Lawyers who will argue in a federal court next week over an already-halted plan to erect a row of 31, 6-foot-tall crosses on public land along Evansville’s riverfront are marching into a no man’s land of constitutional law, where the boundary between free speech and state-sponsored religion becomes foggy.
The 7th U.S. Circuit Court of Appeals will hear arguments Tuesday in the 8-month-old dispute between Westside Christian Church and two Evansville-area residents — one of whom objected for religious reasons, because she is Jewish — who wanted to stop the two-week display.
The Board of Public Works in the southwest Indiana city of about 115,000 people gave West Side Christian Church permission for the display in July. The plain, polyethylene crosses were to be decorated by students from the church’s vacation bible school and displayed along the riverfront walkway on public land that abuts one of the city’s major thoroughfares.
But two residents sued with the help of the American Civil Liberties Union of Indiana, asking a federal judge in Indianapolis to stop the display before it began because, they say, it violates the constitutional separation of church and state.
The church’s project was scuttled by an injunction issued by a Judge Sarah Evans Barker on July 31, four days before the religious display was scheduled to begin. The crosses were later set up in the parking lot of an old factory.
Now, the church wants the appellate court to overturn Barker’s order, in case it wants to try again to put up the display. The ACLU wants Barker’s ruling to stand.
The city of Evansville, which was named in the original suit, chose not to appeal the ruling. The appeal was filed by Westside, which joined the case after the city was sued.
The church argues the display should be allowed as protected free speech, while the ACLU says it should be barred as an unconstitutional endorsement of religion.
The government can’t censor speech simply because it’s religious, Bryan Beauman, the lawyer representing Westside, said Friday.
“Christians have the same First Amendment rights as everyone else in America,” he said.
But ACLU attorney Gavin Rose said the city was clearly endorsing the church’s religious message.
“Usually, it’s people wanting to put up a cross,” Rose said. “This is so much beyond that.”
“It’s hard to understand unless the city is defining itself in this image,” he added.
Barker said the proposed display carried a “forcefulness ... that catapults it into the range of constitutionally prohibited speech.”
Westside said in court records that Barker barred the church’s display because “It’s too effective.” If the crosses had been smaller and fewer, Barker might have ruled in favor of the church, its attorneys claimed.
“As long as the challenge to the city’s criteria for deciding which crosses and other religious symbols to permit on public property along the Ohio Riverfront is based on more than just the Free Speech Clause, the challengers (the ACLU and its clients) likely have a very strong case,” Laurence Tribe, professor of constitutional law at Harvard, told The Associated Press in an email.
But the Supreme Court’s past guidance hasn’t exactly been clear.
In a 2009 case, the high court ruled that officials in Pleasant Grove City, Utah, weren’t prevented from allowing a private group to set up a Ten Commandments monument on public property, while turning down another group’s request to erect a display that included seven extra commandments.
But in a 1995 case, the justices ruled that the state of Ohio should not have sought to bar the Ku Klux Klan from displaying a Christian cross in a public park adjacent to the state Capitol in Columbus during the 1993 Christmas season.