Appeals court asked to reconsider Pensacola cross removal

The 11th U.S. Circuit Court of Appeals in downtown Atlanta.

The 11th U.S. Circuit Court of Appeals in downtown Atlanta.

The federal appeals court in Atlanta is being asked to overturn a 35-year-old precedent that ordered a 70-foot-tall cross be removed from Black Rock Mountain State Park in Rabun County because it violated the establishment clause.

The First Amendment of the Constitution prohibits laws “respecting an establishment of religion,” and the clause is generally seen as the dividing line between church and state.

The 70-foot-tall cross at Black Rock Mountain State Park, which the federal appeals court in Atlanta ordered to be removed in a decision issued in 1983. 

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If the 11th U.S. Circuit Court of Appeals follows suit, it could make it more difficult for plaintiffs to challenge religious displays on public property and make it easier for local governments to erect and maintain them. The court, one step below the U.S. Supreme Court, sets precedent for cases out of Georgia, Florida and Alabama.

The requests to overturn the Rabun County precedent were made Friday in an 11th Circuit ruling that directed the city of Pensacola, Fla., to remove a 34-foot-tall cross from its Bayview Park. A three-judge panel said it had no choice but to follow the 1983 Rabun County precedent, even though it had been weakened by more recent U.S. Supreme Court establishment clause opinions.

“Accordingly, our hands are tied,” the judges said.

In a concurring opinion, Judge Kevin Newsom wrote that the full 11th Circuit — in which all of its 12 judges preside — should use the Pensacola case to overturn its Rabun County precedent. He said it was wrongly decided the day it was issued.

President Donald Trump is packing the 11th U.S. Circuit Court of Appeals with conservative jurists. The court, based in Atlanta, has 12 judges and serves Georgia, Alabama and Florida. Trump has placed two new judges on the court already —Elizabeth Branch and Kevin Newsom. A third nominee, Britt Grant, is expected to be confirmed. A dispute with Sen. Jeff Flake (R-Ariz.) is holding up her confirmation.

"This case presents important questions — both for the future of Pensacola's Bayview Park cross and for the future of establishment clause jurisprudence in this circuit," wrote Newsom, who was put on the 11th Circuit last year by President Donald Trump. "Those questions demand the full court's undivided attention."

In his own concurring opinion, Judge Ashley Royal agreed. The doctrine of “stare decisis” — which obligates courts to follow prior precedent when deciding a similar case — can “sometimes lead good judges to follow bad law and write the wrong order,” said Royal, who is a visiting lower court judge from Macon and not a member of the 11th Circuit. (The 11th Circuit often invites judges from other courts to sit on its three-judge panels.)

Lighted cross in Black Rock Mountain State Park in Rabun County, which the federal appeals court in Atlanta ordered to be removed in a decision issued in 1983. 

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The Rabun County cross was illuminated with 31 mercury vapor lights, making it visible on clear nights from 70 miles away. With state approval, it was built by the Rabun County Chamber of Commerce and dedicated during an annual Easter sunrise service.

Represented by the American Civil Liberties Union, five people filed suit, contending the Black Rock Mountain cross could not remain on state-owned land. After the 11th Circuit’s 1983 ruling, the cross was taken down.

A large cross has stood in Pensacola’s Bayview Park since 1941 and has also been the focal point of an annual Easter sunrise program. In 1969, the Pensacola Jaycees replaced the original cross with a 34-foot-tall concrete version. It is the only religious display out of more than 170 monuments scattered throughout the city’s parks.

In 2016, four Pensacola residents, represented by the American Humanist Association and the Freedom From Religion Foundation, filed suit and demanded the cross be taken down. After a federal judge agreed the cross should go, the city asked the 11th Circuit to overturn that decision.

The cross at Pensacola’s Bayview Park, ordered removed by a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta on Friday, Sept. 7, 2018. 

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In a statement, Pensacola Mayor Ashton Hayward said the city will continue its appeals to save the Bayview Park cross.

“This cross is more than a religious symbol,” he said. “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.”

From May 2016 to June 2017, Pensacola spent more than $131,000 in legal fees defending the Bayview Park cross, according to the Pensacola News Journal. The city is now being represented for free by The Becket Fund for Religious Liberty.

“The Constitution doesn’t require the government to scrub every religious symbol from the public square,” Luke Goodrich, Becket’s senior counsel, said of the 11th Circuit’s decision.

David Niose, legal director of the American Humanist Association. 

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But David Niose, the American Humanist Association’s legal director, said the 11th Circuit had no choice but to order the Bayview Park cross to be taken down. “It was the right decision and consistent with the Rabun County case, which was decided correctly as well,” he said.

Gerry Weber, an Atlanta lawyer who specializes in First Amendment law, said the Bayview Park cross may ultimately be taken down no matter what the 11th Circuit does next.

“The effect of a stand-alone, very large religious display on public property, where there are no other religious displays, makes people of minority faiths feel like outsiders,” he said. “This context kind of screams for the conclusion it’s unconstitutional.”