The Saga of the Whiteville Water Tower Continues

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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59 Responses

  1. Jason Kuznicki says:

    It tickles me — err — pink — that the town’s named “Whiteville.”

    Also, if I’d been a Christian conservative, I’d have removed the head of the cross, transforming it into a T, as in Brave New World.

    It saddens me that I can so often play the other team’s game better than they can.  The cross is a clear violation because it endorses religion.  It needs to go.  This isn’t even a tough call.Report

    • Murali in reply to Jason Kuznicki says:

      I understand that the cross which represents christianity, when placed on top of a public building may be reasonably construed as an endorsement of religion (in this case christianity). What I dont get is how a lopped off cross (i.e. something with only 1 arm) represent christianity or any particular religion (I dont know if some obscure religion does use a verticle line with 1 arm as a symbol) Otherwise, the lopped of cross is a symbol of nothing.

      I’m assuming that we dont have to take the history into account. Any reasonable passerby (who doesnt happen to know the history i.e. me if I was just passing by and hadn’t read this post) would at most wonder why it was lopsided.

      If on the other hand, we ought to take the history of that “thing” into account, then, we are to suppose that it is not some wonky figue but a mutilated cross. How is the display of a mutilated religious symbol an endorsement of religion? Wouldnt it be the opposite? The state cannnot endorse anti-religion either.Report

      • Burt Likko in reply to Murali says:

        I see two arguments supporting FFRF as to the semi-cross on the water tower.

        The first is that the cross, even with an arm detached, is still readily recognizable as a symbol of Christianity.

        The second is that the history and context of the display does have to be considered. I think that one is correct, personally, and I am sure that this argument is congruent with existing case law.

        One could credibly argue, though, that the display should be examined in its current form, from the perspective of a reasonable, objective observer approaching the display tabula rasa.Report

  2. Patrick Cahalan says:

    Well, it may be giving Mr. Mayor unassailable poll numbers in town, Burt.

    So I can see a huge win there, as far as he’s concerned.Report

  3. Tod Kelly says:

    My favorite part of the press release was the sly inclusion of referring to the plaintiff’s employer as “foreign.”  If it turns out that this is the legal term and simply refers to a company not based in TN (which I suspect is the case), then bonus points to the mayor’s office for finding a clever way to stoke those fires of paranoia.Report

  4. dexter says:

     I would like to know how much is the town paying in legal fees to defend something like this?  If the town wins can a Muslim put up a crescent, the Wiccans put up a pentagram and an evolutionist put up a gaint fish with legs?Report

    • Burt Likko in reply to dexter says:

      Wiccans, Muslims, Christians, etc. are already free to display whatever religious symbols they wish on private property (presuming no other violation of law like nuisance ordinances). Governmental entities are different.

      Evolution is not a religion.

      As for who pays, it might be taxpayers or it might be interest groups like Alliance Defense Fund, ACLJ, or Liberty Counsel.Report

      • Jaybird in reply to Burt Likko says:

        It seems to me that this interpretation says that a cross would not be allowed but a cross in a “no symbol” would be allowed because the former is an establishment of religion but the latter is not.

        Is that a misreading?Report

      • dexter in reply to Burt Likko says:

         Thanks for the reply.  I was asking about putting the symbols on public property.  Evolution might not be a religion, but antii-evolution is.  I was just being snarky because I believe it would tick off the fundies if the fish appeared.Report

  5. DensityDuck says:

    If your attitude is that any religious expression on public land is an Establishment Clause violation, then, well, any religious expression on public land is an Establishment Clause violation.  Even dogwhistle expression.  Even acknowledgement that religion exists.  Holiday decorations–if that holiday has a religious connotation–are an Establishment Clause violation.

    That said, I think FFRF should take this one all the way to the mattresses, because–as I pointed out elsewhere–if religious expression on public land is an EC violation, then that shuts down the Westboro Baptist Church.  (Unless, of course, they can find private land to demonstrate on–which is fine, but the owner of that land will still be in the community after the WBC has left, and is going to have to deal with the results.)Report

    • Tod Kelly in reply to DensityDuck says:

      I should let Burt address, but I think there is no  issue with the declarations of religion in the public square.  I think where it becomes sticky is when the governemnt is the one making those declarations.  (i.e.: you can pray in public school; the principal cannot tell you have to pray.)Report

    • Matty in reply to DensityDuck says:

      I hesitate to wade in being foreign but there are pretty obvious differences between. Public in the sense of organised by the government and paid for out of taxes and public as in done in a place anyone has access to.

      A ban on religious expression that is public in the 1st sense would not need to touch expression that is public in the the second sense.


      • Burt Likko in reply to Matty says:

        You’re exactly right. Government sponsorship is what matters.Report

        • DensityDuck in reply to Burt Likko says:

          So roadside memorials are okay, then?Report

          • Burt Likko in reply to DensityDuck says:

            I see what you did there; touché. (Meant sincerely.)

            The roadside memorials in the Utah case were specially licensed by the state and bore the seal of a state agency. But yes, they were paid for by a private entity. “Paid for” is not quite the same thing as “separate from.”

            Let’s suppose that the cross on the Whiteville water tower was bought with all private money. Does that mean it didn’t violate the establishment clause? At best, it’s one of many factors we might consider when asking if there was a government sponsorship of the religious message.Report

            • DensityDuck in reply to Burt Likko says:

              I can support specific restrictions on religious symbols displayed on public grounds–grudgingly, and insistent that we maintain awareness that objection to such symbols may in fact be religious schism hiding itself under the aegis of the establishment clause.

              The issue is the blanket assumption that, to use a catchphrase, “accomodation” equates to “endorsement”.  The problem with “anything on public land is an EC violation” is that there are a great many private spaces which are treated as <i>de facto</i> public spaces, and subject to the same rules.  Could someone claim, for example, that a shopping center displaying a cross was engaged in an EC violation due to the public nature of the property, even if the property were entirely privately owned and maintained?Report

              • Could someone claim, for example, that a shopping center displaying a cross was engaged in an EC violation due to the public nature of the property, even if the property were entirely privately owned and maintained?

                Someone could claim it, but as a legal argument it wouldn’t go anywhere.  Some cases dealing with claims of free speech rights in shopping centers came down squarely on the side of them being private.  In the abstract, I get your concern.  As related issues have played out in the courts, I don’t think there’s actually much to lose sleep over.Report

              • Burt Likko in reply to DensityDuck says:

                Could someone claim, for example, that a shopping center displaying a cross was engaged in an EC violation due to the public nature of the property, even if the property were entirely privately owned and maintained?

                Under the First Amendment, I doubt it — I suspect that we’d be looking at a fairly intrusive degree of public control and regulation of that land before the issue could even arise. Something like, say, a shopping mall doesn’t strike me as even a close case — that’s private property, they can have all the religious symbols they want.

                Zuccotti Park in New York? Privately owned, general license to the public for nearly any lawful use, maintained (apparently) by public entities at public expense, Mayor seems to get a say in how the property gets used… so a closer case. But still private. And very unusual. My instinct is that it’s still private and so the owners could display religious symbols.

                There is some state-level case law that suggests a contrary result, at least here in California. It is widely criticized and I am not particularly fond of it myself.Report

              • Mike in reply to Burt Likko says:

                Zuccotti Park in New York? Privately owned, general license to the public for nearly any lawful use, maintained (apparently) by public entities at public expense, Mayor seems to get a say in how the property gets used… so a closer case. But still private.

                If you used that same level of logic trying to explain how your money was really not your money that you’d been spending, the IRS would have you up on tax evasion charges.

                But this is precisely the point we’ve been going at – the Republicans/conservatives, by hook or crook, are trying their level best to “privatize” everything they can, even if it’s just in an in-as-tiny-a-name-as-possible case, so that they can claim that their government sponsorships and indoctrinations of religion are somehow “private” in nature.

                My favorite, a few years back: one of the sicko anti-gay churches in the area wanted to “rent” a 5-by-5 space in the center of the local courthouse to put a manger in. They argued that if they “rent” the space for a period of 6 weeks, and pay for the manger, then it’s not “government sponsored” even though it’d be in a public space in a government building. The logic for Zucotti Park being “private” in that sense is just as weak.Report

      • Tod Kelly in reply to Matty says:

        Dude, off subject but…  Did you take the great photos on your blog?  They’re giving me wanderlust.Report

    • James K in reply to DensityDuck says:

      The key question here is will a particular piece of religious expression be constructed as government endorsement of a religion.

      If the government is actually engaged in the expression, then it would be very hard to conclude otherwise.

      If the government grants a private group license to express one opinion on public land, but not other opinions, then than looks a hell of a lot like endorsement too.

      If however the government grants every private group license to express whatever it likes (Subject to content-neutral restrictions) on a piece of public land then there’s no endorsement of any particular view and therefore no constitutional issue.Report

      • DensityDuck in reply to James K says:

        James, I agree with your last paragraph.  Unfortunately, some people don’t; they consider “accomodation” equivalent to “endorsement”.Report

        • Duck,

          Accomodation is a word with a lot of flex in it.  May I ask how you mean it?  E.g., do you mean Christian, Jewish, and Zoroastrian displays on the courthouse lawn, or do you mean principal inviting a local pastor to give an invocation at the high school graduation?  If the first, I’m in with you.  But I know plenty of folks who want to sneak the second in as accommodation, whereas I’d see it as endorsement.Report

          • DensityDuck in reply to James Hanley says:

            “[D]o you mean Christian, Jewish, and Zoroastrian displays on the courthouse lawn[?]” 

            Yes, that’s exactly what I mean.  If the Christians want to put up a cross, then that’s fine, but the Atheists get to put up whatever they’d like (a statue of Ayn Rand, maybe.)  And both of these are subject to established regulations–building codes, maintenance, length of time displays are permitted to be present, that sort of thing.  To say “no, that’s religious and you can’t put it up” is, to me, as much of an EC violation as overtly inviting the display.

            Now, it wouldn’t be an EC violation to say something like “you can put it up, but you must also include a sign of equal prominence declaring that the display is erected and maintained by your organization, including contact information, along with a statement that the display was not specifically requested by the government and its presence does not constitute endorsement.”Report

        • Precisely, DD.  At the top of the Washington Monument is carved “Laus Deo,” glory be to God.  Soon we will scratch it off.Report

  6. Burt Likko says:

    Readers may be interested in this comment from the sub-blog.Report

  7. Aliyah Levin says:

    Mr. Likko,

    Please provide contact information for interview.



  8. JG New says:

    Hmmm.  Thought experiment. What about a government-owned cemetery, like Arlington National Cemetery?  Government-owned, Government-run, and Government-paid-for crosses, and Stars of David, and Crescents all over the place?  An endorsement of religion by the Government?

    Perhpas not, if it’s considered an expression of personal faith as public speech – but can a corpse have a right to express itself?

    I’m a separation of church and state die-hard, but this seems too far even for me.  But it’s sort of hard to draw a logical line that says its forbidden to put a cross, say, on a bit of Government-owned grass, but it’s OK if someone is buried under that piece of grass.Report

    • Tod Kelly in reply to JG New says:

      Huh.  This is a good one.

      My guess is that in the case of Arlington, the government buries you at their expense due to the service to your country, but that you or your family still have the right to be buried as you see fit.  But I will admit, I don’t know if that’s the actual argument.Report

    • James Hanley in reply to JG New says:

      National cemeteries are a sort of open forum for the dead. You can choose your faith symbol on your grave marker (or your survivors can, at least).  The key is that it’s not the government that determines the faith symbol.  The available options, which are pretty extensive, can be seen here. About the only thing missing is the FSM, and of course you don’t have to have one–it’s an option, not a requirement.Report

      • Burt Likko in reply to James Hanley says:

        And I notice that if you can establish that you or your decedent have a sincere and abiding belief system that is at least similar to a religion, and which is not symbolized by the available options, you can request it and they’ll accomodate consistent with the dictates of the dignity associated with a military cemetery.Report

    • DensityDuck in reply to JG New says:

      Considering that Arlington has many options for its memorial markers, this is more like my “accomodation” argument than anything else.Report

      • Jaybird in reply to DensityDuck says:

        The “Free Exercise” clause is somewhat troublesome but provides many an out. Hey, you don’t *HAVE* to have a cross. You can have whatever symbol you want. You can even *NOT* have a symbol. The problem comes when the government says that someone *CANNOT* have a religious symbol. It is not the government establishing the religion, it is the surviving relatives engaging in Free Exercise.

        Now, it seems to me that this exact argument, with very little tweaking, seems to imply that school vouchers ought to be allowed to be used at Catholic Schools (because it’s not the State establishing the religion, it’s the parents engaging in Free Exercise thereof).Report

        • James Hanley in reply to Jaybird says:


          Vouchers can be used at Catholic schools; just ask any student at Notre Dame.

          Oh, wait, you mean K-12?

          Yeah, your argument is universally accepted for collegiate-level vouchers, but not for elementary or high schools.  It’s a bit of a puzzler, isn’t it?Report

    • Burt Likko in reply to JG New says:

      I’m a fairly strong separation advocate myself. I agree with the comment above that words like “accomodation” are kind of slippery (and, to be fair, “endorsement” is kind of slippery too) but at the same time somethings really are acknowledgements of religion and not endorsements of it. The government does not have to pretend that religion does not exist or that individual people are not religious. Indeed, it must permit them to exercise their religion to a very significant degree, with equal force and gravity as it must avoid Establishing a religion.

      To not allow the families of our honored dead the solace of their various and respective faiths in their time of grief would be, in my opinion, a violation of the Free Exercise clause.Report

  9. JG New says:

    Fair enough, and these are good points.  But, at the same time, would a non-individualized structure, something not on an individual (or even mass) grave, but rather a monument or general memorial, or even a gate, which bore a religious symbol in such a cemetery be a violation of the Establishment Clause?  Here, I think the reasoning that supports it as a free exercise by the grieving survivors is somewhat weaker in that instanceReport

    • James Hanley in reply to JG New says:


      In this case I think we need to distinguish between how folks here would interpret the First Amendment and how they would expect the actual Supreme Court to do so.  The Sup Ct gives a fair amount of deference to the military, for starters, a fair amount of deference to anything that can plausibly be called “ceremonial deism,” and also tends to look at how the religious symbol is incorporated into its surroundings–if it is less prominent, doesn’t stand alone, and is just one of multiple symbols they’re more likely to give it a pass than if it’s very prominent, stands alone, and isn’t connected with a set of other non-religious symbols.

      I think we’re looking at a case-by-case approach on something like this, rather than a general rule.Report

  10. kenB says:

    Straying just a bit from the topic at hand: I’ve noticed that the discussions around this cross thing have mostly concentrated on the legal considerations, although I get the sense from some that what’s legal is also what’s desirable.  My question is, leaving aside current law, does it make sense to protect the minority in the case of religion but not in other matters of deeply-felt belief?

    For example, my wife and I used to be ethical vegetarians (we’re still sympathetic but we don’t have the energy anymore).  When my kids were in grade school, we had no protection from teachers and school officials reinforcing the prevailing cultural consensus on eating animals (“the cow gives us beef”, wishes for a “Happy Turkey Day”, and many other examples).  While we would’ve been happy if some consideration had been shown for our beliefs, we understood that we were in the minority and that it was up to us to deal with the prevailing culture as best we could.

    Or here’s a hypothetical example: suppose at that time we were living in a ranch town that wanted to celebrate its dedication to quality beef, and a big billboard of a juicy steak was put up on public property, maybe even with a tagline along the lines of “horrifying vegetarians since 1823”.  That would certainly make us feel unwelcome.  Why allow that and not the (much less overtly unwelcoming) cross?Report

    • BSK in reply to kenB says:

      Kenb- I think this gets at the fundamental question of how we define religion. Why is one belief system protected and another not? It would be hard to argue that it has to do with a higher power because of the role that athiests play. I steuggle with this ,yself when we think aout what belief systems are protected and what are not, with your example being prime.yReport

      • kenB in reply to BSK says:

        Yeah, I understand why it’s this way historically, but I don’t think it makes much sense anymore.  And it’s odd in a way to see some atheists implicitly endorsing the special protections for religious belief (or unbelief), since that privileges the very domain that they reject.Report

    • Burt Likko in reply to kenB says:

      The law matters, though.

      Your family’s (past) vegetarianism is certainly a valid and non-harmful lifestyle choice. You can be vegetarians if you want, doesn’t hurt anyone. At the same time, you get to hear the Federal government advise most adult Americans to eat five to six ounces of lean meat every day* — and you get to know that your tax dollars are going to subsidize any of a number of industries that slaughter animals for food, something that likely runs contrary to your ethical attraction to vegetarianism. In other words, the government is acting at cross purposes to your beliefs. Do you:

      a) File a lawsuit to compel the FDA to no longer advise the consumption of meat? (It presently offers “vegetarian alternatives” on its website.)

      b) Write your Congressman and ask that the poultry subsidy be discontinued, occupying Zuccotti Park if your demands are not met?

      c) Go on tax strike? or

      d) Suck it up, buttercup, and go about your life while doing what you can to disregard the government’s activities.

      The answer is d) because unless you’re going to file a (doomed-to-lose) Constitutional challenge to the existence of the FDA as beyond the enumerated powers of the Federal government, you are powerless to not obey the law, and there is no special status afforded to vegetarianism in either our culture or our body of law. So pay your taxes and tell your kids that tofu chunks taste just as good as chicken nuggets for as long as they’ll believe it.

      Religion, however, is treated differently. It is protected by the Constitution. Individual religious autonomy is a core value of our culture. We test that with unpopular personal religious choices like atheism, Mormonism, Islam, and Jehovah’s Witness…ism. (At a loss for how else to phrase that.) And to keep that individual autonomy intact and meaningful, we don’t allow the government to “take sides” in a social or cultural discussion about matters of religion.Report

      • kenB in reply to Burt Likko says:

        Burt, I’m afraid I didn’t make my point clear.  I understand the current state of the law well enough, and I’m certainly not asking (retroactively) for any special consideration for vegetarians.  The message I get from your writing on this topic is that you’re not only describing current law but also endorsing it.  My challenge to you is to defend it, not from the standpoint of what’s in the Constitution or how we got to where we are, but from the perspective of one who’s saying that what *is* is basically what *should be* when it comes to this sort of rights-balancing.

        In other words, pretend you’re starting from scratch to write a new Constitution.  Do you keep things as they are?  If so, why would you have religion treated differently from other matters of values, morality, ethics, etc.?  Why shouldn’t non-Christians in a Bible Belt town have to suck it up the same way vegetarians have to in a cattle-raising town?Report

        • Burt Likko in reply to kenB says:

          Responding off the cuff here. I reserve my rights to revise or alter my thoughts later as I think it through. If we were starting from scratch … let’s say, if mine was the decisive voice speaking at a hypothetical Second Constitutional Convention?

          Yes, I would keep things more or less as they are. I think the term “Establish” is too vague in today’s world. I would forbid the government from endorsing religion in any signficant way. Similarly, I would forbid the government from endorsing non-religion. I would forbid the government from unreasonable restrictions on the practice of religion. I would make clear that this applies to all levels of government, not just Federal. Neutrality is the goal to which I would have the government aspire, with the understanding that the path of a truly neutral course is not always easy to determine in advance.

          As a general guideline, I would have the government treat a religious organization the same way it treats any other (purportedly) charitable corporation — it must comply with the general laws, it must properly report and disclose what it’s doing with its money, and so on. Again, particular situations may require accomodations, and I offer that as general guideline and with the understanding that there may be particular cases where general rules have to bow to a larger goal of overall neutrality.

          Such a regime maximizes individual freedom. As some point in life, we all go through a phase of questioning, of doubt, of examining belief, and out of that process we reach a personal equilibrium with questions of the ineffable. This is part of what it is to be a free individual, it is part of what it is to mature and grow up and assert oneself as an autonomous person. I think as a normative matter that the government should keep its hands off that process and respect whatever actions people take as a result of it to the maxmium extent possible consistent with maintaining a peaceful, lawful society — which is to say, your religious “choices” (I use that word guardedly because I don’t think belief is ultimately a conscious choice) ought not to work tangible harm on other individuals and as long as they don’t, the government ought to have no interest in those “choices.” Contra Scott and TVD below, I propose that pushing the government towards a neutral stance with respect to matters of religion and faith is aimed at enlarging individual liberty, and therefore a worthwhile thing to do.Report

          • Scott in reply to Burt Likko says:


            “I think the term “Establish” is too vague in today’s world. I would forbid the government from endorsing religion in any signficant way.”

            The word “establish” is only too vague for either the uneducated or the folks that want to ignore what the framers actually wrote. If you want to forbid the gov’t from endorsing or favoring religion then by all means rewrite the 1st amend but please don’t excuse those who twist it out of ignorance, malice or sloppiness.Report

    • karl in reply to kenB says:

      There’s a good reason state support for a religion is treated differently from support of foodstuffs: when did we learn in history class about the food preference wars?Report

  11. Scott says:

    It is sad that the FFRF folks don’t have anything better to do with their lives. What is also sad is that the establishment clause has become so twisted so as to allow those folks to do what they are doing. FFRF should go to Santa Monica, CA and tear down their statute. Of course the liberals out there would probably cheer them on.

  12. Scott says:

    Apparently you congress critter can’t say merry Xmass in their letters. What is this country coming to?