11th Circuit returns to Pensacola cross case: After Supreme Court ruling, monument can stay

The Bladensburg cross – which the U.S. Supreme Court upheld as a constitutional display last year – was not the only large cross on public land to have been declared unconstitutional by a federal appeals court in 2018. In September of that year, the 11th U.S. Circuit Court of Appeals held that a large cross on public land in Pensacola, Florida, violated the First Amendment. But as I posted at the time, the judges in that case were not happy about it. Their previous precedent had gotten it wrong, they said, but they were bound to follow it.

Then the Supreme Court overturned a similar decision by the 4th Circuit, ruling that that because the Bladensburg cross was a long-standing war memorial, it was entitled to a presumption of constitutionality. Following that decision, the justices sent the Pensacola case back to the 11th Circuit for reconsideration in light of the Bladensburg cross ruling. That court has now issued its decision and, not surprisingly, has decided that the Pensacola cross can stay after all.

The cross may be religious, they acknowledged, but it also can take on other civic meanings as well. Here is an excerpt from the opinion:

Whatever the City’s original motivation for allowing the cross’s erection and subsequent replacement and donation, it’s clear that in the ensuing years the cross has come to serve multiple purposes. For instance, although it has remained the location for an annual Easter sunrise program, it has also been used as a site for remembrance services on Veterans and Memorial Days, as well as a place for citizens to gather during times of national crisis—e.g., following the death of President Roosevelt, during times of war, etc. Moreover, the cross, bandstand, and surrounding area have hosted many community gatherings—including boat festivals, fundraising walks, outdoor movie nights, and weddings—and there is no evidence that the City has ever made the space available to the public on anything other than a neutral basis… So, what the Supreme Court said in American Legion applies here precisely: “Even if the original purpose of a monument was infused with religion, the passage of time may obscure that sentiment,” and “[a]s our society becomes more and more religiously diverse, a community may preserve such monuments, symbols, and practices for the sake of their historical significance or their place in a common cultural heritage.”

As BJC General Counsel Holly Hollman wrote following the Bladensburg ruling, this does not mean that local governments are free to erect new crosses and religious displays on land owned and maintained by taxpayers. Just the opposite. The Supreme Court’s opinion expressly tethered their approval to the fact that the cross in question was long-standing and part of a long history of World War I memorials. Removing it, they warned, may amount to an improper act of hostility toward religion by the government.

This latest decision serves as a reminder that judges across the country are tasked with applying the Supreme Court’s decisions to a set of facts that are never quite the same. Here, for example, the Pensacola cross has been around for many years, but not as long as the Bladensburg cross. In addition, unlike Bladensburg, there is no indication that the Pensacola cross was created as a war memorial.

There can be no doubt that the Bladensburg cross decision – as narrow as it may have been written – redrew constitutional boundaries when it comes to government-owned religious displays. How far they will now reach as a result  remains unknown.