Separation of Church & State Committee v. City of Eugene of Lane County

Per Curiam Opinion; Concurrence by Judge O’SCANNLAIN.

In this second of two similar cases, 1 we must decide whether the City of Eugene, Oregon violates the Establishment Clause of the United States Constitution by its ownership and display of a fifty-one foot concrete Latin cross in a public park on Skinner’s Butte.

I

The City of Eugene (“City”) maintains a public park on and around Skinner’s Butte, a hill cresting immediately north of the City’s downtown business district. The land was donated to the City and has been maintained as a public park for many years. From the late 1930s to 1964, private individuals erected a succession of wooden crosses in the park, one replacing another as they deteriorated. In 1964, private individuals erected the cross at issue in this litigation. It is a fifty-one foot concrete Latin cross with neon inset tubing, and it is located at the crest of Skinner’s Butte. The parties who erected the cross did not seek the City’s permission to do so beforehand; however, they subsequently applied for and received from the City a building permit and an electrical permit.

Since 1970, the City has illuminated the cross for seven days during the Christmas…

concurring in the result:

I concur in the result but not in the court’s legal analysis. I write separately because I believe the court owes the people of the City of Eugene a better explanation of why, having been judicially reviewed four times over the last twenty-five years, the very cross at issue in this appeal has been first condemned, then twice approved, and now once again condemned, all by well-intentioned judges seeking to apply the Establishment Clause of the United States Constitution. I write separately, as well, to emphasize that the court applies the wrong legal standard, notwithstanding it reaches the judgment compelled by current Supreme Court jurisprudence.

I

The text of the Establishment Clause, the deliberations of the framers, and the practices that were prevalent at the time the First Amendment was passed all suggest that the Establishment Clause was intended to serve a relatively limited purpose and was so regarded for over a century and a half of our constitutional history. By contrast, however, the Supreme Court in the last half-century has constructed and zealously policed a “wall of separation” between church and state that was unknown and, indeed,…