Full opinion text
PER CURIAM: 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. I The pertinent facts are undisputed. In 1941, the National Youth Administration erected a wooden cross in the eastern corner of Pensacola's Bayview Park to be the "focal 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 nation's leaders" and for faith to "see through the present 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 appeal. The new cross was dedicated at the 29th annual Easter sunrise service. The Jaycees donated the cross to the City, which continues to light and maintain it at a 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 sunrise program, but it has also been used as a site for remembrance services on Veteran's and Memorial Days, at which attendees place flowers near the cross in honor of loved ones overseas and in memory of those who died fighting in service of the country. The Bayview Park cross stood in the same location for nearly 75 years, essentially without incident, before the plaintiffs in this case filed suit asserting that the cross's presence on city property violates the Establishment Clause. The parties filed dueling summary judgment motions, and the district court granted the plaintiffs' motion and ordered the cross removed. This is the City's appeal. 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." The City contends (1) that none of the plaintiffs here has suffered sufficient injury to have standing to sue and (2) that, in any event, the Bayview Park cross does not violate the Establishment Clause under current Supreme Court precedent. If we were writing on a clean slate, we might well agree-on both counts. But we are not-and so we cannot. As we will explain, 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. 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. Id . at 1101. 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 . 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. A panel of this Court agreed, holding both (1) that the plaintiffs there had standing to sue and (2) that the cross violated the Establishment Clause. Id. at 1108-09, 1111. For the reasons that follow, absent en banc reconsideration or Supreme Court reversal of the holding in Rabun , we are bound by our "prior panel precedent" rule to follow it, and are thus constrained to affirm the district court's decision. See, e.g. , Breslow v. Wells Fargo Bank , 755 F.3d 1265, 1267 (11th Cir. 2014) ("It is the firmly established rule of this Circuit that each succeeding panel is bound by the holding of the first panel to address an issue of law, unless and until that holding is overruled en banc, or by the Supreme Court.") (alteration and internal quotations omitted). A We begin, as we must, with the question of the plaintiffs' standing to sue. 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.") (internal quotations omitted). As already indicated, we find that the Court's earlier decision in Rabun resolves the standing issue in the plaintiffs' favor. In Rabun , the defendants contended that the plaintiffs lacked standing under the Supreme Court's then-recent decision in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. , 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). In Valley Forge , a nonprofit organization and four of its employees had sued to prevent the transfer of federal land to a religious institution. Id . at 469, 102 S.Ct. 752. The Third Circuit held that the plaintiffs had standing based on the "shared individuated right to a government that 'shall make no law respecting the establishment of religion.' " Americans United for Separation of Church & State, Inc. v. U.S. Dep't of Health, Ed. & Welfare , 619 F.2d 252, 261 (3d Cir. 1980). The Supreme Court rejected that theory, finding that such "generalized grievances" are insufficient to confer standing, and further stated that Establishment Clause plaintiffs who cannot identify a personal injury "other than the psychological consequence presumably produced by observation of conduct with which one disagrees" lack the injury necessary to establish Article III standing. Valley Forge , 454 U.S. at 483, 485, 102 S.Ct. 752. Relying on Valley Forge , the defendants in Rabun insisted that none of the plaintiffs there had the necessary standing. 698 F.2d at 1103. While the Rabun panel acknowledged that Valley Forge had "expressly held that the mere 'psychological consequence presumably produced by observation of conduct with which one disagrees' is not a cognizable injury" for standing purposes, id . (quoting 454 U.S. at 486, 102 S.Ct. 752 ), it nonetheless concluded that the plaintiffs before it had "demonstrated an individualized injury, other than a mere psychological reaction," id . at 1108. Specifically, the panel held that the plaintiffs had sufficiently "allege[d] that they ha[d] been injured in fact because they ha[d] been deprived of their beneficial right of use and enjoyment of a state park." Id . at 1103. Two of the plaintiffs, in particular, "demonstrated the effect that the presence of the cross ha[d] on their right to the use of Black Rock Mountain State Park both by testifying as to their unwillingness to camp in the park because of the cross and by the evidence of the physical and metaphysical impact of the cross." Id . at 1108. More particularly still, the Rabun panel concluded, those two plaintiffs were "forced to locate other camping areas or to have their right to use Black Rock Mountain State Park conditioned upon the acceptance of unwanted religious symbolism." Id . As we read Rabun , therefore, it is not strictly necessary for an Establishment Clause plaintiff to modify his behavior in order to avoid the alleged violation; rather, it is enough that he claim to have suffered "metaphysical"-or as the Rabun panel also called it, "spiritual"-injury and that his use of a public resource has been "conditioned upon the acceptance of unwanted religious symbolism." Id . Under Rabun 's expansive formulation, it seems to us that at least one of the plaintiffs in this case has alleged sufficient injury to pass Article III muster. Andre Ryland testified that he uses Bayview Park "many times throughout the year" and is "offended and feel[s] excluded by ... the Bayview Cross." Although it does not appear that Ryland (or any other plaintiff for that matter) has taken any steps to avoid encountering the cross, his "offen[se]" and "exclu[sion]" would seem to qualify as the sort of "metaphysical" or "spiritual" injury that Rabun deems adequate. Because Ryland has standing under Rabun , we need not consider whether the other plaintiffs do. See, e.g., Watt v. Energy Action Educ. Found. , 454 U.S. 151, 160, 102 S.Ct. 205, 70 L.Ed.2d 309 (1981). We turn then, as did the panel in Rabun , to the merits of the plaintiffs' Establishment Clause claim. B In considering the merits, we begin, once again, with Rabun . The panel there analyzed the Black Rock Mountain cross under the three-prong Establishment Clause test announced in Lemon v. Kurtzman , 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), which both parties "agree[d]" supplied "the correct legal standard." 698 F.2d at 1109. The Lemon test, the panel observed, asks "(1) [w]hether the [challenged] action has a secular purpose; (2) [w]hether the 'principal or primary effect' is one which neither 'advances nor inhibits religion;' and (3) [w]hether the action fosters 'an excessive entanglement with religion.' " Id . (quoting Lemon , 403 U.S. at 612-13, 91 S.Ct. 2105 ). "[I]f even one of these three principles is violated," the panel continued, "the challenged governmental action will be found to violate the Establishment Clause." Id . The Rabun panel concluded that the defendants there had "failed to establish a secular purpose" for the Black Rock Mountain cross and, therefore, that "the maintenance of the cross in a state park violate[d] the Establishment Clause of the First Amendment." Id . at 1111. In closing, the panel acknowledged that the cross had stood in the park "[f]or many years," but held that " 'historical acceptance without more' does not provide a rational basis for ignoring the command of the Establishment Clause that a state 'pursue a course of "neutrality" toward religion.' " Id . (quoting Comm. for Pub. Educ. & Religious Liberty v. Nyquist , 413 U.S. 756, 792-93, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973) ). The similarities between the Bayview Park cross at issue here and the Black Rock Mountain cross at issue in Rabun are striking. As the district court summarized: In Rabun County , a private organization (there, the Chamber of Commerce; here the Jaycees) put up a tall illuminated Latin cross (there, a 35-foot cross; here a 34-foot cross) to replace an existing one. The cross was on government property (there, a state park in Black Rock Mountain; here, a city park in Pensacola), and its dedication was specifically scheduled to coincide with the annual Easter Sunrise Service (there, the 21st annual service; here, the 29th annual service), which had been held at the site of the cross for a number of years. Doc. 41 at 10. Given the parallels between the two cases-and crosses-we think it clear that Rabun (with its Lemon -based purpose analysis) controls our analysis and requires that we affirm the district court's decision. The City contends that the Supreme Court's more recent Establishment Clause decisions free us to disregard Lemon -and thus Rabun -in our analysis. And we cannot help but agree that the Court's contemporary jurisprudence seems to have substantially weakened Lemon -and thus, by extension, Rabun . See, e.g. , Town of Greece, N.Y. v. Galloway , 572 U.S. 565, 134 S.Ct. 1811, 188 L.Ed.2d 835 (2014) (never mentioning Lemon ); Van Orden v. Perry , 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (plurality) (declining to apply Lemon ). But our precedent-in particular, our precedent about precedent-is clear: "[W]e are not at liberty to disregard binding case law that is ... closely on point and has been only weakened, rather than directly overruled, by the Supreme Court." Fla. League of Prof'l Lobbyists, Inc. v. Meggs , 87 F.3d 457, 462 (11th Cir. 1996). And at least as matters now stand, neither Lemon nor Rabun has been "directly overruled." Accordingly, our hands are tied. 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. AFFIRMED . NEWSOM, Circuit Judge, concurring in the judgment: Reluctantly, I agree that our existing precedent-and in particular, American Civil Liberties Union of Georgia v. Rabun County Chamber of Commerce, Inc. , 698 F.2d 1098 (11th Cir. 1983) -requires us to affirm the district court's decision, which orders the removal of a Latin cross that has stood in a remote corner of Pensacola's Bayview Park, essentially unchallenged, for 75 years. With respect to both of the key issues here-the plaintiffs' standing to contest the city's maintenance of the cross and the merits of their Establishment Clause challenge- Rabun is effectively on point. And under our prior-panel-precedent rule, it seems clear enough to me that we-by which I mean the three of us-are stuck with it. See, e.g. , United States v. Archer , 531 F.3d 1347, 1352 (11th Cir. 2008). Having said that, it's equally clear to me that Rabun is wrong. On neither score-standing or the merits-can Rabun be squared with a faithful application of Supreme Court precedent, and I urge the full Court to rehear this case en banc so that we can correct the errors that Rabun perpetuates. I First, standing. Plaintiffs Andre Ryland and David Suhor assert that they feel "offended," "affronted," and "excluded" by the Bayview Park cross. Neither, though, it seems, has been sufficiently affected to take any affirmative steps to avoid the cross. To the contrary, Ryland has explained that he continues to use Bayview Park "many times throughout the year" and that he "often" encounters the cross when "walk[ing] the trail around the park." So too, Suhor says that he "visit[ed] Bayview Park regularly" for years before filing suit and that he still encounters the cross on "regular bike rides" there. (Suhor also used the cross for his own purposes in 2016, just before filing suit-apparently for some kind of satanic ritual.) 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, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), the plaintiffs' allegations here-offense, affront, exclusion-are plainly inadequate. 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." Id . at 485-86, 102 S.Ct. 752. Just a year after Valley Forge , however, a panel of this Court upheld the standing of the two plaintiffs in Rabun , who sued to remove a large Latin cross from a state park in Georgia. The panel acknowledged Valley Forge 's holding that "psychological" injury doesn't give rise to Article III standing in an Establishment Clause case. 698 F.2d at 1106. Even so, the panel concluded that the Rabun plaintiffs had sufficiently alleged an injury-in-fact both (1) by testifying that they were unwilling to camp in the state park so long as the cross stood there and , separately, (2) "by the evidence of the physical and metaphysical impact of the cross." Id . at 1108. Thus, we said, the plaintiffs there suffered injury because they were required either (1) to relocate to other camping areas or -again, separately-(2) "to have their right to use [the state park] conditioned upon the acceptance of unwanted symbolism," the latter of which the panel described as a form of "spiritual harm." Id . Rabun makes clear, therefore, that at least in this Circuit, it is enough for an Establishment Clause plaintiff to allege that he has suffered "metaphysical" or "spiritual" harm as a result of observing religious conduct or imagery with which he disagrees. Can it really be that, as Valley Forge clearly holds, "psychological" harm is not sufficient to establish Article III injury in an Establishment Clause case, and yet somehow, as Rabun says, "metaphysical" and "spiritual" harm are ? And can it really be that I-as a judge trained in the law rather than, say, neurology, philosophy, or theology-am charged with distinguishing between "psychological" injury, on the one hand, and "metaphysical" and "spiritual" injury, on the other? Come on. 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 . 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-emphasizing, for instance, that the "irreducible constitutional minimum" comprises three distinct elements, Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), that the "[f]irst and foremost" of those elements is injury-in-fact, Steel Co. v. Citizens for Better Environment , 523 U.S. 83, 103, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), and perhaps most significantly for present purposes, that an actionable injury must be not only "particularized" in the sense that it affects the plaintiff in an individual way, but also "concrete" in the sense that it "actually exist[s]" and is "real" rather than "abstract," Spokeo, Inc. v. Robins , --- U.S. ----, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016). Notably, along the way-and again, in cases since Rabun was decided-the Court has expressly rejected "stigma[ ]," Allen v. Wright , 468 U.S. 737, 754-55, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984), "conscientious objection," Diamond v. Charles , 476 U.S. 54, 67, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986), and "fear," Clapper v. Amnesty Int'l USA , 568 U.S. 398, 417-18, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013), as judicially cognizable injuries. To be clear, the question whether Article III's standing requirement is satisfied by the sort of squishy "psychological" injury that carried the day in Rabun -and via Rabun , here-is no mere academic issue. Rather, it touches on fundamental constitutional postulates. "The law of Article III standing," the Supreme Court recently reiterated, "is built on separation-of-powers principles [and] serves to prevent the judicial process from being used to usurp the powers of the political branches." Clapper , 568 U.S. at 408, 133 S.Ct. 1138. In particular, the Court has emphasized that standing questions "must be answered by reference to the Art[icle] III notion that federal courts may exercise power only 'in the last resort, and as a necessity.' " Allen , 468 U.S. at 752, 104 S.Ct. 3315 (quoting Chicago & Grand Trunk R. Co. v. Wellman , 143 U.S. 339, 345, 12 S.Ct. 400, 36 L.Ed. 176 (1892) ). In the same vein, with respect to concreteness-the aspect of the injury-in-fact requirement principally at issue here-the Court has underscored that when, as in this case, "a court is asked to undertake constitutional adjudication, the most important and delicate of its responsibilities, the requirement of concrete injury ... serves the function of insuring that such adjudication does not take place unnecessarily." Schlesinger v. Reservists Comm. to Stop the War , 418 U.S. 208, 221, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974). By contrast, "[t]o permit a complainant who has no concrete injury to require a court to rule on important constitutional issues in the abstract would create the potential for abuse of the judicial process, distort the role of the Judiciary in its relationship to the Executive and the Legislature and open the Judiciary to an arguable charge of providing 'government by injunction.' " Id . at 222, 94 S.Ct. 2925. In short, standing rules matter -and the sweeping standing rule that Rabun embodies threatens the structural principles that underlie Article III's case-or-controversy requirement. We should take this case 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]" do not alone satisfy the injury-in-fact requirement. II I agree with the Court that Rabun controls the merits here, as well. The factual similarities between the two cases are indeed (as the Court says, see Maj. Op. at 1173-74) "striking"-both involve 30-some-odd-foot illuminated Latin crosses that reside in public parks, that were dedicated at Easter sunrise services, and that are (or were, as the case may be) maintained by the government. Applying the since-much-maligned three-part test minted in Lemon v. Kurtzman , 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) -and indeed, doing so by agreement of the parties -the panel in Rabun required removal of the cross in that case, and it seems to me that an honest reading of Rabun requires the same here. But once again-this time for different reasons- Rabun is wrong. It simply can't be squared with the Supreme Court's intervening Establishment Clause precedent. The clearest evidence of that inconsistency is the concluding paragraph of the Rabun opinion. The panel there acknowledged that the cross at issue had stood "[f]or many years" but nonetheless held-quoting a now-nearly-50-year-old decision-that " 'historical acceptance without more' does not provide a rational basis for ignoring the command of the Establishment Clause that a state 'pursue a course of "neutrality" toward religion.' " 698 F.2d at 1111 (quoting Comm. for Pub. Educ. & Religious Liberty v. Nyquist , 413 U.S. 756, 792-93, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973) ). Whereas the Rabun Court thereby effectively dismissed history as a reliable guide for Establishment Clause cases, the Supreme Court has since made clear that history plays a crucial-and in some cases decisive-role in Establishment Clause analysis. Initially, in Van Orden v. Perry , a four-justice plurality considering a challenge to a Ten Commandments monument on the Texas state capitol grounds concluded that "[w]hatever may be the fate of the Lemon test in the larger scheme of Establishment Clause jurisprudence"-again, a generation earlier the Rabun Court had applied Lemon essentially by default, as the only game in town-it was "not useful in dealing with the sort of passive monument that Texas ha[d] erected on its Capitol grounds." 545 U.S. 677, 686, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (plurality). Instead, the plurality explained, the proper analysis should be "driven both by the nature of the monument and by our Nation's history ." Id . (emphasis added). With respect to the latter half of that conjunction, the plurality emphasized the Court's earlier holding that " '[t]here is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.' " Id . (quoting Lynch v. Donnelly , 465 U.S. 668, 674, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) ). That "history," the plurality concluded, comfortably encompassed the Ten Commandments monument at issue. See id . at 691-92, 125 S.Ct. 2854. Even more pertinent for our purposes is the Supreme Court's recent decision in Town of Greece, N.Y. v. Galloway , 572 U.S. 565, 134 S.Ct. 1811, 188 L.Ed.2d 835 (2014). There, in an opinion by Justice Kennedy, the Court held that a city council's practice of beginning its meetings with a sectarian Christian prayer didn't violate the Establishment Clause. Notably, in so holding, the Court never so much as mentioned Lemon . Instead, the Court relied on its earlier decision in Marsh v. Chambers , 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), which had upheld a state legislature's practice of opening its sessions with a prayer delivered by a state-funded chaplain. Given legislative prayer's unique historical pedigree-"the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment," 134 S.Ct. at 1819 -the Greece Court found that the challenge to the city council's practice necessarily failed: " Marsh stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change." Id . Importantly for present purposes, the Court in Greece squarely rejected the suggestion-which nonetheless seems to persist in many quarters -that Marsh " 'carv[ed] out an exception' " to the usual Establishment Clause standards. Id . at 1818 (quoting Marsh , 463 U.S. at 796, 103 S.Ct. 3330 (Brennan, J., dissenting) ). Marsh , the Greece Court clarified, "must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation." Id . at 1819. Rather, the Court stressed-using broad terms that apply every bit as clearly here as they did there- Marsh stands for the proposition that "the Establishment Clause must be interpreted 'by reference to historical practices and understandings .' " Id . (quoting Cty. of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter , 492 U.S. 573, 670, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part) ) (emphasis added). As his self-citations indicate-and as all here seem to agree -Justice Kennedy used as the blueprint for his majority opinion in Greece his earlier separate opinion in Allegheny . Notably, that opinion-which had nothing to do with legislative prayer but rather, like this case, addressed the constitutionality of a religious display-similarly emphasized the centrality of history to any legitimate Establishment Clause analysis. " Marsh ," Justice Kennedy said there-previewing what he would later write for the full Court in Greece -"stands for the proposition, not that specific practices common in 1791 are an exception to the otherwise broad sweep of the Establishment Clause, but rather that the meaning of the Clause is to be determined by reference to historical practices and understandings." Allegheny , 492 U.S. at 670, 109 S.Ct. 3086 (Kennedy, J., concurring in judgment in part and dissenting in part). Any valid Establishment Clause standard, he emphasized, "must permit not only legitimate practices two centuries old but also any other practices with no greater potential for an establishment of religion." Id . By contrast, he warned, any "test for implementing the protections of the Establishment Clause that, if applied with consistency, would invalidate longstanding traditions cannot be a proper reading of the Clause." Id . So in the light of the Supreme Court's most recent decisions, how exactly, should the Bayview Park cross's constitutionality be determined? What Establishment Clause analysis applies? Frankly, it's hard to say. The Court's Establishment Clause jurisprudence is, to use a technical legal term of art, a hot mess. Lemon came and went, and then came again -and now seems, perhaps, to have gone again. The Court flirted with an "endorsement" standard for a while, but it too appears to have fallen out of favor. The "coercion" test may still be a going concern, although it's not quite clear when it applies, and there seem to be competing versions of it, in any event. And then, of course, Van Orden and Greece have clarified that history and tradition play central roles in Establishment Clause analysis. Given the inconsistency-er, uncertainty-in the Supreme Court's own Establishment Clause precedent, I would leave it to the en banc Court to chart the next move for this Circuit. The one thing of which I'm pretty certain is that Rabun -which is what requires the three of us to affirm here-is wrong. It's hard to imagine an Establishment Clause analysis more squarely at odds with Rabun 's than the one that Justice Kennedy inaugurated in Allegheny and then cemented in Greece . Rabun 's concluding paragraph all but says that a practice's "historical acceptance" has no real bearing on its Establishment Clause footing. 698 F.2d at 1111. In stark contrast, Greece -which uses the terms "history" and "tradition" more than 30 times-stresses that a practice's historical acceptance is paramount. Indeed, Greece states an unequivocal, exceptionless rule-which, it warrants repeating, has its roots in a case (like this one) about a religious display: "[T]he Establishment Clause must be interpreted 'by reference to historical practices and understandings.' " 134 S.Ct. at 1819 (quoting Allegheny , 492 U.S. at 670, 109 S.Ct. 3086 (Kennedy, J., concurring in judgment in part and dissenting in part) ). How and to what extent, then, do "historical practices and understandings" bear on this case? Pretty clearly and strongly, it seems to me. There is, put simply, lots of history underlying the practice of placing and maintaining crosses on public land-that practice, in Greece 's words, comfortably "fits within the tradition long followed" in this country. Id . Though not (exactly) first in time chronologically, an interesting place to begin what is necessarily an abbreviated historical survey is with the "Father Millet Cross," which currently stands in Fort Niagara State Park in upstate New York. The current cross was erected in the 1920s on what was originally federal land. Notably, though, it was put there to replace a wooden cross that had been placed in the same spot by a Jesuit priest-Father Pierre Millet-in 1688, when the territory was under French control. Father Millet was part of a rescue party that had managed to save the remnant of a frontier detachment ravaged by cold, disease, and starvation. On April 16, 1688-Good Friday-Father Millet celebrated Mass and built a wooden cross, which he dedicated to God's mercy for the survivors. In 1925, President Calvin Coolidge set aside a 320-square-foot section of Fort Niagara Military Reservation "for the erection of another cross commemorative of the cross erected and blessed by Father Millet[ ]." The following year, the New York State Knights of Columbus dedicated the commemorative cross "not only to Father Millet, but to those other priests whose heroism took Christianity into the wilderness...." The cross bears the inscription "REGN. VINC. IMP. CHRS.," an abbreviation of Regnat , Vincit , Imperat , Christus -i.e. , Christ reigns, conquers, and commands. The Father Millet Cross was originally designated as a national monument and administered by the federal government; ownership was transferred to the State of New York in 1949. To be sure, the Father Millet Cross was originally constructed on land that the United States didn't control (at least definitively) until after the War of 1812. But its history shows that the erection of crosses as memorials is a practice that dates back centuries, and that for a long time now, we-we Americans, I mean-have been commemorating the role that religion has played in our history through the placement and maintenance of cross monuments. In fact, President Coolidge's proclamation was part of a tradition-in this country specifically-that stretches back much farther. Just a few examples: • San Buenaventura Mission Cross (Grant Park, Ventura, California)-In 1782, Spanish missionary Father Junipero Serra placed a large wooden cross on a hilltop overlooking his recently established mission church. The original cross was replaced in the 1860s and then again in 1912, and then once again in 1941. The land on which the cross now stands was designated a city park in 1918. • Cross Mountain Cross (Cross Mountain Park, Fredericksburg, Texas)-In 1847, the first settlers of what is now Fredericksburg discovered a timber cross on a hilltop. A cross has remained there ever since; the original was replaced with a permanent lighted version in 1946, and today resides in the city-maintained Cross Mountain Park. • Chapel of the Centurion (Fort Monroe, Hampton, Virginia)-Since 1858, a cross has perched atop the Chapel of the Centurion at Fort Monroe, which is named for Cornelius, the Roman centurion who was converted to Christianity by St. Peter-and which, until it was decommissioned in 2011, was the United States Army's oldest wooden structure in continuous use for religious services. • Irish Brigade Monument (Gettysburg National Military Park, Gettysburg, Pennsylvania)-Erected in 1888 to honor soldiers from three New York regiments who fought and died at Gettysburg, the monument is a 19-foot Celtic cross. At the cross's dedication, Father William Corby held a Mass for the assembled veterans and blessed the monument. • Jeannette Monument (United States Naval Academy, Annapolis, Maryland)-Erected in 1890, the largest monument in the Naval Academy Cemetery, is a Latin cross dedicated to sailors who died while exploring the Arctic in 1881. • Horse Fountain Cross (Lancaster, Pennsylvania)-This six-foot marble cross was erected in 1898 and is maintained by the City of Lancaster. It bears the inscription "Ho! Everyone That Thirsteth" and sits atop a granite base with a small fluted basin designed to allow horses to drink from it. • Father Serra Cross (Monterey, California)-This 11-foot granite Celtic cross was donated to the City of Monterey in 1905 and installed on public land in 1908. The cross features a portrait of Father Junipero Serra and an image of his Carmel Mission. • Wayside Cross (New Canaan, Connecticut)-This large Celtic cross sits at the intersection of Main and Park Streets on New Canaan's historic green. Erected in 1923 as a war memorial, it bears the following inscription: "Dedicated to the glory of Almighty God in memory of the New Canaan men and women who, by their unselfish patriotism, have advanced the American ideals of liberty and the brotherhood of man." I could go on, but the point is clear enough. We've been doing this-erecting and maintaining crosses on public land-for a long time now, and cross monuments and memorials are ubiquitous in and around this country. * * * So where does all that leave us? As I've already confessed, I don't pretend to know-as I'm sitting here-exactly how the questions surrounding the constitutionality of the Bayview Park cross should be analyzed or resolved. Here, though, is what I do know: 1. That the Supreme Court's Establishment Clause jurisprudence is a wreck; 2. That as a lower court, we are nonetheless obliged to do our best to discern and apply it; 3. That in the last decade, the Supreme Court has increasingly emphasized the centrality of history and tradition to proper Establishment Clause analysis, culminating in its statement in Greece that "the Establishment Clause must be interpreted 'by reference to historical practices and understandings.' " 134 S.Ct. at 1819 (quoting Allegheny , 492 U.S. at 670, 109 S.Ct. 3086 (Kennedy, J., concurring in judgment in part and dissenting in part) ); 4. That there is a robust history-dating back more than a century, to before the time of the adoption of the Fourteenth Amendment, by which the First Amendment would eventually be applied to state and local governments-of cities, states, and even the federal government erecting and maintaining cross monuments on public land; and 5. That our now-35-year-old decision in Rabun -which invalidated a cross situated in a state park and, in so doing, summarily dismissed "historical acceptance" as a reliable guide for Establishment Clause cases-is irreconcilable with intervening Supreme Court precedent. This case presents important questions-both for the future of Pensacola's Bayview Park cross and for the future of Establishment Clause jurisprudence in this Circuit. Those questions demand the full Court's undivided attention. I urge the Court to take this case en banc so that we can take a first step toward an Establishment Clause analysis that is not only more rational, but also more consistent with prevailing Supreme Court precedent. III Our 35-year-old decision in Rabun controls this case and requires that we affirm the district court's decision. But in the intervening years it has become (even more) clear that Rabun was wrongly decided-with respect to both standing and the merits. Because Rabun is doubly wrong, it doubly demands en banc reconsideration. ROYAL, District Judge, concurring in the judgment: Part I: INTRODUCTION Good law-stare decisis -sometimes leads good judges to follow bad law and write the wrong order. That happened in this case. Briefly, the district court's order relied on American Civil Liberties Union of Georgia v. Rabun County Chamber of Commerce, Inc., a case that was wrongly decided, and even if it was not wrongly decided in 1983, it has been eclipsed by recent Supreme Court cases that reflect a growing interest in history and historical practices. There is no injury, no harm, and no standing to support jurisdiction in this case, but there is an Eleventh Circuit rule that directs us to affirm the district court based on this flawed precedent. Rabun County needs to be reversed, and this Court needs to devise a practical standing analysis. I believe that recent Supreme Court cases show us that way. Furthermore, I believe that the coercion test should apply to passive monuments, memorials, and displays, like the Bayview cross, and in this opinion, I explain why that test should control. I have organized the opinion and approached the issues in the case, in part, based on the history of religious oppression. Historians know this record well; but, regrettably, most judges know little about it, and it is important. So Part II of the opinion offers a brief history of establishment evils and disestablishment remedies, and it is divided into three sections. The first section outlines four religious establishments: the first one from the Roman Empire, The Edict of Thessalonica, and then one from the Medieval Age-the Catholic Church and its rule for centuries over millions of Europeans. The third begins in early modern England: King Henry VIII's Anglican Church with its Book of Common Prayer, Thirty-Nine Articles , and its ecclesiastical government and courts. The fourth church establishment is the Congregationalist Church in early New England. The second history section describes the ideas of early American thinkers and leaders on religious establishments, the importance of religion, and how they understood religious oppression and the solutions they proposed. The phrase "early America" covers the colonial period, the revolutionary period, and the first decades of the young republic. This second section is also important because it describes religious oppression and all its evils. I let these leaders of religion, law, and government speak for themselves so you can hear their anger, disgust, fear, dread, despair, and misery. The third history section offers examples of colonial and state charters and constitutions that dealt with establishment issues in early America. In part, this section describes the injuries minority believers suffered for their religious beliefs and how colonial governments made religion more oppressive or devised ways to end that oppression. I do not think we can understand the origins of the Establishment Clause without understanding what the founders identified as oppressive, the arguments they used against oppression, and how they tried to end it. So, as you read the history, pay attention to the word conscience and the array of phrases that use words like "liberty of conscience," "freedom of conscience," "the dictates of conscience," "rights of conscience," and the "free exercise of religion according to the dictates of conscience." But be careful not to apply a 21st century therapeutic culture understanding of the word. "Conscience" is not describing someone's feelings. You cannot substitute the contemporary concept of psyche for the 18th century idea of conscience. For early American believers, the religious conscience never stood alone and apart from action. In other words, oppression meant making them do something they did not want to do or not letting them do something they believed that God had called them to do according to their consciences. For example, citizens were forced to pay tithes to a church whose theology and practices they hated or at times were prohibited from preaching because they were not approved by the established church. But there are other reasons to listen to the founders. Without letting the founders speak, without hearing their words and reading their papers, I think it is hard for us living in our post-modern, highly secular society to understand the religiosity of early Americans and the often tyrannical adversity that beat down religious minorities like the Baptists and the Quakers. Yet, Alexis de Tocqueville understood and described this religiosity well. In his Democracy in America , written in the 1830s after he had spent several years traveling around the country, he said: "It was religion that gave birth to the Anglo-American societies. This must always be borne in mind. Hence religion in the United States is inextricably intertwined with all the national habits and all the feeling to which the fatherland gives rise." And, as he goes on to explain, "Christianity has therefore retained a powerful hold on the American mind, and-this is the point I particularly want to emphasize-it reigns not simply as a philosophy that one adopts upon examination but as a religion in which one believes without discussion." Indeed, "Christianity itself is an established and irresistible fact, which no one seeks to attack or defend." The study of early American history teaches that Christianity was central to that history. Parenthetically then, a cross is not just a symbol of Christianity; it symbolizes America's past-a past perhaps forgotten, neglected, ignored, or even despised, but nonetheless undeniable. Part III of the opinion wrestles with the case law on the standing issues. I agree with Judge Newsom that the Establishment Clause jurisprudence is a "hot mess," but I think of it more like a wilderness with misdirecting sign posts and tortuous paths. The bad signposts and twisted paths are the various Establishment Clause tests: separation, accommodation, history, neutrality, Lemon , endorsement, and coercion, all used at one time or another, in one case and then not in another. Next is the bog of concurring and dissenting opinions, and the opinions that concur in the judgment only, that leave you with the sense that you are walking on unsettled earth. Moreover, it is difficult to get out of a wilderness when all you look at is what is immediately in front of you and do not understand the patterns and directions of the past. In this part of the opinion, I restate some of Judge Newsom's argument for continuity. I do, however, propose a way out of the wilderness. It is simple, like Ariadne's thread out of the labyrinth. As such, I limit this approach to cases involving passive monuments, memorials, and displays under Establishment Clause scrutiny like the cross in Pensacola and the cross on Black Rock Mountain in Rabun County, Georgia. My approach is simple: just don't deal with it at all because in both Pensacola and Rabun County no injury, no coercion, no oppression, and no stigmatization occurred, so Plaintiffs have no standing and no claim. As part of the legal analysis, I also describe how the laches concept supports the coercion analysis. This cross has stood quietly in the park for seventy-five years with only one complaint until this lawsuit was filed, and thousands of people have enjoyed the park for decades. The laches concept is based in recent Supreme Court cases and leaves questions like crosses to local government without invoking the federal judiciary's power. The laches concept works with the standing analysis to give district courts a workable guide to deal with passive monuments in cases where no harm has occurred. There is no case where there is no harm; history tells us what harm is, and it also tells us that no plaintiff suffered harm in this case and especially not in Rabun County . On the other hand, district court judges should not be placed in the position of deciding an Establishment Clause case based on a "math problem"-count the monuments on public property to see if there are enough. Likewise, they should not be placed in the position of deciding these cases based on a "geography question"-see where the monuments are on public property. If I find the crèche in one place, it is okay; but if I find it in another place, it violates the Constitution. There are over 170 memorials in Pensacola parks, but only one other in Bayview Park. So the math answer and the geography answer required the finding that the City of Pensacola violated the Constitution. This kind of constitutional casuistry is folly. But this is where courts end up when separation, not establishment/disestablishment, becomes the touchstone of the analysis. (More on this later.) And I begin with some history. Part II: A SHORT HISTORY OF RELIGIOUS ESTABLISHMENTS In some recent Supreme Court Establishment Clause cases, the Court has used history as a guide for deciding the issues. That history, however, is generally limited to the specific activity, practice, monument, or display in dispute. But the broader history of religious establishments teaches what the founders understood about the oppression that religious establishments imposed and, therefore, their reasons for enacting the First Amendment. There is considerable scholarly work on religious persecution and the strife it provoked in Britain that caused early Americans to flee their homeland to find religious freedom in the New World. The founding of the Massachusetts Bay Colony in 1630 is a well-known example of this kind of religious migration. In fact, approximately twenty thousand Puritans settled in New England between 1630 and 1640. They were religious refugees. There is also much history describing religious persecution in early America, and it helps to understand this history. So I begin with four examples of religious establishments. Most of the founders were well-educated men, and some of them trained at Cambridge, Oxford, Harvard, Yale, or Princeton. They would have known this history and even lived through some of it. 1. Four Religious Establishments First, in 380 A.D., by the Edict of Thessalonica, Roman Emperor Theodosius I established the Nicene Creed form of Christianity as the official religion of the Roman Empire. The Edict affirms and commands a Trinitarian statement of Christianity and was designed, in part, to end the Arian heresy taught by the Arian bishops whose influence was widespread in the Empire. They attacked the Trinitarian understanding of the deity of Christ. More importantly, the Edict imposed punishments. It proclaims that those who do not subscribe to the Trinitarian theology are Judge[d] to be mad and raving and worthy of incurring the disgrace of heretical teaching, nor are their assemblies to receive the names of churches. They are to be punished not only by Divine retribution but also by our own measures, which we have decided in accordance with Divine inspiration. Here, in the space of two paragraphs, we find the key elements of religious oppression and establishment tyranny. The emperor, the sovereign, passed a law imposing religious beliefs for all peoples within the empire. Some were happy with the Edict because they already believed what it required. Others recognized that it condemned them, their beliefs, and what they taught. The law was coercive and oppressive and empire-wide, and it stigmatized all unbelievers by calling them madmen and heretics. It threatened them with harm and prohibited them from teaching and practicing their version of Christianity, or whatever was their religion, in a way that contradicted the established theology. This Edict shows the common pattern of religious oppression. The second establishment is the Roman Catholic Church that held sway for centuries across most of Europe until the time of the Reformation. The Catholic Church exerted great power over the lives of most Europeans, and in the century before the Protestant Reformation began, many Europeans resented the birth to death sacraments, the Mass, the religious taxes, the decadent ecclesiastical hierarchy, and the canon law. But when the Protestant revolt began against Catholic control, Europe erupted into one of the most destructive conflagrations the West has ever known. A good example of this control is well-known. Henry VIII wanted to divorce Catherine of Aragon, and the Pope said no, primarily for political reasons. This shows the Pope's power: the King of England had to ask the Pope for permission to divorce his wife. (She had not produced a male heir.) And because the Pope said no, Henry established the Anglican Church to replace the Catholic Church in England. The Anglican Church is the third establishment. England's struggle with Catholic enemies like France and Spain from the outside and the problems with the enemies of the new Anglican Church, the Dissenters, on the inside, compounded by the strife between English Catholics and English Protestants, controlled much of British history for two hundred years. Indeed, it spun British society out of control. For example, in 1543, at King Henry's direction, Parliament passed the Act of Supremacy that declared him to be the supreme head of the Anglican Church and its clergy. As part of the Act, all subjects had to swear allegiance to King Henry as their religious leader and thereby required them to reject the Pope. You no doubt know the story of Sir Thomas More who refused to take the oath and was beheaded. Henry also seized all the properties of the Catholic Church in England and gave the land to his friends. And in 1536, he suppressed a Catholic rebellion. For the next 200 years, religious persecution continued in England. Shortly after King Henry died, his daughter Mary, the daughter of Catherine of Aragon, took the throne. She tried to re-Catholicize England and earned the name Bloody Mary because of all the Protestants she put to death. But it was not just Catholic versus Protestant strife and hatred. There was also the problem of the Anglicans versus the Dissenters and the Separatists, which included the Puritans, the Congregationalists, and the Presbyterians, all of whom had some theological ties and most of whom objected to or despised the Anglican Church. The Puritans wanted to purify the Church of England from its Catholic tendencies, and that is how they got their name. I have given a brief overview of a complex history of England and the Anglican Church, the Catholic Church, and the Dissenters. As Pulitzer Prize winning historian T. Harry Williams explained: "These events of seventeenth-century England form an essential part of American history. They help to explain the causes and course of English colonization." Armed with this summary, it is now easy to understand how old religious oppressions haunted the New World. So the fourth establishment I describe is the Congregationalist Church in New England. A group of Puritans founded the Massachusetts Bay Colony in 1630, and they established a Congregationalist style of church government and followed many of John Calvin's teachings. They desired a purer Christian church than the Anglican Church that they had left in England. They strived for purity among their church members, and while they required everyone in the colony to go to their parish churches each Sunday, only the true believers could participate in government. But it was not enough to attend church; everyone had to support the Congregationalist church. In 1692, the colonial government enacted a tax that required all citizens to support the local Congregationalist church and its minister. As a result, this law forced conscientious dissenters to support the Congregationalist church when they wanted to support their own church, the Baptists for example. And, as it happened with the Anglican Church in England, dissenters arose in Massachusetts, and the Congregationalists applied harsh measures against the "Separates." For example, in 1635 Anne Hutchinson criticized the framework of Puritan piety. After two years of listening to her preaching and complaining, the Congregationalists banished her from the colony, and she moved to Rhode Island. The Congregationalists also treated the Quakers harshly. The Quakers moved to Massachusetts to escape persecution in England and began proclaiming a very different Christian message from the Puritan teaching. In response to the perceived threat to their churches and their colony, the Congregationalists publicly flogged some Quakers and cropped their ears. Four of them were hanged because of their missionary activity, including a woman-Mary Dryer. And as late as 1784, John Murray, a Universalist minister, was fined fifty pounds for performing an illegal marriage ceremony. It was illegal because he was not an ordained minister according to Congregationalist requirements. He fled to England to avoid being fined for all the marriages he had performed. Connecticut was another Congregationalist colony that imposed various forms of oppression. Like Massachusetts, Connecticut required its citizens to support the parish churches. In 1745, in Norwich, Connecticut, thirty dissenters refused to pay the tax. One of them was Isaac Backus, whom I will discuss below. They had "separated" and set up their own church and elected their own pastor. Many were imprisoned in the Norwich Goale, including Isaac Backus's brother for twenty days and his mother for thirteen days. Isaac Backus became one of the most influential religious leaders in 18th century America. Religious oppression in New England and in Virginia was well-known to the founders, as was the history of persecution in England. The next section describes some of their ideas about oppression and church establishments. 2. Commentators, Founders, and Leaders in Early America and One English Philosopher Justice Joseph Story (1779-1845) I begin this second history section with Justice Joseph Story's Commentaries on the Constitution because his three-volume work helps introduce church-state relationships in early America. Story served on the Supreme Court from 1812 to 1832 and published his Commentaries in 1833. He was a great legal scholar. His commentaries on the Constitution offer a valuable history about the early American understanding of the relationship between government, law, and the Christian religion, including the limitations on that relationship, and about the importance of religion in general in early America. As Story explains about the colonial period, every American colony, from its foundation down to the revolution, with the exception of Rhode Island, (if, indeed, that state be an exception,) did openly, by the whole course of its laws and institutions, support and sustain, in some form, the Christian religion; and almost invariably gave a peculiar sanction to some of its fundamental doctrines. And this has continued to be the case in some of the states down to the present period, without the slightest suspicion, that it was against the principles of public law, or republican liberty. This is consistent with how Alexis de Tocqueville described America in the 1830s and the importance of Christianity. No doubt Story is speaking generally, but he is describing the prevailing ideas of the day. Story goes on to explain the sentiments of the times about religion and government. Probably at the time of the adoption of the constitution, and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation. One of the main reasons for the idea that government and religion should work together was because in that era many people believed that good religion was necessary for good morals and that good morals were necessary for a stable and prosperous society. But they also understood that a line had to be drawn and a limit imposed on the church/state relationship. People had to be secure in their faith from harms or limits on their freedom of religious conscience and their freedom to worship. It was not simply a matter of a free state of mind; it was also about actions: Believers could not be forced to do what their religion rejected nor prohibited from doing what it required. As Story explains: But the duty of supporting religion, and especially the Christian religion, is very different from the right to force the consciences of other men, or to punish them for worshipping God in the manner, which, they believe, their accountability to him requires. It has been truly said, that 'religion, or the duty we owe to our Creator, and the manner of discharging it, can be dictated only by reason and conviction, not by force or violence.' And those were the problems: the churches' use of force and violence to suppress dissent and impose conformity. The founders addressed these problems in the First Amendment. Story explains the founders' goals in enacting the First Amendment. It was not to advance other religions by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution, (the vice and pest of former ages,) and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age. In other words, religious persecution had been a problem for almost two millennia. He goes on to explain how this history of religious oppression affected the founders in enacting the First Amendment. It was under a solemn consciousness of the dangers from ecclesiastical ambition, the bigotry of spiritual pride, and the intolerance of sects, thus exemplified in our domestic, as well as in foreign annals, that it was deemed advisable to exclude from the national government all power to act upon the subject. ... Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at th