In 1944, Lehigh County established its seal, which includes a large yellow cross to honor “Christianity and the God-fearing people” who founded the county, according to Harry Hertzog, a commissioner at the time. Now, in 2017, a federal court is demanding that officials strip the cross from the seal and from any other design representing Lehigh County.
The November 1 injunction by Judge Edward G. Smith of the U.S. District Court for the Eastern District of Pennsylvania permits the county to keep the cross only in earlier documents that contained it. The order follows the court’s September ruling that the cross’s presence was unconstitutional. The county is appealing the decision. If it loses, the order goes into effect 180 days after the appeal process has concluded. Employees, agents, and officers would then be forbidden to use or display the current seal with respect to any “service, program, document, facility, building, equipment, [or] activity.”
The Freedom from Religion Foundation, along with four Lehigh County residents, sued the county, alleging that the cross endorses Christianity. FFRF prides itself on fighting for the separation of church and state. The Becket Fund, which defended Hobby Lobby in its religious-freedom case, was hired about a week ago by Lehigh County to defend it in its appeal to the U.S. Circuit Court of Appeals in Philadelphia. Becket has an 87 percent success rate, and Eric Baxter, senior counsel for the Becket Fund, tells me via email that it accepts only cases that it thinks it can win.
In his September decision, Smith argued that the seal did not violate the plain text of the establishment clause, because it did not establish a religion, but that this isn’t the only standard he’s mandated to use.
While deciding whether a government established a religion may be a matter of “common-sense,” he said, higher courts created the Lemon test and the endorsement test to determine violations of the establishment clause. According to the judge, the seal fails the Lemon test because the original purpose of the cross was to advance religion, and to use a cross to honor settlers is to honor the fact that they were Christian. The seal fails the endorsement test because a reasonable observer could perceive the cross to be endorsing Christianity.
In his decision, Smith cited legal scholars and judges who opposed the tests, including Supreme Court justices Clarence Thomas and Antonin Scalia, who both argued that tests should focus on whether the government imposes religious coercion on anyone. Smith explained that he’s obligated to follow tests imposed by higher courts even if he doesn’t fully agree.
FFRF applauded the ruling. In its original argument, FFRF pointed to three occasions on which courts ruled against governments’ displaying crosses. In Harris v. City of Zion, Lake County, Ill.; Robinson v. City of Edmond; and American Civil Liberties Union of Ohio, Inc. v. City of Stow, courts found that crosses whose reasons for display were religious, not historical, were unconstitutional.
Courts have allowed the cities of Austin, Texas, and Las Cruces, N.M., to keep the cross on their flags because of the strong ties that symbol has to their founding.
Defenders of the cross believe they have a strong case.
FFRF senior counsel Patrick Elliott says via email that any claim that the seal’s cross is related to the history of the county is unfounded. “Traditions that violate the United States Constitution should not continue,” he maintains.
Although the cross is Christian, Pennsylvania state representative Justin Simmons, whose district includes part of Lehigh County, says the cross is historic, not a religious mandate. Simmons is running in the Republican primary for U.S. House in the 15th district. He says he never thought of the cross in the seal before until someone filed a “ridiculous” lawsuit. It’s a symbol about the county’s founding, he added, and the opposition to it stems from a “cultural decay” in the country.
GOP state representative Ryan Mackenzie, whose district also includes Lehigh County, is vying for the same U.S. House seat. He echoes Simmons’s concerns. “The cross in the seal also represents an important part of the area’s history,” he says. “As a ninth-generation resident of the area, I am a very strong proponent of preserving our history — including our religious history.” Mackenzie, too, sees the problem as national. The “radical Left” is trying to erase religion, in his view.
Both state reps say that religious freedom is worth defending. In the Pennsylvania House, both voted for the 2014 bill that would have affirmed that public schools could display the motto “In God We Trust.” The bill passed the House with bipartisan support but was not put up for a vote in the Senate.
Baxter explains via email that when the religious symbolism displayed on an official government seal played an historical role, “the Constitution doesn’t require us to toss that portion of our history down the memory hole.” Baxter is the lead attorney on Lehigh County’s appeal.
Courts have allowed the cities of Austin, Texas, and Las Cruces, N.M., to keep the cross on their flags because of the strong ties that symbol has to their founding, according to Baxter. He adds that Lehigh County is no different. The most important case regarding tradition and the establishment clause, he says, is Town of Greece v. Galloway (2014). There the Supreme Court ruled that legislatures can begin sessions with prayers because the practice goes back to the nation’s founding.
“No one is coerced to become a Christian by seeing a cross (surrounded by other secular elements) on a county seal,” Baxter says. “A ruling against Lehigh County would embolden groups like FFRF to continue their efforts to scrub religion from the nation’s public places.”