The Saga of the Whiteville Water Tower Continues

Following up on a story I discussed in October and again in November, concerning a Latin cross atop a municipal water tower in the Western Tennessee town of Whiteville, the Freedom From Religion Foundation was apparently unimpressed with the town’s defiant Mayor’s decision to remove only one arm of the cross — leaving it a different symbol but still a clear reminder of the symbol of the Christian religion. FFRF filed suit, on its own behalf and on behalf of a resident of Whiteville identified only as “John Doe.” And unable to resist, the town’s Mayor has responded in in what I’m learning to recognize as his typically colorful fashion — one which I predict he will find was ultimately counterproductive.

With respect to the removal of the single arm of the cross in response to FFRF’s complaint letters, alleging (which was missed in prior media reports I’d found) that after taking down one arm of the water tower’s cross, the city “…installed two large crosses in front of the Whiteville City Hall” and subsequently decorated them with Christmas wreaths. (¶¶ 27-28), after the Mayor had publicly proclaimed “Someone needs to stand up to these atheist sons of bitches” (¶ 23). (For those of you playing along at home, that last bit, if true, is intended to be used later as evidence of the Mayor’s willful defiance of the law.)

For his part, the Mayor’s reaction is found in a rather odd press release. Speaking or writing in his official capacity as mayor, he calls FFRF a “northern company with little or no connection to our community.” It refers to the “Nashville law firm that represents it” as having filed lawsuits against the city previously, although it does not specify when, who the firm’s clients were, what the claims of those suits were other than that they had nothing to do with religion, or how those lawsuits were resolved. (He does dial back on calling them “terrorists,” to his credit.) Finally, he “finds it revealing” that the lawsuit does not complain about Christmas decorations on publicly-owned street lights in front of the very courthouse in which the lawsuit was filed. (One suspects that if there had been such a complaint, that would have been used to suggest that FFRF’s is ideologically intolerant rather than as a demonstration of its purported sniveling hypocrisy.)

The issue is distilled in paragraphs 30-32 of the complaint, which I will edit slightly to frame the issue generally:

The crosses … are an endorsement of Christianity by Whiteville. Mr. Doe’s contact with the crosses in front of the Whiteville City Hall is unwelcome and offensive to Mr. Doe, who believes that the installation of religious symbols on Whiteville property is an illegal and unconstitutional exercise of Whiteville’s authority and is defendants’ endorsement of Christianity. The crosses on public property signify to Mr. Doe that Whiteville is only welcome to religious people (specifically Christians) and that as a non-religious person, he is unwelcome in Whiteville.

To resolve the substantive dispute in your mind, then, you need to answer two questions:

1. Do the crosses constitute an endorsement of Christianity?
2. May the city endorse Christianity consistent with the Establishment Clause?

My take on it is yes, they are an endorsement, and no, the Establishment Clause does not allow this sort of thing. You may also want to consider the procedural question of whether either John Doe, a pseudonymous resident of the town, or FFRF, a nonprofit corporation based in Wisconsin (but with contributing members nationwide, presumably including the John Doe of this case) have sustained sufficient injury to have gained standing to sue in Federal court. I have previously opined, for instance here, that Federal standing rules are sometimes construed in an artificially narrow fashion to provide an “escape hatch” for judges who do not wish to confront the substantive issues of a particular case for whatever reason, and that this is both an abdication of judicial responsibility to the parties before the court and a disservice to the country as a whole which otherwise would benefit from the resolution of a civil dispute on its merits and the growth and development of caselaw resulting from that resolution. This seems particularly true in Establishment Clause jurisprudence, and the practice goes all the way up to the Supreme Court. So perhaps you might consider whether either FFRF or Mr. Doe has a right to go to court to complain about the town’s endorsement of Christianity — and if you conclude that they do not, then I would be interested in your opinion about who actually would have such a right. In my opinion, every citizen of the United States is harmed — at least in a small but observable way — when the Constitution is defied. This is true even for Christians whose religion is thus endorsed, in part because it renders them vulnerable to governmental endorsement of some other religion (e.g., fears about Islam’s prominence in Dearborn, Michigan) in the future. Of course, we are all also hurt by the disrespect for the Constitution in that a governmental entity, and its leaders, who openly defy the Constitution use the power vested in them to promote lawlessness from public office.

I would have counseled the town of Whiteville to take down the cross on the water tower and encouraged the mayor and other leaders in the community who felt a need to proclaim their Christianity to do so on their own private property. Failing that, I would have counseled them to have responded with a more neutral and sober press release, saying “While we recognize the Constitutional right of the complainants to use the court system to redress their claimed grievances, the town of Whiteville has not violated the Constitution and looks forward to vigorously presenting its case to the court system at both the trial and appellate levels.” The stormy and emotional press release may have been a cathartic exercise for the Mayor, but he didn’t do himself or his town any favors by issuing it.

I owe University of Toledo Law Professor Emeritus Howard Friedman (whom I’ve never met) a debt of thanks for his indispensible Religion Clause blog, and for his studious and evenhanded approach writing it. He neutrally reports all of these events as they happen, freeing up the rest of us to editorialize. It would be much more difficult for me to follow these issues without his efforts.