The Freedom From Religion Foundation doesn’t know if the case warrants a trial
ELIZABETHTON, Tenn. (WJHL) — The city of Elizabethton paid $2,000 in 2020 for electrical work on a trio of large crosses on a city-owned hill that an advocacy group has called for removal, saying they violate the US Constitution.
Two purchase orders for work at “Lynn Mountain Crosses”, as one describes the location, were issued to Kingsport-based Briscall Electric on April 1 and 9, 2020, News Channel 11 documents obtained in connection with a Freedom of Information Act request broadcast. These documents also show that at least four people have made verbal or email offers to buy the land on which the crosses are displayed to the city.
A lawyer for the Freedom From Religion Foundation (FFRF) said on Friday that the revelation about the purchase orders was significant, as the group debates whether or not it should sue if the crosses are not removed.
“The more you see the government putting money into these projects, yes, that worries us more,” Karen Heineman said. “Whether this matters on a legal basis is still unclear.”
The FFRF first called for Elizabethton to remove the crosses in 2018, when an unnamed town resident alerted the organization that they were on town property. This letter, which stated that the presence of the crosses on public lands violated the Establishment Clause of the First Amendment, did not elicit a response from the city of Elizabethton.
A year later, the U.S. Supreme Court expanded the permit for religious manifestations on public property in its finding in The American Legion v. American Humanist Association. This decision allowed a Maryland Grand Cross to remain on public property and receive public funding for its upkeep largely due to the historical context behind it.
The Elizabethton City Attorney cited the case in an April 14 statement in which it was of the view that “the three (3) crosses may remain on Lynn Mountain on city-owned property as they are a monument of long standing in the city of Elizabethton, they have a presumption of constitutionality and they do not violate the separation of church and state”.
On Friday, Heineman said the American Legion case was not so clear cut. She said seven different judges wrote opinions in the case and they ruled on four separate factors related to the case.
“They broke it down into two things that are clear,” Heineman said. “First, some of these monuments that are standing are constitutional – it’s not automatically an unconstitutional thing anymore to have something like this on public property.
“But second, you have to ‘look at it from a historical perspective,'” she added. “Long-standing religious manifestations are presumptively constitutional – but they do not define ‘long-standing’.
Heineman said that because of the historical context of Elizabethton’s crosses, the case is interesting. Boys in a Sunday School class built the original crosses in 1953 at a place where women used to pray for their sons and husbands who were overseas during World War II.
“It’s murky. Lots of gray areas, and no one will be able to call it a slam dunk.
To sue or not to sue? Lots of factors to weigh
The City of Elizabethton has yet to respond to FFRF, which began commenting on the matter in March of this year.
Heineman said learning that city staff approved public expenditures for upkeep of the crosses came as no surprise to her.
“We had a complaint that we were concerned that taxpayers’ money was going to support, to maintain these crosses, to light them, but we had no proof,” she said. “We certainly suspected that at least keeping them on at times was government funding.”
Even if the foundation gets its own documents proving this, Heineman said she’s not sure she’ll pursue the time and expense of litigation.
“Jurisprudence, due to the 2019 court case American Legion v. American Humanist Association, has made it even more difficult for us to know what the courts should really be basing their decisions on,” she said.
“We would like that to be better defined – and obviously on our side – but even just better defined, because I think the courts are struggling to know what they are supposed to do with this decision. Put the resources to get a better decision in this case? We have a lot to do right now with some of the upcoming (other federal) decisions. »
As to whether the Elizabethton case is low enough in the FFRF pecking order to allow city officials to rest easy ignoring the organization’s request, Heineman hesitated.
“I wouldn’t say lose sleep, it’s probably safe,” she said. But she cited a recent case in California in which the city of Albany purchased a private easement in a city park and said it would remove a 20-foot cross in the park that overlooks the city.
An East Bay Times article said city leaders wanted “to dispel constitutional concerns about the separation of church and state, address residents’ resentment of a religion favored by to others and free up more space in the parks”.
Heineman said the city has several options besides removing the crosses or doing nothing. He could respond to the FFRF, say he would no longer invest public funds in maintaining the crosses, and provide his legal reasoning for why the crosses remaining on public property are constitutional.
“The question is, is it fair for all taxpayers who have different religious beliefs to fund what Christian crosses are, and we say it’s not, and the Constitution protects religious minorities,” he said. said Heineman. “So we would say that even a taxpayer who disagrees with the religious message that these crosses send should not have to support these crosses.”
But Elizabethton’s government also has another option that would render the FFRF’s current position completely moot. Documents provided to News Channel 11 show a list of 23 people who submitted “phone calls/emails in support of keeping the crosses on Lynn Mountain”. Four of them – Lisa McKinney, Richard Stout, Rebecca Hodgson and Doug Estep – made informal offers to buy the land.
Carried out according to the rules of the art, a sale and transfer of the land to individuals would leave the FFRF with no reason to continue.
“You can’t take valuable land and give it to a church,” Heineman said. “It wouldn’t be constitutional either. But if someone actually bought the land, would they buy it for its value? Absolutely, all of the above would be moot.
Such a move would come from the FFRF’s fundamental position that religion should be private, Heineman said.
“One of the types of events that happened in Elizabethton was that everyone started putting crosses in their yard. Absolutely, that’s what you should do. And if someone tells you you can’t, come talk to us, because the government can’t tell you you can’t.