On August 20, 1996, the United States Circuit Court of Appeals for the Ninth Circuit issued two opinions, described below, which addressed the issue of whether a large cross in a public park is unconstitutional. In each instance, the federal appeals court held that this type of structure in a public park violated either the federal or state constitution. In so doing, the court found that a large cross in a public park was unconstitutional because it implied a governmental preference or endorsement of a particular religious symbol and message.
Establishment Clause Analysis
In the case of Separation of Church and State Committee v. City of Eugene, 9335094 (9th Cir. 1996), the issue before the federal circuit court of appeals was "whether the City of Eugene, Oregon, violates the Establishment Clause of the United States Constitution by its ownership and display of a fifty-one-foot concrete Latin cross in a public park on Skinner's Butte." The facts of the case were as follows:
The City of Eugene (City) maintains a public park on and around Skinner's Butte, a hill cresting immediately north of the city's downtown business district. The land was donated to the City and has been maintained as a public park for many years. From the late 1930s to 1964, private individuals erected a succession of wooden crosses in the park, one replacing another as they deteriorated. In 1964, private individuals erected the cross at issue in this litigation. It is a fifty-one-foot concrete Latin cross with neon inset tubing, and it is located at the crest of Skinner's Butte. The parties who erected the cross did not seek the City's permission to do so beforehand; however, they subsequently applied for and received from the City a building permit and an electrical permit.
Since 1970, the City has illuminated the cross for seven days during the Christmas season, five days during the Thanksgiving season, and on Memorial Day, Independence Day, and Veteran's Day.
The cross has been the subject of litigation since the time it was erected. In 1969, the Oregon Supreme Court held that the cross violated both the federal and the Oregon constitutions because it was erected with a religious purpose and created the inference of official endorsement of Christianity.
Soon after, the City held a charter amendment election and, on May 26,1970, the voters, by a wide margin, approved an amendment to the City charter designating the cross a war memorial. Pursuant to that amendment, the cross was deeded to the City as a gift, and a bronze plaque was placed at the foot of the cross dedicating it as a memorial to war veterans. The Eugene city charter provides that the "concrete cross on the south slope of the butte shall remain at that location and in that form as property of the city and is hereby dedicated as a memorial to the veterans of all wars in which the United States has participated."
After the election, the parties who erected the cross brought suit to have the Oregon Supreme Court set aside its earlier decision. The court did so on the basis of the "changed circumstances" that had occurred since its earlier decision was decided, holding that "the cross no longer violated the state and federal constitutions."
The Separation of Church and State Committee (Separation) then brought suit in federal district court alleging a violation of the Establishment Clause of the United States Constitution. The federal district court granted summary judgment in favor of City. In so doing, the district court held that "the cross has a secular purpose, does not advance religion, and does not foster an excessive entanglement with religion." Separation appealed.
As noted by the federal appeals court, the Establishment Clause of the First Amendment provides that "Congress shall make no law respecting an establishment of religion." In determining "whether governmental practice has the effect of endorsing religion," the federal appeals court cited the following "Establishment Clause analysis" enunciated by the United States Supreme Court:
Whatever else the Establishment Clause may mean (and we have held it to mean no official preference even for religion over non-religion), it certainly means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions). …