In May, the Eleventh Circuit will hear argument in Kondrat'Yev v. City of Pensacola (No. 17-13025). The appeal asks the court to decide whether a decades-old Latin cross located in a city park violates the Establishment Clause, and whether the plaintiffs have standing to challenge it. The most significant issue in the case is the parties' dispute over which Establishment Clause test governs challenges to passive monuments: the three-part test the Supreme Court fashioned in Lemon v. Kurtzman, 403 U.S. 602 (1971), or the history-focused approach that has appeared in the Court's more modern Establishment Clause cases, such as Van Orden v. Perry, 545 U.S. 677 (2005) and Town of Greece v. Galloway, 134 S. Ct. 1811 (2014). Represented by the American Humanist Association and the Freedom From Religion Foundation, the plaintiffs argue that Lemon provides the controlling standard. The City, represented by the Becket Fund for Religious Liberty, argues that Van Orden and Town of Greece have displaced Lemon and put history back at the center of Establishment Clause jurisprudence. Becket observes that the Supreme Court has applied the Lemon test only once in the past sixteen years, and five current Justices have criticized it. Indeed, the Van Orden plurality called into question "the fate of the Lemon test in the larger scheme of Establishment Clause jurisprudence" and cited cases in which the Court has treated Lemon as no more than a "helpful signpost[ ]" or even ignored Lemon altogether, 545 U.S. at 685-86, and in Town of Greece, the Court once again declined to apply Lemon, instructing that "the Establishment Clause must be interpreted by reference to historical practices and understandings," 134 S. Ct. at 1819. In response, the plaintiffs argue that Lemon hasn't been overruled because, among other reasons, Van Orden was a fractured decision and Town of Greece involved legislative prayer, rather than a passive monument.
The difference between the methodology the Supreme Court took in Lemon and the methodology it has taken in more recent Establishment Clause cases is more than just academic---it may often affect case outcomes. Lemon provides courts with ample discretion to order the removal of monuments based on their perception that the monuments serve a religious purpose, "advance" religion, or risk "excessive government entanglement with religion." 403 U.S. at 612-13. While the Lemon criteria are flexible, they can be read and applied to prohibit a great deal of public religious symbols. But under Town of Greece's and the Van Orden plurality's approach, courts measure "the nature of the monument" against "our Nation's history," Van Orden, 545 U.S. at 686, and "it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted," Town of Greece, 134 S. Ct. at 1819. This history-driven approach keeps courts focused on something that is presumably more objective and less hostile to public acknowledgments of the divine.
The practical significance of the parties' different takes on Establishment Clause doctrine was not lost on the district court. On cross-motions for summary judgment, the district court sided with the plaintiffs and ruled against the City, considering itself bound to apply Lemon. However, the court noted that a history-focused approach would have required the opposite outcome, as "the historical record indicates that the Founding Fathers did not intend for the Establishment Clause to ban crosses and religious symbols from public property." The court then observed that "Lemon has been widely criticized (and sometimes savaged) by scholars, courts, and individual Supreme Court Justices," and Lemon springs from a "body of law that is historically unmoored, confusing, [and] inconsistent ...." The court even voiced its view that, given the Establishment Clause's original meaning as a bar to an established national church, the Framers "would have most likely found this lawsuit absurd." The district court concluded its order with a plea for the Supreme Court to "revisit and reconsider its Establishment Clause jurisprudence." Depending on how the Eleventh Circuit resolves the City's appeal, this case may provide the Court with an opportunity to do just that.
Jordan Pratt serves as a Deputy Solicitor General in the Florida Office of the Attorney General. His position is used for identification purposes only. Any views expressed are the personal views of the author and are not an expression of the official views of the Florida Office of the Attorney General.