Cross lawsuit vs. city tossed
By Jose L. Medina, Sun-News (Las Cruces, New Mexico), November 10, 2006
LAS CRUCES -- The "three crosses" lawsuit against the city of Las Cruces was dismissed Thursday in federal court, but the plaintiff is vowing to appeal the decision.
U.S. District Court Judge Robert Brack dismissed the case brought by Paul Weinbaum of Las Cruces, who was asking the court to prohibit the city from using Christian crosses on logos or vehicles.
Weinbaum and his co-plaintiffs, daughter Olivia Weinbaum and Martin Boyd, had argued that the city as a governmental entity violated the establishment clause of the First Amendment of the U.S. Constitution by endorsing and advancing a religion.
Weinbaum is also suing the Las Cruces Public Schools on similar grounds. His case against the schools is set for trial on Nov. 27.
Reached by telephone Thursday, Weinbaum declined to comment on the dismissal, saying he did not want his comments to jeopardize the pending case against the schools.
Weinbaum did say, however, that the case is not over.
"I told Judge Brack a while back ... that no matter the outcome we will appeal and this case will be appealed," he said. The suit against the city has been the center of controversy in Las Cruces and generated headlines around the country.
City attorney Fermin Rubio said he was notified Thursday afternoon of the decision and the city was happy that it had successfully defended the use of its logo.
"Obviously we're very pleased with the judge's decision," Rubio said.
Mayor Bill Mattiace thanked the city's legal staff who worked to keep the logo.
"That is great news," Mattiace said upon learning of the dismissal. "... (The logo) is really the signature and the spirit of what we call home, what we call Las Cruces. It's the home symbol."
Mattiace added that if the case is appealed, he hopes a higher court will rule the same way.
In dismissing the lawsuit, Brack issued a 30-page opinion in which he affirmed Weinbaum's rights but dismissed his claims.
"Under any theory or application of the First Amendment to a governmental display of a religious symbol, the difficult question is to draw the line," Brack wrote.
Brack went on to write that using three crosses in a logo could be considered secular because the original purpose of their use could not be established. "When there is no evidence of the original purpose for adopting a practice, the government may propose possible secular justifications for the challenged practice," Brack wrote.
Brack also drew parallels between the Las Cruces logo and the official logo for the city of Austin, Texas, which was also challenged in court but ruled constitutional.
According to Brack's written opinion, Austin uses a logo modeled after the family coat of arms of Stephen F. Austin. The coat of arms includes a Latin cross.
"Where the connection between the state of Texas, the city of Austin, and Stephen F. Austin is unparalleled," Brack wrote, "the connection between Las Cruces and three crosses is unparalleled."
In concluding his opinion, Brack acknowledged how divisive the case has been and how Weinbaum and Boyd have been vilified in the community.
"People have suggested that if plaintiffs have these complaints, they should leave. No, they should not," Brack wrote. "This is the United States of America. As concerned citizens and parents, plaintiffs have every right to raise their concerns in this court.
"The beauty of the system," Brack continued, "... is that plaintiffs do not have to leave, that the complaint of those in the minority can and should be heard, and that we are all better for the hearing."
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