May 04, 2018

Americans United on Wednesday filed a friend-of-the-court brief on behalf of 20 nonprofit organizations, including Christian, Jewish, Muslim, Hindu, Sikh and nonbeliever groups, in FFRF v. County of Lehigh, a case that is about to be heard by the 3rd U.S. Circuit Court of Appeals. The issues raised in the Lehigh case are compelling in their own rights, but the legal challenge raises larger concerns. Indeed, what is at stake in this case threatens to affect almost everything that we do here at Americans United.

The facts of Lehigh are pretty straightforward. Back in 1944, Lehigh County, Pa., adopted a county seal that, as the county has admitted, centrally features a “huge cross,” representing Christianity, in order “to honor the original settlers of Lehigh County who were Christian.” That design has remained on the seal (and on the county’s flag, which is substantially similar) until the present day.

Unsurprisingly, this blatantly sectarian imagery has offended non-Christian residents, a few of whom have sued and successfully obtained a court order stating that the county cannot continue to use that design on its seal and flag. Simple enough.

But here’s where things get really interesting: Despite coming to the constitutionally correct, and legally mandated, decision that the inclusion of the cross violates the separation of church and state, the district judge also wrote a troubling opinion, lamenting the state of the law and revealing that he personally believes that the county should be able to (literally) fly a Christian flag. And he invited higher courts to turn back the clock on constitutional law, to a time when public-school teachers, for example, were allowed to lead their students in prayer, post the Ten Commandments on the wall and teach creationism in science class.

The county has now appealed the decision to the 3rd Circuit, and Americans United has submitted a brief in that court on behalf of the plaintiffs, arguing that the lower court correctly applied the law but incorrectly criticized it. Although the judge technically made the right call, we believe that it’s important to refute his mistaken ideas about the separation of church and state. If his invitation were taken up, our ability to defend religious freedom in the courts would be severely compromised.

Consider, for example, how the judge suggests that issues of church-state separation should be dealt with: “[T]he fact that some might be offended by the Seal,” he writes, “is an issue best addressed by elected officials, rather than the courts.” That’s a remarkable suggestion. The Bill of Rights generally, like the First Amendment’s protection of religious freedom in particular, is designed to defend the rights of minorities against the tyranny of the majority. If courts do not vigorously enforce the First Amendment, there will be nothing to stop members of a majority faith in a county, a state or even the entire country from voting their religion to be favored above all others and to receive special benefits from the government – nor will there be anything to stop them from voting to penalize non-adherents.

It’s no coincidence that many of our allies who joined our brief represent minority-faith communities or non-believers. They know, as we do, that popularly elected officials can’t always be relied upon to protect the religious freedom of all.

That’s why Americans United will always hold the line against any attempts to erode the wall of separation of religion and government. That wall is what protects the equal rights and dignity of all Americans against any incursion, big or small, on their freedom of conscience. We hope that you’ll always stand with us.

(Images by Freedom From Religion Foundation)