Indiana Judge Nixes Six-Feet-Tall Public Crosses in Evansville, but May Have Left the Door Open for Smaller Ones

You may recall that almost six weeks ago, the city of Evansville, Indiana approved the temporary public display of 31 eight-feet-tall plastic crosses along the public riverfront, spread out over a four-block area. The church that wanted to erect the Christian symbols stressed that they’re (supposedly) not intended to promote religion; instead, the crosses were to be interpreted as an “art display,” because Bible-camp kids would decorate them.

The children will have to find other things on which to unleash their creativity. That’s because District Court judge Sarah Evans Barker ruled yesterday, just five days before the exhibit was to open, that the crosses would be a violation of the Establishment Clause. Barker’s decision (embedded below) was the outcome of a suit filed by local plaintiffs Chris Cabral and Nancy Tarsitano, who found the ACLU on their side.

The West Side Church and the city attorney had argued that Evansville frequently provides permits for open-air gatherings and vigils and the like, some of which are religious in nature. The cross exhibit would be more of the same. But Barker didn’t buy it:

The history of uses of the Riverfront by in-person events and festivals, both secular and non-secular, is long and varied. That is not true, however, with regard to unattended displays erected there that are comparable to that at issue here. …

These prior uses all involved in-person events of short duration, usually lasting only a few hours. In contrast, the display of the Crosses, while not permanent, will extend over a two-week period, thereby strengthening the message of endorsement by the City. More significantly, unlike in-person events where the identity of the individual speaker(s) is clearly associated with the message, an unattended display (and any message it conveys) can naturally be viewed as belonging to the owner of the land on which it stands.

So far so good, and in the end, the court reaches the correct decision. But Barker takes an odd and slightly worrisome little detour to get there — focusing on the size and number of the crosses (see page 15 through 19).

Judge Sarah Evans Barker's ruling by TerryFirma

She writes:

[W]e conclude that based on the  size and scope of the project, this planned display of crosses would convey a message of  the City’s endorsement of Christianity to the reasonable observer, and thus, would violate the Establishment Clause.  …

The constitutional concern rests not with the use of the cross symbol as such, but rather with the oversized, imposing and somewhat overpowering size, scope, and magnitude of the display. That the plans call for it to extend over a four city block expanse of iconic public space within the geographic and cultural center of the community of Evansville and be comprised of numerous six-foot-tall crosses, will clearly communicate a sectarian message. It is the forcefulness of this message based on the size and scope of the display that catapults it into the range of constitutionally prohibited speech.

The court’s ruling, then, is only a partial victory for advocates of state/church separation. Consider:

This ruling should not be understood to foreclose or prohibit any and all unattended displays on the Riverfront area that convey a religious message. To stay within constitutional bounds, however, it must stop short of creating a message that overwhelms the nature of the public forum thereby transforming it into government endorsed religious speech.

I’m neither a neutral party nor a legal scholar, so forgive my possible blind spot, but the ruling is a puzzle to me. Would the overtly religious display have passed constitutional muster if there’d been just three crosses? Eight? Fifteen? Or if the crosses had been only one foot tall? Two feet? Four? Or if they’d been placed in a non-”iconic” public space, a mile away? Or if they’d been erected in the span of just one city block, rather than four?

The answer to all these questions is “surely not.”

Though long, drawn-out legal fights are enjoyed only by pettifoggers with their hourly rates, I’d actually welcome it if the West Side Church or the city appealed the decision, as they may; that way, Barker’s tremorous opinion could receive a robust upgrade from a court that isn’t afraid to bare its teeth over the principle of the thing.

(image via Gold Coast Africa)

About Terry Firma

Terry Firma, though born and Journalism-school-educated in Europe, has lived in the U.S. for the past 20-odd years. Stateside, his feature articles have been published in the New York Times, Reason, Rolling Stone, Playboy, and Wired. Terry is the founder and Main Mischief Maker of Moral Compass, a site that pokes fun at the delusional claim by people of faith that a belief in God equips them with superior moral standards.

  • Mick

    “Indiana Judge Nixes Six-Feet-Tall Public Crosses in Evansville, but May Have Left the Door Open for Smaller Ones”

    If there is a loophole available it will be used. Standby for round-two.

  • the moother

    Why is it so hard for people to understand that they cannot put crosses anywhere they wouldn’t like to see a sickle-and-hammer?

    • A_P_Vladimir

      A sickle and hammer would surely be more acceptable, since it is not a religious symbol and couldn’t be seen as government endorsement of any religion.

      • the moother

        Yeah…, but they’d hate it all the same…, if not more… they’d be marching in the streets because of it… whereas a star-and-crescent might not agitate them as much…

        My point is that stupid is what stupid does… and sometimes we gotta rub their noses in it…

    • Gus Snarp

      I don’t get it, aren’t the hammer and sickle proud symbols of our agricultural and industrial roots, like they are in the UK? http://www.flickr.com/photos/ax2groin/539761988/
      http://www.flickr.com/photos/ax2groin/539754566/

      Surely if we should all be accepting of the cross because they tell us it’s a work of art and not a religious symbol, there’d be no problem with hammers and sickles since they’re not just works of art, they’re proud symbols of what made America great, right? ;-)

    • UWIR

      So, if someone wouldn’t want to have a sickle and hammer on their church, they can’t put a cross on it?

      • the moother

        They can do what they want with their church… it’s theirs…

        • UWIR

          So your initial statement wasn’t quite accurate, right?

          • the moother

            My initial statement is quite clear and says nothing about private property. I think you should have paid more attention in school.

            • UWIR

              Read literally, your statement most certainly does say something about private property. If it was not intended to apply to private property, then it relies of external assumptions for its meaning, and therefore could be more clear. If you think that this reduced clarity is still sufficient, you could just say so, rather that making rude comments about my scholastic attentions.

              • the moother

                Unfortunately you don’t even understand the word “literally”

                The words “private property” are not in my statement so it does not literally say something about it. Not even figuratively. Or allegorically. Or metaphorically. Or metonymically

                So, it’s clear, then, that your “scholastic attentions” are suffering from some sort of deficiency. Go back to school.

                • UWIR

                  The phrase “private property” are not in your statement, therefore it does not say anything about it? Are you seriously this stupid? Just because a phrase doesn’t appear in a statement, does not mean that the statement does not apply to that phrase. Your statement did include the word “anywhere”, which means “any place”. You said that people cannot put crosses any place that they wouldn’t like to see a sickle-and-hammer. Your statement was about places, a church is a place, therefore your statement said something about churches. This is just basic logic. Clearly, you’re the one suffering from some sort of deficiency. Normal people understand that a statement that says something about a set also says something about every member of the set. They don’t even have to be taught this, they just naturally know this, unless they have some severe mental impairment.

                • the moother

                  Normal people (not you) would understand that “any place” refers to somewhere that they would be able to have a say in the matter, i.e.: PUBLIC property.

                  My statement ONLY infers public property as the hammer and sickle on my front lawn would be a freedom of speech issue which would be my right on private property.

                  There, I’ve explained basic English to you. No need to read something into a statement that is not there and then try to defend your own lack of comprehension with balderdash.

                  Seriously, go back to school.

                • UWIR

                  You implicitly claimed that if a statement does not include an explicit mention of something, then it does not say anything about that something. Do you or do you not admit that that was bullshit?

                  “Normal people (not you) would understand that “any place” refers to somewhere that they would be able to have a say in the matter, i.e.: PUBLIC property.”

                  Huh? People don’t have a say over their own property? Also, if you understood what the word “literal” means, you would understand that the literal meaning is the literal meaning, and does not depend on people reading into the words to know what it means.

                  “My statement ONLY infers public property as the hammer and sickle on my front lawn would be a freedom of speech issue which would be my right on private property.”

                  The correct word here is “implies”, not “infers”, and “only” belongs after, not before. I guess “infers” and “only”, along with “literal”, are words you don’t understand. Furthermore, I’ve already addressed the issue of whether your statement implies private property, and moved on to the issue of whether it literally specifies private property. You declared that it DID literally specify private property. Now you’re trying to claim that it implies private property. If you’re going to dispute someone’s claim that your statement literally says something, you should present an argument about what your statement literally says, rather than trying to pull some bullshit attempt to change the subject to what your statement implies.

                  “There, I’ve explained basic English to you”

                  No, you’ve explained how either dishonest or stupid you are.

                  “No need to read something into a statement that is not there and then try to defend your own lack of comprehension with balderdash.”

                  I’ve already presented an explanation for how it is in your statement. You have no counter-argument for my claim that it is in your statement. Instead, you’ve presented an argument for why something else should take precedence over what’s literally in your statement. That’s a separate issue. You’re the one presenting balderdash.

                  Can you present any coherent argument for the issue at hand, which is what is LITERALLY IN YOUR STATEMENT, rather than trying to change the subject to what assumptions the context suggests?

                  “Seriously, go back to school.”

                  You are being extremely rude. You are wrong. I have explained in excruciating detail how so. Stop pretending I’m the one with a problem.

                • the moother

                  No, I said that your claim of “literally” was bullshit. Read it again. I also said that you cannot extract “private property” from my statement and explained why public property was the only valid extrapolation one can make.

                  And now you go back to claiming that private property is literally in my statement.

                  You know, if you’re wrong, stop trying to defend your stupidity. Just learn English.

                  And, if you want to call someone rude then you should refrain from calling them stupid and dishonest because it makes you look, well, stupid and dishonest.

                • UWIR

                  Are you now denying that you implicitly claimed that if a statement does not include an explicit mention of something, then it does not say anything about that something?

                  I’ve explained quite clearly just how one can extract “private property” from your statement. Simply contradicting someone is not a valid method of argumentation. When in comes to what a statement literally says, what can be “extrapolated” is not the issue.

                  “You know, if you’re wrong, stop trying to defend your stupidity. Just learn English.”

                  If you’re going to claim that someone is wrong, you should actually present an argument why they’re wrong. You clearly don’t know what the word “literally” means. “Literally” means what the statement by itself means, not what the statement, plus context, means. If your argument involves ANYTHING other than the statement itself, and the meaning of the words in it, you aren’t discussing the literal meaning. You have yet to present ANY argument for why your statement doesn’t literally mean what I said it means. And if you don’t want people to call you stupid and dishonest, you should post stupid and dishonest arguments. You tried to change the subject from the literal meaning to the implied meaning. That’s dishonest. Don’t be a dishonest and then whine about people calling you dishonest.

                • the moother

                  1. The sky is blue.

                  2. The sky is not black.

                  Statement 1 literally says that the sky is blue.

                  Statement 2 does not literally say that the sky is blue.

                  As much as you would like to believe that you are correct, and as much as you try whatever convoluted explanations you can muster to prove your “point” you only look dumb and dumber for trying to do so.

                  As I have already explained: The implication that “any place” could mean “private property” is easily dismissed by the fact that private property is protected by the freedom of speech and expression. So it does not imply that. That’s my argument basically word for word as I have noted above.

                  You’re wrong. I’ve explained it. I have explained it again. You are not bright enough to see it. And keep looking stupid for going over the same point again and again.

                  You’re dumb. Face it. Go away.

                • UWIR

                  And I see you STILL haven’t answered my question as to whether you are saying if a statement does not include an explicit mention of something, then it does not say anything about that something. I guess you don’t want to admit how stupid that idea is?

                  “The sky is not black.”

                  That is not at all analogous, and the fact that you think it is just shows yet again how stupid you are. The analogous statement would be saying “Nothing is blue”, and then insisting that this statement doesn’t declare that the sky isn’t blue, because the word “sky” doesn’t appear anywhere in the statement.

                  “and as much as you try whatever convoluted explanations”

                  There is absolutely nothing “convoluted” about the fact that “anywhere” means “any place”, and private property is a place, and the fact that your tiny little brain is unable to process such a simple syllogism is a statement about your cognitive abilities, not mine.

                  “The implication that “any place” could mean “private property” is easily dismissed”

                  I have said, AGAIN AND AGAIN, that I am not dealing with implications, I am dealing with literal meaning. So either you are so mentally deficient that you don’t understand simple English statements, or you are being deliberately dishonest. The literal meaning of “any place” includes ANY PLACE. That’s the literal meaning. The word “tree” means “tree”, the word “book” means “book”, and the phrase “any place” means “any place”. Private property is a place. That is the literal meaning. Now, as I have said from the beginning, you have a legitimate argument that there are factors that should lead someone to dismiss the literal meaning. But instead of making the completely legitimate argument that the literal meaning should be dismissed, you have insisted on making the idiotic argument that this isn’t the literal meaning in the first place. And been ridiculously rude to boot (and then whined about the fact that I eventually lost patience and stopped responding to you politely).

                  “by the fact that private property is protected by the freedom of speech and expression.”

                  So, then, you agree that it doesn’t make sense to claim that people can’t put crosses on their private property?Your argument appears to be “this meaning is clearly false, so you should assume that I meant something else”. So, what, any time anyone says that what you said is false, you get to say “Well, if it’s wrong, then I clearly didn’t say that”? That’s ridiculous. The fact that a meaning is false doesn’t mean that you didn’t say it. Clearly, there are such things as false statements, so the fact that a meaning would render a statement false does not automatically mean that that meaning is not what the statement means.

                  “So it does not imply that. That’s my argument basically word for word as I have noted above.”

                  Okay, that’s your argument regarding what your statement implies. Do you have any argument whatsoever regarding what its LITERAL MEANING is? Which, in case you missed the half dozen times I’ve said it before, is what the matter at hand is?

                • the moother

                  umadbro? or just fucked in the head? Ask any of your friends (if you have any) to explain to you the meaning of literally.

                  srsly… also go see a doctor bro coz yr first heart-attack seems pretty close to me… literally.

                • UWIR

                  I see you still refuse to answer the question of whether you are saying that if a statement does not include an explicit mention of something, then it does not say anything about that something.

                  I already know what the actual meaning of “literally” is. Perhaps you can explain what you think it means?

                • UWIR

                  Does “anywhere” mean “any place”? Yes or no?

                  Is private property a place? Yes or no?

                  Can you point out a place in my syllogism that is invalid? Yes or no?

                  Are you are saying that if a statement does not include an explicit mention of something, then it does not say anything about that something? Yes or no?

                  Do you admit that this claim is bullshit? Yes or no?

                  What do you think “literally” means?

                  Why do you refuse to answer my questions?

  • Gus Snarp

    I think a smaller display would likely not pass muster either, but that the judge simply didn’t want to set a broad precedent in this case. The focus on size was just to narrow the scope of the ruling. Other displays will still be challenged, and I don’t think that this ruling will affect them. But I’m not a legal scholar either.

  • Gideon

    Honestly, it sorta makes sense to me. Nobody would say that government funding of an art gallery is the same as endorsing all of the symbolic messages of the art. If it’s an outdoor art gallery, then it seems like the reasoning is the same.

    Of course, a “public forum” like that should also have clear signage that identifies the artist. And it must also permit various other works no matter the religious message. For instance, butter sculptures of the Flying Spaghetti Monster.

    I suppose the line between a recognizable public forum and a huge “Christianity Rulez!!!!!” needs to be drawn somehow.

  • WoodyTanaka

    “The court’s ruling, then, is only a partial victory for advocates of state/church separation.”

    How would you know? As you admit, you don’t have any expertise in legal matters, so instead of shooting off at the mouth and insulting those who actually know what they’re talking about, you could have simply admitted ignorance and asked for help from a qualified individual, who might have told you what the opinion meant.

    • TheG

      I’m assuming your profession is as someone who connects people with proper legal counsel? No? Then you’re just a hypocrite shooting off your mouth.

    • Lee Miller

      Wow. Are you always that nice, or did you make a special effort just for Terry?

      • allein

        No, he’s always that nice.

      • WoodyTanaka

        It’s bad enough that the ignorant on this site spout off about legal issues, demonstrating in the process that they have no frickin’ clue what they’re talking about, but to have this d-bag not only state his ignorance but to also insult those who might actually know something is really too much.

    • UWIR

      Who did he insult, and how? And one does not have to be an expert to have an opinion about a legal decision.

      • WoodyTanaka

        Look up the word “pettifoggers.”

        And one doesn’t need a science education to have an opinion about a physics paper either. But if you want an intelligent (hell, competent) opinion, then you do have to have some idea what you are talking about.

  • freemage

    I am crossing my fingers that, in particular, the ‘public forum’ aspect means that no one can be allowed to dominate such a space, and thus, if they let one stand, all must be permitted to join in. So, yes, atheist and pagan-themed images would need to be permitted just as readily as Christian and Jewish ones (frequently, the first defensive maneuver is to put up a menorah and then claim that they’re no longer being exclusive).

    • skinnercitycyclist

      Things gonna be getting cluttered downtown.

  • http://abb3w.livejournal.com/ abb3w

    I suspect the judge might be suggesting that a single cross would be permissible… if the town wants to create an open forum, and insures that room is left for other, competing displays.

    But I’m too busy to read the ruling closely, and not a lawyer anyhow.

  • http://www.zacparsons.com/ Zac Parsons

    My perspective is skewed by my Interfaith bias, but I interpreted the judge’s ruling to be an acknowledgement that a church/state separation is more about avoiding the endorsement of a SINGLE religious perspective, and not about banning all religious expressions in the public square.

    In truth, religion is a part of our community, and is disingenuous to argue otherwise, no matter how much we atheists might like it to be different. A public forum that fairly allows religion to be engaged is an opportunity for people to discuss ideas and arrive at something closer to the truth. Isn’t that why we were all drawn to atheism in the first place?

    I’m hopeful that multifaceted religious display that includes the faithless can be a catalyst for initiating that level of conversation in Evansville. While people may not change their minds, they will at least be less ignorant of each other, which is a result that I would be proud to celebrate.


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