SALEM, Ore. (Oct. 6)
The Oregon Supreme Court, in a precedent-making decision, reversed a position it had taken last February and ruled that a giant, electrically lighted cross erected in a city park in Eugene must be removed. The court thus confirmed the decision of the Circuit Court, made in 1967, ordering the removal of the cross on the grounds that its erection violated the city charter. The lower court decision did not rule on the constitutional issues.
The Supreme Court, by a four to three vote last February, reversed the Circuit Court decision on appeal by the Eugene City Council, a majority holding that the religious symbol was not unconstitutional. The court, however, granted a rehearing at the request of the 10 plaintiffs, only one of whom was a Jew. The rehearing was argued by Leo Pfeffer, special counsel of the American Jewish Congress. He predicted today that the decision is likely to touch off a series of lawsuits challenging religious symbols on public property — including nativity scenes during the Christmas season.
Mr. Pfeffer, who served as chief attorney for the plaintiffs in the Oregon suit, hailed the ruling and said it was the first case in which the highest court of a state had ever considered whether it was constitutional to erect a cross or religious symbol on public land.
Mr. Pfeffer said that the Federal District Court in Washington, D.C. dismissed a suit last week seeking to prohibit the annual erection of a nativity scene on the ellipse, a Government-owned park adjoining the White House. An appeal will be taken in the Court of Appeals for the District of Columbia in which the Oregon decision will be relied on by the plaintiffs. Both sides in the suit have agreed to ask the court for a ruling before the Christmas season.
In ruling by a five to two decision that the cross must be removed, the Supreme Court upheld the dissenting opinion of Justice Alfred T. Goodwin when the case was heard last February and affirmed the decree of the trial court “for the reasons substantially set forth” in his dissent. Justice Goodwin took the position that the display of the cross was ‘a religious activity’ and thus violated both the United States and Oregon constitutional provisions barring aid to religion.
Justice Goodwin had declared that “whether so intended by the City Council or not, the city’s participation in the display has placed the city officially and visibly on record in support of those who sought Government sponsorship for their religious display.” He said there was “no doubt that the mayor and council were responding to popular demand,” but he stressed that “it was to prevent this kind of response to majority pressure that the establishment clause of the First Amendment was written into our Federal Constitution.
The dissenting justice cited the U.S. Supreme Court decision on Bible-reading and prayers in the public schools and said that “government has no more right to place a public park at the disposal of the majority for a popular religious display than it would have, in response to a referendum vole, to put a lighted cross on the city hall steeple.”
The cross, which was cast in concrete with built-in neon lighting, stand 51 feet high on a hill overlooking the city. It has been a source of contention since its construction five years ago.