A Federal judge has ruled that a Pennsylvania county seal and flag that prominently feature a cross violates the Establishment Clause.
In a ruling issued September 28, 2017, Judge Edward Smith found that the County of Lehigh symbol, which includes a large, central Latin cross, “lacked a secular purpose both when the [county] adopted the seal and when the defendant refused to remove the cross from the seal, and a reasonable observer would perceive the seal of endorsing Christianity.” The Court granted summary judgment in favor of the Freedom from Religion Foundation.
History of the County Seal
The seal was adopted in 1944. In 1946, in the proceedings of the Lehigh County Historical Society, a commissioner described the “huge cross in canary-yellow” in the center of the seal to signify “Christianity and the God-fearing people which are the foundation and backbone of [Lehigh] County.”
From the adoption of the seal until 2014, there were no complaints, but when the Freedom From Religion Foundation wrote a letter demanding the symbol be changed, the County voted to retain the seal, unanimously approving a letter to FFRF stating that, “The cross, one of more than a dozen elements, was included to honor the original settlers of Lehigh County who were Christian…. It is the position of the Lehigh County that the presence of the cross on the seal among all the other items of historical significance has the secular purpose of recognizing the history of the County. As such, it does not violate the Establishment Clause.”
In its ruling, the Court noted that the symbol was originally described in 1946 as recognizing current Christian citizens and not to honor the original settlers of the County.
The Lemon Test and Endorsement Test
Judge Smith’s ruling contains a useful summary of Establishment Clause jurisprudence.
Judge Smith applied the Lemon test as modified by the endorsement test. The Lemon test has three parts to determine whether a challenged government action is constitutional. Under the test, a government action is unconstitutional if it (1) lacks a secular purpose, (2) has the primary effect of advancing or inhibiting religion, or (3) fosters an excessive entanglement of government with religion. The endorsement test modifies the third prong by asking “whether a reasonable observer familiar with the history and context of the display would perceive the display as a government endorsement of religion.”
Judge Smith pointed out the 1946 statement that the cross represented “the God-fearing people which are the foundation of our County.” The reason for maintaining the cross as described in 2015 was to honor the fact that the settlers were Christian. Thus, the purpose was not secular, and the symbol would fail the Lemon test.
Applying the endorsement test, a “reasonable observer,” Judge Smith wrote, citing prior case law, is presumed to be “more knowledgeable than the uninformed passerby.” The reasonable observer who knew the above-listed facts about the display would see it as an endorsement of religion. He also cited Marsh v. Chambers, 463 U.S. 783, 790 (1983) that “historical patterns cannot justify contemporary violations of constitutional guarantees.”
After stating that “the court may not fully agree with the test provided, the court must apply that test,” Judge Smith reluctantly concluded that, although the seal is a passive symbol that does not specifically “establish a county religion,” it fails to pass the Lemon and the endorsement tests and granted summary judgement.
Glad to hear that this judge has set aside his biases to render a fair and equitable decision.