Up­hold­ing wrong-headed prece­dent

A fed­eral judge in Pen­sacola of­fers an im­por­tant teach­ing mo­ment

The Washington Times Daily - - EDITORIAL -

Ajudge doesn’t have to be wait­ing for an ap­point­ment to the U.S. Supreme Court to set an ex­am­ple for what a con­sci­en­tious pres­i­dent is look­ing for. With va­can­cies in 106 fed­eral district courts and 19 in ap­peals courts, Pres­i­dent Trump might look to Pen­sacola, Fla., for a liv­ing ex­am­ple of the kind of judges he’s look­ing for.

Mr. Trump has ap­pointed just 13 nom­i­nees for those seats. When he finds his men, and women, they should all un­der­stand the role of a fed­eral judge the way U.S. District Court Judge Roger Vinson of Pen­sacola does.

Judge Vinson, ap­pointed to the bench in 1983 by Pres­i­dent Rea­gan, is se­nior judge for the North­ern District of Florida, and he clearly be­lieves in ju­di­cial re­straint. He does not leg­is­late from the bench, as cer­tain other judges, high and not so high, have done.

He demon­strated in a case be­fore him last week that he will fol­low the law and prece­dent even when he thinks the law and prece­dent are wrong­headed, as they some­times are.

In the in­stant case, Amanda Kon­drat’yev, et al. v. Pen­sacola, Florida, et al., he agreed with four anti-re­li­gious plain­tiffs who de­manded that a 34-foot con­crete cross, a sym­bol of the sac­ri­fice of Je­sus Christ, should be re­moved from a public park where it had stood for seven decades. In his 23-page opin­ion, he said that a U.S. Supreme Court prece­dent dat­ing to 1971 left him no al­ter­na­tive. He wrote that had the case come be­fore him with­out ju­di­cial prece­dent ty­ing his hands he would have dis­missed the case. To un­der­score his point, he awarded to each of the four plain­tiffs dam­ages of a dol­lar (which might be ap­prox­i­mately 75 cents too gen­er­ous, it seems to us).

“Even though the cross … has stood on public property in one form or an­other for ap­prox­i­mately 75 years (ap­par­ently with­out in­ci­dent),” Judge Vinson wrote, “four peo­ple … con­tend they are ‘of­fended’ by it and want it re­moved.”

The prece­dent de­rives from Lemon v. Kurtz­man, a 1971 case in which the Supreme Court set out a three-part stan­dard to be used in cases in­volv­ing the Es­tab­lish­ment Clause of the First Amend­ment to the U.S. Con­sti­tu­tion that now seems so ob­scure to so many judges.

Judge Vinson wrote that the so-called “Lemon test” stip­u­lates, among other things, that re­li­gious sym­bols on public property must have a sec­u­lar pur­pose in or­der to sur­vive a con­sti­tu­tional chal­lenge. The Pen­sacola cross lacks such sec­u­lar pur­pose, he held, and thus, re­gret­tably, “runs afoul of the First Amend­ment as cur­rently in­ter­preted by the Supreme Court.”

But he in­cluded a large as­ter­isk. “The his­tor­i­cal record in­di­cates that the Found­ing Fa­thers did not in­tend for the Es­tab­lish­ment Clause to ban crosses and re­li­gious sym­bols from public property. In­deed, ‘the en­light­ened pa­tri­ots who framed our Con­sti­tu­tion’ … would have most likely found this law­suit ab­surd,” Judge Vinson wrote. “And if I were de­cid­ing this case on a blank slate, I would agree, and grant the plain­tiffs no re­lief. But, alas, that is not what we have here.”

He gave the City of Pen­sacola 30 days to re­move the Bayview Cross, where it has stood in a cor­ner of Bayview Park since the Pen­sacola Jaycees raised it in 1969 to re­place an orig­i­nal wooden cross raised in 1941. “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.”

Duty can be oner­ous, as Judge Vinson, a grad­u­ate of the U.S. Naval Acad­emy and the Van­der­bilt Univer­sity Law School, rightly ob­serves, but honor de­mands al­le­giance to duty. There’s am­ple prece­dent for that, too.

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