Fed­eral judge or­ders cross re­moved from Florida pub­lic park.

Athe­ists chal­lenged city-paid up­keep

The Washington Times Daily - - FRONT PAGE - BY VA­LERIE RICHARD­SON

A fed­eral judge on Mon­day re­luc­tantly or­dered the re­moval of the Bayview Cross from a pub­lic park in Pen­sacola, Florida, ex­plain­ing that U.S. Supreme Court prece­dent left him lit­tle choice.

Se­nior U.S. Dis­trict Judge Roger Vin­son gave the city 30 days to re­move the cross, which has stood in var­i­ous forms in a corner of Bayview Park for about 75 years, even though he said the Found­ing Fa­thers “would have most likely found this law­suit ab­surd.”

“I am aware that there is a lot of sup­port in Pen­sacola to keep the cross as is, and I un­der­stand and re­spect that point of view,” said the judge, a Rea­gan ap­pointee, in his 23-page rul­ing. “But, the law is the law.”

He also or­dered the city to pay $1 in dam­ages to the four res­i­dents rep­re­sented by the Amer­i­can Hu­man­ist Le­gal Cen­ter.

“Count me among those who hope the Supreme Court will one day re­visit and re­con­sider its Es­tab­lish­ment Clause ju­rispru­dence, but my duty is to en­force the law as it now stands,” said Judge Vin­son.

Mon­ica Miller, se­nior coun­sel for the AHA’s Ap­pig­nani Hu­man­ist Le­gal Cen­ter, cheered the court’s de­ci­sion. Both sides had ar­gued for sum­mary judg­ment in oral ar­gu­ments Thurs­day in Pen­sacola.

“We are pleased that the Court struck down this Cross as vi­ola­tive of the First Amend­ment,” Ms. Miller said in a state­ment. “The cross was to­tally un­avoid­able to park pa­trons, and to have cit­i­zens foot the bill for such a re­li­gious sym­bol is both un­fair and un­con­sti­tu­tional.”

Ver­non Ste­wart, spokesman for Pen­sacola Mayor Ash­ton Hay­ward, said city staff was re­view­ing the de­ci­sion, and the mayor was trav­el­ing and would “ul­ti­mately be the one to de­cide how to pro­ceed.”

The cost of main­tain­ing the white, 34-foot con­crete cross was $233 per year, or about .03 per­cent of the city’s an­nual main­te­nance bud­get. Do­nated by the Pen­sacola Jaycees in 1969, the con­crete cross re­placed the orig­i­nal wooden cross.

“Even though the cross costs very lit­tle to main­tain, has hosted tens of thou­sands of peo­ple, and has stood on pub­lic prop­erty in one form or an­other for ap­prox­i­mately 75 years (ap­par­ently with­out in­ci­dent), four peo­ple — Amanda Kon­drat’yev; An­dreiy Kon­drat’yev; David Suhor; and An­dre Ryland — con­tend they are ‘of­fended’ by it and want it re­moved,” the judge said in his 23-page rul­ing.

He said the cross failed the “Lemon test,” the three-prong stan­dard laid out by the Supreme Court in its 1971 de­ci­sion in Lemon v. Kurtz­man, the first prong of which holds that such pub­lic sym­bols must have a sec­u­lar pur­pose in or­der to pass con­sti­tu­tional muster.

Judge Vin­son also cited the U.S. Court of Ap­peals for the 11th Cir­cuit’s 1983 rul­ing against a cross on gov­ern­ment prop­erty in Rabun County, Ge­or­gia, that re­lied on the Lemon test.

“Lemon is rou­tinely crit­i­cized, but it is still the law of the land and I am not free to ig­nore it,” the judge said in his rul­ing. “Nor am I free to ig­nore Rabun County, which ex­pressly states that Lemon pro­vides the ‘cor­rect’ an­a­lyt­i­cal frame­work in cases such as this. … And con­sis­tent with that di­rectly-on-point and bind­ing case law, the Bayview Cross fails the first prong of the Lemon test and, thus, runs afoul of the First Amend­ment as cur­rently in­ter­preted by the Supreme Court.”

The city had ar­gued that the cross was not ex­clu­sively re­li­gious in na­ture, but the judge said the 11th Cir­cuit was un­likely to agree.

The mayor de­fended the cross af­ter the AHA sent a let­ter call­ing for its re­moval in 2015, telling the Pen­sacola News Jour­nal: “Per­son­ally, I hope there is al­ways a place for re­li­gion in the pub­lic square. I surely don’t want to re­move it.”

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