Cross can stay on Pa. county seal, judge says, citing Bladensburg decision

The official seal of the County of Lehigh, Pennsylvania.
The official seal of the County of Lehigh, Pennsylvania. | (Photo: Facebook/County of Lehigh)

A federal appeals court panel has ruled that a Pennsylvania county seal can include a cross, rejecting a lower court ruling in favor of an atheist organization’s complaint.

A three-judge panel of the United States Court of Appeals for the Third Circuit ruled unanimously on Thursday that Lehigh County’s seal can include a cross.

Circuit Judge Thomas Hardiman authored the opinion of the panel, citing the recent United States Supreme Court decision American Legion v. American Humanist Association, in which the high court concluded that a large cross memorial on public property in Bladensburg, Maryland did not violate the Constitution’s Establishment Clause.

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The Supreme Court decision gave a “presumption of constitutionality” to religious monuments, practices, and symbols found on government property.

“Those considerations include that: (1) identifying such symbols’ original purpose or purposes is often difficult; (2) the original purposes may multiply over time, especially through decisions to retain a symbol; (3) the message conveyed by the symbol may change over time; and (4) removing a longstanding symbol imbued with ‘familiarity and historical significance’ may appear hostile to religion,” wrote Judge Hardiman.

American Legion held that the presumption applies to longstanding symbols just like the Lehigh County seal. What’s more, the Supreme Court’s four considerations for applying a presumption of constitutionality to the Bladensburg Peace Cross apply equally here. For these reasons, we begin our evaluation of the Lehigh County seal with ‘a strong presumption of constitutionality’ for this longstanding symbol.”

Diana Verm, senior counsel at Becket, which helped represent Lehigh County, said in a statement released Thursday that she supported the ruling.

“It is common sense that religion played a role in the lives of our nation’s early settlers. Recognizing that is just as constitutional as honoring symbols like the Liberty Bell,” stated Verm. “It is only right that Lehigh County can continue honoring its history and culture.”

In December 1944, the board of commissioners of Lehigh County adopted an official "Shield and Coat of Arms," which served as the basis for the seal's design, which included a Latin cross.

In 2014, the Freedom From Religion Foundation sent a letter of complaint to Lehigh County, arguing that the seal violated the Constitution and had to be changed.

After Lehigh's commissioners decided against the FFRF's demands, the atheist group filed a lawsuit in August 2016 on behalf of four local residents.

"Displaying the Latin cross on the county seal and county flag endorses Christianity, which violates the Establishment Clause of the First Amendment. The Plaintiffs seek appropriate declaratory and injunctive relief, as well as nominal damages," argued FFRF's lawsuit.

In September 2017, U.S. District Judge Edward Smith ruled against the seal, arguing that the cross should not be part of the emblem, despite being surrounded by other symbols.

"In this case, neither the longevity of the Seal nor the secular symbols surrounding the cross detract from the religious message that a cross conveys to the reasonable observer," wrote Judge Smith at the time.

In March of last year, the County appealed the decision to the Third Circuit, arguing in part that the FFRF and the local residents lacked the standing to sue over the seal.

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