The city of Pensacola, Florida, on Wednesday urged [oral arguments calendar, PDF] the US Court of Appeals for the Eleventh Circuit [judicial website] to overturn a lower court order [opinion, PDF] to remove [JURIST report] a 34-foot cross in Bayview Park because the cross violates the Establishment Clause.
Pensacola argued [brief, PDF] both that the plaintiffs lack standing and that Pensacola’s actions are constitutional because the lower court incorrectly applied the Lemon test. The Lemon test says that the government action must be supported by a secular purpose, cannot have the primary effect of advancing religion, and cannot have an “excessive entanglement” with religion. The city maintains that since a monument is at issue and not an action, the test used in Van Orden v. Perry should apply instead, which takes the historical context of the monument into consideration. The city says, “The cross memorializes how private citizens in Pensacola came together to support each other during World War II, and it acknowledges ‘the role of religion in American life’—which is expressly permitted [in case precedent].”
The lower court said that the cross did not have any legitimate secular purposes and relied on a previous case where a cross in a state park was deemed unconstitutional.
The Establishment Clause is frequently litigated. In April the Supreme Court heard [JURIST report] oral arguments for the travel ban case, in which the court asked the parties to brief whether the ban violated the Establishment Clause. In March a federal judge rejected [JURIST report] a challenge under the Establishment Clause to Trump’s new rules on birth control. In November an LGBT rights activist filed [JURIST report] a law suit challenging a Tennessee law allowing therapists to refuse to treat LGBT patients, alleging that it violated the Establishment Clause.