11th Circuit: Pensacola Cross May Stay

In Kondrat'yev v. City of Pensacola, Florida, (11th Cir., Feb. 19, 2020), the U.S. 11th Circuit Court of Appeals, in a case with a complicated procedural history, held that a 34-foot cross in Pensacola's Bayview Park does not violate the Establishment Clause. Originally a 3-judge panel of the 11th Circuit, relying on past precedent, reluctantly ordered the cross removed. (See prior posting.)  The case was appealed to the Supreme Court which summarily vacated the judgment and remanded the case to the 11th Circuit for further consideration in light of its decision in American Legion v. American Humanist Assn. (See prior posting).  Now the 11th Circuit has decided that the cross may stay.  However, two of the judges filed a concurring opinion questioning the circuit's precedent on when plaintiffs have standing to bring an Establishment Clause challenge, saying in part:

we should—whether in this case or some other— convene en banc in order to bring our own Establishment Clause standing precedent into line with the Supreme Court’s and to clarify that  offen[se],”“affront[],” and “exclu[sion]” fail to satisfy Article III’s injury-in-fact requirement.

Pensacola News Journal reports on the decision.