Published by the Freedom From Religion Foundation, Inc. FFRF.org

Appeals court: County seal ruled constitutional

Vol. 36 No. 07 September 2019
Lehigh County seal                                                                                                                                                                                                                                                                                                               

Reverses FFRF victory in district court from 2017 in Pennsylvania

An appellate court on Aug. 8 disappointingly invoked a misguided U.S. Supreme Court decision to declare constitutional a cross-bearing Pennsylvania county seal.

The Freedom From Religion Foundation and four individual plaintiffs won resoundingly in district court in 2017 when a judge found unconstitutional the Lehigh County seal that features a prominent cross. “The undisputed facts demonstrate that the county’s original purpose for including a cross on the seal is not secular,” Judge Edward G. Smith had ruled in 2017.

But the 3rd U.S. Circuit Court of Appeals in Philadelphia unfortunately relied on the Supreme Court’s recent Bladensburg cross decision to rule the clearly Christian seal acceptable.

The opinion, written by Judge Thomas Hardiman, who was rumored to be on President Trump’s short list for the U.S. Supreme Court, says that the 3rd Circuit was bound to uphold the seal and cross because of the Bladensburg precedent. Hardiman holds that, after Bladensburg, “longstanding symbols benefit from ‘a strong presumption of constitutionality,’” by which he means, “longstanding religious symbols.” The seal dates back to 1944.

The alarming nature of the U.S. Supreme Court’s Bladensburg judgment can be seen in this opinion. Instead of protecting the minority from the tyranny of the majority, Hardiman rules that the majority can trample the First Amendment in the name of its religion, concluding that the seal “has become part of the community.”

FFRF’s appellate brief, filed in April of last year, highlighted the bedrock constitutional principles that the Christian seal violates as the symbol of Lehigh County government.

The federal lawsuit was filed in August 2016 in the U.S. District Court for the Eastern District of Pennsylvania. Co-plaintiffs with FFRF are four of its local members who’ve objected to encountering the religious symbol on county property.

The seal is on documents, many official county forms and reports, the county’s website, in a display in the Board of Commissioners meeting room and even on flags displayed prominently at the entrance of county buildings and the airport.

The board adopted the imagery that appears on the seal in 1944. (Allentown, the third-largest city in Pennsylvania, is located in Lehigh County, with a population of about 350,000.)

After FFRF complained, creating a minor firestorm, the Board of Commissioners sent a reply that proved the state/church watchdog’s point: “The cross, one of more than a dozen elements, was included to honor the original settlers of Lehigh County, who were Christian.”

That’s why it’s incongruous that the 3rd U.S. Circuit Court of Appeals has found the Lehigh County seal acceptable.

“The appeals court decision validates a Lehigh County seal that sends a wrong, exclusionary message,” says FFRF Co-President Annie Laurie Gaylor. “The county should be welcoming of all residents regardless of religion — and it’s appalling that the court didn’t prod county officials to move in that direction.”

The litigation is being handled by Marcus B. Schneider of Pittsburgh, with assistance from FFRF Attorneys Patrick Elliott and Elizabeth Cavell.

Elliott asserts that the appellate decision will damage the secular principles of the Constitution.

“This decision runs counter to decades of court decisions recognizing that the First Amendment prohibits governments from affiliating themselves with a religion,” says Elliott.