In February, the Eleventh Circuit Court of Appeals found a cross constructed in a Pensacola park in 1941 did not violate the First Amendment’s Establishment Clause. The Court relied on a 2019 opinion by the U.S. Supreme Court in concluding that the analysis of whether religious references in public monuments constitute a constitutional violation now requires a review of the history of the monument. Importantly, the Eleventh Circuit acknowledged the adoption of a strong presumption of constitutionality for established, religiously expressive monuments.
Four considerations supporting this presumption of constitutionality are: (1) identifying the original purpose of a longstanding monument may be especially difficult; (2) as time goes by, the purposes associated with an established monument often multiply; (3) the message conveyed by the monument likewise may change over time; and (4) when time’s passage imbues a religious monument with familiarity and historical significance, removing it may appear hostile (rather than neutral) toward religion.
Therefore, the current trend from the Federal Appellate courts is to uphold the constitutionality of historic public monuments containing religious references.