Once again, we’ve hit the silly season for objections to religious symbols. This week, in response to a threatened lawsuit by the Freedom from Religion Foundation, the city of Steubenville, Ohio, decided to revise its official seal (left) to remove the silhouette of a local landmark, the chapel on the campus of Franciscan University. You see it? Take your time, it’s over there on the right. The problem was the cross on top of the chapel. According to FFRF, its depiction amounted to an establishment of religion under current Supreme Court case law, which forbids government from endorsing religion. Someone suggested depicting the chapel without the cross, but FFRF apparently objected to that, too. So, rather than face an expensive lawsuit it figured it would lose, the city caved and restored an older version of the seal (below). The old seal avoids endorsing religion, though it does seem to endorse wooden forts.
I’m not sure the city was correct in estimating its chances. True, many lower courts have ordered the removal of crosses from city seals under the endorsement test, but the cases are very fact specific. The key question is whether a reasonable observer would see an official endorsement of Christianity, rather than a reflection of a community’s history. For example, the Tenth Circuit held a few years ago that the city of Las Cruces, New Mexico, could retain crosses on its seal in light of the fact that the city was named for crosses found in a local cemetery. Franciscan University has played a major role in the history of Steubenville, and a reasonable observer would most likely understand depiction of the chapel, the main campus landmark, as an attempt to acknowledge the university’s importance to the city. Anyway, the cross is hardly a central design element in the seal. It’s off to the side; many people wouldn’t even have noticed it. But, as I say, these cases are very fact specific, so who knows what a court would ultimately have decided. That’s one of the problems with the endorsement test. But was depiction of the cross here so awful an offense? Was there no more important Establishment Clause violation to address, somewhere in America?