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Officials Order Home Owner to Take Down Yard Cross

"...I don't like having the cross staring right at me."

A First Amendment battle is brewing in Livingston, New Jersey, after officials told a local resident to take down a cross he had placed on a tree in his front yard.

These events unfolded after neighbors complained and officials upheld a littering ordinance that prohibits citizens from posting anything on structures, including trees. The regulation is breached if posted items are "calculated to attract the attention of the public."

Patrick Racaniello's cross apparently violated this stipulation. One neighbor, Toni Tremarco, complained to the media, saying, "I live three houses up and I don't like having the cross staring right at me." Below, watch an WABC-TV report on this intriguing situation:

Although Racaniello complied with the township's request to remove the religious symbol, he decided he still wanted to display a cross in his yard. So, he erected a six-by-four foot replacement and put in near the front of his property. Simple fix, right? Think again. What was supposed to be a personal, celebratory measure ended up violating another town ordinance.

Because the new, larger cross was placed ten feet from the curb (in Livingston's off-limits "right of way" area), Racaniello was forced to, again, make a change -- or face fines. So, he moved the cross back behind the appropriate line; this finally satisfied the town, as it is now on display and is apparently not violating any city ordinances. Here's where the situation takes a turn, though.

After dealing with the frustration of having to comply with township rules, Racaniello decided to take matters into more seasoned hands. NJ.com reports:

He...contacted the Arizona-based Alliance Defense Fund, a coalition of Christian lawyers that, according to its website, advocates on behalf of "the spread of the Gospel." The alliance told the township it may take the matter to court if officials don’t allow Racaniello to put the cross wherever he wants on his property.

"We believe this is private property, and therefore he has a right to engage in this expression," Jonathan Scruggs, a lawyer for the alliance, said in an interview. "We believe that either cross is protected by the First Amendment.

Currently, the Alliance is awaiting a response from the township before deciding if it will take the case to court. Livingston's attorney, Sharon L. Weiner, though, says that the ordinances at hand are in place to protect the general public. In addressing the "right of way" regulation, she explains that it is "a distraction to the traveling public" when items are posted within the first 10 feet of a property.

But, she did concede that the town's regulations will be amended to allow citizens to post on trees that happen to be on private property (and, of course, outside of the "right of way" zone). While Weiner doesn't seem to think this case has the potential to go very far should the alliance choose to press it, other experts disagree. NJ.com has more:

Charles C. Haynes, a First Amendment scholar, said a federal law enacted by Congress a decade ago could trump the township’s regulations. In part, the Religious Land Use and Institutionalized Persons Act of 2000 says government entities cannot impose a land-use regulation that burdens a person’s free exercise of religion unless there is "a compelling governmental interest." That regulation must also be the least restrictive to religious practice, the act says....

"Under current law, I think this guy has a pretty strong case," said Haynes, also the director of the Religious Freedom Education Project at the Washington D.C.-based Newseum.

In the end, what started as a small, personal expression of religious allegiance may end up setting long-lasting legal precedent.

One last thing…
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