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Dr. Karen Heineman: City is crossing the law

Dr. Karen Heineman

This article first appeared on FFRF’s blog site on April 14. 

By Dr. Karen Heineman

I’ve recently been caught in the crosshairs of a controversy as a legal fellow at the Freedom From Religion Foundation — and it’s been quite an experience. 

My primary duty is to send advocacy letters to government entities in response to complaints we receive regarding separation of church and state. We hope for a formal response acknowledging our concern and a correction of the violation. I did not, however, anticipate the public response to my recent letter to a city in Tennessee objecting to a display of three crosses on city property.

FFRF had sent a previous letter explaining our strong legal position and opposition to the city of Elizabethton maintaining three crosses on public property, after receiving a complaint from a city resident in 2018. But FFRF never received a formal response. At that time, it was clearly unconstitutional under existing case law for a government entity to endorse and display such blatantly religious symbols and sectarian displays. The First Amendment prohibits the government from promoting, aiding, funding, sponsoring, or otherwise endorsing, religion.

Then, the Supreme Court’s interpretation of the Constitution changed. Now, some blatantly religious government symbols and displays are presumptively constitutional because the Supreme Court said so in a 2019 decision, American Legion v. American Humanist Association, commonly known as the Bladensburg cross case. 

The court’s analysis rested on its contrived theory that religious meaning diminishes with age, thereby allowing “longstanding” cross displays to skirt the Establishment Clause obligation. FFRF litigated a subsequent cross case, Kondrat’yev v. City of Pensacola, in which the court mused that “divining any sort of clear rule from the seven separate opinions in American Legion is a challenge.” 

As an attorney, I must interpret and apply the law to the situation. Since the law regarding government displays of crosses changed, I sent an updated letter to the city of Elizabethton explaining how the city crosses are not constitutional based on the new legal framework.

Public interest is generally helpful to our cause. Starting a conversation in the public square can be the first step toward change. Well, we sure fueled a conversation about crosses in Elizabethton. 

Unfortunately, the conversation did not center around the First Amendment’s protections and restrictions. Instead, the citizens of Elizabethton have rallied to battle the “intervenors from Wisconsin” in a fight to protect Christianity. (Never mind that we are acting on a complaint from a local resident.) Protests were organized and online polls created to prove Elizabethton is a Christian city that will not stand for this assault. “Crusaders for Christ,” a community group, was started with two stated missions: to glorify God and to save the crosses. 

The group began a petition drive to put saving the crosses on the ballot. Perhaps most outrageous was the call for citizens to take a stand to fight the “aggression by an outside organization that seeks to infringe on our rights as citizens” with the “same fight, grit, and determination the Ukrainians have as they fight Communist aggression.” To say the point has been lost in this conversation is to understate the obvious. I have been invited to Elizabethton to meet “face to face.” 

FFRF’s purpose is clear when we consider the near-impossibility of an Elizabethton resident being heard through the Christian armor that the city residents have raised. Perhaps even more obvious is how important the First Amendment protections are in safeguarding religious minorities against the mob mentality of the religious majority.

While the Supreme Court can change the meaning of the Constitution, ballot results cannot. This public conversation highlights the lack of basic understanding of constitutional rights, which are not subject to a vote and are not reserved for those who create the most noise. For example, part of the mob’s response to our “assault” on the city’s crosses was to put crosses in private yards throughout the city. Rest assured, Elizabethton Christians, FFRF has no plans to attack your yards. The Constitution controls government actions. Precisely because we have the First Amendment, no government entity can take crosses out of your yards, and, if any try, give FFRF a call.

The First Amendment, however, also prohibits the government from forcing taxpayers to support your crosses. These two rights are entwined. This is what we argue: The city may not put government resources toward any religious display.

Although the aggrandized collective response to fight FFRF has been praised by the local Christians, the lack of tolerance and unwillingness to hear and understand what this “fight” is actually about is a sad narrative for religious minorities and an illustration of how divisive religion can be. 

No, I do not plan to visit Elizabethton, because the Constitution is the same in Wisconsin as in Tennessee. I will stay where religious differences are not fodder for a mob and where I can continue to advocate for those who cannot be heard.

Dr. Karen Heineman is FFRF’s Legal Fellow. She has been a practicing veterinarian in Wisconsin since 1992. She also graduated magna cum laude from Marquette University Law School in 2020.