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You be the Judge- Religious Freedom and the First Amendment

August 22, 2013
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United States District Court Judge Sarah Evans Barker recently ordered the city of Evansville, Indiana not to allow a group of churches to display 31 six-feet high crosses in a popular river front park for two weeks.  The reaction has been predictable, with some decrying an activist judge destroying religious freedom and others bemoaning the obtuseness of the officials who approved the display.  In fact, this case demonstrates that the line between protected religious freedom and prohibited religious endorsement is a very fine one.

The Evansville Courier & Press, Denny Simmons AP Photo
The Evansville Courier & Press, Denny Simmons AP Photo

The First Amendment to the United States Constitution guarantees our right to be free from government interference as we demonstrate our faith (or lack of it), even on public property.  As a result, a city could not prevent visitors to its parks from wearing crosses or any other religious symbol around their necks, putting crosses on park tables while they eat or placing a cross inside a rented park building they use for a short worship service.  A city stopping any of these activities would unconstitutionally interfere with park visitors’ rights to express their religious beliefs.

But the First Amendment also prohibits the government from promoting a particular religion or favoring one religion over another.  As a result, a city could not build a church in a public park.  Nor could a city allow private citizens to build a church in a park, at least if it didn’t allow followers of every conceivable religion to erect their own sacred buildings.  For the same reasons, a city could not allow a church group to affix a cross permanently to the outside of a park pavilion, again without allowing every other religious group to post its own symbol on the same building.  Any of these actions would amount to the city promoting Christianity at the expense of other religions, which the First Amendment prohibits.

The issue facing Evansville came down to this.  Are the proposed crosses like the temporary crosses in the pavilion that are protected by the First Amendment?  If so, the city could be sued for not giving the churches permission to erect them.  Or, are the proposed crosses like the ones permanently affixed to the pavilion that are prohibited by that same Amendment?  If so, the city could be sued for approving them.   City officials saw them as more like the temporary cross in front of the worship service.  After all, they would only be up for two weeks.

Recognizing that the First Amendment can put governments between the jaws of a vice of conflicting provisions, Judge Barker saw the issue differently.  She held that the size and duration of the proposed display and particularly the fact that the crosses remained on public property when their owners went home crossed the line into constitutionally prohibited territory.    If the crosses had been smaller or fewer or came and went with their owners, the answer might have been different.

Critics say this decision shows that the line between what the Constitution protects and what it prohibits is arbitrary and subject to the views of unelected federal judges.  But that is precisely why we hire judges – to draw lines when reasonable people can’t agree on their location.  If unambiguous answers to hard questions could be found, as some people seem to believe, by simply reading the Constitution, we wouldn’t need judges.  But the answers often aren’t there and we avoid the law of the jungle by relying on judges to resolve the issues we can’t.

Donald E. Knebel is a partner in Barnes & Thornburg LLP, resident in the Indianapolis, Indiana office. He is a member of the firm’s Intellectual Property Law Department. Mr. Knebel serves as adjunct professor and senior advisor to the Center for Intellectual Property Research at the Indiana University Maurer School of Law. He frequently posts his observations here at Civic Blog. The views expressed do not necessarily reflect the views of Barnes & Thornburg LLP or the IU Maurer School of Law.

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