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Appeals court makes right call

September 19, 2010|By ALLAN POWELL

On Aug. 18, a panel of three federal appellate judges on the 10th U.S. Circuit Court of Appeals agreed that, "We hold these memorials have the impermissible effect of conveying to the reasonable observer the message that the state prefers or otherwise endorses a certain religion. They therefore violate the establishment clause of the federal constitution." Accordingly, 13 crosses, 12 feet in height, are to be removed because they are on public property.

The defendants argued in American Atheists Inc. v. Duncan that no constitutional problem existed because a white cross "is widely recognized for a person's death" and is therefore not a carrier of a religious message. They did admit that most of these large crosses were placed on public property and that they were much more visible than the small crosses placed alongside the road by private individuals to mark the scene of an accident.

The Appellate Court had a different conclusion and declared that "the cross memorials would convey to a reasonable observer that the state of Utah is endorsing Christianity. The memorials use the preeminent symbol of Christianity and they do so standing alone ..." In addition, "that cross conspicuously bears the imprimatur of a state entity, the UHP (Utah Highway Patrol), and is found primarily on public land." The "imprimatur" was a 12-inch-by-16-inch plaque bearing a state symbol.

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Naturally, there were passionate reactions from the supporters of both the plaintiffs and the defendants. Those who believed in the separation of church and state were pleased, while those who want to expand the visibility of religious symbols were angry. David Limbaugh, in a column that ran in the Aug. 25 Herald-Mail, went so far as to assert that federal courts had "an allergy to Christianity."

This hysteria indicates a very short memory. Only four months ago, the Supreme Court upheld the constitutionality of a one-acre land swap housing a large wooden cross from a federal park to a private owner in order to avoid it being removed. This dramatic subterfuge would seem to evidence a friendly rather than a hostile view of religion by our highest court.

This was an unfortunate decision from the viewpoint of those who want a clear separation of church and state. It might be a precedent for other pending cases involving religious symbols on public property. One such case involves a 70-foot high cross in a large city park in San Diego. Litigation to have the cross removed has been going on for more than 20 years without being resolved.

It is a testimony to human stubbornness to see the deliberate distortion of language on the part of those who want religious symbols of their particular persuasion placed on public property. To make the claim that a cross is a secular symbol and that a creche has become a "seasonal symbol" when a plastic Santa Claus is nearby seems, at minimum, to be an act of intellectual dishonesty.

If the proponents of placing the symbols of the Christian religion on public property truly believe in religious freedom, they would not object to the placement of all religion's symbols on these sites. If so, do they want to return to the period in world history when there was open warfare for domination by each religious body?

In 1787, those who assembled in Philadelphia did not want a repeat of European experience. That is why there was a demand for the inclusion of a Bill of Rights. We are the beneficiaries of their political wisdom. These attempts to nullify their wisdom only can be ignored at great peril.

The constitutional status of crosses and other religious symbols on public property still is unsettled. I confess that I do not know why. The Supreme Court did not strike down the placement of a cross in a federal park in Salazar v. Buono. The solicitor general who agreed with that result, Elena Kagan, is now a justice on that court. It is too early to predict how she will decide in future cases.

Meanwhile, the 10th U.S. Circuit Court of Appeals made the right call.

Allan Powell is a professor emeritus of philosophy at Hagerstown Community College.

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