In Freedom From Religion Foundation, Inc. v. County of Lehigh , (ED PA, Sept. 28, 2017), a Pennsylvania federal district court held that a large, central Latin cross in the seal and flag of Lehigh County, Pennsylvania violate the Establishment Clause under the Lemon test and the endorsement test. However Judge Edward Smith devoted much of his opinion to explaining why he disagrees with the Supreme Court’s interpretation of the Establishment Clause: If the drafters’ intent and the plain text of the Establishment Clause had alone guided the evolution of modern First Amendment jurisprudence and shaped the law applicable to this case, its resolution would be cut-and-dry. By including a Latin cross on the Seal, the County has chosen to celebrate the Christian values important throughout its history. The County has not, however, legally compelled its citizens to practice and conform to Christianity, infringed on freedom of conscience, or created political conflict between the Christian Church and other religious sects. Simply put, the County of Lehigh did not intend to “establish” religion or institute a County religion when it adopted Commissioner Herzog’s design for the Seal. And if it had intended to do so, it has certainly failed—one of the plaintiffs himself testified that per the 2010 census, 49 percent of the County reported no religious affiliation at all…. While such considerations appear to be a matter of common-sense in determining whether a government has established a religion in violation of the First Amendment, binding precedent has taken the […]
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