Freedom From Religion Foundation unsure whether case merits a lawsuit

ELIZABETHTON, Tenn. (WJHL) — The City of Elizabethton paid $2,000 in 2020 for electrical work at a trio of large crosses on a city-owned hill that an advocacy group has requested be removed, claiming they violate the U.S. Constitution.

Two purchase orders for work at “Lynn Mountain Crosses,” as one describes the location, were issued to Kingsport-based Briscall Electric on April 1 and April 9, 2020, documents News Channel 11 obtained in a Freedom of Information Act request show. Those documents also show at least four people made verbal or email offers to purchase the land on which the crosses are displayed from the city.

An attorney from the Freedom From Religion Foundation (FFRF) said Friday the revelation about the purchase orders is significant as the group weighs whether or not to file suit if the crosses aren’t removed.

“The more you find that the government is putting money toward these, yeah, that makes us more concerned,” Karen Heineman said. “Whether that has any importance on a legal basis is still unclear.”

The FFRF’s first requested that Elizabethton remove the crosses in 2018, when an unnamed city resident alerted the organization they were on city property. That letter, which stated that the crosses’ presence on public land violated the establishment clause of the First Amendment, did not elicit a response from the City of Elizabethton.

A year later, the U.S. Supreme Court broadened the allowance for religious displays on publicly owned property in its finding in The American Legion v. American Humanist Association. That ruling allowed a large cross in Maryland to stay on public property and receive public funding for its maintenance largely because of the historical context behind it.

Elizabethton’s city attorney cited that case in an April 14 statement in which he opined that “the three (3) crosses can remain on Lynn Mountain on City owned property as they are a long standing monument in the City of Elizabethton, they have a presumption of constitutionality and they do not violate the Separation of Church and State.”

Friday, Heineman said the American Legion case isn’t that clear cut. She said seven different justices wrote opinions in the case, and that they ruled on four separate factors related to the case.

Full May 6 interview with Freedom From Religion Foundation’s Karen Heineman.

“They broke it down to two things that are clear,” Heineman said. “First, some of these monuments that are standing are constitutional — it’s not automatically an unconstitutional thing anymore to have something like this on public property.

“But second, you have to ‘look at it from a historical perspective,'” she added. “Longstanding religious displays are presumptively constitutional — but they don’t define ‘longstanding.’

Heineman said because of the historic background of the Elizabethton crosses, the case is an interesting one. Boys in a Sunday School class built the original crosses in 1953 at a place women used to pray for their sons and husbands who were overseas during World War II.

“It is murky. A lot of areas of gray, and nobody’s going to be able to say that it’s a slam dunk.”

To sue or not to sue? Lots of factors to weigh

The City of Elizabethton still hasn’t responded to the FFRF, which began commenting on the issue in March of this year.

Heineman said learning that city staff approved public expenses for maintenance of the crosses didn’t come as a surprise to her.

“We had a complaint that was concerned about taxpayer funds going towards supporting, maintaining these crosses, illuminating them, but we didn’t have any proof,” she said. “We certainly suspected that at least in keeping these lit up at certain times that that was government funding.”

Even if the foundation gets its own documents showing that, Heineman said she’s not sure whether they’d proceed with the time and expense of litigation.

“The case law, because of the 2019 court case American Legion v. American Humanist Association has made it even grayer for us to know what courts should really be basing their decisions on,” she said.

“We would like to get it defined better — and obviously on our side — but even just defined better, because I think the courts are struggling with what they’re supposed to do with that decision. Putting the resources into getting a better decision in this case? We’ve got a lot on our plate right now with some of the (other federal) decisions coming down.”

As to whether the Elizabethton case is low enough in the FFRF pecking order to let city officials rest easy ignoring the organization’s request, Heineman hedged.

“I wouldn’t say lose sleep over it, that’s probably safe,” she said. But she cited a recent California case in which the city of Albany purchased a private easement in a city park and said it would remove a 20-foot cross in the park that overlooks the city.

An East Bay Times article said city leaders wanted “to allay constitutional concerns about separation of church and state, address residents’ resentment about one religion being preference over others and free up more park space.”

Heineman said the city has a couple of options beyond taking the crosses down or doing nothing. It could answer the FFRF, say it wouldn’t put any more public dollars into the crosses’ maintenance and provide its legal reasoning for why the crosses remaining on public property is constitutional.

“The question is, is it fair for all taxpayers who have different religious beliefs to fund what are Christian crosses, and we say it’s not, and the Constitution protects religious minorities,” Heineman said. “So we would say not even one taxpayer who disagrees with the religious message that these crosses send should have to support these crosses.”

But Elizabethton’s government also has another option that would make the FFRF’s current position completely moot. The documents provided to News Channel 11 show a list of 23 people who submitted “phone calls/emails in support of keeping crosses on Lynn Mountain.” Four of those — Lisa McKinney, Richard Stout, Rebecca Hodgson and Doug Estep — made informal offers to purchase the land.

Done according to the proper procedure, a sale and transfer of the land into private hands would leave the FFRF with no cause to continue.

“You can’t take land of value and give it to a church,” Heineman said. “That would not be constitutional either. But if somebody were to actually purchase the land, purchase it for what it’s valued at? Absolutely, everything before this would be moot.”

Such a decision would come from the core stance of the FFRF, that religion should be private, Heineman said.

“One of the kind of events that happened in Elizabethton was, everybody started putting crosses in their yards. Absolutely, that’s what you should do. And if anybody tells you you can’t, come talk to us, because government can’t tell you you can’t.”

News Channel 11 reached out the city for comment but did not hear back.