Judge Kevin Newsom, U.S. Court of Appeals for the Eleventh Circuit (Photo: Alison Church/ALM)

The legal battle over a giant Latin cross that's been standing in Pensacola's Bayview Park for 75 years, sparked by a plaintiff who the court says sought to hold a satanic ritual nearby, appears bound for en banc review at the U.S. Court of Appeals for the Eleventh Circuit.

A panel of three judges from the circuit court ruled Friday that efforts to keep the cross where it is lose out to precedent from a 35-year-old opinion. But then two of the panel's judges wrote separately to invite a reversal, saying their precedent is wrong. The opinions together totaled 82 pages.

The case has attracted national attention and 35 amicus briefs from other states, religious groups and business organizations.

“The City of Pensacola, Florida appeals a district court decision ordering it to remove a 34-foot Latin cross from a public park on the ground that the City's maintenance of the cross violates the First Amendment's Establishment Clause. Having concluded that we are bound by existing Circuit precedent, we find ourselves constrained to affirm,” the judges said in a 10-page per curiam opinion.

The panel included Judge Kevin Newsom, Senior Judge Frank Hull and U.S. District Judge Charles Ashley Royal of the Middle District of Georgia, sitting by designation.

“We have concluded that we are bound by this Court's decision in American Civil Liberties Union of Georgia v. Rabun County Chamber of Commerce, Inc., 698 F.2d 1098 (11th Cir. 1983), which considered facts nearly indistinguishable from those here,” the judges said. “There, 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.”

Both crosses had stood for many years and had been dedicated at an annual Easter sunrise service. The ACLU of Georgia and named individuals sued, also claiming that the Black Rock cross violated the Establishment Clause. Another panel of Eleventh Circuit judges agreed.

“Our hands are tied,” the three judges said in the Pensacola case. “Absent en banc reconsideration or Supreme Court reversal, we are constrained to affirm the district court's order requiring removal of the Bayview Park cross.”

Appellate lawyers familiar with the Eleventh Circuit said it's not unheard of for one panel to call for en banc review to overrule another.

“That does happen occasionally,” said Laurie Webb Daniel of Holland & Knight. “I have seen it in the Eleventh Circuit before—where the judge feels bound by precedent but thinks the precedent was wrongly decided.”

“I have seen several cases where concurring judges claim the outcome is wrong, but they are bound by precedent to vote for it, and they invite the Supreme Court to grant cert and reverse,” said Michael Terry of Bondurant Mixson & Elmore. “The problem is they are bound by prior panel precedent and have to follow it until the court goes en banc to reverse it. So, if they think the prior opinion is wrong, they still have to follow it and, instead of dissenting, they urge reversal of the prior opinion/precedent.”

In the Pensacola case, Newsom wrote separately, concurring in the judgment but saying that correctly following Eleventh Circuit precedent means violating U.S. Supreme Court precedent. “I urge the full Court to rehear this case en banc so that we can correct the errors that Rabun perpetuates,” Newsom said.

“Under the Supreme Court's pathmarking Establishment Clause standing case, Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982), the plaintiffs' allegations here—offense, affront, exclusion—are plainly inadequate,” Newsom said. “There, the Court held, in no uncertain terms, that 'the psychological consequence presumably produced by observation of [religious] conduct with which one disagrees' is 'not an injury sufficient to confer standing under Art[icle] III, even though the disagreement is framed in constitutional terms.'”

But the next year, the circuit took a different stance in the Rabun County case.

“It seems clear to me that Rabun was wrong the day it was decided—utterly irreconcilable with the Supreme Court's then-hot-off-the-presses decision in Valley Forge,” Newsom said. “And to make matters worse, Rabun has only gotten more wrong as time has passed. Since 1983, the Supreme Court has consistently tightened standing requirements.”

Royal also wrote separately, concurring in the judgment but agreeing with Newsom that the full court should review and reverse it. But Royal also added a history of Christianity going back to 380 A.D. and the Edict of Thessalonica.

“Roman Emperor Theodosius I established the Nicene Creed form of Christianity as the official religion of the Roman Empire,” Royal said. “The Edict imposed punishments.”

Likewise, some early American laws later overturned required collection of taxes for churches or otherwise oppressed nonbelievers, he said.

“Placing a cross in a public park that many people have enjoyed for decades, that stands mute and motionless, that oppresses no one, that requires nothing of anyone, and that commands nothing does not violate the Establishment Clause. Nor is it religious oppression. The cross can only cast a shadow; it cannot cast any harm,” Royal said.

Royal cited plaintiff David Suhor's affidavit saying he rides his bike regularly in the park, as often as twice a week, despite the fact that he first encountered the cross in 1993 but “does not wish to encounter Bayview Cross in the future.”

However, Royal noted, Suhor recently booked the amphitheater by the cross for a satanic ritual.

“That the City permitted a satanic ceremony by a Christian cross demonstrates classic religious freedom,” Royal said. “It also shows religious pluralism. The City did not coerce him to do anything, and more importantly, he was not restrained from enjoying his satanic ceremony in the exercise of his religious freedom. Consequently, the City did not disparage or deprecate his beliefs or dictate his behavior in the park, and the cross did not stigmatize or ostracize him.”

Both sides drew encouragement from the set of opinions Monday.

The Washington, D.C.-based American Humanists Association, representing the plaintiffs, called it a “big win” in a news release.

“The Eleventh Circuit's decision properly recognized controlling precedent requires the removal of this enormous government-owned Christian cross prominently displayed in a popular city park,” said Monica Miller, AHA's senior counsel and lead attorney on the case. “The decision harmonizes with decades of Establishment Clause precedent finding similar government cross displays unconstitutional.”

That's not how the decision looked to the city of Pensacola and its lead counsel, Luke Goodrich of the Becket Fund for Religious Liberty in Washington, D.C.

“The Constitution doesn't require the government to scrub every religious symbol from the public square,” Goodrich, vice president and senior counsel at Becket, said in a news release. “The Supreme Court has repeatedly said that the government can recognize religion as a fundamental part of our history and culture, and we're glad that the majority of the court agreed that the cross is constitutional.”

The city's news release said a wooden cross was first placed in Pensacola's Bayview Park in 1941 by the local chapter of the Junior Chamber of Commerce (Jaycees), a private, civic, nonprofit organization, as the United States prepared to enter World War II. For decades, the Jaycees and other groups have hosted community events at the memorial, including Veterans Day and Memorial Day remembrances. It remains a gathering place for religious and nonreligious groups within the Pensacola community, the city said. The cross is one of some 170 displays in Pensacola parks reflecting different aspects of the city's history and culture, the city said.

“This cross is more than a religious symbol,” Ashton Hayward, mayor of Pensacola, said in the city and the Becket Fund's joint statement. “It's an important part of our city's history and culture. … To tear down this symbol just because a few are offended by it shows hostility to religion, not neutrality.”

Hayward added, “The city looks forward to being vindicated on appeal—as the majority of the court said it should be.”