Last week, a three-judge panel of the Eleventh Circuit Court of Appeals held that a 75-year old cross displayed in Pensacola, Florida’s Bayview Park was a violation of certain individuals’ constitutional rights under the First Amendment’s Establishment Clause, which prohibits the establishment of religion.  But the court’s decision was based entirely on its “prior panel precedent” rule—meaning that the court was bound by a 35-year old decision on nearly identical facts—and the panel openly questioned the correctness of its decision.

Three individuals, represented by the American Civil Liberties Union, brought the case in federal district court in Florida.  They alleged that they felt offended by the presence of the cross in the park.  Pensacola moved to dismiss on standing grounds, arguing that the plaintiffs’ injuries were sufficient ethereal so as not to pass muster under current-day standing doctrine.  The parties also filed cross-motions for summary judgment on the question of whether the cross violated the Establishment Clause.

The panel found for the plaintiffs on both issues.  In so doing, the panel relied entirely on the case of American Civil Liberties Union of Georgia v. Rabun County Chamber of Commerce, Inc., which presented nearly identical facts to the instant case.  As the panel observed, Rabun applied an expansive understanding of religious objectors’ standing, and further found the placement of a cross in a public park to violate the Establishment Clause.  That case had applied what is commonly known as the Lemon test to determine that there was no secular purpose to the placement of the cross in the park, and thus, the cross violated the First Amendment.

Although the panel applied Rabun identically in the Pensacola case, it appeared to openly question whether Rabun was still good law.  The panel observed that the Supreme Court had since limited Establishment Clause plaintiffs’ standing, now requiring alterations of behavior and injury beyond simple offense.  The panel also noted that recent case law has limited the Establishment Clause in favor of the government.

Furthermore, while the panel did not mention it, recent Supreme Court case law pertaining to the “government speech doctrine” has also improved governmental defendants’ chances in these sorts of cases.  Nine years ago, the Supreme Court found that a governmental defendant did not violate the Establishment Clause by accepting a privately-donated Ten Commandments monument in a public park, and that the government’s acceptance of the monument took the case out of the public forum doctrine.

We will continue to watch this case, assuming a petition for en banc rehearing is filed, or a petition for certiorari is filed with the Supreme Court.

Kondrat’yev v. City of Pensacola, ___ F.3d ___, 2018 WL 4278667 (11th Cir. Sept. 7, 2018).