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Freedom From Religion Foundation, Inc. v. The County of Lehigh

United States Court of Appeals, Third Circuit

August 8, 2019

FREEDOM FROM RELIGION FOUNDATION, INC.; STEPHEN MEHOLIC; DAVID SIMPSON; JOHN BERRY; CANDACE WINKLER
v.
THE COUNTY OF LEHIGH, Appellant

          Argued September 7, 2018

          On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 5:16-cv-04504) District Judge: Honorable Edward G. Smith

          Marcus B. Schneider [Argued] Steele Schneider Attorneys for all Plaintiff-Appellees

          Patrick C. Elliott Attorney for individual Plaintiff-Appellees

          Eric S. Baxter [Argued] Joseph C. Davis Diana M. Verm Thomas M. Caffrey Attorneys for Defendant-Appellant

          Richard B. Katskee Americans United for Separation of Church & State Attorney for Amici Religious and Civil-Liberties Organizations in Support of Appellees

          David A. Cortman Alliance Defending Freedom Samuel S. Sadeghi Morgan Lewis & Bockius Jonathan A. Scruggs Kristen K. Waggoner Attorneys for Amicus Alliance Defending Freedom in Support of Appellant

          Michael D. Berry Attorney for Amicus First Liberty Institute in Support of Appellant

          Gregory Dolin Attorney for Amicus Jews for Religious Liberty in Support of Appellant

          Gregory L. Chafuen Weil Gotshal & Manges Thomas R. Guy Weil Gotshal & Manges Randall L. Wenger Attorneys for Amici States of Alabama, Arizona, Arkansas, Colorado, Indiana, Kansas, Louisiana, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Utah, and West Virginia in Support of Appellant

          Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges.

          OPINION

          HARDIMAN, CIRCUIT JUDGE.

         For almost 75 years, the official seal of Lehigh County, Pennsylvania has included a Latin cross surrounded by nearly a dozen secular symbols of historical, patriotic, cultural, and economic significance to the community. The question presented is whether that seal violates the Establishment Clause of the First Amendment to the United States Constitution. Consistent with the Supreme Court's recent decision in American Legion v. American Humanist Association, 139 S.Ct. 2067 (2019), we hold it does not.

         I

         In December 1944, the Lehigh County Board of Commissioners unanimously adopted the seal at issue and agreed to purchase a flag depicting it. Although the record contains no evidence of the three Commissioners' contemporaneous understandings of the imagery used in the seal, Commissioner Harry D. Hertzog, who designed and voted for the seal, explained two years later: "in center of Shield appears the huge cross in canary-yellow signifying Christianity and the God-fearing people which are the foundation and backbone of our County." App. 99. This appears to be the only available explanation of the cross's initial inclusion in the seal. The cross is partially obscured by a depiction of the Lehigh County Courthouse and surrounded by many other symbols representing the County's history, patriotism, culture, and economy.[1] See infra Appendix A.

         The seal appears on County-owned property and on various government documents, as well as on the County's website, so Lehigh County residents encounter it regularly. The Freedom from Religion Foundation (FFRF) wrote to the County in November 2014 to complain about the seal and request its use be discontinued-the first such complaint in the seal's history. After a series of meetings and attempts to gather information about the seal, the Board of Commissioners voted unanimously to retain the seal in March 2015. Responding to FFRF by letter, the County stated the cross's "presence . . . on the seal among all the other items of historical significance has the secular purpose of recognizing the history of the County" and "honor[s] the original settlers of Lehigh County who were Christian." App. 310. The present-day Board did not know why the 1944 Commissioners decided to ...


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