Pensacola's Bayview Park cross can stay, does not violate Constitution, appeals court rules

Pensacola's Bayview Park cross can stay on city property after the U.S. 11th Circuit Court of Appeals ruled Wednesday that the presence of the cross does not violate the Establishment Clause of the Constitution.

In June, the U.S. Supreme Court vacated previous rulings that the cross violates the separation of church and state and ordered the circuit court to rehear the case in light of the high court's ruling on the Bladensburg cross case out of Maryland.

The Bladensburg cross case was similar to the Pensacola cross case, but involved a World War I memorial on public land in Maryland.

In that case, the Supreme Court ruled that although crosses are a symbol of Christianity, the government does not necessarily have to remove a cross that has been in place for such a long time that it has also taken on a secular meaning.

Applying the new Supreme Court ruling to the Bayview Park cross case, a three-judge panel wrote a 42-page opinion on the "Pensacola Cross Case 2.0" that concluded "the cross does not offend the Constitution."

"We won't bury the lede," the opinion said. "… Pensacola's maintenance of the Bayview Park cross does not violate the First Amendment."

High court rules:Supreme Court orders lower court to rehear Bayview Park cross lawsuit

Maryland connection:Pensacola Mayor Grover Robinson says city will see Bayview Park cross lawsuit through

First appeals court ruling:Appeals court rules Pensacola's Bayview Park cross must come down, city plans to appeal

The American Humanist Association and the Freedom From Religion Foundation filed a lawsuit against the city of Pensacola in 2016 on behalf of four Pensacola residents who wanted the cross to be removed.

A U.S. District Court judge ruled in June 2017 that the Bavyiew Park cross violated the Constitution's Establishment Clause and had to be removed.

The Becket law firm appealed the ruling on behalf of the city for free, but attorneys with the Pensacola law firm Beggs and Lane are also representing the city in the case.

The case went to the U.S. 11th Circuit Court of Appeals, where a three-judge panel upheld the lower court's ruling, but two of the judges said they were bound to make the ruling because of bad precedent. The judges called on the Supreme Court to take up the case and overrule them.

With the new ruling from the Supreme Court, 11th Circuit Court judges Kevin Newsom and Frank Hull and District Judge C. Ashley Royal said that under the new precedent, the cross' age plays a big factor in considering if it is constitutional. The cross was first erected at Bayview Park in 1941.

"Removal of the Bayview Park cross at this point — more than 75 years after its original erection and more than 50 years after its replacement with the current concrete version — could well, in the Supreme Court’s words, 'strike many as aggressively hostile to religion,' " the opinion said.

The judges also found the city has managed the cross on a neutral basis.

"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," the opinion said. "The surest proof of that fact: Just two months before the filing of this lawsuit, the City granted plaintiff David Suhor’s request to reserve the cross for his own 'satanic purposes,' which required a church that had already reserved it to move to another area of the park."

Judges Newsom and Royal went even further in a concurring opinion that questioned the precedent that allowed the four plaintiffs in the case standing to sue the city over the cross, and suggested the case needed a full panel of all 11th circuit judges to overrule the precedent that someone being "offended," "affronted" or "excluded" over religious symbols was not grounds to sue.

The case could still be appealed to a full-panel of all 11th Circuit Court judges or back to the Supreme Court.

In a press release, the American Humanist Association called the ruling a "devastating blow to the Establishment Clause," and said they were exploring all options in the case.

"It is troubling to see the court attack the principle of church-state separation that was held dear by our Founders," said Roy Speckhardt, executive director of the American Humanist Association, in the press release. "Today’s decision is part of the religious right’s ongoing crusade to privilege Christianity at the expense of true religious freedom for all."

Pensacola Mayor Grover Robinson told the News Journal that he was happy with Wednesday's ruling and he views the cross in its historical context, not necessarily just as a religious symbol.

"It's been there for a long time in relation to recognize those who served in our military and given their lives," Robinson said. "So again, very happy to see that it will still be a part of our community into the future as it has been in the past."

Jim Little can be reached at jwlittle@pnj.com and 850-208-9827.