More on Bayview Park Cross ruling

After Inweekly broke the news that 11th U.S. Circuit Court of Appeals had ruled the 34-foot cross at Bayview Park can remain on public land, the city issued the following press release after 5 p.m yesterday:

Court Protects Historic Pensacola Cross

Eleventh Circuit takes cue from Supreme Court, upholds
historic WWII-era

A historic World War II-era cross in Pensacola, Florida will remain standing thanks to a victory at the Eleventh Circuit Court of Appeals today. In Kondrat’yev v. City of Pensacola, an atheist group sued the City of Pensacola to remove the monument, which has been standing since 1941. Following the Supreme Court’s decision in American Legion v. American Humanist Association, protecting a World War I memorial cross in Bladensburg, Maryland, the Eleventh Circuit ruled that the cross is constitutional, acknowledging that that it has become “embedded in the fabric of the Pensacola community” and that removing it could “strike many as aggressively hostile to religion.”

The Bayview Cross is one of over 170 displays in Pensacola parks memorializing the City’s diverse history and culture. In 2016, four individuals represented by the American Humanist Association sued the City, demanding the cross be torn down, even though three of the individuals do not live in Pensacola and the fourth has held his own ceremonies at the cross. The trial court and an earlier decision of the Eleventh Circuit reluctantly agreed that the cross was unconstitutional under the notorious Lemon test, which has often been successfully invoked by anti-religious plaintiffs to push religion out of the public square. Earlier this year, however, the Supreme Court ordered the Eleventh Circuit to rethink its ruling in light of the Supreme Court’s decision in American Legion, which finally scrapped the Lemon test in cases involving longstanding symbols.

“The Supreme Court has now made clear that religious symbols are an important part of our nation’s history and culture,” said Luke Goodrich, vice president and senior counsel at Becket.

The 78-year-old cross was built in the City’s Bayview Park in 1941, as the U.S. prepared to enter WWII, as a place for the community to unite. Since then, Pensacola citizens have held community events such as Easter sunrise services, Veteran’s Day and Memorial Day remembrances, and other voluntary gatherings at the monument, which has become a significant symbol for the Pensacola community.

“Pensacola is a city with a rich and diverse history. The Bayview Cross is an important part of that history as a symbol of our community’s coming together during a national crisis,” said Grover C. Robinson IV, mayor of Pensacola. “We are pleased by the court’s ruling in this case, and today we celebrate our long-awaited victory and the preservation of the Bayview Cross.”

In the June 2019 Supreme Court ruling upholding the World War I memorial cross in Maryland, Justices cited Becket’s friend-of-the-court brief multiple times. Becket has also successfully defended a statue of Jesus in Montana commemorating fallen World War II soldiers, a historic cross artifact at Ground Zero, and a Pennsylvania county seal.

The News Service of Florida published this article:

By Jim Saunders

TALLAHASSEE — Pointing to a U.S. Supreme Court decision last year, a federal appeals court Wednesday reversed course and said a decades-old Latin cross can remain in a Pensacola park.

The 11th U.S. Circuit Court of Appeals in 2018 upheld a lower-court ruling that said the 34-foot cross in the city’s Bayview Park needed to be removed because it violated the Establishment Clause of the U.S. Constitution’s First Amendment.

But the city took the case to the U.S. Supreme Court, which also was considering a similar dispute involving a cross on public land in Maryland. The Supreme Court last year found that the Maryland cross did not violate the Establishment Clause. It subsequently vacated the appeals-court ruling in the Pensacola case and sent it back for reconsideration.

A three-judge panel of the appeals court on Wednesday issued a 34-page main opinion that cited the Supreme Court decision in the Maryland case and said the Bayview Park cross, which was initially constructed in 1941, does not need to be removed. In part, it said purposes “associated with the cross have multiplied over time” and are not limited to religious uses.

“For instance, although it has remained the location for an annual Easter sunrise program, it has also been used as a site for remembrance services on Veterans and Memorial Days, as well as a place for citizens to gather during times of national crisis — e.g., following the death of President Roosevelt, during times of war, etc.,” the ruling said. “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.”

Pensacola Mayor Grover C. Robinson issued a statement after the ruling that also pointed to a broader significance of the cross, dating back to the World War II era.

“Pensacola is a city with a rich and diverse history,” Robinson said. “The Bayview Cross is an important part of that history as a symbol of our community’s coming together during a national crisis.”

The cross was originally a wooden structure built by the National Youth Administration, according to Wednesday’s ruling. The wooden cross was replaced by a concrete version in 1969.

Four plaintiffs filed the lawsuit challenging the cross, with a federal district judge ruling that its presence on public property was unconstitutional. In its 2018 decision upholding that decision, the Atlanta-based appeals court said “our hands are tied” by legal precedent on the issue.

But the U.S. Supreme Court ruling in the Maryland case, known as American Legion v. American Humanist Association, changed that.

“Having reconsidered the case in light of American Legion, we conclude, as the Supreme Court did there, that ‘the Cross does not offend the Constitution,’” said the appeals-court opinion, written by Judge Kevin Newsom and joined by judges Frank Hull and Charles Ashley Royal.