March 13 2013 12:00 AM

MSU law professor, East Lansing city attorney disagree on the St. Anne Lofts cross

Sam Inglot/City Pulse

Wednesday, Oct. 10 — In the opinion of one Michigan State University law professor, the $3 million of public financing that went into the St. Anne Lofts development in downtown East Lansing may constitute a violation of the “establishment clause” of the First Amendment of the U.S. Constitution.

East Lansing City Attorney Tom Yeadon disagrees.

The establishment clause prohibits the government from endorsing a particular religion. The conversation started after the lofts were built and a four-story, white cross was built into the architecture of the building. The cross is on the south side of the structure facing the intersection of M.A.C. and Albert avenues.

Frank Ravitch, the Walter H. Stowers Chair of Law and Religion at MSU, said the city of East Lansing may or may not have violated the clause. Regardless, it could wind up being an expensive question to answer if the city is taken to court over it, he said.

“I’m not sure there’s an establishment of religion. But then again, I’m not sure there’s not,” he said. “I find the whole thing troubling. It’s much more complex than the city thinks it is. Basically, the question is, would the city be seen as endorsing religion through this? There are facts that say it would be and there are facts that suggest it wouldn’t be seen endorsing a religion.”

Yeadon said there is no violation. He said the use of public funds for the development went to site preparation, not construction of the actual building. He also said the city had no prior knowledge of the cross as part of the architecture when Brownfield funds were approved.

The concept art on the St. Anne Lofts website shows no such cross. Ravitch said if the city had any knowledge that a cross was going to be on the building, it might constitute a violation.

Yeadon said that even if the city wanted to remove the cross, it couldn’t because the cross is protected speech under the “free exercise clause, ” which goes hand-in-hand with the establishment clause. Basically, the government can’t endorse a religion nor can it stop a private entity from doing so.

But Ravitch contends that it’s not a religious building — it is a commercial structure and therefore can be regulated by the city. He said the free exercise clause defense “doesn’t work” because “this is not a church or a religious entity.”

“Obviously you can’t force a church to remove a cross,” he said. “But this is a commercial entity, not a church. That’s the key. It doesn’t get the same level of protection a church would get. That’s constitutional law 101.”

Yeadon said Ravitich has it “partially right.”

“He’s partially right, but he’s mixing up what’s protected. It’s the speech that’s protected, not the type of structure it’s on,” Yeadon said. “He’s right it’s less protected. Even though it’s on a commercial building, it is still religious speech if it’s intended to be a Christian cross. It’s the content of the speech that is regulated, not the structure.”

Ravitch said it “wouldn’t be a bad idea” for the city to require that the developer remove the cross or ask for the $3 million of public money that went to the development be reimbursed.

“The city would be well within its rights to do that,” he said. Ravitch said he has been contacted by a number of citizens of various religions concerning the cross —“almost all” were against it.

Yeadon said it’s unlikely that the city could successfully get the cross removed, even if it tried. “We could try but we would lose,” he said.