Cross on County Seal Upheld Under SCOTUS Precedent

in Pennsylvania adopted its seal seventy five years ago. The seal features across in the center, surrounded by nearly a dozen secular symbols like a heart of farm and factory, and in the first test of the Supreme Court's most recent decision on the display of religious symbols, the Third Circuit Court of Appeals has ruled the seal does not

violate the Constitution's prohibition against government endorsement of religion. Joining me as an expert on the First Amendment, Rick Garnett, a professor at Notre Dame Law School, Rick, will you explain the Third Circuits reasoning here? Yeah? Sure, Although you you did a great job in your setup. Significant significant here is that this is an early indication of how federal courts of appeals are going to interpret and apply the Supreme Court's latest decisions having to do with religious

symbols and religious expression in the public square. UM. For years, there's been UM some confusion and perhaps contradictory results in the lower court opinions, mainly because the Supreme Court itself couldn't seem to decide on how these religious symbol cases should be handled, and so they tended to UM come out in various unpredictable ways, uh, depending on a whole lot of factors, and what some people were hoping was going to happen after the Supreme Court's most recent decision

appears to be happening, namely that UM, the Court here had a pretty clear approach and said, look, the establishment clause doctrine that the Court created for dealing with things like school prayer or UH financial aid to schools, that doctrine simply does not apply to cases involving long standing public seals, you know, the names of towns and so on. It was always going to be the case that the Supreme Court was never gonna make San Francisco or Sacramento

change their names. But they didn't really have it. They didn't really have doctrine that would explain why that was the case. And I think now we do. I think the third Circuit has shown us that in these cases involving First Amendment challenges to these passive, longstanding symbols, the fact that they have religious content does not make them an establishment of religion. So is there a presumption of constitutionality for long standing monuments? Yeah, exactly, that's the term

that the Court uses again following the Supreme Court. It's not an absolute rule, but the Court was pretty strong I think in saying that there's the presumption is going

to be a strong one. If there's been a symbol there was adopted a long time ago, even if it includes some religious imagery, Um, if it's existed for a long time, if it's purpose and meaning has evolved over time, so long as it's not discriminatory in its intent or disparaging of of a particular religious denomination, the Court says, it's going to be very difficult to overcome the presumption.

So that this ruling, if it's followed, um, it should be pretty effective in helping courts sort of get out of the business of explaining again why Las Cruces, New Mexico doesn't have to change its name. So now, what about is the next test going to be about monuments that are not long standing. Yeah, so that's that's it's

a great point. I mean, as you might recall a couple of years ago, the last time the court was really dealing with symbol that involved the Ten Commandments, and you had the court hand down two decisions on the same day. One of them involved having an old Ten Commandments display that had been up for decades in Texas, and the other one was a relatively new one that

had been put up in a courthouse in Kentucky. And the court came out differently on the two displays, basically said the the old one could stay, but the new one was problematic. So it does remain to be seen. I think, um, kind of how old is old enough? How old does a symbol or a seal or a place name need to be in order to get this

presumption of constitutionality. My sense is that, Um, if he had a if some town were to adopt a new seal next week, or to put up, you know, to change its name to one that had a religious connotation, or to engage in some other kind of religious symbolism, h people challenging it would say, well, if you look at the history of why the town is doing it, the intent really is to make a religious um statement, and perhaps that discriminatory woul with a statement that would

be the way to overcome the presumption. So Rick, as you mentioned, the Court has sort of struggled to lay out clear rules governing religious symbols on public lands. And even this latest ruling, though there were seven justices who agreed with with the main opinion, the seven of the nine I'm sorry, seven of the nine wrote an opinion in the case explaining themselves. So does that show that it's going to be tough to come to a decision

about monuments that are newer? Well, a lot of us court watchers were wondering that, and probably many of us still are, because, as you say that, you have to kind of piece together different justices opinions to sort of identify um the rule, and in this case, the Third Circuit I think show pretty clearly how that can be done,

and I suspect other courts will follow the example. That is, if you put together the opinions of the justices who were among the seven and including, you can identify opinions that were signed onto by five justices. Um. It does appear that the so called Lemon test is simply not going to apply to these symbols and displays cases anymore. We want to get more data points and see more courts weighing in. But I I feel pretty confident that other courts are going to find the third circuits reading

of those opinions the right one. Will you explain the Lemon test for those of us who are, oh, of course, sorry about that. Yeah, the Lemon. Lemon is a case that was decided nearly fifty years ago, um, and it had three parts to it. And so this is what law students always had to learn and you know, regurgitate on the bar exam. But the idea was that, um, the First Amendments rule against establishments of religion. Um, if in order to be an establishment, a policy needed to

either lack of secular purpose. That was the first part. Uh. Second, if it advanced religion in some way, it would violate the establishment clause. And then third there was a concern that if a policy led to what the court called excessive entanglement between government and religion, that would be Establishment clause violation. And so this Lemon case kind of became you know, the control alto doctrine that courts would use. But The problem is it wasn't very well suited too

public actions like displays. How does one decide, you know, if a display has the effect of advancing religions. So in the eighties the court refined the Lemon test a little bit and said, well, we're gonna ad at a new inquire. We're gonna ask whether a particular symbol endorses religion. But that proved over the following decades to not be very helpful either, because endorsement was often in the eye that beholder. Um. People react to symbols in very different ways.

So I think in more recent years, rather than asking that kind of a distract question about endorsement, the Court had started leaning war on history, tradition, and practice. Thank you so much, Rick, We have to leave it there, but we could talk about this for so long. Thanks. That's Rick Garnett. He's a professor at Notre Dame Law School. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg