Written by Don Byrd
A federal judge in Indiana has ruled unconstitutional a planned church-sponsored display of large crosses along the public riverfront in Evansville. The display would last too long (2 weeks) and take up too much public space, she said, to avoid church-state concerns.
From the opinion (via Religion Clause):
[T]he constitutional concern rests not with the use of the cross symbol as such, but rather with the oversized, imposing and somewhat overpowering size, scope, and magnitude of the display. That the plans call for it to extend over a four city block expanse of iconic public space within the geographic and cultural center of the community of Evansville and be comprised of numerous six-foot-tall crosses, will clearly communicate a sectarian message. It is the forcefulness of this message based on the size and scope of the display that catapults it into the range of constitutionally prohibited speech.
…
both the size and scope of the display… threatens to overwhelm and transform the otherwise neutral public forum, creating a demonstration of approval and leading a reasonable observer to believe that the City has endorsed the message.
The crosses were scheduled to be displayed beginning next week. According to the Indianapolis Star coverage, a decision about whether to appeal has not yet been made.
I have to say I sympathize with the predicament of city officials in a case like this. They have a neutral permitting process for displays on the riverfront and would likely have been vulnerable to a lawsuit on equal access claims had they denied the church requests. The space between the Establishment and Free Exercise clauses of the First Amendment has been shrinking in disputes over access to a limited public forum. Government, however, is responsible for its own messages, and shouldn’t be allowed to endorse a religious perspective under the guise of equal access.
