The United States Court of Appeals for the Third Circuit ruled unanimously Thursday that Lehigh County, Pennsylvania, may continue to use its official seal, which includes a cross. The seal, which was adopted in 1944, appears on county-owned property and on various government documents.
The Freedom From Religion Foundation had sued the county, claiming that the cross violates the Establishment Clause of the First Amendment. A district court ruled against the county, stating that it was obliged to apply the so-called Lemon-endorsement test.
That test originated in a 1971 case called Lemon v. Kurtzman. In that case, the Supreme Court instituted a three-part test to determine whether or not a government program was in violation of the First Amendment: The program must have a secular legislative purpose, must primarily neither advance nor inhibit religion, and must not create an excessive entanglement with religion.
But almost immediately, legal scholars began pointing out flaws with that test. For example, government personnel can easily point to secular purposes for a program, regardless of their true motives. And the second and third parts of the test pose a problem because the only way to determine whether or not a government program advances or inhibits religion is to monitor the participating groups so closely that the monitoring itself would create an excessive entanglement with religion and thus violate the test itself.
Because of these problems, the Supreme Court itself has not been consistent in applying the Lemon test. It has used it in some cases, ignored it in others and pointed out its weaknesses a number of times.
In the case of Lehigh County’s seal, the county appealed the district court decision, and the Third Circuit Court decided to hold its decision to see what the Supreme Court would decide in the case of the World War I War Memorial in the Bladensburg, Maryland. This past June, the Supreme Court ruled 7-2 that the memorial, which is in the shape of a 40-foot cross, does not violate the Establishment Clause of the First Amendment. And three justices in particular—Gorsuch, Thomas and Kavanaugh—signaled a desire to permanently scrap the Lemon test.
Given that decision, the Third Circuit took up the case of Lehigh County’s seal and specifically cited the Bladensburg cross ruling, which said that the Lemon test does not apply to “religious references or imagery in public monuments, symbols, mottos, displays and ceremonies.”
While the Freedom From Religion Foundation called the court’s decision “appalling,” those with a more realistic understanding of the First Amendment commended the decision.
“Government should not be forced to abandon our religious traditions,” said Randall Wenger, chief counsel of the Pennsylvania-based Independence Law Center, which had filed a friend-of-the-court brief on behalf of numerous states in support of Lehigh Countyʼs ability to retain the cross as a symbol of the county.
Wenger added: “We are extremely pleased with the courtʼs decision that allows the full use of this government seal.”