Freedom From Religion Foundati v. County of Lehigh , 933 F.3d 275 ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 17-3581
___________
FREEDOM FROM RELIGION FOUNDATION, INC.;
STEPHEN MEHOLIC; DAVID SIMPSON;
JOHN BERRY; CANDACE WINKLER
v.
THE COUNTY OF LEHIGH,
Appellant
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 5:16-cv-04504)
District Judge: Honorable Edward G. Smith
___________
Argued September 7, 2018
Before: HARDIMAN, KRAUSE, and BIBAS, Circuit
Judges.
(Filed: August 8, 2019)
Marcus B. Schneider [Argued]
Steele Schneider
428 Forbes Avenue, Suite 700
Pittsburgh, PA 15219
Attorneys for all Plaintiff-Appellees
Patrick C. Elliott
Freedom from Religion Foundation
10 North Henry Street
Madison, WI 53703
Attorney for individual Plaintiff-Appellees
Eric S. Baxter [Argued]
Joseph C. Davis
Diana M. Verm
The Becket Fund for Religious Liberty
1200 New Hampshire Ave. NW, Suite 700
Washington, DC 20036
Thomas M. Caffrey
P.O. Box A
Copley, PA 18037
Attorneys for Defendant-Appellant
Richard B. Katskee
Americans United for Separation of Church & State
1310 L Street, NW, Suite 200
Washington, DC 20005
Attorney for Amici Religious and Civil-Liberties
Organizations in Support of Appellees
David A. Cortman
Alliance Defending Freedom
15100 N. 90th Street
Scottsdale, AZ 85260
2
Samuel S. Sadeghi
Morgan Lewis & Bockius
600 Anton Boulevard
Suite 1800
Costa Mesa, CA 92626
Jonathan A. Scruggs
Kristen K. Waggoner
Alliance Defending Freedom
15100 North 90th Street
Scottsdale, AZ 85260
Attorneys for Amicus Alliance Defending Freedom in
Support of Appellant
Michael D. Berry
First Liberty Institute
2001 West Plano Parkway, Suite 1600
Plano, TX 75075
Attorney for Amicus First Liberty Institute in Support
of Appellant
Gregory Dolin
University of Baltimore School of Law
1420 North Charles Street
Baltimore, MD 21201
Attorney for Amicus Jews for Religious Liberty in
Support of Appellant
Gregory L. Chafuen
Weil Gotshal & Manges
2001 M Street, N.W.
Suite 600
3
Washington, DC 20036
Thomas R. Guy
Weil Gotshal & Manges
200 Crescent Court, Suite 300
Dallas, TX 75201
Randall L. Wenger
Independence Law Center
23 North Front Street
Harrisburg, PA 17101
Attorneys for Amici States of Alabama, Arizona,
Arkansas, Colorado, Indiana, Kansas, Louisiana, Missouri,
Nebraska, Ohio, Oklahoma, South Carolina, Texas, Utah, and
West Virginia in Support of Appellant
OPINION OF THE COURT
HARDIMAN, Circuit Judge.
For almost 75 years, the official seal of Lehigh County,
Pennsylvania has included a Latin cross surrounded by nearly
a dozen secular symbols of historical, patriotic, cultural, and
economic significance to the community. The question
presented is whether that seal violates the Establishment
Clause of the First Amendment to the United States
Constitution. Consistent with the Supreme Court’s recent
decision in American Legion v. American Humanist
Association, 139 S. Ct. 2067 (2019), we hold it does not.
4
I
In December 1944, the Lehigh County Board of
Commissioners unanimously adopted the seal at issue and
agreed to purchase a flag depicting it. Although the record
contains no evidence of the three Commissioners’
contemporaneous understandings of the imagery used in the
seal, Commissioner Harry D. Hertzog, who designed and voted
for the seal, explained two years later: “in center of Shield
appears the huge cross in canary-yellow signifying Christianity
and the God-fearing people which are the foundation and
backbone of our County.” App. 99. This appears to be the only
available explanation of the cross’s initial inclusion in the seal.
The cross is partially obscured by a depiction of the Lehigh
County Courthouse and surrounded by many other symbols
representing the County’s history, patriotism, culture, and
economy. 1 See infra Appendix A.
The seal appears on County-owned property and on
various government documents, as well as on the County’s
website, so Lehigh County residents encounter it regularly.
The Freedom from Religion Foundation (FFRF) wrote to the
County in November 2014 to complain about the seal and
1
These include the United States and Pennsylvania
flags, a red heart representing the County Seat of Allentown, a
map of the County’s boundaries, two books and the lamp of
learning representing education, red bunting representing the
clothing manufacturing industry, the Liberty Bell, a bison head
representing the County Preserve and its protected hoofed
animals, industrial buildings representing the County’s cement
and other industries, and grain silos and a cow representing
agriculture. See infra Appendix A.
5
request its use be discontinued—the first such complaint in the
seal’s history. After a series of meetings and attempts to gather
information about the seal, the Board of Commissioners voted
unanimously to retain the seal in March 2015. Responding to
FFRF by letter, the County stated the cross’s “presence . . . on
the seal among all the other items of historical significance has
the secular purpose of recognizing the history of the County”
and “honor[s] the original settlers of Lehigh County who were
Christian.” App. 310. The present-day Board did not know
why the 1944 Commissioners decided to include the cross, and
interpreted Hertzog’s 1946 statement to mean the cross—like
other symbols on the seal—represented “elements that were
important to the early settlers” of Lehigh County. App. 266–
67.
FFRF and four of its members who reside in Lehigh
County filed this lawsuit in 2016. After both parties moved for
summary judgment, the District Court denied the County’s
motion and granted FFRF’s. It found the seal unconstitutional
under the Lemon test as modified by the endorsement test, after
asking whether the cross lacked a secular purpose and whether
a reasonable observer would perceive it as an endorsement of
religion. Freedom from Religion Found., Inc. v. Cty. of Lehigh,
2017 WL 4310247, at *9–10 (E.D. Pa. Sept. 28, 2017) (citing
Lemon v. Kurtzman, 403 U.S. 602 (1971)). The District Court
explained in dicta that although FFRF’s claim would fail under
the Establishment Clause as originally understood, the Court
was obliged to apply the Lemon-endorsement test despite its
shortcomings. The County timely appealed, but after oral
argument we held the case pending resolution of American
Legion and then asked the parties to provide supplemental
briefing based on that decision. We now hold that Lemon does
not apply to “religious references or imagery in public
6
monuments, symbols, mottos, displays, and ceremonies” like
the seal. 139 S. Ct. at 2081 n.16 (plurality opinion). As the
Supreme Court held in American Legion, such longstanding
symbols benefit from “a strong presumption of
constitutionality.” Id. at 2085. And because the thin record in
this case does not overcome that presumption, we will reverse
the District Court’s order.
II
The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction over this timely appeal under
28 U.S.C. § 1291. We review a party’s standing to sue de novo.
Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 266 (3d Cir.
2014). The same is true of our review of the District Court’s
summary judgment. Id. at 265.
III
In the Establishment Clause context, “a community
member . . . may establish standing by showing direct,
unwelcome contact” with a government display alleged to
violate the Constitution. Freedom from Religion Found., Inc. v.
New Kensington Arnold Sch. Dist., 832 F.3d 469, 479 (3d Cir.
2016). 2 The Supreme Court appears to adhere to this approach,
2
The County argues New Kensington is at odds with
Americans United for Separation of Church & State v. Reagan,
786 F.2d 194 (3d Cir. 1986), and Town of Greece v. Galloway,
572 U.S. 565 (2014). Neither case requires us to reconsider
Establishment Clause standing here. The Reagan plaintiffs
asserted a generalized, stigmatic injury based on diplomatic
recognition of the Vatican and related congressional funding,
7
resolving many offended-observer standing cases on the merits
without addressing standing. See, e.g., Am. Legion, 139 S. Ct.
at 2090; McCreary Cty. v. ACLU of Ky., 545 U.S. 844 (2005);
Van Orden v. Perry, 545 U.S. 677 (2005). But see Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 91 (1998) (“[D]rive-
by jurisdictional rulings of this sort . . . have no precedential
effect.”). We will not abrogate New Kensington’s relaxed
standard for Establishment Clause plaintiffs and instead leave
it to the Supreme Court—or this Court sitting en banc—to
determine whether to discard it. 3
The County does not dispute that the individual
Plaintiffs here have experienced a variety of direct and
unwelcome contacts with the seal. For example, Plaintiffs
Berry, Meholic, Simpson, and Winkler have encountered the
seal as displayed in the County Commissioners’ public
meeting room, on the County website, in the County Sheriff’s
Office, on real estate tax bills, when reporting to the County
courthouse for jury duty, on County flags placed throughout
the County, and on County-owned vehicles. The individual
plaintiffs are also residents of the relevant community (Lehigh
as opposed to direct and unwelcome contact. Reagan, 786 F.2d
at 200–01. And the portions of Town of Greece the County
cites involve substantive Establishment Clause analysis, not
threshold issues of standing.
3
See generally Am. Legion, 139 S. Ct. at 2098–103
(Gorsuch, J., concurring in judgment) (arguing the concept of
offended-observer standing is inconsistent with Article III’s
standing requirements); City of Edmond v. Robinson, 517 U.S.
1201, 1201–03 (1996) (Rehnquist, C.J., dissenting from the
denial of certiorari) (arguing for the Court to resolve the
question of offended-observer standing).
8
County). See New Kensington, 832 F.3d at 478. For these
reasons, we hold they have standing to challenge the seal under
the Establishment Clause.
IV
The Establishment Clause precludes Congress from
passing any law “respecting an establishment of religion.” U.S.
CONST. amend. I. The original public understanding of
“establishment” informs the Supreme Court’s more recent
focus on evaluating challenges to government action in the
context of historical practices and understandings. See Am.
Legion, 139 S. Ct. at 2074; Town of Greece v. Galloway, 572
U.S. 565, 576–77 (2014); Van Orden, 545 U.S. at 682–84
(plurality opinion); id. at 702–04 (Breyer, J., concurring in
judgment).
Before American Legion, the Lemon-endorsement test
directed courts to divine the intent behind challenged
government action or to ascertain the “reasonable observer’s”
perception of that action. 4 That’s not to say the test guided the
Supreme Court itself. Well before American Legion, the Court
4
Lemon’s three prongs are (1) secular legislative
purpose, (2) principal or primary effect that neither advances
nor inhibits religion, and (3) lack of excessive government
entanglement with religion. 403 U.S. at 612–13. The
endorsement test modified Lemon by asking whether a
“reasonable observer familiar with the history and context of
the display would perceive the display as a government
endorsement of religion.” Modrovich v. Allegheny Cty., 385
F.3d 397, 401 (3d Cir. 2004) (citing Lynch v. Donnelly, 465
U.S. 668, 687, 692 (1984) (O’Connor, J., concurring)).
9
and individual Justices repeatedly indicated the test was not
binding. See, e.g., Van Orden, 545 U.S. at 699–700 (Breyer, J.,
concurring in judgment) (observing that the Court was unable
to adopt a “single mechanical formula that can accurately draw
the constitutional line in every case” (citation omitted));
Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (eschewing “any
single test or criterion in this sensitive area” (citations
omitted)); Hunt v. McNair, 413 U.S. 734, 741 (1973) (stating
Lemon provides “no more than helpful signposts”). Sometimes
the Court ignored the test altogether. See, e.g., Town of Greece,
572 U.S. 565 (omitting any mention of Lemon); Van Orden,
545 U.S. 677 (no reliance on Lemon in either the plurality or
Justice Breyer’s concurrence); Utah Highway Patrol Ass’n v.
Am. Atheists, Inc., 565 U.S. 994 (2011) (Thomas, J., dissenting
from the denial of certiorari) (collecting more cases that ignore
Lemon). Although American Legion did not exorcise what
Justice Scalia likened to a “ghoul in a late-night horror movie
that repeatedly sits up in its grave and shuffles abroad, after
being repeatedly killed and buried,” Lamb’s Chapel v. Ctr.
Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993)
(Scalia, J., concurring), the Court did make clear that the
Lemon-endorsement framework does not apply to our
evaluation of the Lehigh County seal.
American Legion confirms that Lemon does not apply
to “religious references or imagery in public monuments,
symbols, mottos, displays, and ceremonies.” 139 S. Ct. at
2081–82 & n.16 (plurality opinion); see also id. at 2097
(Thomas, J., concurring in judgment) (agreeing that Lemon
does not apply to such cases); id. at 2102 (Gorsuch, J.,
concurring in judgment) (same). Instead, informed by four
considerations, the Court adopted “a strong presumption of
constitutionality” for “established, religiously expressive
10
monuments, symbols, and practices.” Id. at 2085. Those
considerations include that: (1) identifying such symbols’
original purpose or purposes is often difficult; (2) the original
purposes may multiply over time, especially through decisions
to retain a symbol; (3) the message conveyed by the symbol
may change over time; and (4) removing a longstanding
symbol imbued with “familiarity and historical significance”
may appear hostile to religion. Id. at 2082–85. And the only
ways the Court suggested challengers might be able to
overcome the presumption of constitutionality would be to
demonstrate discriminatory intent in the decision to maintain a
design or disrespect based on religion in the challenged design
itself. See id. at 2074, 2089.
In its supplemental brief filed after American Legion
was decided, FFRF makes two points. It argues that the facts
of this case show American Legion’s presumption does not
apply and, even if it did, the presumption is overcome. Neither
argument proves availing.
On the first point, American Legion held that the
presumption applies to longstanding symbols just like the
Lehigh County seal. What’s more, the Supreme Court’s four
considerations for applying a presumption of constitutionality
to the Bladensburg Peace Cross apply equally here. For these
reasons, we begin our evaluation of the Lehigh County seal
with “a strong presumption of constitutionality” for this
longstanding symbol. Id. at 2085.
And on the second, it’s clear on the record in this case
that Plaintiffs have not overcome the presumption. The
evidence does not show the sort of “discriminatory intent” in
maintaining a symbol or “deliberate[] disrespect[]” in a design
itself that American Legion suggested could overcome the
11
presumption. See id. at 2074, 2089. So the seal is plainly
constitutional under the most recent frameworks the Supreme
Court has used to evaluate similar, established government
symbols, monuments, and practices with religious elements. 5
A
To begin with, the notion that the presumption of
constitutionality does not apply to the Lehigh County seal is a
nonstarter. In American Legion, the Supreme Court held that
the presumption applies to all “established, religiously
expressive monuments, symbols, and practices.” Id. at 2085.
Lehigh County’s seal checks those boxes. It was adopted
almost 75 years ago, so it is established. It depicts a Latin cross,
so it is religiously expressive. And it represents the County and
its government, so it is a symbol. Satisfying these three
5
We therefore distinguish this case from our recent
Establishment Clause decisions in Doe v. Indian River School
District, 653 F.3d 256, 282–83 (3d Cir. 2011), and
Stratechuk v. Board of Education, South Orange-Maplewood
School District, 587 F.3d 597, 604–06 (3d Cir. 2009). Both
involved the public-school context, not longstanding
government symbols, and both predate American Legion and
Town of Greece. We further recognize that American Legion
abrogates the reasoning (i.e., application of Lemon) in both
Modrovich, 385 F.3d 397, and Freethought Society of Greater
Philadelphia v. Chester County, 334 F.3d 247 (3d Cir. 2003).
Neither case—decided before American Legion, Town of
Greece, and Van Orden—binds our decision here because of
that intervening Supreme Court precedent. See In re Krebs, 527
F.3d 82, 84 (3d Cir. 2008).
12
conditions triggers the “strong presumption of
constitutionality.” Id.
Moreover, although none is required for the
presumption to apply, all four of American Legion’s
considerations further confirm the presumption’s applicability:
First, 75 years after the seal’s adoption, the only
available evidence of original purpose is Commissioner
Hertzog’s statement made two years after the County adopted
the seal. Discerning the actual purpose of the seal’s adoption is
made more difficult not only by the passage of time, but also
because Hertzog was just one of three commissioners. These
problems highlight why the Supreme Court in American
Legion expressed skepticism about the ability of courts to
determine the original purposes of longstanding symbols. See
id. at 2082.
Context also matters. Where a display includes many
other monuments or symbols, the undeniably religious
symbolism of one monument may take on a “dual significance,
partaking of both religion and government.” Van Orden, 545
U.S. at 691–92 (plurality opinion); see id. at 702 (Breyer, J.,
concurring in judgment); see also Am. Legion, 139 S. Ct. at
2077–78, 2089 (finding the Bladensburg Peace Cross’s own
secular elements and situation among other war memorials
provided greater context, even though the closest was 200 feet
away).
Second and third, the seal’s original purposes and
messages—like those of the Bladensburg Peace Cross—have
likely multiplied and changed over time. Courts are not to
focus solely on the religious component in challenged
government displays; they should consider the overall message
13
conveyed and the broader context in which the display appears.
See Am. Legion, 139 S. Ct. at 2074–78, 2089–90; Van Orden,
545 U.S. at 700 (Breyer, J., concurring in judgment). Religious
symbols within such a display “can become embedded features
of a community’s landscape and identity,” valued for more
than just “their religious roots.” Am. Legion, 139 S. Ct. at 2084.
“Familiarity itself can become a reason for preservation.” Id.
(citing Maryland’s flag, “which has included two crosses since
1904,” and religious place names); see id. at 2083 (“Even if the
original purpose of a monument was infused with religion, the
passage of time may obscure that sentiment. . . . [A]
community may preserve such monuments, symbols, and
practices for the sake of their historical significance or their
place in a common cultural heritage.”). And such symbols may
speak of the community that adopted them, representing what
people “felt at the time and how they chose to express their
sentiments,” including acknowledgement of “the centrality of
faith” to those the symbol represented. Id. at 2086, 2089. All
this explains why the presumption of constitutionality may
control even where there is direct evidence of religious
motivation by some officials involved in adopting, designing,
and dedicating the symbol. Cf. id. at 2076–77 (noting the
presence of such historical evidence, but nevertheless rejecting
an Establishment Clause challenge). Those purposes may
multiply, and those messages may change, over time.
The Latin cross at issue here no doubt carries religious
significance. See id. at 2093–94 (Kavanaugh, J., concurring).
And its designer—who also voted for its adoption as a
Commissioner—said that significance motivated him, at least
in part, to include it in the County seal. But more than seven
decades after its adoption, the seal has become a familiar,
embedded feature of Lehigh County, attaining a broader
14
meaning than any one of its many symbols. The County
recognized this “historical significance” and the seal’s
representation of “elements that were important to the early
settlers” of Lehigh County in its 2015 decision to retain the
seal. App. 266–67. The County also noted the cross “honor[s]
the original settlers of Lehigh County who were Christian.”
App. 310. So the seal reflects both what its initial adopters “felt
at the time” and what those who retained it believed just a few
years ago. Am. Legion, 139 S. Ct. at 2089.
Although it’s undeniably the focal point of the Lehigh
County seal, the Latin cross does not stand alone. See infra
Appendix A. It appears behind a depiction of the county
courthouse and is surrounded by nearly a dozen other symbols
representing various aspects of Lehigh County. See supra note
1. Whether historical, patriotic, cultural, or economic, they are
all secular symbols. The seal as a whole therefore “suggests
little or nothing of the sacred,” even though the Latin cross
alone has undeniably religious significance. Van Orden, 545
U.S. at 700–01, 702 (Breyer, J., concurring in judgment). In
short, the seal as a whole falls well short of establishing a
religion. See Lynch, 465 U.S. at 686.
Finally, history also plays a significant role. See Town
of Greece, 572 U.S. at 576 (“[T]he Establishment Clause must
be interpreted ‘by reference to historical practices and
understandings.’” (quoting Cty. of Allegheny v. ACLU Greater
Pittsburgh Chapter, 492 U.S. 573, 670 (1989) (Kennedy, J.,
concurring in the judgment in part and dissenting in part)));
Van Orden, 545 U.S. at 702 (Breyer, J., concurring in
judgment) (describing the newly contested display’s
unchallenged presence for 40 years as “determinative” that the
“monument conveys a predominantly secular message”). A
practice’s fit within our Nation’s public traditions may confirm
15
its constitutionality. See Town of Greece, 572 U.S. at 577. The
94-year, challenge-free history of the Bladensburg Peace Cross
(including over 50 years of ownership by the government) also
entitled it to a “strong presumption of constitutionality.” Am.
Legion, 139 S. Ct. at 2085. So too here.
The Lehigh County seal fits comfortably within a long
tradition of State and municipal seals and flags throughout our
Republic that include religious symbols or mottos, which
further confirms its constitutionality. 6 See Am. Legion, 139 S.
Ct. at 2084. It also abided over 70 years without complaint—
and no evidence suggests this was “due to a climate of
intimidation.” Van Orden, 545 U.S. at 702 (Breyer, J.,
concurring in judgment). So the record suggests, “more
strongly than can any set of formulaic tests[,] that few . . . are
likely to have understood the [cross’s inclusion] as
amounting . . . to a government effort to favor a particular
religious sect.” Id.
Requiring the cross’s extirpation, on the other hand,
may very well exhibit “a hostility toward religion that has no
place in our Establishment Clause traditions,” inviting disputes
over similar longstanding symbols nationwide. Id. at 704.
Albeit in dicta, the American Legion Court disapproved of
eradicating religiously inspired places, symbols, and mottos—
6
FFRF argues we may not consider some of the
County’s evidence of certain symbols’ histories and purposes,
but we note the prevalence of undoubtedly religious symbols,
many of them crosses, in such contexts for quite some time.
See, e.g., MD. CODE ANN., GEN. PROVIS. § 7-202(c) (2014).
And the Supreme Court has as well. Am. Legion, 139 S. Ct. at
2084 (highlighting Maryland’s flag).
16
including Lehigh County’s own Bethlehem, Pennsylvania. See
Am. Legion, 139 S. Ct. at 2084 (noting that religion
“undoubtedly motivated” namers of places like Bethlehem and
Las Cruces, New Mexico, as well as designers of symbols like
Maryland’s state flag and mottos like Arizona’s “Ditat Deus”
(“God enriches”)); id. at 2087 (explaining that courts changing
the names of cities like San Diego or Los Angeles because of
their religious origins would convey hostility toward religion).
Consistent with the Supreme Court’s admonition on this score,
we too decline to invite such dissension.
B
FFRF’s fallback argument is that it has overcome the
presumption of constitutionality. The Supreme Court
suggested that challengers could overcome the presumption by
demonstrating a “discriminatory intent in the selection of the
design of the memorial or the decision of a [government body]
to maintain it.” Id. at 2074. The Court also focused on whether
the monument was designed or built to “deliberately
disrespect[]” Jewish, Catholic, or black soldiers. Id. at 2089.
Here, FFRF tries in vain to show that the seal
deliberately disrespects members of other faiths. It focuses on
the statement Commissioner Hertzog made two years after the
seal was created. But his statement that “Christianity and the
God-fearing people . . . are the foundation and backbone of our
County,” App. 99, does not, under American Legion, doom the
cross’s inclusion in perpetuity, because “no matter what the
original purpose[] for the [adoption of a symbol], a community
may wish to preserve it for very different reasons.” Am. Legion,
139 S. Ct. at 2085. Here, the Board’s intent in retaining the
seal—to continue “recognizing the history of the County,”
App. 310—was plainly non-discriminatory. Without evidence
17
of “discriminatory intent” in the County’s recent decision to
maintain the seal or “deliberate[] disrespect[]” in the seal’s
design itself, the record compels the conclusion that FFRF and
its members have not overcome American Legion’s “strong
presumption of constitutionality.” Id. at 2074, 2089.
* * *
Our task turns on “the ability and willingness to
distinguish between real threat and mere shadow.” Sch. Dist.
of Abington Twp. v. Schempp, 374 U.S. 203, 308 (1963)
(Goldberg, J., concurring). The Establishment Clause’s
original public meaning and the Court’s most recent
interpretation of it make two things clear: the Lemon-
endorsement test does not apply to Lehigh County’s seal, and
this 75-year-old seal casts only that mere shadow. “It has
become part of the community.” Am. Legion, 139 S. Ct. at
2089. And that community can retain or remove it in keeping
with the First Amendment. See id. at 2094 (Kavanaugh, J.,
concurring). Accordingly, we will reverse the judgment of the
District Court.
18
APPENDIX A
19