PHILADELPHIA — Lawyers for a Pennsylvania County said Friday it should be allowed to keep a cross symbol on its official seal because it represents the county's history, not a religious mandate.
Lehigh County asked a panel of the 3rd Circuit U.S. Court of Appeals in its oral argument to reverse a lower federal judge's decision saying the county has to remove the cross from its seal. The Freedom From Religion Foundation and four of its local members filed the original complaint about the county seal, saying the inclusion of the cross constitutes an endorsement of Christianity.
Judge Edward Smith wrote in his September 2017 opinion that while he didn't believe the symbol violates the Constitution he was bound by precedent to side with the Wisconsin-based atheist group. Smith said the county could keep the symbol on older documents, but would have to change it on flags, cars or other property.
The county appealed the ruling, saying in its argument Friday that a new precedent from the U.S. Supreme Court allows for religious symbols to be viewed in a historical context in some situations.
Eric Baxter, an attorney with the Becket Fund hired by the county, said the cross is one of a dozen symbols on the seal and was meant to represent the county's original settlers who were fleeing religious persecution. The Becket Fund is a nonprofit legal and educational group that says its mission it to protect free expression of all religious faith.
"But flags with historically-significant religious images are part of American culture: New Mexico's flag has the sacred sun symbol of the Zia Native American tribe, Louisiana's has a Catholic symbol of a pelican with a bleeding heart to feed its hatchlings the Eucharist, and Utah's has multiple images that recall the Mormon pioneers," Becket said in a written statement Friday.
The Lehigh County seal features a cross in the center behind a county building surrounded by other symbols in a circle around it, including a heart, a farm, and a factory.
Judge Cheryl Ann Krause noted the historical context test had not been used on passive displays. The judges asked why that was a better test than a previous precedent called the Lemon test that requires a secular purpose that neither advances nor inhibits a religion and does not entangle government with religion. They also asked if a test of whether a reasonable observer would perceive an endorsement of religion would be more appropriate.
Baxter said the seal had been the same for more than 70 years without drawing any complaints.
Foundation attorney Marcus Schneider said the historical argument was faulty.
"There is no documentation to connect it to that (historical) theme," he said, adding that the religious meaning of the cross is "ubiquitous across the country."
Schneider said the cross is the most prominent feature on the flag, and the county commissioners could have chosen any number of other symbols to represent the original founders.
"The shadow cast by this seal is much more than the shadow cast by a single cross," he said.