Claim Challenging Removal of Cross from County Seal Fails in Ninth Circuit

In 2004, under legal threat from the American Civil Liberties Union, Los Angeles County removed from its official seal an image of a cross (which shared the seal with the Roman goddess Pamona, engineering instruments, a Spanish galleon, a tuna, a cow, oil derricks, the Hollywood Bowl, and two stars representing the area’s motion picture and television industries).  It replaced the cross with a depiction of the first Spanish mission established in the county (which depiction did not include a cross), and made other changes to the seal.  Plaintiff Ernesto R. Vasquez, an employee of the County of Los Angeles, filed suit in federal court under 42 U.S.C. § 1983, claiming that the removal of the cross from the seal violated the Establishment Clause of the First Amendment to the United States Constitution because it conveyed, in the words of the Ninth Circuit, a “state-sponsored message of hostility toward Christians.”  The County moved to dismiss, and the district court dismissed the case with prejudice.

The Ninth Circuit affirms in Vasquez v. Los Angeles County, case no. 04-56973 (May 15, 2007). (The “before” and “after” seals are appendices to the opinion but are provided in a separate PDF file here.)  The court finds that Vasquez has standing because he is a county employee that has frequent regular contact with the offending county seal.  It also ruled that the claim was not mooted by the inclusion of the Spanish mission as a substitute for the cross, finding that the district court’s conclusion to the contrary, based on its rationale that substitution of one Christian symbol for another could not be considered hostile to Christianity, confused mootness with the merits of the case.

That’s where plaintiff’s luck runs out.  The court turned next to the oft-vilified Lemon test (Lemon v.Kurtzman, 403 U.S. 602 (1971)), under which a government action is consistent with the Establishment Clause if it: (1) has a secular purpose; (2) has a principal or primary effect
that neither advances nor disapproves of religion; and (3) does not foster excessive governmental entanglement with religion.  Reaching beyond the pleadings, the court concludes that the cross was removed from the seal for the secular purpose of avoiding threatened litigation over an alleged Establishment Clause violation and that the purpose of the removal was to restore neutrality.  Finally, it rejects plaintiff’s contention that the political divisiveness arising from the controversy was sufficient to plead excessive entanglement.

Perhaps I have greater interest in this case because I live in a neighboring county and closely followed the original controversy over the cross and seal as it developed, but I am surprised to find only one other blog post about it.  That post is here at the “Decision of the Day.”  (It’s also possible that bloggers will pay more attention to this case in the coming days but were too busy posting about the Fair Housing Council v. Roommates.com, LLC case, which also came out yesterday and, as I posted earlier today, took the legal blogosphere by storm.)

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