You may recall that almost six weeks ago, the city of Evansville, Indiana approved the temporary public display of 31 eight-feet-tall plastic crosses along the public riverfront, spread out over a four-block area. The church that wanted to erect the Christian symbols stressed that they’re (supposedly) not intended to promote religion; instead, the crosses were to be interpreted as an “art display,” because Bible-camp kids would decorate them.

The children will have to find other things on which to unleash their creativity. That’s because District Court judge Sarah Evans Barker ruled yesterday, just five days before the exhibit was to open, that the crosses would be a violation of the Establishment Clause. Barker’s decision (embedded below) was the outcome of a suit filed by local plaintiffs Chris Cabral and Nancy Tarsitano, who found the ACLU on their side.

The West Side Church and the city attorney had argued that Evansville frequently provides permits for open-air gatherings and vigils and the like, some of which are religious in nature. The cross exhibit would be more of the same. But Barker didn’t buy it:

The history of uses of the Riverfront by in-person events and festivals, both secular and non-secular, is long and varied. That is not true, however, with regard to unattended displays erected there that are comparable to that at issue here. … These prior uses all involved in-person events of short duration, usually lasting only a few hours. In contrast, the display of the Crosses, while not permanent, will extend over a two-week period, thereby strengthening the message of endorsement by the City. More significantly, unlike in-person events where the identity of the individual speaker(s) is clearly associated with the message, an unattended display (and any message it conveys) can naturally be viewed as belonging to the owner of the land on which it stands.

So far so good, and in the end, the court reaches the correct decision. But Barker takes an odd and slightly worrisome little detour to get there — focusing on the size and number of the crosses (see page 15 through 19).

She writes:

[W]e conclude that based on the size and scope of the project, this planned display of crosses would convey a message of the City’s endorsement of Christianity to the reasonable observer, and thus, would violate the Establishment Clause. … The constitutional concern rests not with the use of the cross symbol as such, but rather with the oversized, imposing and somewhat overpowering size, scope, and magnitude of the display. That the plans call for it to extend over a four city block expanse of iconic public space within the geographic and cultural center of the community of Evansville and be comprised of numerous six-foot-tall crosses, will clearly communicate a sectarian message. It is the forcefulness of this message based on the size and scope of the display that catapults it into the range of constitutionally prohibited speech.

The court’s ruling, then, is only a partial victory for advocates of state/church separation. Consider:

This ruling should not be understood to foreclose or prohibit any and all unattended displays on the Riverfront area that convey a religious message. To stay within constitutional bounds, however, it must stop short of creating a message that overwhelms the nature of the public forum thereby transforming it into government endorsed religious speech.

I’m neither a neutral party nor a legal scholar, so forgive my possible blind spot, but the ruling is a puzzle to me. Would the overtly religious display have passed constitutional muster if there’d been just three crosses? Eight? Fifteen? Or if the crosses had been only one foot tall? Two feet? Four? Or if they’d been placed in a non-“iconic” public space, a mile away? Or if they’d been erected in the span of just one city block, rather than four?

The answer to all these questions is “surely not.”

Though long, drawn-out legal fights are enjoyed only by pettifoggers with their hourly rates, I’d actually welcome it if the West Side Church or the city appealed the decision, as they may; that way, Barker’s tremorous opinion could receive a robust upgrade from a court that isn’t afraid to bare its teeth over the principle of the thing.

(image via Gold Coast Africa)



