Holiday.’” 

Becket filed a friend-of-the-court brief in the case on behalf of the group that owns the nativity scene, the Brownstown Area Ministerial Association, explaining that the lower court had incorrectly applied the Lemon test when it decided the nativity scene should be removed from the courthouse. Becket’s view is in line with the Supreme Court’s 2019 ruling that the Lemon test no longer applies to religious displays. The government is instead allowed to recognize the role religion has played—and continues to play—in our society. Fortunately, the Seventh Circuit’s opinion is clear: the Establishment Clause does not compel the government to sweep the public square clean of religious content.  

Most people don’t think Christmas decorations ought to be a federal issue,” said Diana Verm, Senior Counsel at Becket. This decision doesn’t just follow Supreme Court precedent, it also follows common sense: the Establishment Clause protects against coercive government action, not harmless displays of holiday cheer.” 

The Brownstown Area Ministerial Association first purchased the display in question in 2003, and it serves as part of the local “Hometown Christmas celebration,” an opportunity for members of the community to gather together around the courthouse, listen to the high school choir, judge Christmas tree decorations, and eat sweets. But in 2018, an out-of-town passerby drove through the area and was offended by the display. Legal threats and a lawsuit by the ACLU of Indiana threatened to stop the nearly two-decade-old display in its tracks.  

Two other courts have applied the Supreme Court’s American Legion decision to uphold religious displays in Becket cases. This is the third federal appeals to uphold a religious display.  

Indiana Locals defend beloved Christmas display from outsider

WASHINGTON – A local group of ministers in Brownstown, Indiana is defending a beloved nativity scene from an out-of-town stranger represented by the ACLU. After driving by the nativity scene in the close-knit community of Brownstown, the out-of-towner felt offended by the mere sight of the display in the town square and sued the county. Despite the landmark Supreme Court decision in American Legion v. American Humanist Association, which protects public religious symbols, fights like this over popular traditions with religious elements haven’t subsided. Should the outsider and the ACLU prevail at the federal court of appeals, the small town of nearly 3,000 residents will be stripped of a beloved local tradition.

In Woodring v. Jackson County, the district court applied an outdated legal rule (the Lemon test) and struck down the display. Now on appeal to the Seventh Circuit, Becket (representing the Ministerial Association), filed a friend-of-the-court brief in support of the nativity scene, which is part of a broader “Hometown Holiday” display that includes Santa, carolers, and several reindeer. Becket’s brief explains that the Supreme Court meant what it said in American Legion: governments need not scrub the public square of references to religion. They are instead permitted to recognize the role religion has played—and continues to play—in our society.

“The annual nativity isn’t just a beloved holiday tradition, it’s a symbol of unity and God’s “goodwill to all men” during the Christmas season, said Doug Pogue, President, Brownstown Area Ministerial Association. “In a time of such fear and uncertainty in our country, it’s heartbreaking to think that our town could lose this important symbol of hope.”

Since 2019, three courts of appeals have applied American Legion to uphold religious symbols in the public square. If the nativity scene here is struck down, the Seventh Circuit will have ventured off on its own path, splitting from this consensus regarding American Legion’s meaning.

“Scrubbing religious symbols from the public square isn’t neutral—but hostile to religion,” said Diana Verm, senior counsel at Becket. “Three courts of appeals have already followed the Supreme Court’s lead and recognized that principle. We are confident that the Seventh Circuit will follow suit and preserve this beloved local display.”

For more information or to arrange an interview with a Becket attorney, contact Ryan Colby at media@becketlaw.org or 202-349-7219. Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian, and Spanish.

Court protects historic Pensacola cross

WASHINGTON – A historic World War II-era cross in Pensacola, Florida, will remain standing thanks to a victory at the Eleventh Circuit Court of Appeals today. In Kondrat’yev v. City of Pensacola, an atheist group sued the City of Pensacola to remove the monument, which has been standing since 1941. Following the Supreme Court’s decision in American Legion v. American Humanist Association, protecting a World War I memorial cross in Bladensburg, Maryland, the Eleventh Circuit ruled that the cross is constitutional, acknowledging that that it has become “embedded in the fabric of the Pensacola community” and that removing it could “strike many as aggressively hostile to religion.”

The Bayview Cross is one of over 170 displays in Pensacola parks memorializing the City’s diverse history and culture. In 2016, four individuals, represented by the American Humanist Association, sued the City, demanding the cross be torn down, even though three of the individuals do not live in Pensacola and the fourth has held his own ceremonies at the cross. The trial court and an earlier decision by the Eleventh Circuit reluctantly agreed that the cross was unconstitutional under the notorious Lemon test (see video), which has often been successfully invoked by anti-religious plaintiffs to push religion out of the public square. Earlier this year, however, the Supreme Court ordered the Eleventh Circuit to rethink its ruling in light of the Supreme Court’s decision in American Legion, which finally scrapped the Lemon test in cases involving longstanding symbols.

“The Supreme Court has now made clear that religious symbols are an important part of our nation’s history and culture,” said Luke Goodrich, vice president and senior counsel at Becket.

The 78-year-old cross was built in the City’s Bayview Park in 1941, as the U.S. prepared to enter WWII, as a place for the community to unite. Since then, Pensacola citizens have held community events such as Easter sunrise services, Veteran’s Day and Memorial Day remembrances, and other voluntary gatherings at the monument, which has become a significant symbol for the Pensacola community.

“Pensacola is a city with a rich and diverse history. The Bayview Cross is an important part of that history as a symbol of our community’s coming together during a national crisis,” said Grover C. Robinson IV, mayor of Pensacola. “We are pleased by the court’s ruling in this case, and today we celebrate our long-awaited victory and the preservation of the Bayview Cross.”

In the June 2019 Supreme Court ruling upholding the World War I memorial cross in Maryland, Justices cited Becket’s friend-of-the-court brief multiple times. Becket has also successfully defended a statue of Jesus in Montana commemorating fallen World War II soldiers, a historic cross artifact at Ground Zero, and a Pennsylvania county seal.

Penn. court: Don’t toss county seal cross

WASHINGTON, D.C. – Lehigh County, Pennsylvania, is free to continue honoring its history and culture with its 70-year-old seal, including an image of a Latin cross. In FFRF v. Lehigh County, a federal appellate court today rejected an attempt by the Wisconsin-based atheist group Freedom From Religion Foundation to censor the image of a cross from Lehigh County’s historic seal. The U.S. Court of Appeals for the Third Circuit in Philadelphia ruled 3-0 that after the Supreme Court upheld the Bladensburg Cross war memorial as a historic monument, Lehigh County can maintain its seal as a symbol that “has become part of the community.”

Lehigh County’s seal, which has been in use for over 70 years without any complaints, features a cross representing the county’s early German settlers who fled persecution in their homeland seeking religious freedom in America. The seal also features over a dozen other images – such as grain silos, textiles, the Liberty Bell, and a red heart – representing important aspects of the county’s rich history and culture. Becket represented Lehigh County, arguing that the Constitution allows communities to maintain religious symbols in the public square in recognition of the significant role of religion in our history and culture.

“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,’” said Diana Verm, senior counsel at Becket. “It is only right that Lehigh County can continue honoring its history and culture.”

Images of historic significance are common on the seals and flags of states, counties, and towns across America. But in 2016, FFRF sued trying to censor the cross from Lehigh County’s seal. In September 2017, a federal judge ruled in FFRF’s favor, following a Supreme Court case, Lemon v. Kurtzman, which requires courts to guess whether the government is trying to “endorse” religion whenever it mentions God or religion (What is the Lemon Test? Watch this short video).

Becket argues that judges must apply the actual text and historical meaning of the First Amendment. The Supreme Court has since moved away from the so-called Lemon test, ruling that religious symbols in government and in the public square that were acceptable at our nation’s founding are still acceptable today. The court today followed that precedent. Becket has also defended a World War II religious memorial in a Montana ski resort, a 9/11 Ground Zero cross artifact, and a historic Pensacola park cross monument, among others.

“This decision is another nail in the coffin of the Lemon test, making room for our nation’s founding principle that religion is not a blight to be scrubbed from the public square, especially when it represents our history,” said Verm.

For more information or to arrange an interview with a Becket attorney, please contact Ryan Colby at media@becketlaw.org or 202-349-7219. Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian and Spanish.

Supreme Court orders lower court to reconsider Bayview Cross ruling

WASHINGTON  The U.S. Supreme Court today ordered a lower court to rethink its earlier ruling against a historic World War II-era cross in Pensacola, Florida. In Kondrat’yev v. City of Pensacolaa federal appeals court had ruled that the 78-year-old cross must come down, with two of the three judges saying that the outcome was “wrong” but that their “hands were tied” because of the notorious Lemon test (see video)In today’s order, the Supreme Court instructed the lower court to reconsider its ruling in light of the Supreme Court’s recent decision upholding another cross monument in Bladensburg, Maryland. 

In American Legion v. American Humanist Association, decided last week, the Supreme Court rejected an atheist group’s attempt to tear down a nearly 100-year-old World War I memorial in Bladensburg, Maryland, known as the “Peace Cross.” In its 72 decision, the Court refused to apply the Lemon test, instead adopting a “strong presumption of constitutionality” for longstanding monuments. The ruling recognized that a “government that roams the land, tearing down” religious symbols “will strike many as aggressively hostile to religion,” which the Constitution does not require. The Court today told the U.S. Court of Appeals for the Eleventh Circuit to apply these same principles to the cross in Pensacola.  

The Supreme Court’s order is an encouraging sign that the Bayview cross can stay in Pensacola just like the Peace Cross can stay in Maryland,” said  Luke Goodrich, vice president and senior counsel at Becket. We fully expect the lower court to follow the Supreme Court’s lead.” 

A wooden cross was first placed in Pensacola’s Bayview Park in 1941 by the Jaycees, a local community service group, as the U.S. prepared to enter World War II. The cross has been a popular gathering place for over 75 years and is one of over 170 displays in Pensacola’s parks commemorating the city’s history and culture. In 2016, an atheist organization sued the city, claiming that the cross is “offensive” and establishes a government religion. 

Becket is representing the City of Pensacola free of charge together with Stanford Law Professor and former Tenth Circuit Judge Michael W. McConnell. The city is also represented by J. Nixon Daniel, III, and Terrie L. Didier of Beggs & Lane. 

For more information or to arrange an interview with a Becketattorney, contact  Ryan Colby atmedia@becketlaw.orgor 202-349-7219.Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian, and Spanish. 

Supreme Court protects WWI cross memorial

WASHINGTON, D.C. – The U.S. Supreme Court today ruled 7–2 in favor of a nearly 100-year-old World War I memorial in Bladensburg, Maryland, known as the “Peace Cross,” allowing it to remain standing. The ruling has important implications for a similar lawsuit over a 78-year-old cross erected in Pensacola during World War II.

The following statement can be attributed to Grover Robinson IV, mayor of Pensacola: “The Bayview cross is a valuable part of Pensacola’s diverse history and culture. We welcome the Supreme Court’s ruling upholding the Maryland Peace Cross, and we look forward to a similar ruling in our case.”

A wooden cross was first placed in Pensacola’s Bayview Park in 1941 by the Jaycees, a local community service group, as the U.S. prepared to enter World War II. The cross has been a popular gathering place for over 75 years and is one of over 170 displays in Pensacola’s parks commemorating the city’s history and culture. In 2016, an atheist organization sued the city, claiming that the cross is “offensive” and establishes a government religion.

In Kondrat’yev v. City of Pensacola, a federal appeals court ruled that the cross must come down, but two of the three judges who decided the case said the result was “wrong” and called on the Supreme Court to fix its jurisprudence. Pensacola then appealed to the Supreme Court, which put the case on hold awaiting the outcome in the Maryland Peace Cross case.

“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, which is representing the city. “The Supreme Court has rightly ruled that governments can recognize the important role of religion in our history and culture.”

The Supreme Court is expected to take action on Pensacola’s appeal within the next few days.

For more information or to arrange an interview with a Becket attorney, contact Ryan Colby at media@becketlaw.org or 202-349-7219. Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian, and Spanish.

Supreme Court protects Maryland “Peace Cross”

WASHINGTON, D.C. – Moments ago, the U.S. Supreme Court ruled 7–2 in favor of a nearly 100-year-old World War I memorial in Bladensburg, Maryland, known as the “Peace Cross,” allowing it to remain standing. In American Legion v. American Humanist Association, a group of anti-religious atheists had sued to tear down the memorial, claiming that it was offensive and “endorsed” religion. The Court’s opinion overturns a ruling by the U.S. Court of Appeals for the Fourth Circuit against the Peace Cross and states that, for many, “destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.”

In its friend-of-the-court brief, Becket urged the Supreme Court to abandon the Lemon test and uphold the cross based on the historical understanding of what constituted an “establishment” of religion at the time of the nation’s founding (watch video here). In their opinion, the Justices agreed that religious expression in the public square has been common throughout our history and need not be erased just because it includes religious elements. Justices Thomas and Gorsuch both cited Becket’s brief in their concurring opinions.

“The Supreme Court rightly recognized that religious symbols are an important part of our nation’s history and culture,” said Luke Goodrich, vice president and senior counsel at Becket. “We look forward to the coming gap in cable-news programming, as atheist organizations that made bank by suing over harmless religious symbols find a new line of work and learn to look the other way.”

The Bladensburg memorial was designed by mothers who lost their sons in the World War I and was erected in 1925 on private land with funds raised by the American Legion, a military veterans association. In 2014, the American Humanist Association, an anti-religion activist group, sued to tear down the Peace Cross. The same group also sued to tear down a World War II cross monument in Pensacola, Florida, in a case the Court is expected to act on soon.

The Maryland-National Capital Park and Planning Commission, which maintains the cross, is represented by Hogan Lovells. The American Legion is represented by Jones Day. Becket was represented on its brief by Stanford law professor and former Tenth Circuit Judge Michael W. McConnell.

For more information or to arrange an interview with a Becket attorney, contact Ryan Colby at media@becketlaw.org or 202-349-7219. Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian, and Spanish.

Supreme Court hears case to decide fate of WWI memorial

WASHINGTON, D.C. – Moments ago, the U.S. Supreme Court heard arguments in American Legion v. American Humanist Association, where a group of anti-religious atheists sued to tear down a World War I memorial in Maryland. During oral argument, Chief Justice Roberts raised the argument Becket had urged in its friend-of-the-court brief, suggesting that a historical approach offers a clear way for resolving disputes about religious symbols in the public square.

In October 2017, the U.S. Court of Appeals for the Fourth Circuit ruled against the Bladensburg Peace Cross memorial using the notorious Lemon test, a vague legal standard that requires courts to guess whether the government is trying to “endorse” religion whenever it mentions God or religion. In its brief to the Supreme Court, Becket urged it to abandon the Lemon test and uphold the cross based on the historical understanding of what constituted an “establishment” of religion at the time of the nation’s founding.

“The nation’s founders knew what an unconstitutional establishment of religion looked like, and a passive symbol like a memorial cross wasn’t it,” said Eric Baxter, vice president and senior counsel at Becket. “The Supreme Court should drive a pencil through the monstrous Lemon test’s heart once and for all and recognize the important role of religious symbols in our nation’s history, culture, and in the public square.”

The Bladensburg memorial was designed by mothers who lost their sons in the World War I and was erected in 1925 on private land with funds raised by the American Legion, a military veterans association. The cross shape is an internationally recognized symbol of sacrifice and loss and a frequently used symbol to honor fallen soldiers. The American Humanist Association, an anti-religious activist group, is suing to take the memorial down.

The Maryland-National Capital Park and Planning Commission, which maintains the cross, is represented by Hogan Lovells. The American Legion is represented by Jones Day. Becket was represented on its brief by Stanford law professor and former Tenth Circuit Judge Michael W. McConnell. The Supreme Court is expected to issue a decision this summer.

Speaker v. Fields

Centuries-old tradition under attack in Pennsylvania

For centuries, state and federal legislatures have started their sessions with prayer. The prayers are sometimes led by legislative chaplains, other times by legislative members or guests who represent faith groups from across the state.

In 2016, a group of secular atheists, many of whom publicly mock prayer and religion, requested to serve as chaplains and deliver non-religious “invocations” in the Pennsylvania State House. The Pennsylvania House speaker denied their request on the grounds that their beliefs were not religious. In August 2016, the atheists sued the Speaker of the Pennsylvania House in federal court, claiming that it violated the Establishment Clause to bar a non-religious person from offering prayer.

Legislative prayer reminds us that our rights come from something higher than government

Legislative prayer is a tradition that goes back to our nation’s founding. Both houses of the First Congress hired chaplains who, just a couple of years later, likely prayed on the days Congress debated the Bill of Rights. The Supreme Court has held that such prayers, recognized by the Framers and existing for decades without leading to an establishment of religion, do not violate the Establishment Clause. Moreover, legislative prayer supports the Constitution by reminding us of the source of our rights: a power higher than the government.

Acknowledging the important place legislative prayer holds does not require government to give atheistic non-prayer the same platform. The prayer simply accommodates religious believers in what is already a secular process. The Pennsylvania State House that requires guest speakers for invocations be members of the legislature or members of a church or religious organization. This makes sense. Everyone has beliefs, but not all beliefs are religious. The purpose of the chaplaincy is to provide religious support. To allow militant and other secular atheists to occupy the chaplaincy undermines the purpose of the position in the first place. The group of atheists suing the Pennsylvania State House do not appeal to a higher power, and on top of that, they are known for mocking and ridiculing religion.

What’s at stake includes more than legislative prayer. Since our nation’s founding, religion has had a special distinction in the law as a right that cannot be overruled by government. Giving non-religious beliefs the same platform and distinction as religious beliefs would undermine more than just religion—it would weaken the legal foundation of our religious liberty.

Becket steps in

In August 2018, the district court decided in favor of the atheists, ruling that the Pennsylvania State House legislative prayer policy violates the Constitution. The Speaker of the Pennsylvania House appealed the case to the Court of Appeals for the Third Circuit. Becket filed a friend-of-the-court brief on behalf of several chaplains, and on August 23, 2019 the Third Circuit ruled in favor of the Speaker of the House, writing, “we uphold the policy because only theistic prayer can satisfy the historical purpose of appealing for divine guidance in lawmaking.”

IMPORTANCE TO RELIGIOUS LIBERTY

  • Public square: Because religious exercise is natural to human beings, it is natural to human culture. Religious expression, including legislative prayer, should not be treated as dangerous or scrubbed from our public discourse.
  • Legislative prayer: Contrary to thinking that legislative prayer violated the Establishment Clause, our nation’s founders in fact explicitly understood legislative prayer to be a reminder of the source of our rights: a power higher than the government. In 2014, the U.S. Supreme Court ruled that legislative prayer was constitutional in Town of Greece v. Galloway.

Morris County, NJ: Let us preserve our history!

WASHINGTON, D.C. – Morris County, New Jersey, filed a petition Tuesday asking the U.S. Supreme Court to protect its historic preservation program after the New Jersey Supreme Court ordered a halt to participation by historic houses of worship. In FFRF v. Morris County Board of Freeholders, the Freedom From Religion Foundation—a Wisconsin-based militant atheist organization—sued the county for allowing historic houses of worship to apply for preservation funds on equal terms with all other historical sites. Grants are awarded under neutral criteria, and houses of worship can only use the grants to repair a historic building’s exterior and mechanical systems. But the New Jersey Supreme Court ruled that giving neutral treatment to houses of worship constituted religious activity in violation of the New Jersey Constitution. Yesterday’s filing asks the Supreme Court to let Morris County continue treating all historic sites the same, without having to engage in religious discrimination.

In its 2017 Trinity Lutheran ruling, the U.S. Supreme Court protected a church’s right to participate in a generally available public program, stating that excluding the church because of its religious status would violate the First Amendment. But lower courts have been divided on how far that extends. Several courts, including the New Jersey Supreme Court, have ruled that historic preservation funding cannot be given to houses of worship, while several other courts have ruled that houses of worship cannot be excluded without violating the Constitution.

“Time does not discriminate,” said Diana Verm, legal counsel at Becket, a non-profit religious liberty law firm representing Morris County in its petition before the Supreme Court. “It takes its toll on all our historic structures, secular and religious alike. The county should not be forced to discriminate by favoring secular sites in its preservation efforts.”

The state of New Jersey has a long history of funding historic preservation for buildings, including churches. One of the state’s earliest grants was to the 1850 Solomon Wesley Church, an active house of worship originally built to serve a community of freed slaves.

“In Morris County, we want to preserve all of our historical sites, including our magnificent houses of worship, some of which date back to the 1700s and were designed by the leading architects of their time,” said Doug Cabana, the freeholder director of Morris County. “Preserving the character and beauty of our county is a critical element of the county’s cultural and economic success.

Last year Becket along with Thomas A. Gentile of Wison Elser in Florham Park, New Jersey filed a friend-of-the-court brief defending Morris County’s grant program and the Catholic, Baptist, Episcopal, Methodist, and Presbyterian churches whose buildings have been restored thanks to the program. Becket is now counsel for the county in this case.

For more information or to arrange an interview with a Becket attorney, contact Melinda Skea at media@becketlaw.org or 202-349-7224. Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian, and Spanish.

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Becket is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions and has a 100% win-rate before the United States Supreme Court. For over 20 years, it has successfully defended clients of all faiths, including Buddhists, Christians, Jews, Hindus, Muslims, Native Americans, Sikhs, and Zoroastrians (read more here).

Pensacola to Supreme Court: Historic cross can fix First Amendment dross

WASHINGTON, D.C. – The City of Pensacola, Florida, asked the U.S. Supreme Court late yesterday to protect a historic World War II-era memorial cross that has stood in a city park for over 75 years. In Kondrat’yev v. City of Pensacola, a federal appeals court ruled that the cross must come down, but two of the three judges who decided the case said the result was “wrong” and called the Supreme Court’s jurisprudence a “hot mess.” The appeal comes as the Supreme Court is considering a similar case involving the Bladensburg Peace Cross, a World War I memorial in Maryland. Pensacola has asked the Supreme Court to join the two cases together and decide if historic symbols like the cross are permitted in the public square.

A wooden cross was first placed in Pensacola’s Bayview Park in 1941 by the Jaycees, a local community service group, as the U.S. prepared to enter World War II. The cross has been a popular gathering place for over 75 years and is one of over 170 displays in Pensacola’s parks commemorating the city’s history and culture. In 2016, an atheist organization sued the city, claiming that the cross is “offensive” and establishes a government religion.

“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, which is representing the city. “The Constitution lets the government recognize the important role of religion in our history and culture.”

The court of appeals based its ruling on the notorious “Lemon test” (see video), which has been criticized by scholars and Supreme Court justices as inconsistent with the historical meaning of the Constitution. Nevertheless, the court said the Lemon test hasn’t been “directly overruled,” so “our hands are tied.” Two of the three judges said the law should be fixed and the cross should remain.

“Pensacola is a diverse city that welcomes people of all faiths and none,” said Ashton Hayward, mayor of Pensacola. “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.”

Becket is representing the City of Pensacola free of charge together with Stanford Law Professor and former Tenth Circuit Judge Michael W. McConnell. The city is also represented by J. Nixon Daniel, III, and Terrie L. Didier of Beggs & Lane.

For more information or to arrange an interview with a Becket attorney, contact Melinda Skea at media@becketlaw.org or 202-349-7224. Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian, and Spanish.

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Becket is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions and has a 100% win-rate before the United States Supreme Court. For over 20 years, it has successfully defended clients of all faiths, including Buddhists, Christians, Jews, Hindus, Muslims, Native Americans, Sikhs, and Zoroastrians (read more here).

BREAKING: Court wants to uphold historic Pensacola cross, but can’t — yet

WASHINGTON, D.C. – A historic World War II-era memorial cross in Pensacola, Florida, must come down, according to a federal appeals court that ruled in favor of an atheist activist group in Kondrat’yev v. City of Pensacola. But the court said it ruled that way only because it was bound by “flawed precedent” from thirty-five years ago that “needs to be reversed.” The city says it will appeal.

In 2016, the American Humanist Association sued the city on behalf of four individuals who said the cross was offensive. Last year, a federal judge ruled that the cross violated the Constitution’s Establishment Clause and must be torn down. The ruling relied on a case decided by the Eleventh Circuit in 1983, called ACLU v. Rabun County, which also struck down a cross. The Eleventh Circuit today stated that it was “bound” by Rabun to rule against the cross, but two of the three judges said Rabun was “wrong” and “needs to be reversed.” They urged the full Eleventh Circuit “to rehear this case” to “correct the errors that Rabun perpetuates” and uphold the cross.

“The Constitution doesn’t require the government to scrub every religious symbol from the public square,” said Luke Goodrich, vice president and senior counsel at Becket, which is representing the city. “The Supreme Court has repeatedly said that the government can recognize religion as a fundamental part of our history and culture, and we’re glad that the majority of the court agreed that the cross is constitutional.”

A wooden cross was first placed in Pensacola’s Bayview Park in 1941 by the local chapter of the Junior Chamber of Commerce (Jaycees)—a private, civic, nonprofit organization—as the United States prepared to enter World War II. For decades, the Jaycees and other groups have hosted community events at the memorial, including Veteran’s Day and Memorial Day remembrances. Today it continues to serve as a gathering place for both religious and nonreligious groups within the Pensacola community and as a significant symbol of the city’s history. The cross is one of over 170 displays in Pensacola parks reflecting different aspects of the city’s unique history and culture.

“This cross is more than a religious symbol,” said Ashton Hayward, mayor of Pensacola. “It’s an important part of our city’s history and culture – just like many other monuments celebrated throughout Pensacola’s parks. To tear down this symbol just because a few are offended by it shows hostility to religion, not neutrality. The city looks forward to being vindicated on appeal—as the majority of the court said it should be.”

The city has 14 days to ask for rehearing by the Eleventh Circuit or 90 days to ask the Supreme Court to hear the case. The Supreme Court is also considering whether to review a challenge to the Bladensburg Cross, a World War I memorial in Maryland. Becket, which is representing the City of Pensacola free of charge, recently filed a brief in that case. Pensacola is also represented by J. Nixon Daniel, III, and Terrie L. Didier of Beggs & Lane.

For more information or to arrange an interview with a Becket attorney, contact Melinda Skea at media@becketlaw.org or 202-349-7224. Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian, and Spanish.

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Becket is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions and has a 100% win-rate before the United States Supreme Court. For over 20 years, it has successfully defended clients of all faiths, including Buddhists, Christians, Jews, Hindus, Muslims, Native Americans, Sikhs, and Zoroastrians (read more here).

Atheists try to kick cross to the curb in Penn. county seal case

WASHINGTON, D.C. – Lehigh County, Pennsylvania defended its historic seal in court today from a militant atheist lawsuit suing to scrub the seal of a religious symbol representing one aspect of the county’s rich history. In FFRF v. Lehigh County, the Wisconsin-based atheist group Freedom From Religion Foundation sued Lehigh County, demanding the county remove the image of a cross from the seal on the theory that it establishes Christianity as the official religion. The U.S. Court of Appeals for the Third Circuit must decide whether the law requires stripping all religious symbols from the public square or, instead, protect them as a legitimate part of our country’s history and culture. (Watch Twitter Live statement here.)

The seal, which has been in use for over 70 years without complaint, features a cross, representing the county’s early German settlers who fled persecution in their homeland for religious freedom in America. The seal also features over a dozen other images – such as cement silos, textiles, a farm, the Liberty Bell, and a red heart – representing important aspects of the county’s rich history and culture. Becket represents Lehigh County before the U.S. Court of Appeals for the Third Circuit, arguing that the Constitution allows religious symbols in the public square in recognition of the importance of religion in our history and culture.

“FFRF is like the wicked witch of the west: A drop of religion and they scream ‘I’m melting!’” said Eric Baxter, VP & senior counsel at Becket, which is representing Lehigh County. “But flags with historically-significant religious images are part of American culture: New Mexico’s flag has the sacred sun symbol of the Zia Native American tribe, Louisiana’s has a Catholic symbol of a pelican with a bleeding heart to feed its hatchlings the Eucharist, and Utah’s has multiple images that recall the Mormon pioneers.”

Images of historic significance are common on the seals and flags of states, counties, and towns across America. Yet in 2016, FFRF sued Lehigh County, trying to censor the cross from the seal. In September 2017, a federal judge ruled in FFRF’s favor. Instead of applying the actual text and original meaning of the First Amendment, the judge felt bound by an old Supreme Court case, Lemon v. Kurtzman, which requires courts to guess whether the government is trying to “endorse” religion whenever it mentions God or religion (What is the Lemon Test? Watch this short video.)

But the Supreme Court has moved away from the Lemon test, ruling that religious symbols in government and in the public square that were acceptable at our nation’s founding are still acceptable today and that recognizing the role of religion in our nation’s history and culture does not violate the Constitution. Becket has also defended a World War II religious memorial in a Montana ski resort, a historic Pensacola park cross monument, and a 9/11 Ground Zero cross artifact, among others.

“There is nothing unconstitutional about using our flags and seals to accurately reflect history and culture—even if it happens to be religious,” said Baxter.

A decision is expected by early next year.

For more information or to arrange an interview with a Becket attorney, please contact Melinda Skea at media@becketlaw.org or 202-349-7224. Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian and Spanish.

Appeals court upholds “In God We Trust,” affirms “sea change” in law

WASHINGTON, D.C. – A federal appeals court protected religion in the public square today, rejecting an attempt to strip the national motto “In God We Trust” from U.S. coins and bills. New Doe Child # 1 v. The Congress of the United States is atheist activist Dr. Michael Newdow’s most recent loss in a string of cases trying to remove any mention of God in government. Crucial to the Eighth Circuit’s decision was its adoption of Becket’s argument that under a 2014 Supreme Court case, all Establishment Clause rulings must now align with U.S. history on religion in the public square. Becket uniquely raised this argument in a friend-of-the-court brief, after the federal government failed to do so.

The court found that the U.S. Supreme Court’s 2014 decision in Town of Greece v. Galloway “offered an unequivocal directive: ‘[T]he Establishment Clause must be interpreted by reference to historical practices and understandings.” The court recognized that Galloway was “‘a major doctrinal shift’ in Establishment Clause jurisprudence,” one that overrules past case law that would threaten “Government acknowledgments of religions,” such as the National Motto. Previous cases had abandoned objective historical analysis for free-floating judicial tests that led to absurd results.

“The good news is you no longer need to be afraid that the pennies in your pocket are gateway drugs to theocracy,” said Diana Verm, counsel at Becket. “The Court was right to say that the First Amendment does not ban ‘In God We Trust.’ For too long, the country has been stuck in what Justice Gorsuch once described as ‘Establishment Clause purgatory.’ The court’s decision today is a huge step towards setting things right.”

Newdow’s lawsuits have long been fueled by the Lemon test, a notorious legal test that ignores what the Founders considered to be an establishment of religion and invites anti-religious activists to file lawsuits against anything that looks vaguely religious. Lemon has been much reviled by justices, judges, and legal experts for its incoherence and invited hostility toward religion. The Supreme Court’s landmark Galloway decision implicitly rejected Lemon and replaced it with an objective evaluation of our nation’s history.

Yet lower courts have still been using the Lemon test, allowing Newdow to claim that the national motto, which has appeared on U.S. currency since 1864, violates his rights as an atheist. Conspicuously absent from the court’s opinion today was any discussion of Lemon, and the court noted that it was breaking with other federal appeals courts to follow Galloway’s “unequivocal directive.”

For more information or to arrange an interview with a Becket attorney, please contact Melinda Skea at media@becketlaw.org or 202-349-7224. Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian and Spanish.

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Becket is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions. For over 20 years, it has defended clients of all faiths, including Buddhists, Christians, Jews, Hindus, Muslims, Native Americans, Sikhs, and Zoroastrians (read more).

Barker v. Conroy

A tradition dating back to the nation’s founding

Since 1789, the U.S. House of Representatives has included the traditional office of chaplain. Besides offering pastoral care to the members of the House—including presiding over memorials and funerals—the chaplain opens legislative sessions with a prayer. The practice of legislative prayer can be traced back to the time of the Founding Fathers, who did not see it as a forbidden “establishment of religion” but rather as a powerful reminder of their own limited political authority: the people’s inalienable rights did not come from government or its officials, but from a divine source that superseded government. Today, members of Congress are welcome to invite others to give the opening prayer with the chaplain’s permission, and people of many diverse faiths have done so over the years, including Christians, Hindus, Jains, Jews, and Muslims.

Anti-religion activist seeks to dismantle tradition

In February 2015, Dan Barker, co-president of the Freedom From Religion Foundation (best known for his anti-religious beliefs and his Foundation’s lawsuits that ridicule religion and religious people), attempted to disrupt over 200 years of tradition and requested to open a legislative session with a “non-prayer.” FFRF is a group that seeks to scrub public life of all references to religion, and Barker is a self-avowed atheist who has worked for years to dismantle religion and its presence in the public square, frequently through ridiculing religion and religious people. When the House chaplain rejected Barker’s request, Barker sued the House in district court in May 2016 arguing that he had the right to begin a legislative session with a non-prayer under the First Amendment’s Free Exercise Clause and the Religious Freedom Restoration Act (RFRA). He also claimed that the House’s practice of opening with prayer violated the Establishment Clause of the First Amendment.

The courts agree with Becket: Legislative prayer is constitutional

In May 2014, the U.S. Supreme Court ruled that legislative prayer is constitutional in Town of Greece v. Galloway, a case where Becket filed a friend-of-the-court brief defending legislative prayer. This landmark case set a precedent for lower courts, and in October 2017, the district court properly ruled against Barker. Barker then appealed the Establishment Clause claim to the U.S. Court of Appeals for the D.C. Circuit. Thomas Hungar, general counsel of the U.S. House of Representatives defended.

In July 2018, Becket filed a friend-of-the-court brief, explaining the clear constitutionality of legislative prayer as decided by the U.S. Supreme Court. The brief also explains that the Establishment Clause is not triggered every time the government acknowledges or supports religion. Religious practices—like legislative prayer—that existed at our nation’s founding and were accepted by the drafters of the Establishment Clause do not violate the Establishment Clause. The Founders were concerned about eliminating religious coercion by the state, not about stripping religion from public life. Merely being exposed to other’s religious practices does not amount to coercion. This important distinction is critical to understanding the First Amendment and the founding generation’s understanding of the special role religion plays in our history, traditions, and culture.

The D.C. Circuit heard oral argument in October 2018. On April 19, 2019, the court unanimously ruled that the House of Representatives does not violate the Establishment Clause by requiring its opening prayer to be a religious prayer. The court’s ruling reinforces that the Establishment Clause must be interpreted in line with its historical meaning and that the founders would not have considered the longstanding tradition of legislative prayer to be an establishment of religion. It also affirms the legitimate place of religion in public life.


Importance to religious liberty

  • Public square: Because religious exercise is natural to human beings, it is natural to human culture. Religious expression, including legislative prayer, should not be treated as dangerous or scrubbed from our public discourse.

Court to decide fate of historic Pensacola cross

WASHINGTON, D.C. – The city of Pensacola, Florida, was in court today defending a historic World War II-era landmark from an atheist group suing to tear it down. In Kondrat’yev, et al v. City of Pensacola, the city of Pensacola, represented by Becket, appealed to the U.S. Court of Appeals for the Eleventh Circuit to preserve a 77-year old cross located in a public park after a lower court ordered its removal.

The cross was placed in Pensacola’s 28-acre Bayview Park in 1941 by a local community service group as the U.S. prepared to enter World War II. For decades, the cross has been the site of numerous community events, including Veterans Day and Memorial Day services, and is one of over 170 other displays in Pensacola’s parks. Together, these displays tell the story of the city’s rich history and culture.

“Religious symbols aren’t like graffiti that the government should erase as soon as someone complains,” said Luke Goodrich, vice president and senior counsel at Becket, a non-profit religious liberty law firm representing the city. “The Constitution allows the government to recognize the significant role of religion in our nation’s history and culture.”

In 2016, the American Humanist Association sued the city on behalf of four individuals who said the cross was offensive. Two of those people live in Canada; the third lives outside the city; and the fourth has used the cross for his own “satanic purposes.” Last year, a federal judge ruled that the cross violated the Constitution’s Establishment Clause and must be torn down. However, the ruling relied on the notorious Lemon test, which the Supreme Court has rejected as inconsistent with the historical meaning of the Constitution.

The city has received a groundswell of support from fourteen states, five major Jewish groups, and an association of attorneys representing cities across the country. The broad coalition of religious and secular groups filed several friend-of-the-court briefs urging the court to protect the 77-year-old landmark from being torn down.

“Pensacola is proud of the pivotal role it has played in American history – and we should be free to celebrate that history,” said Ashton Hayward, mayor of Pensacola. “The cross was erected by local Pensacolans who wanted to come together on the eve of World War II, and it continues to serve as a reminder of our city’s rich history and culture.”

A decision is expected by the court in late summer.

For more information or to arrange an interview with a Becket attorney, please contact Melinda Skea at media@becketlaw.org or 202-349-7224. Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian and Spanish.

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Becket is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions. For over 20 years, it has defended clients of all faiths, including Buddhists, Christians, Jews, Hindus, Muslims, Native Americans, Sikhs, and Zoroastrians (read more).

Historic Florida cross heads back to court

WASHINGTON, D.C. – The city of Pensacola, Florida, will be in court today defending a historic cross in a city park from an atheist lawsuit demanding the cross be torn down. In Kondrat’yev, et al v. City of Pensacola, the city of Pensacola is appealing to the U.S. Court of Appeals for the Eleventh Circuit to protect the 77-year-old cross, which was placed in the city’s Bayview Park in 1941 by a local community service group as the U.S. prepared to enter World War II.

For decades, the cross has been the site of numerous community events, including Veterans Day and Memorial Day services, and today it stands as a symbol of the city’s history and culture along with over 170 other displays in Pensacola’s parks. But in 2016, the American Humanist Association sued the city of Pensacola on behalf of four people – two of whom reside in Canada – who said the cross was “offensive.” Last year a lower court recognized that the Founding Fathers would have “found this lawsuit absurd,” but still ruled that the cross must be torn down. The city, represented by Becket, appealed, arguing that the Constitution does not require the government to strip every religious symbol from the public square (watch this short video to find out why).

What:
Oral Argument in Kondrat’yev, et al v. City of Pensacola

Who:
Luke Goodrich, vice president and senior counsel at Becket
Ashton Hayward, Pensacola mayor

When:
Today, May 16, 2018 at 9:00 a.m. EST

Where:
U.S. Court of Appeals for the Eleventh Circuit
Courtroom 339
56 Forsyth St., N.W., Atlanta, Ga., 30303

Becket attorney and Pensacola mayor will provide statements and be available for comment after the hearing.

Becket is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions. For over 20 years, it has defended clients of all faiths, including Buddhists, Christians, Jews, Hindus, Muslims, Native Americans, Sikhs, and Zoroastrians (read more).

Freedom From Religion Foundation v. Lehigh County

Seals and flags reflect our nation’s history and culture

Images of historic significance are common on the seals and flags of states, counties, and towns across America. New Mexico’s flag has a single image: the sacred sun symbol of the Zia Native American tribe. Louisiana’s flag has a symbol of a pelican with a bleeding heart that feeds its hatchlings, a symbol long used to illustrate how Christians are nourished by the Eucharist and reflecting the early French Catholic influence in the Louisiana Territory. Utah’s flag and seal have images recalling the Mormon pioneers. And many seals and flags in the American southwest have images of friars and mission churches reflecting the early influence of Spanish Catholics in that region.

Militant atheists try to scrub history from Lehigh County’s seal

Lehigh County, Pennsylvania’s seal includes a collection of images that reflect its history and culture. These images include cement silos, textiles, and a farm, symbolizing significant aspects of the County’s early economy; the Liberty Bell and a red heart, symbolizing its role in the American Revolution and its sense of patriotism; a lamp with books, representing its schools; and a cross, recalling the early Christians who settled Lehigh County in pursuit of religious freedom.

The county’s seal has existed for over 70 years without controversy. But in 2016, militant atheists from the Wisconsin-based Freedom From Religion Foundation (FFRF) sued, demanding that the federal court in Pennsylvania scrub the cross from the county’s seal. They claim that including the cross among the dozen symbols on the seal establishes the Christian religion as the official county religion, and so it must be removed.

Lehigh County fought back—not to endorse one religion over another or religion over nonreligion—but simply to preserve a small reminder that the religious minorities who settled Lehigh County played an important role in its history that is worth remembering, just as it is worth remembering Lehigh County’s early role in the American Revolution, its early economic influences, and its patriotism and schools. Memorializing history is not unlawful just because aspects of it happen to be religious.

Defending religious symbols in the public square

In September 2017, a federal district judge issued an opinion noting that Lehigh County’s seal complies with the actual text of the First Amendment and with the intent of the founding fathers, who wanted to protect citizens from having to worship against their will or pay for churches they didn’t like, but never intended to strip every reference to religion from the public square. The court thought the case should be “cut and dry” for the county. But instead of applying the actual text and meaning of the First Amendment, the court felt bound by an old Supreme Court case, Lemon v. Kurtzman, which requires courts to guess whether the government is trying to “endorse” religion whenever it mentions God or religion. Thanks to Lemon, the courts are flooded with cases challenging “In God We Trust” on our coins, the phrase “Under God” in the pledge of allegiance, prayers in public meetings, and the countless religious images on state and federal buildings, flags, seals, and war memorials.

Even the Supreme Court seems to agree that enough is enough. In recent years it has moved away from the Lemon test, ruling that manifestations of religion in government and in the public square that were acceptable at our nation’s founding are still acceptable today and that recognizing the role of religion among our nation’s peoples, history, and culture does not violate the Constitution.

The case reached the Third Circuit Court of Appeals, to decide whether Lehigh County included the cross to force Christianity on its citizens or whether the cross is simply a reminder, among a dozen others, of one significant aspect of the county’s history. The Third Circuit placed the case on hold while the Supreme Court considered a challenge to a historic war memorial in the form of a cross on public land in Bladensburg, Maryland. On June 20, 2019, the Supreme Court ruled 7-2 in favor of the Bladensburg cross.

On August 8, 2019, following the Supreme Court’s precedent, the Third Circuit Court of Appeals ruled 3-0 that Lehigh County can maintain the Latin cross in its seal as a symbol significant to the county’s history. The court recognized that “Lemon does not apply” to religiously expressive imagery in the public square in light of the Bladensburg decision, and that requiring “the cross’s extirpation” could be hostile, not neutral, toward religion.

Becket has also defended a World War II religious memorial in a Montana ski resort, a historic Pensacola park cross monument, and a 9/11 Ground Zero cross artifact, among others.

Importance to Religious Liberty:

  • Public Square: Religion is a natural part of human culture and has a natural place in the public square. The government is not required to strip the public square of important symbols just because they are religious.     

Militant atheists cross over historic cross, but county pushes back

WASHINGTON, D.C. – Lehigh County, Pennsylvania, asked a federal court late yesterday to protect its county seal from a threatened whitewashing for having a religious image on it. In Freedom From Religion Foundation (FFRF) v. Lehigh County, the militant atheists at FFRF are asking the court to strip the image of a cross from among a dozen other images all representing aspects of the County’s history and culture. The cross was included to honor the County’s early German settlers who fled persecution in their homeland for religious freedom in America. The County, represented by Becket, argues that it is not illegal to recognize history, including its religious aspects.  

In the early 1940s, Lehigh County adopted a seal to reflect its rich history, economy, and culture. The seal includes symbols important to the county and its history: cement silos, a bison head, a red heart, an oil lamp and books, the Liberty Bell, and the cross, among others. The seal has existed for over 70 years without controversy. But now, FFRF is suing to scrub the cross from the seal, claiming that it establishes Christianity as an official county religion. 

Every symbol on the County seal represents a unique piece of its history,” said Joe Daviscounsel at Becket, which is representing Lehigh County. “Acknowledging the beliefs and values of the County’s early settlers’ respects and honors the County’s heritage and culture—it does not establish a religion.” 

Images of historic significance are common on the seals and flags of states, counties, and towns across America. New Mexico’s flag has a single image: the sacred sun symbol of the Zia Native American tribe. Louisiana’s flag has a symbol of a pelican with a bleeding heart that feeds its hatchlings, a symbol long used to illustrate how Christians are nourished by the Eucharist and reflecting the early French Catholic influence in the Louisiana Territory. Utah’s flag and seal have images recalling the Mormon pioneers. And multiple seals and flags in the American southwest have images of friars and mission churches reflecting the early influence of Spanish Catholics in that region.   

Yet in 2016, FFRF sued Lehigh County, trying to censor the cross from the seal. In September 2017, the United States District Court for the Eastern District of Pennsylvania ruled in FFRF’s favor. Yesterday Lehigh County, represented by Becket, appealed to the Third Circuit Court of Appeals, asserting that religion is part of the rich cultural fabric of our country and that the Constitution does not require the government to strip every religious symbol from the public square.   

“Religion is not something to be erased or ignored. It’s an integral part of the human experience,” said Davis. “Another unnecessary lawsuit in a long list of unnecessary lawsuits from FFRF shouldn’t lead to censoring religion from the public square.”  

Becket has defended religious symbols in the public square in several cases, including FFRF v. WeberKondrat’yev v. City of Pensacola, and the Ground Zero Cross.  

For more information or to arrange an interview with a Becket attorney, contact Melinda Skea atmedia@becketlaw.orgor 202-349-7224.Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian, and Spanish. 

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Becket is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions and has a 100% win-rate before the United States Supreme Court.For over 20 years, it has successfully defended clients of all faiths, includingBuddhists, Christians, Jews, Hindus, Muslims, Native Americans, Sikhs, and Zoroastrians(read more here). 

 

Janus v. American Federation of State, County, and Municipal Employees

In 2015, Mark Janus, a government employee at the Illinois Department of Healthcare and Service, sued his union—the American Federation of State, County and Municipal Employees. Janus argued that mandatory union fees forced him to subsidize the union in taking negotiating positions against the government with which he disagreed. After losing in the district court in September 2016 and again at the Seventh Circuit Court of Appeals in March 2017, Janus appealed to the U.S. Supreme Court. In December 2017, Becket filed a friend-of-the-court brief emphasizing that government workers must be allowed to opt out of mandatory fees to protect their freedom of speech and religious freedom. On June 27, 2018, the Supreme Court ruled for Janus when it clarified that mandatory fees are a form of government coercion that violate workers’ rights.

Pay no attention to the government behind the curtain

Pay no attention to the government behind the curtain! At least that’s what supporters of mandatory union fees for government workers wanted in Janus v. AFSCME. Unions can be protective forces for government workers—but not when they use the force of the government to exact mandatory fees from government employees, to support speech with which the employees disagree.

In 2015, Mark Janus, a government employee at the Illinois Department of Healthcare and Service, sued the American Federation of State, County and Municipal Employees in federal court, claiming that mandatory union fees force him to subsidize the union in taking positions against the government with which he disagrees. Janus asked the district court to protect his First Amendment rights and make public sector unions earn the trust of government employees, rather than using government power to force them to support union speech with mandatory fees. In September 2016, the district court ruled against Janus. On appeal in March 2017, the Seventh Circuit Court of Appeals again ruled against Janus. Janus appealed to the U.S. Supreme Court, which agreed to hear his case.

Becket argues that mandatory fees threaten religious liberty

In December 2017, Becket filed an amicus brief in support of Janus, arguing that the government is engaging in “coercion laundering” when it gives unions power to force government employees to support speech they don’t like, even though the government could not force them directly. The government shouldn’t be excused from forcing employees to speak against their will by using unions to hide the coercion.

Our brief showed that this issue has far reaching consequences, especially for religious liberty. For instance, the government uses private accrediting agencies as gatekeepers for federal funding like Pell Grants. Accreditors should not be allowed to use their funding authority to suppress religious speech any more than the government itself could. There are many other situations where the government relies on private entities to provide government benefits or to perform government services. When acting on the government’s behalf, these organizations should be required to respect constitutional rights the same way the government is. Just like “money laundering” (passing illegitimate funds through a legitimate business) cannot remove the taint of criminally obtained funds, “coercion laundering” (allowing a private party to force someone to do something the government could not force them to) cannot remove the taint of unconstitutional coercion.

U.S. Supreme Court: Mandatory union fees are form of government coercion

On February 26, 2018, the U.S. Supreme Court heard Janus’ case. On June 27, 2018, the U.S. Supreme Court ruled in favor of Janus in a 5-4 decision, striking down mandatory union fees for government workers. The ruling clarified that mandatory fees are a form of government coercion that violates workers’ rights.

This ruling has significant impact for religious colleges and universities, suggesting that private accrediting agencies that are delegated government authority cannot use that authority to infringe on the schools’ religious speech and practices. Janus was represented by Liberty Justice Center and National Right to Work Legal Defense Foundation.

Janus was represented by Winston & Strawn, Liberty Justice Center, National Right to Work Legal Defense Foundation.


Importance to religious liberty

  • Individual freedom: When acting on the government’s behalf, private entities should be required to respect constitutional rights the same way the government is. Government workers must be allowed to opt out of mandatory fees to protect their freedom of speech and religious freedom.
  • Free speech: The government engages in “coercion laundering” when it gives unions power to force government employees to support speech they don’t like, even though the government could not force them directly. The government shouldn’t be excused from forcing employees to speak against their will just because it is using unions to hide the coercion.
  • Education: The U.S. Supreme Court’s ruling in Janus v. AFSCME has significant impact for religious colleges and universities, suggesting that private accrediting agencies that are delegated government authority cannot use that authority to infringe on the schools’ religious speech and practices.

Espinoza v. Montana Department of Revenue

A scholarship program for low-income Montana students 

Children in Montana have been stripped of their right to participate in a modest scholarship program simply because some of them might attend religious schools.

In 2015 the state legislature passed the Montana Tax Credit Scholarship Program, which allows Montanans a tax credit of up to $150 of contributions to privately-run scholarship programs. However, the Montana Department of Revenue refused to implement the program, and in an ensuing lawsuit, the Montana Supreme Court struck down the program, citing the state’s Blaine Amendment, an archaic anti-religious law that forbids any aid—direct or indirect—from going to schools owned or operated by a “church, sect, or denomination.” Because some scholarships might be used at religious schools, the Montana Supreme Court said no students could have them.

Treating religious school students as second-class citizens

By denying religious schools’ right to participate in a widely available public program, the Montana Supreme Court ignored the Supreme Court’s June 2017 decision in Trinity Lutheran v. Comer that ruled religious groups cannot be barred from participation in widely available public programs simply because they are religious. And the Montana court can’t excuse away the underlying religious bigotry by barring all students the program’s benefit.

Institute for Justice, along with Holland & Hart LLP, represents three low-income Montana mothers who would like to participate in the program by using the scholarships to help send their children to religious private schools.

Becket supports equal treatment of religious schools in public programs

In January 2018, Becket filed a friend-of-the-court brief at the Montana Supreme Court in support of the parents, arguing that religious organizations cannot be treated as second-class citizens when it comes to widely available public benefit programs and that courts can’t strike down entire benefit programs just to keep religious kids from benefitting from them. Oral argument was held on April 6, 2018, at the Montana Supreme Court, which in December 2018, ruled against the scholarship program, striking down the entire program because some funds would go to kids who chose to use them at religious schools.

On March 13, 2019, the Montana parents appealed to the U.S. Supreme Court and the Supreme Court agreed to hear the Montana mothers’ case. Becket filed a friend-of-the-court brief arguing that the discriminatory history of the Blaine Amendments renders them unconstitutional, and that religious organizations cannot be treated as second-class citizens when it comes to widely available public benefit programs. Becket’s brief also argued that relying on Blaine Amendments to shut down entire programs only extends the religious bigotry that motivated the enactment. Oral argument took place January 22, 2020. On June 30, 2020, the Supreme Court decided that children in Montana cannot be stripped of their right to participate in a scholarship program simply because they attend religious schools. The Court also recognized that Blaine Amendments are “born of bigotry.” In a concurring opinion, Justice Alito addressed more thoroughly the history of discrimination behind the Blaine Amendmentsrepeatedly referring to Becket’s brief 

Importance to Religious Liberty: 

  • Education: Religious schools should be able to participate in publicly available programs without discrimination, and religious school students should be able to participate in these programs on equal footing as students who attend non-religious schools. 
  • Dismantling discriminatory state laws:  So long as anti-religious laws from the mid-19th century called Blaine Amendments remain in the books, people of all faiths can face discrimination, simply because they choose to attend a religious school. 
  • Reinforcing precedent set by Trinity Lutheran v. Pauley: In June 2017, the U.S. Supreme Court ruled 7-2 that the state of Missouri can’t prevent a religious school from participating in a publicly available program that provides shredded-tire resurfacing to make playgrounds safer for kids on equal footing with other schools. 

Historic churches to court: we deserve preservation grants, too

WASHINGTON, D.C. – A group of historic churches went to the New Jersey Supreme Court today to defend their right to receive preservation grants and keep their older buildings standing. In FFRF v. Morris County Board of Freeholders, the Wisconsin-based atheist group Freedom From Religion Foundation claims that allowing historic churches to participate in historic preservation grant programs violates the New Jersey Constitution.

The following statement can be attributed to Hannah Smith, senior counsel at Becket: “Whether public restoration funds go to churches or to other buildings, they help preserve our nation’s rich history for the community and for future generations. From Boston’s Old North Church where Paul Revere hung two lanterns to the Ebenezer Baptist Church where Martin Luther King Jr. was pastor until his death, historic churches are still historic buildings, and they deserve to remain standing too.”

Between 2012 and 2015, Morris County provided preservation grants to 55 religious and nonreligious buildings. The program requires applicants to establish the historic significance of the building, and grants for churches are limited to preservation of the buildings’ exterior and structural elements.

Earlier this year in Trinity Lutheran, the U.S. Supreme Court protected a church’s right to participate in widely available public benefits programs, which would include Morris County’s historic preservation grant program. Becket along with Thomas A. Gentile of Wison Elser in Florham Park, New Jersey filed a friend-of-the-court brief defending Morris County’s grant program and the Catholic, Baptist, Episcopal, Methodist, and Presbyterian churches whose buildings have already benefited from the program. A decision can be expected in 2018.

For more information or to arrange an interview, contact Melinda Skea at media@becketlaw.org or 202-349-7224. Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian, and Spanish.

Additional Information:       

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Becket is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions and has a 100% win-rate before the United States Supreme Court. For over 20 years, it has successfully defended clients of all faiths, including Buddhists, Christians, Jews, Hindus, Muslims, Native Americans, Sikhs, and Zoroastrians (read more here).

American Legion v. American Humanist Association

“The nation’s founders knew what an unconstitutional establishment of religion looked like, and a passive symbol like a memorial cross wasn’t it.” –Eric Baxter, vice president and senior counsel at Becket

A beloved symbol of sacrifice and honor

Known locally as the Peace Cross, the Bladensburg memorial was erected in 1925 on private land with funds raised by the American Legion, a military veterans association. The memorial was designed by mothers who lost their sons in the war, and they modeled it after those memorialized in the celebrated poem “In Flanders Fields” that stood “row on row” to “mark [the] place” where their sons lay.

Today the Peace Cross stands among a number of other war memorials and, since 1961, it has been owned by the Maryland-National Capital Park and Planning Commission as a historic site.

Atheist activists attempt to tear down history

Yet in 2014 the American Humanist Association sued, arguing that the Peace Cross is a government establishment of religion. But the Constitution does not require religion to be stripped from our nation’s history and culture. The cross is an internationally recognized symbol of sacrifice and loss and a frequently used symbol to honor fallen soldiers. Mere disagreement with something one sees should not be confused with a forbidden religious establishment.

In April 2016, Becket filed a friend-of-the-court brief with Sidley Austin LLP at the U.S. Court of Appeals at the Fourth Circuit defending the memorial, stating it “does not violate the Establishment Clause because it bears none of the historical hallmarks of an establishment of religion.” But in October 2017, the Fourth Circuit ruled against the memorial using the notorious Lemon test, a malleable three-part legal test that has been criticized harshly by many Supreme Court justices. The American Legion, represented by First Liberty Institute of Plano, Texas, and the Jones Day law firm, appealed to the Supreme Court.

Defending religion in the public square at the Supreme Court

In December 2018, Becket, represented by Stanford law professor and former Tenth Circuit Judge Michael W. McConnell, filed a friend-of-the-court brief urging the Supreme Court to reverse the Fourth Circuit’s decision and scrap the Lemon test in favor of an approach that returns the Establishment Clause to its historical meaning. Oral arguments took place on February 27, 2019. During oral argument, Chief Justice Roberts raised the argument Becket had urged in brief suggesting that a historical approach offers a clear way for resolving disputes about religious symbols in the public square.

On June 20, 2019, the U.S. Supreme Court ruled 7–2 in favor of the Peace Cross, allowing it to remain standing. The Court’s opinion reversed the Fourth Circuit’s decision against the Peace Cross and stated that, for many, “destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.” Becket’s friend-of-the-court brief was cited in concurring opinions by Justice Thomas and Justice Gorsuch.

In Kondrat’yev, et al v. City of Pensacola, Becket is also fighting a militant atheist lawsuit against a World War II-era cross in Pensacola, Florida, that has stood as a symbol of patriotism and fellowship for more than 75 years. On June 28, 2019 the Supreme Court sent the Pensacola case back to the Eleventh Circuit to be reconsidered in light of their Bladensburg decision. In February 2020 the Eleventh Circuit ruled that the cross is constitutional and should remain standing.

Importance to religious liberty: 

  • Public Square: Religion is a natural part of human culture and has a natural place in the public square. The government is not required to strip the public square of important symbols just because they are religious.  

Fourteen states and major Jewish groups defend historic cross

WASHINGTON, D.C. – Fourteen states, five major Jewish groups, municipal workers, and a community service organization led a groundswell of support for a historic cross under attack in Pensacola, Florida. The broad coalition of religious and secular groups are urging the federal appeals court in Kondrat’yev, et al v. City of Pensacola to protect the 76-year-old landmark from being torn down. 

The cross was placed in Pensacola’s 28-acre Bayview Park in 1941 by a local community service group as the U.S. prepared to enter World War II. For decades, community events have been held at the cross, including Veterans Day and Memorial Day services. The cross is now one of more than 170 displays in Pensacola’s many parks and serves as a symbol of the city’s history and culture. But in June a federal judge ordered that the cross must be torn down. The city has now appealed.   

“Pensacola has played a pivotal role in American history, and it should be able to celebrate its history,” said Pensacola Mayor Ashton Hayward. “We’re grateful for this strong show of support from around the country.”

Lawsuits like this one, based on offense at religious symbols “encourage the erasure of minority religions from public life,” said the friend-of-the-court brief of five Jewish groups. 

“The district court’s reasoning would threaten countless monuments,” like “veterans’ memorials that contain religious imagery including crosses, citations to scripture, and the like,” said the friend-of-the-court brief of fourteen states. 

The cross stood for almost 75 years without complaint. But in 2016, the American Humanist Association sued the city of Pensacola on behalf of four people who said the cross was “offensive.”  

“The public square can and should reflect the important role that religion plays in our history and culture,” said Luke Goodrich, deputy general counsel at Becket, which is defending the City of Pensacola. “We don’t have to censor our history and culture just because part of it is religious.”  

The fourteen states and five Jewish organizations were joined by JCI Florida, a community service group and successor to the organization that originally donated the cross, and the International Municipal Lawyers Association, which speaks out on issues of interest to cities around the country. Becket is representing the City of Pensacola and Mayor Ashton Hayward.    

For more information or to arrange an interview with a Becket attorney, please contact Melinda Skea at media@becketlaw.org or 202-349-7224. Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian and Spanish. 

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Becket is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions. For over 20 years, it has defended clients of all faiths, including Buddhists, Christians, Jews, Hindus, Muslims, Native Americans, Sikhs, and Zoroastrians (read more). 

Kondrat’yev, et al v. City of Pensacola

A historic cross in a historic city 

The City of Pensacola has a rich history older than the U.S. itself. A key seaport connected to the Gulf of Mexico, it is named after the Native American people who lived there as early as the 1100s, and it was one of the first areas to be settled by Spanish explorers. Today, Pensacola is known as the “Cradle of Naval Aviation” and is home to many members of the military.    

On a scenic bayou within the City lies Bayview Park, a popular location for social and civic gatherings. The 28-acre park features 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 waterskiing accident. Tucked in the northeast corner of the park is the Bayview cross, a monument first erected in 1941 by the Jaycees, a non-profit civic group, to unite the community just months before the U.S. entered World War II.  

A needless lawsuit 

For over 70 years, Pensacola citizens have held community events at the monument, such as sunrise services, Veteran’s Day and Memorial Day remembrances, and other voluntary gatherings. More than a religious symbol, the Bayview cross has become part of the history of Pensacola and a reminder of the many diverse groups, religious and nonreligious alike, that make the City what it is. But in May 2016, four plaintiffs, represented by the American Humanist Association, filed a lawsuit in federal court to remove the cross. Two of the plaintiffs live in Canada; one has held his own ceremonies at the cross; the fourth lives seven miles away from the park. But they all claim that seeing the cross is offensive.  

Becket defends the cross 

 In June 2017, despite recognizing that the cross “is part of the rich history of Pensacola,” and that the cross “might well pass constitutional muster,” the federal court ruled that the cross has a “religious purpose” and must be removed. Becket immediately came to the City’s defense, arguing that that religion is a fundamental aspect of human culture and history, and the Constitution does not require the government to strip every religious symbol from the public square.

In September 2018, the Eleventh Circuit court of appeals ruled that it was “bound” by earlier precedent to rule against the cross. But two of the three judges said the earlier precedent was “wrong” and “needs to be reversed.” They urged the full Eleventh Circuit or Supreme Court to uphold the cross.

In September 2018 Pensacola appealed to the U.S. Supreme Court. On June 28, 2019 the Supreme Court sent the case back to the Eleventh Circuit to be reconsidered in light of American Legion v. American Humanist Association, a case in which the Supreme Court upheld the constitutionality of a World War I memorial in Bladensburg, Maryland. The court decided on February 19, 2020 that the cross is constitutional.


Importance to religious liberty 

  • Public SquareBecause religious exercise is natural to human culture, it has a natural place in the public square. Religious symbols should not be treated as dangerous expression, scrubbed from society. Instead, the government can and should recognize the important role of religion in our history and culture.

Trump v. International Refugee Assistance Project

In March 2017, President Donald Trump issued an executive order banning entry for ninety days by citizens from six majority Muslim countries, raising serious religious freedom concerns. Plaintiffs brought lawsuits against the executive order, and the lawsuits have traveled all the way to the U.S. Supreme Court.

Becket has a long track record of defending people of all faiths, including Muslims. In 2015, Becket won the historic Supreme Court victory in Holt v. Hobbs, which protected the religious freedom rights of Muslim prisoners. We believe that to protect people of faith, particularly religious minorities like Muslims, Native Americans, and Sikhs, it is vital that legal precedent is set properly. But the ACLU and other groups in Trump v. International Refugee Assistance Project have litigated their case under the wrong part of the Constitution. They are challenging the travel ban using the notorious Lemon test – a widely discredited set of criteria that creates confusion – and weak law— for important religious freedom cases. The Lemon test is particularly disliked by the Supreme Court because it forces judges to psychoanalyze the intent of policymakers at the time they wrote the law.

Instead, when the government targets a religious group for punishment or mistreatment, courts should use the laws that are designed to deal with burdens on religious exercise, namely the Free Exercise Clause of the First Amendment. Unlike Lemon, these laws have objective tests designed to root out religious targeting and protect religious minorities.

It is only possible to get cases like this right if courts are using the correct legal standards. Deciding religious freedom cases using the correct laws is the best way to achieve a truly just outcome both for the Muslim plaintiffs and for all Americans who have First Amendment protections. 

In June 2017 the Supreme Court announced that it would hear Trump v. IRAP and Trump v. Hawaii as a consolidated case. After oral argument was scheduled for October 10, 2017, the executive order expired and the Court dismissed both cases as moot, vacating the lower courts’ decisions including any Lemon test analysis.