The Eleventh Circuit Court of Appeals broke no new legal ground last week when it reversed its earlier decision ruling that a cross erected on a public park in Pensacola, Fla., had to go. But it carries the message that the so-called Lemon legal test that has long governed interpretations of the Constitution’s Establishment Clause may finally be dead.
The test comes from the Supreme Court’s 1971 ruling in Lemon v. Kurtzman. In that decision the Court required that government actions implicating religion have a “secular purpose” and “primary effect” that “neither advances nor inhibits religion.” In 1984 the Court added that a “reasonable observer” must conclude the government is not endorsing religion.
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But the Lemon test took a big hit last year in American Legion v. American Humanist Assn. That case also involved a cross, which had been commissioned by the American Legion to memorialize U.S. servicemen who died overseas in World War I. Later the land it was on became public property. The Court ruled it “does not offend the Constitution.”
Thus the 11th circuit reconsidered its decision, and in Kondrat’yev v. Pensacola the court has concluded that the Bayview Cross in Pensacola also is not a government establishment of religion. It’s as much a victory for common sense as it is for the First Amendment. The cross was erected in 1941 as the nation prepared to enter World War II. The people of Pensacola have held events of all kinds on the site and it is an important part of community life.
As Justice Samuel Alito wrote in the American Legion case, “A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion.”
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