Saturday, September 08, 2018

11th Circuit Affirms Order To Remove Cross From Park, But Expresses Disagreement With Precedent

In Kondrat'Yev v. City of Pensacola, (11th Cir., Sept. 7, 2018), a 3-judge panel of the 11th Circuit Court of Appeals, feeling bound by prior 11th Circuit and Supreme Court precedent, affirmed a Florida district court's Establishment Clause decision ordering Pensacola to remove a 34-foot Latin cross from a public park. Two judges each wrote lengthy concurring opinions explaining their disagreement with existing precedent. One of those judges, District Judge C. Ashley Royal sitting by designation on the case, wrote a 53-page concurrence that includes a long history of religious establishments.  Here is an excerpt from Judge Royal's interesting opinion:
[T]he history of the idea of the religious conscience was central to the history of religious freedom in early America and in Europe. But religious conscience was not understood as separate from religious action. It was not simply some psychological phenomenon or something that you had on your mind. Protestants and Catholics did not fight the Wars of Religion for almost 100 years because some religious image made them feel uncomfortable, unwelcome, or uneasy. Furthermore, in the 16th, 17th, and 18th centuries, men and women were not burned at the stake, beheaded, hung, flogged, banished, jailed, beaten, taxed, had their ears cropped, or were divested of their property or their rights as citizens because of their state of mind. It was because of their actions and because their actions arose out of their religious convictions. To counter dissidents’ religious actions, churches and governments imposed penalties, and that is what the Establishment Clause was designed to protect against. 
You can listen to this march of horrors, abuse, cruelty, and death and recognize that it was not a walk in the park. And despite the fact that I am careful to avoid trite statements in my orders, all this case is about is a walk in the park.... Some courts have lost sight of why so many fought for so long at such great cost for religious freedom. It was not to protect people from looking at crosses in public parks. That demeans and debases the sacrifices of millions of people....