Wednesday, May 16, 2007
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Ninth Circuit Upholds Removal of Cross From County Seal
By TINA BAY, Staff Writer
Los Angeles County did not violate the Establishment Clause by removing the cross from its county seal, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
A three-judge panel unanimously affirmed an order by U.S. District Judge S. James Otero, of the Central District of California, dismissing Los Angeles County employee Ernesto R. Vasquez’s civil rights suit against the county and its supervisors.
Vasquez, who identifies himself as a “devout Christian,” filed his action in June 2004 after the county seal had been revised to eliminate the cross.
The symbol, which represented the influence of the church and the missions of California, had been a part of the seal since Jan. 2, 1957.
Establishment Clause
Saying it wanted to avoid a potential Establishment Clause violation and affirm the county’s neutrality, the Board of Supervisors in 2004 substituted the cross with the image of the Mission San Gabriel, the first mission established in the county. In addition to the cross, two other elements of the original seal were changed in 2004: the image of the agricultural goddess Pomona was replaced with the depiction of a Native American woman holding a basket, and an image of oil derricks was deleted entirely.
The seal’s revision came in the wake of threats by the American Civil Liberties Union that it would sue over the cross on the ground that it stated an impermissible preference for Christianity.
Claiming that as a county resident and employee he was forced to have daily contact with the revised seal—his basis for standing—Vasquez sued the defendants under 42 U.S.C. Sec. 1983 asserting an Establishment Clause violation.
The defendants’ decision to remove the cross from seal was motivated by their disapproval of and hostility toward the Christian religion, and was improperly influenced by the ACLU’s litigation threat, he alleged.
Declaration Sought
For relief, he asked the district court to bar removal of the cross from the seal, declare that its deletion was unconstitutional, and uphold the constitutionality of the 1957 version of the seal.
The county and supervisors moved to dismiss Vasquez’s complaint contending it failed to state a claim for which relief could be granted.
Otero granted the motion, finding that Vasquez lacked standing, that his claim was moot since the county symbol had already been revised, and that his Establishment Clause challenge lacked merit.
The Ninth Circuit disagreed with Otero’s rulings on standing and mootness but agreed with his finding as to the merits.
Applying the test articulated by the high court in Lemon v. Kurtzman, 403 U.S. 602 (1971), the court concluded the county’s removal of the cross was motivated by the legitimate secular purpose of avoiding a potential Establishment Clause violation.
Additionally, the panel found, its primary effect was secular rather than anti-religious.
Writing for the court, Judge Richard R. Clifton said a “reasonable observer” familiar with the history and controversy surrounding the use of crosses on municipal seals would not view the cross’ deletion as hostility toward religion, but as an effort to ensure compliance with the Establishment Clause so as to avoid future litigation.
“This is demonstrated by the fact that Defendants removed the cross only after the presence of crosses on other municipal seals had been held to be unconstitutional,” Clifton said.
Vasquez also failed to show that alleged social and political divisiveness caused by the seal’s revision amounted to excessive governmental entanglement with religion, the judge said.
With regard to Vasquez’s right to bring suit, the Ninth Circuit sided with the majority of the circuits in holding that in the Establishment Clause context, “spiritual harm” resulting from unwelcome direct contact with an allegedly offensive religious or anti-religious symbol was sufficient to confer standing.
Concerning mootness, the court said replacing the cross with the mission did not put an end to Vasquez’s contention that the revised seal, including the mission, conveyed a message of hostility to the Christian religion.
Judges Ronald M. Gould and Harry Pregerson concurred in the opinion.
Vasquez’s appellate counsel, Robert J. Muise of the Thomas More Law Center in Ann Arbor, told the MetNews his client was “seriously considering” a request for U.S. Supreme Court review.
“We think that this decision shows that the Establishment Clause is not being applied in an even-handed manner,” he said. “You have the removal of a long standing cross because it was a Christian symbol and, as the public response to that decision shows, the people believe that that was an act that was hostile toward religion.”
He added:
“You have groups like the ACLU and others who are essentially scouring the countryside for all public references to religion, and we seek to stop that.”
County Supervisor Zev Yaroslavsky told the MetNews he would be surprised if the Supreme Court decided to grant a petition for review in this case.
“The allegation that the county was being hostile to a religion was preposterous on its face,” he remarked, maintaining there was “never a hint” of such hostility in the board’s deliberations.
“What the county was doing was being faithful to the Constitution of the United States,” he said. “None of us wanted to be in this kind of a situation. There is nothing that is more uncomfortable than to have a religious dispute of this type blow up like this.”
Yaroslavsky noted that defending a lawsuit against the ACLU had been estimated at costing well into six figures, if not more.
“It wasn’t just a question of the cost,” he said. “Attorneys told us we were in violation of the law. And why incur an expense to defend something that is unconstitutional? Why not just fix the unconstitutionality?”
The case is Vasquez v. Los Angeles County, 04-56973.
Copyright 2007, Metropolitan News Company