In the 1960s, the City of Grand Haven erected a display pole on a large, publicly-owned sand dune overlooking the City’s waterfront. The pole could be raised or lowered as needed, and it could be fitted with either an anchor or a cross feature. The City equipped the pole with the cross feature both on its own initiative—for example, to celebrate the Christmas season—and at the request of City residents, who could pay a fee to use the cross as a backdrop for events on the waterfront. No other monuments were allowed on the sand dune.
We wrote a series of letters to Grand Haven, explaining that erecting a cross fixture on public property violated the Establishment Clause. We also represented individuals seeking to display their own messages on the sand dune.
In January 2015, the Grand Haven City Council voted on a measure that forbade private persons from erecting their own displays on the sand dune and that ended the City’s practice of raising the cross display. Residents of Grand Haven thereafter filed suit against the City, arguing that the City had violated their free speech rights. Many of these residents attended a church that held services on the waterfront during the summer, and the church would pay the City to raise the cross fixture during their services. The residents argued that the display pole was a limited public forum, and that the City had engaged in constitutionally prohibited content-based discrimination when it removed all religious speech—that is, the cross—from the forum.
In August 2015, the trial court ruled on behalf of the city, finding that the cross display was government speech and therefore could be permanently removed at the City’s discretion. The residents appealed this decision to the Michigan Court of Appeals.
In December 2015, we filed an amicus brief in the Michigan Court of Appeals, arguing that the City Council acted within its lawful authority when it chose to stop displaying the cross. We also argued that continued display of the cross would violate the Establishment Clause. The Michigan Court of Appeals has not yet ruled in this case.