Judge blocks planned Evansville cross display
By KEN KUSMER The Associated Press July 31, 2013 1:00PM
Updated: September 3, 2013 7:01AM
INDIANAPOLIS — A church’s display of 31 crosses 6 feet tall on Evansville’s public riverfront would convey an unconstitutional endorsement of religion by the city, a federal judge said Wednesday in a ruling that left attorneys for the city and the church puzzled.
U.S. District Judge Sarah Evans Barker said the expanse of crosses across four city blocks and the two-week duration of the display carried a “forcefulness ... that catapults it into the range of constitutionally prohibited speech.”
Evansville’s Board of Public Works had approved a permit application by the city’s West Side Christian Church to erect the crosses decorated by Bible school children on public space along the Ohio River over two weeks beginning Sunday.
Two plaintiffs represented by the American Civil Liberties Union of Indiana sued to block the display, saying it constituted an endorsement of religion in violation of the Establishment Clause of the First Amendment.
“This ruling should not be understood to foreclose or prohibit any and all unattended displays on the Riverfront area that convey a religious message,” Barker wrote.
“To stay within constitutional bounds, however, it must stop short of creating a message that overwhelms the nature of the public forum, thereby transforming it into government-endorsed religious speech.”
Keith Vonderahe, an attorney for the city, argued that officials have never turned down a request to use the space, known as the Riverwalk, for purposes of free speech, including churches.
Barker’s ruling left him wondering whether a smaller display of fewer or smaller crosses or a shorter duration would be acceptable.
“The decision doesn’t say what’s acceptable. It says what is not,” he said in a telephone interview.
Chris Wischer, an attorney for the church, said the ruling left it with options including a smaller display of crosses.
“The ultimate question is, at what point do we cross the line?” Wischer said.
“The silver lining is she recognizes there are displays that are appropriate. She’s left open the possibility of a display,” Wischer said.
ACLU attorney Gavin Rose said it was “disconcerting” that Vonderahe and Wischer were trying to figure out what would be an acceptable display of a religious message on public land.
“I certainly don’t think that was the point of this case or the judge’s decision,” Rose said.