Prayers, Parks, and Monuments: Litigation Over Religious Symbols in America

– by Jason Hines, Esq.

“Ark Encounter” Theme Park Prompts Potential Lawsuit

The group Answers in Genesis, owners and proprietors of the Creation Museum in Petersburg, KY are currently working on a new theme park centered around a biblical account of the flood. The Ark Encounter park is currently having problems, with $12.3 million in hand and $12.7 million in committed donations. The total budget for the park, which will include a Tower of Babel and a Ten Plagues ride, is $150 million and it will cost $48 million alone to build the ark. Now the clock is ticking for the group because there are KY tourism tax incentives for the project that are set to expire in May of 2014. The longer it takes to open the park, the less the group can receive in rebates. Under the current plan, the group can receive up to 25% of the cost of the project over ten years. For Answers in Genesis, that could mean a rebate of $37.5 million dollars if applied over the total cost of the park.

Some people, however, have criticized the state rebate plan as a constitutional violation of the separation of church and state. Barry Lynn, head of Americans United for Separation of Church and State (Americans United), said the planned park promotes “junk science.” He also said that what essentially amounts to a ministry should not be financed with taxpayer dollars, and that Americans United could potentially file a lawsuit if the tax breaks for the park ever come to pass. Ark Encounter co-founder and Senior Vice President Michael Zorvath argues that there is no constitutional violation because the state is not giving the park up-front money, but would simply be returning tourism money that the park will be generating. He also stated, “”If somebody wants to come into Kentucky and build a Harry Potter park and teach all the fun things about witchcraft, nobody would say a word about it – they’d just think it was so cool…but if we want to come in … and build a Biblical theme park, everybody goes crazy.”

Several Religious Monuments and Symbols are Questioned Around the US

There are several debates over an array of religious symbols and monuments on public land. The Appigiani Humanist Legal Center (Appigiani), the legal arm of the American Humanist Association filed a lawsuit against what is known as the “Cross Monument,” which is located at Diamond Stadium in Lake Elsinore, California. The monument is a large, black granite depiction of a soldier kneeling before a Christian cross. It is said that the monument was created as homage to fallen World War II soldiers, and that this monument is an accurate depiction of how fellow soldiers honored their fallen comrades. The monument was approved by the Lake Elsinore City Council in November of 2012. The Appigiani Humanist Legal Center is making two arguments. First that it is a violation of the separation of church and state for the town to even approve such a monument. William Burgess, an attorney for the center said, “The City has clearly violated the First Amendment by unnecessarily choosing a divisively religious means of honoring our veterans.” Second, Appigiani is also arguing that the CA Constitution prohibits the use of government funding for religious purposes, which would include this type of religious monument. There does seem to be some evidence from a local council meeting to support Appigiani’s argument. City Mayor Pro Tem Daryl Hickman said that it was a shame that they could not display a cross because of the First Amendment, and Councilwoman Melissa Melendez said that it was “sad” that some groups would attempt to take away a chance to reverence are veterans and show America’s Christian roots.

In July of 2012, American Atheists sued Bradford County, Florida for allowing a community group to erect a Ten Commandments monument. When the group refused to remove the monument at the county’s request, the two parties went to mediation and resolved the matter by allowing the group to also erect a monument in the public space. The courtyard outside of the county courthouse was established as a free speech forum in October of 2011. There are signs on display that state that the works in the space do not represent the opinions of the county. Groups are allowed to erect monuments at their own expense, so long as the monuments follow certain guidelines. The American Atheists monument, like the Ten Commandments monument that preceded it, met with the county’s guidelines and therefore will be erected. The monument is a 1500-pound granite display is a bench with a 4 ft panel that will feature quotes from Thomas Jefferson, Benjamin Franklin and Madalyn Murray O’Hair related to secularism. It is believed that this monument will be the first public monument to atheism on public land.

In Roberts, Idaho, three crosses have been removed from the town water tower after a local resident complained to the town officials and contacted the American Civil Liberties Union. The resident, Joe Cohea, argued that the crosses symbolize a particular religion and that they were a violation of the separation of church and state. Cohea has also complained about a nativity scene on public property during the holiday season. At the time of the complaint, the mayor of the town Robert Berlin defended the crosses, saying that the government would not create an official religion nor burden the free exercise rights of any citizen of the town. The mayor did not make a statement to explain why the town was now removing the crosses. Despite the fact that the town has acquiesced to his request, Cohea and the ACLU remain vigilant. The organization wrote to Cohea and said he should contact that if the town should in any way engage in similar activity in the future.

In Muldrow, Oklahoma local residents are rallying to save Ten Commandments monuments that are being removed from classrooms in the local school district. Gage Pulliam, an atheist student at Muldrow High School, reported that the monuments were on display in the classrooms to the Freedom From Religion Foundation (FFRF). Pulliam has made it clear that this was not an attack on religion, but an attempt “to create an environment for kids where they can feel equal.” The organization then sent a letter to the school district that threatened a lawsuit if the documents were not removed. In order to avoid a potentially costly lawsuit, the school board voted to remove the monuments from the classroom. Students and parents who support the monuments have protested their removal, calling their state representative, starting a Twitter campaign, and also creating petitions on the internet. Despite citizens’ protests and their own approval of the monuments, the school board felt that a legal fight would waste taxpayer money and therefore the monuments would be removed. Students, however, are allowed to express their religious views, so long as they abide by school rules.

Similarly, Breathitt County Public Schools in Kentucky has decided to remove displays of the Ten Commandments after the FFRF lodged a complaint. Unlike in Oklahoma, the school district decided to remove the monuments because it decided it wanted to ensure that it complied with federal law in this matter. The student who filed the complaint has not been identified. In response to a complaint it received, FFRF drafted a letter to the school district that was essentially a primer on Supreme Court law regarding public displays of religion. In it the FFRF outlined that while some Ten Commandments Displays have been allowed on public property, these displays have never been allowed in a school. Furthermore, when the displays have been allowed, there are several factors the Court takes into account, such as the history of the monument, surrounding displays, and the purpose for which the monument was erected. Those who disagree with the school district’s decision have made startling accusations in defense of the presence of the Decalogue monuments in the school. Breathitt County has had trouble with drug use and some have argued that taking the Ten Commandments out of schools could lead to more addiction among the students.

Supreme Court Grants Certiorari to Case Involving Prayer at Government Meetings

The U.S. Supreme Court recently decided to hear a case from Greece, NY involving prayer at government meetings. In 2008 Susan Galloway and Linda Stephens filed the case of Greece, NY v. Galloway, Susan. They sued the town because they believed the town violated the separation of church and state by allowing its town council meetings to be preceded predominately by Christian prayers. They saw this as the a government endorsement of religion, considering that the vast majority of prayers from 1999-2010 were delivered by Christian clergy. The town argued that town councils have been preceded by prayer since the nation’s founding, and they should be constitutionally allowed to continue this tradition in their town. In 2012 the 2nd U.S. Court of Appeals in New York ruled that the town did in fact violate the Establishment Clause of the Constitution. The Court found that although the town said that the opportunity to give the invocation was open to all, they did not publicly solicit volunteers and they did not make it known that volunteers were welcome.

The Court also found that the town did not make it clear that the purpose of the prayers were to solemnify the event as opposed to support for any particular creed. The appeal was filed on behalf of the town by Alliance Defending Freedom, a Christian non-profit group based in Arizona. Brett Harvey, senior counsel for the organization said, “A few people should not be able to extinguish the traditions of our nation merely because they heard something they didn’t like…” Galloway and Stephens are being represented by Americans United for the Separation of Church and State. Barry Lynn, executive director of Americans United said in an interview in the Los Angeles Times that, “Government can’t serve everyone in the community when it endorses one faith over others. That send the clear message that some are second-class citizens based on what they believe about religion.” The main precedence in this case is the 1983 decision in Marsh v. Chambers, which determined that legislatures could begin their sessions with non-denominational prayers. This decision has been curtailed by other later decisions where prayers have been found unconstitutional if the court deems that the prayers seem to be skewed toward one particular faith. The Supreme Court will hear the Galloway case in October of 2013.

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