Kondrat'Yev v. City of Pensacola, No. 17-13025

• Citation: 949 F.3d 1319
• Decision Date: 19 February 2020
• Docket Number: No. 17-13025
• Parties: Amanda KONDRAT'YEV, Andreiy Kondrat'yev, Andre Ryland, David Suhor, Plaintiffs - Appellees, v. CITY OF PENSACOLA, Florida, Ashton Hayward, Mayor, Brian Cooper, Defendants - Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

949 F.3d 1319

Amanda KONDRAT'YEV, Andreiy Kondrat'yev, Andre Ryland, David Suhor, Plaintiffs - Appellees,

v.CITY OF PENSACOLA, Florida, Ashton Hayward, Mayor, Brian Cooper, Defendants - Appellants.

No. 17-13025

United States Court of Appeals, Eleventh Circuit.

February 19, 2020

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

NEWSOM, Circuit Judge:

This is Pensacola Cross Case 2.0.

In September 2018, relying on our earlier decision in American Civil Liberties Union of Georgia v. Rabun County Chamber of Commerce, Inc ., 698 F.2d 1098 (11th Cir. 1983), we affirmed a district court’s decision ordering the removal of a 34-foot Latin cross from the City of Pensacola’s Bayview Park on the ground that the City’s maintenance of the cross violated the First Amendment’s Establishment Clause. Kondrat’yev v. City of Pensacola , 903 F.3d 1169, 1171–72 (11th Cir. 2018), cert. granted, judgment vacated , ––– U.S. ––––, 139 S. Ct. 2772, 204 L.Ed.2d 1153 (2019). The City subsequently filed a petition for certiorari in the Supreme Court. While the City’s petition was pending, the Supreme Court decided American Legion v. American Humanist Association , holding that a 32-foot Latin cross on public land in Bladensburg, Maryland does not violate the Establishment Clause. ––– U.S. ––––, 139 S. Ct. 2067, 2074, 2077, 204 L.Ed.2d 452 (2019). The following week, the Supreme Court granted the City’s petition for certiorari in this case, vacated our earlier decision, and remanded for further consideration in light of American Legion . Kondrat’yev , ––– U.S. ––––, 139 S. Ct. 2772, 204 L.Ed.2d 1153.

Having carefully reviewed the American Legion opinion—or more accurately opinions (there are seven of them)—and having considered the parties’ supplemental briefing, we now hold (1) that we remain bound by Rabun to conclude that plaintiffs have (or at least one of them has) Article III standing to challenge Pensacola’s maintenance of the Bayview Park cross, but (2) that American Legion abrogates Rabun to the extent that the latter disregarded evidence of "historical acceptance" and instead applied Lemon v. Kurtzman , 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), and, further, that when American Legion —rather than Rabun —is applied, the cross’s presence on city property doesn’t violate the Establishment Clause.

I

A

The facts underlying our case, of course, remain unchanged. In 1941, the National Youth Administration erected a wooden cross in the eastern corner of Pensacola’s Bayview Park to be the "[f]ocal point" of what would become an annual Easter sunrise program. The program itself was organized by the Pensacola Junior Chamber of Commerce (a/k/a the "Jaycees") and soon became a tradition, with people gathering for Easter services during World War II to pray, among other things, for "the divine guidance of our leaders" and for faith to "see through the ... dark days of war." The services continued following the war, and in 1949 the Jaycees built a small stage—or "bandstand"—immediately in front of the cross to serve as a "permanent home" for the annual program.

In 1969, the Jaycees replaced the original wooden cross with the 34-foot concrete version at issue in this case. The new cross was dedicated at the 29th annual Easter sunrise service. The Jaycees later donated the cross to the City, which continues to light and maintain it at a current cost of around $233 per year. Although the cross is only one of more than 170 monuments scattered throughout Pensacola’s parks, it is one of only two—and the only religious display—located in Bayview Park. Over the years, the cross has continued to serve as the location for an annual Easter program, but it has also been used for other purposes, including as a site for remembrance services on Veterans and Memorial Days, at which attendees place flowers near it in honor of loved ones overseas and in memory of those who have died fighting in service of the country.

B

The Bayview Park cross (in one iteration or another) stood in the same location for more than 75 years, essentially without incident, before the plaintiffs in this case filed suit asserting that the cross’s presence on city property violates the First Amendment’s Establishment Clause.

The parties filed dueling summary judgment motions. The district court granted plaintiffs’ motion, held that the City’s maintenance of the cross violated the Establishment Clause, and ordered the cross removed. On appeal, this Court affirmed. In so doing, we concluded that we were bound by our earlier decision in American Civil Liberties Union of Georgia v. Rabun County Chamber of Commerce, Inc ., 698 F.2d 1098 (11th Cir. 1983), in two respects—first , to conclude that the plaintiffs here (or at least one of them) had Article III standing to challenge Pensacola’s maintenance of the Bayview Park cross, and second , to hold that the cross violated the Establishment Clause. Kondrat’yev v. City of Pensacola , 903 F.3d 1169, 1173–74 (11th Cir. 2018), cert. granted, judgment vacated , ––– U.S. ––––, 139 S. Ct. 2772, 204 L.Ed.2d 1153 (2019). The City thereafter filed a petition for certiorari in the Supreme Court.

While the City’s petition was pending, the Supreme Court decided American Legion v. American Humanist Association , holding—as already noted—that a 32-foot tall Latin cross on public land in Bladensburg, Maryland does not violate the Establishment Clause. ––– U.S. ––––, 139 S. Ct. 2067, 2074, 2077, 204 L.Ed.2d 452 (2019). We’ll take a deeper dive later, but for present purposes, it suffices to say that American Legion did two important things.

First, as we will explain, it jettisoned Lemon v. Kurtzman , 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) —at least for cases involving "religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies"—in favor of an "approach that focuses on the particular issue at hand and looks to history for guidance." American Legion , 139 S. Ct. at 2081–82 & n.16, 2087 (plurality); see also id. at 2097 (Thomas, J., concurring in the judgment) (agreeing that Lemon does not apply to religious-display cases); id. at 2101–02 (Gorsuch, J., concurring in the judgment) (same).

Second, informed by "four considerations"—which, again, we’ll explore in greater detail—the Supreme Court adopted what it called "a strong presumption of constitutionality" for "established, religiously expressive monuments, symbols, and practices." Id. at 2085 (opinion of the Court). The Court described the pertinent considerations as follows: (1) that "identifying the[ ] original purpose or purposes" of a longstanding monument "may be especially difficult"; (2) that "as time goes by, the purposes associated with an established monument, symbol, or practice often multiply"; (3) that "the message conveyed" by the monument likewise "may change over time"; and (4) that "when time’s passage imbues" a religious monument with "familiarity and historical significance, removing it may" appear "hostile" (rather than neutral) toward religion. Id. at 2082–85 (alteration adopted) (quotation omitted).

As already explained, just a week after issuing its decision, the Supreme Court granted the City’s petition for certiorari in this case, vacated our earlier decision, and remanded for further consideration in light of American Legion . 139 S. Ct. 2772.¹

II

In relevant part, the First Amendment states that "Congress shall make no law respecting an establishment of religion ...." U.S. Const. amend. I. Although by its terms the Establishment Clause applies only to Congress, and although available historical evidence indicates that it was originally understood as a federalism-based provision designed to prevent the federal government from interfering with state and local decisions about church-state relations, the Supreme Court has since made clear that, as "incorporated" through the Fourteenth Amendment, the Clause protects individual rights against state and local interference. See, e.g. , Everson v. Bd. of Educ. of Ewing Twp. , 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711 (1947). The question here, therefore, is whether the City’s maintenance of the Bayview Park cross constitutes a prohibited "establishment of religion."

A

Before considering the merits of plaintiffs’ Establishment Clause claim, we must first address the question of their standing to sue, which the City disputes. See, e.g. , Dillard v. Chilton Cty. Comm’n , 495 F.3d 1324, 1330 (11th Cir. 2007) ("[S]tanding is a threshold jurisdictional question which must be addressed prior to and independent of the merits of a party’s claims.") (quotation omitted).

If we were writing on a clean slate, we might well agree with the City’s contention that plaintiffs lack standing here. But we are not—and so we cannot. As we explained in our initial opinion, we conclude that our standing analysis is controlled by this Court’s earlier decision in Rabun , which considered facts nearly indistinguishable from those here. Kondrat’yev , 903 F.3d at 1172–74. And because the Supreme Court’s decision in American Legion doesn’t address standing one way or another, the standing analysis from our original opinion ... well ... stands.

We’ll briefly recap, then, what we said there: In Rabun , with the approval of the Georgia Department of Natural Resources, the Rabun County Chamber of Commerce erected an illuminated 35-foot Latin cross in Black Rock Mountain State Park. 698 F.2d at 1100–01, 1101 n.1. Like the Bayview Park cross at issue here, the Black Rock Mountain cross replaced a similar monument that had stood for a number of years but had fallen into disrepair, and like the Bayview Park cross, it was dedicated at an annual Easter sunrise service. Id . at 1101. The ACLU of Georgia and five named individuals sued, claiming that the Establishment Clause forbade the Black Rock Mountain cross’s presence on state-owned land. Id. at 1102.

The defendants contended that the plaintiffs lacked standing under the Supreme Court...