A sign erected in a small Pennsylvania town offering directions to a church gave rise to lengthy litigation against a Borough Council, when a resident who lives across the street from the sign filed a lawsuit claiming the sign violated the Establishment Clause of the First Amendment, known to most people as the
separation of church and state. The resident also claimed that her constitutional rights to free speech and equal protection were violated because the Borough officials removed a sign that she placed in an effort to block the visibility of the church directional sign. In 2013, a federal court dismissed all of the resident’s claims because she failed to file her lawsuit within the required two years. The case was appealed to higher court, the United States Court of Appeals for the Third Circuit. The Court of Appeals agreed that the resident was required to file her free speech and equal protection claims within two years of the time that her “protest” sign was removed; however, the court concluded that the First Amendment Establishment Clause claim could proceed as it had no time limit. The question that remained was whether the sign violated the constitutional provision prohibiting the establishment of a religion by any government body.
The lower court thereafter addressed this question, holding that Borough Council did not violate the Constitution by allowing the directional sign to be placed in a road right-of-way. Even though the Judge determined that the sign (which contained an icon of a cross and bible, and text stating that “the church welcomes you”) could be considered a form of religious display, the court concluded that “A reasonable observer would think it is a sign to a church and nothing more.” The court also rejected the complaining resident’s claim that allowing the sign violated the Borough policy of not permitting the placement of signs.
The case was again appealed to the Third Circuit, and the Borough again prevailed. In a decision issued on January 4, 2017, the court concluded that the resident failed to establish that permitting and placing the sign constituted an impermissible endorsement of a religion or violated the separation of church and state. Significantly, the court noted that the resident failed to establish that the application to erect the church directional sign was treated differently than any other sign applications.
While the decision is a clear victory for the Borough and its residents, the reasoning of the Court leaves us wondering. Was it permissible for the City of Philadelphia (or New York, or Washington, D.C.) to expend public funds in placing street signs that provided directions to the location of the Papal Mass and other clearly religious events celebrated in public spaces by Pope Francis, in the summer of 2015? These types of questions remain unanswered as the United States Supreme Court has not firmly established a test for determining whether a particular governmental decision pertaining to religious display is prohibited by Establishment Clause of First Amendment.
For more information on this case, please visit the following links:
- To read the full Opinion, click here.
- The Citizen’s Voice website features two recently published articles regarding this case, published in August 2016 and January 2017.
- Click here to read an earlier article by Partner attorney, John J. Mahoney, Esq. and Associate attorney, Robert M. Tucker, featured in the November 2016 issue of Borough News Magazine.
John J. Mahoney has over 25 years of experience representing municipal government as a Solicitor and in litigation related to land use, governmental approval, environmental permitting and civil rights claims. He has an extensive background in representing commercial and residential real estate developers in litigation, as well as the approval processes involving zoning and subdivision/land development, sewage facilities planning, highway occupancy permits, and storm water management-related permitting in Southeast and Central Pennsylvania.