For experts on the United States Constitution, the addition of a 7-foot Christian cross to Middleborough’s town meeting agenda Monday night means one thing: more division.
The town, deciding the fate of a cross that has stood for a half-century on a Route 28 traffic island, voted overwhelmingly to try and protect the brick structure.
Voters did so by moving the land into private hands, thereby avoiding the constitutional mandate that church and state be separate.
But Ed Doerr, chief executive officer of Americans for Religious Liberty, a national nonprofit organization based in Maryland, told The Enterprise that the controversy hasn’t ended — and that Middleborough could still end up in court because of the move. Other constitutional watchdogs agree.
At the center of the debate is the brick cross, erected 50 years ago by the Kiwanis Club. Across the top of the cross is the word, “WORSHIP.”
The problem? The private club put up the cross on public land, which wasn’t an issue until attorney Andrew D. Epstein, of the Boston firm of Barker, Epstein & Loscocco, passed by last year.
He saw the cross and questioned why it was allowed to be on public land — in clear violation of the First Amendment of the Constitution.
The cross was built in 1959, during the Cold War era and in the second term of President Dwight D. Eisenhower.
The times favored the cross. After all, Eisenhower had inserted “under God” into the Pledge of Allegiance and signed a law officially declaring “In God We Trust” to be the nation’s official motto.
But has the cross run its course?
Doerr said in the grand scheme of things Middleborough’s big cross is a minor issue — but one that won’t go away.
“Some people are not content with private property and feel they’ve got to put religious objects on public property,” Doerr told The Enterprise.
Town meeting members voted 228-10 to move the land into private hands to resolve the issue.
The lone person to lobby against the move was Jeff Stevens, who feared the town would face a lawsuit by the American Civil Liberties Union.
Some experts agree with Stevens.
The land transfer violates the Constitution, said Sarah Wunsch, an attorney with the ACLU of Massachusetts.
“People should care about it, this is not a trivial matter.” she said. “Government is supposed to stay out of religion, not favor one religion over another.”
Wunsch said the nation’s forefathers recognized divisive religious battles were taking place in Europe and England when they framed the Constitution and wrote the First Amendment to ensure separation of church and state.
Wunsch suspects the land transfer voted on Monday could violate the state’s constitutional anti-aid amendment law as well as the U.S. Constitution.
Doerr called the land transfer a dodge.
“It’s phony,” he said, adding it amounts to a ploy that has been used elsewhere and ultimately lands public officials in court, spending taxpayers’ money.
Simply leaving the cross in place erodes the fundamental principle of the Founding Fathers’ intent to keep the church out of the government and government out of religion, Doerr said.
Another watchdog agreed.
“It’s unconstitutional,” said Andrew Seidel, an attorney with the Freedom From Religion Foundation, based in Wisconsin.
Seidel said the cross must come down because there is still the nuance it is on public land, even if the land is sold to a private party.
“It is clear to me, the purpose of the land transfer is to keep the cross where it is,” he said. “It’s clearly an attempt to keep the cross. When government is acting to preserve a religious icon it is acting unconstitutionally.”
Despite the warnings, Selectmen Chairman Stephen J. McKinnon said a lawsuit over the cross has yet to surface.
Calling the cross an historic monument, McKinnon said the town needs to protect it.
“I want to preserve it,” he said. “I just wish the ACLU would focus on more important issues, like illegal aliens, and fight a good fight.”
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