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Would Crosses on Public Property Violate the Establishment Clause?

By Gabriella Khorasanee, JD | Last updated on

In what will likely be& the next case regarding the Establishment Clause to be appealed all the way to the Supreme Court (no matter which way the appellate ruling goes), we have two citizens contesting a city's approval of a church's permit to display crosses in a public area. Why the church needs to display crosses in a busy downtown area of the city is unclear, but you can't say they're not persistent.

The case has already been heard by the U.S. District Court for the Southern District of Indiana, and is now on its way to the Seventh Circuit. We're guessing no matter which way this case is decided, one (or two) thing(s) will probably follow: a petition for rehearing en banc and/or a petition for writ of certiorari. Some things are just inevitable.

The Crosses

Evansville is a city in southwest Indiana with a popular riverfront area ("Riverfront") that's frequented by visitors and residents alike. In April 2013, the West Side Christian Church submitted an application for a project dubbed "Cross the River," which consisted of the erection of 31 plastic crosses on the Riverfront, measuring six feet high, for a period of two weeks in August 2013. The permit was approved by the city's Board of Public Works in a vote of 2-0, followed by a later decision that the crosses should bear a disclaimer that Evansville was not endorsing the display or message.

The Order

Two Evansville residents initiated an action in federal court requesting injunctive relief enjoining the city from permitting the erection of the 31 crosses. Applying a modified Lemon test, the court had to determine whether the "primary effect" of erecting the crosses has "the effect of communicating a message of government endorsement." Because of the "size and scope of the project," the district court concluded that the "crosses would convey a message of the City's endorsement of Christianity to the reasonable observer, and thus would violate the Establishment Clause."

The Church filed a notice of appeal on August 28, and oral arguments are scheduled before the Seventh Circuit on February 18, according to Evansville's WFIE-TV.

Meanwhile, in Chicago, a Catholic charity group is trying to find a place for a sculpture, depicting Jesus as a homeless man, in public amongst the city's collection of public art, reports the Chicago Tribune. If the sculpture ends up on church property there's no issue. But we're guessing that if the sculpture indeed ends up on city property, there may be another Establishment Clause case brewing in the Seventh.

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