Bayview Park cross ruled unconstitutional, must be removed in 30 days

Jim Little | Pensacola News Journal

Show Caption Hide Caption Attorneys explain Bayview Park cross lawsuit Attorneys from both sides explain the arguments in the lawsuit over the Bayview Park Cross after presenting oral arguments in federal court on Wednesday, June 14, 2017 in Pensacola, Fla.

A cross that has stood in Bayview Park for the last 48 years must be removed within 30 days, a federal judge has ruled.

U.S. District Court Judge Roger Vinson ruled Monday that the cross in the city park violates the Establishment Clause of the Constitution and must be removed within 30 days.

The American Humanist Association, a group that works to protect the rights of humanists, atheists and other non-religious Americans, and the Freedom From Religion Foundation filed a lawsuit in 2016 on behalf of four Escambia County residents who said the cross at Bayview Park violated the separation of church and state.

Attorneys for the city of Pensacola and the American Humanist Association presented their oral arguments to Vinson on Wednesday.

Vernon Stewart, spokesman for the city of Pensacola, said on Monday that the city had received a copy of the order.

More: Judge hears arguments in Bayview Park cross lawsuit

"We are currently in the process of reviewing this with our legal counsel," Stewart said. "However, Mayor Hayward is traveling, and he will be the one to ultimately decide how to proceed."

Monica Miller, senior counsel with the American Humanist Association's Appignani Humanist Legal Center, said in a press release that she was pleased with court's ruling.

"The cross was totally unavoidable to park patrons, and to have citizens foot the bill for such a religious symbol is both unfair and unconstitutional,” Miller said.

Arguments in the case came down to the "lemon test," a three-part legal test established in the 1971 Supreme Court case Lemon v. Kurtzman.

The test states that a religious display on government-owned property must meet all three parts of the test to be constitutional. There must be a secular purpose for the display, the display cannot advance or inhibit religion and the display must not excessively entangle government with religion.

A cross has been in Bayview Park in one form or another since 1941. The Pensacola Jaycees, a civics organization for young men, built the current cross in 1969, and it has been maintained by the city ever since, according to court documents.

Judge Vinson, who said he was a member of the Jaycees in the 1970s, ruled that the "lemon test" did indeed apply in this case.

"Lemon is routinely criticized, but it is still the law of the land and I am not free to ignore it," Vinson wrote in his 23-page opinion.

Vinson said there wouldn't be an issue with people worshiping at the park using a temporary cross.

More: Motions filed in Bayview Park cross lawsuit

"However, after about 75 years, the Bayview Cross can no longer stand as a permanent fixture on city-owned property," Vinson said. "I am aware that there is a lot of support in Pensacola to keep the cross as is, and I understand and respect that point of view. But, the law is the law."

In addition to ordering the city to remove the cross, Vinson awarded $1 in damages to the plaintiffs — two of whom, Amanda and Andreiy Kondrat'yev, have moved to Canada — since the case began. The other two plaintiffs are Andre Ryland and David Suhor.

In his ruling, Vinson cited several legal scholars who have criticized the current state of federal case law on the Constitution's Establishment Clause.

"Count me among those who hope the Supreme Court will one day revisit and reconsider its Establishment Clause jurisprudence, but my duty is to enforce the law as it now stands," Vinson said.