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Bayview Park cross deemed unconstitutional

Photo: David Gonzalez

A court ruled against a Pensacola landmark on Monday.

A federal judge ruled the cross on display at Bayview Park violates the First Amendment's Establishment Clause that prohibits the government from establishing or favoring one religion over another.

In 2016, Amanda Kondrat'Yev along with three other plaintiffs filed a lawsuit claiming the cross was offensive to non-Christians.

On June 14, Honorable Judge Roger Vinson heard oral arguments from both sides. Judge Vinson ruled the cross unconstitutional on Monday.

In a 23-page order Judge Vinson explains his ruling and gives the city of Pensacola up to 30 days to remove it. .

Read the complete court order below:

In 1941, the National Youth Administration erected a wood cross in the eastern corner of the park to be dedicated at the first annual Easter Sunrise Service held there.

In 1969, the Pensacola Jaycees replaced the wood cross with a concrete one.

The 34-foot cross is currently maintained by the city.

It costs the city an average of $233 per year to keep it clean, painted and illuminated at night.

Judge Vinson states even though the cross costs very little to maintain and has hosted tens of thousands of people for sunrise Easter services a few residents found it offensive and wanted it removed.

Judge Vinson said the Lemon test is routinely criticized, but is used as the law of the land when it comes to deciding if the Establishment Clause is being violated.

He stated to pass constitutional muster under Lemon, a government practice must have a secular purpose, it must neither advance nor inhibit religion in its principal or primary effect, and it must not foster an excessive entanglement with religion.

As for the first prong-and as particularly relevant for this case - it has been recognized that the Latin cross is unmistakably a universal symbol of Christianity and it has never had any secular purpose.

He ruled the Bayview cross fails the first prong of the Lemon test and runs afoul of the First Amendment as currently interpreted by the Supreme Court.

Judge Vinson used a similar case as a precedent to make his ruling.

In American Civil Liberties of Union (ACLU) of Georgia v. Rabun County Chamber of Commerce, the county was sued over a cross on government property.

He said in the Rabun case the county was sued and officials didn't push the issue.

However, in the Bayview case Pensacola Mayor Ashton Hayward has been quoted as saying: "I hope there is always a place for religion in the public square."

In his order, Judge Vinson wrote:

If the cross under review in Rabun County violated the First Amendment and had to be removed, the cross here must suffer the same fate. Indeed, not only are both of the above facts also present here (i.e., it is a Latin cross that was completed by, and dedicated at, an Easter Sunrise Service), but the mayor has said that he does not want the cross taken down specifically because he hopes there will "always [be] a place for religion in the public square," which is essentially an admission that the cross has been sustained for a religious purpose.

During the oral arguments, defense attorneys conceded the cross is a symbol of Christianity and is intertwined in Pensacola history. He said based on those facts the cross clearly has a primarily-if not exclusively-religious purpose and must come down.

Vinson is aware there's a lot of support to keep the cross, but the law is the law.

Priscilla Leibig has lived in Pensacola for nine years, but is getting ready to move.

She wanted to stop by the cross at Bayview Park after she heard it was going to be removed within the next 30 days.

Leibig said, "I wanted to make sure I got a little piece of history and it's a memory for myself."

She said, "It just touched me knowing that this cross, a symbol of the cross that's been here for 75 years and to hear that its been torn down is just; it hurts a little."

Sean Decrow, a Pensacola resident said, "I think everybody should have their own beliefs and their own belief system, but at the same time I don't think one person should be able to go to the authorities or whoever and dictate what stays and what goes."

In addition, Pensacola resident Jim Bradford said, "I think that a lot of times the law gets weighted by a few people's loud voices rather than the the majority of people's; especially people with vested interest in this area."

Leibig said, "It's very sad. It's a sad day for Pensacola and for Christians all over."

Vernon Stewart, public information officer for the city of Pensacola released this statement:

We are in receipt of the order issued by Judge Vinson. We are in the process of reviewing this with counsel. However, Mayor Hayward is traveling and will ultimately be the one to decide how to proceed.

In a press release, Monica Miller, senior counsel at the Appignani Humanist Legal Center said:

We are pleased that the Court struck down this cross as violative of the First Amendment. The cross was totally unavoidable to park patrons, and to have citizens foot the bill for such a religious symbol is both unfair and unconstitutional.

The judge did make clear the cross doesn't have to be removed if the city sold or leased the area surrounding it to a private party or non-governmental entity.

Also, there wouldn't be a be a constitutional problem if worshipers used a temporary cross for their sunrise Easter services.

The city is ordered to pay damages to the plaintiffs in the amount of $1.

Judge Vinson hopes the Supreme Court will one day revisit and reconsider the Establishment Clause and how it's interpreted.

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