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Luke Goodrich Discusses New Cross Dispute on Fox News

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Ryan Colby 202-349-7219

Becket Fund’s Luke Goodrich discussed a new cross dispute on Fox News. To commemorate Lent, Patrick Racaniello placed a small wooden cross on a tree in his yard in Livingston, N.J. A neighbor objected, and police told Racaniello that his cross violated a local ordinance that prohibits displays on trees. Fearing a citation, Racaniello removed the cross. But he replaced it with a new, larger cross, which he planted in his yard, nine feet from the curb. That also drew the ire of local officials, who told him that township ordinances also ban displays within ten feet of the curb. Racaniello’s lawyers have now sent a letter to township officials threatening to sue.

What would be the outcome of a lawsuit? The first question would be whether the township treats the cross differently from other kinds of displays. The Supreme Court has made it clear that the government cannot treat religious speech worse than other kinds of speech, so if there is any evidence that the township treats other residential displays differently—for instance, by allowing homeowners to post political signs, flags, or holiday decorations where it prohibits the cross—Racaniello would win easily.

But if the township truly bans all displays within ten feet of the curb regardless of their content, the case becomes much closer. In City of Ladue v. Gilleo (1994), the Supreme Court wrote that residential displays are “a venerable means of communication that is both unique and important,” and that a “special respect for individual liberty in the home has long been a part of our culture and our law.” But courts have also acknowledged that cities have a legitimate interest in regulating signs on residential property. The key question is whether the city’s regulation furthers a substantial governmental interest, is reasonably well-tailored to serve that interest, and leaves open ample alternative avenues of expression.

In short, if the city is treating the cross differently from other kinds of displays, it will lose. If it is treating all displays equally and is merely asking Racaniello to move the cross back a foot or two, it might win. Either way, it is unfortunate that this dispute had to arise. Religious speech is a fundamental aspect of human culture and public discourse. Cities would do well to give it the broad protection it deserves; not to shut it down because of the complaints of neighbors.