know we're going to proceed to the third case rather than taking a break so the third and final case for the day i hope i'm pronouncing this correctly of your sister city of pensacola is number seventeen dash the teen zero twenty five it may please the court my name is lou goodrich and i represent the city of pensacola and mer ashton hayward city of pensacola as actions in this case are fully consistent with the establishment clause whether considered the town of greece van orden or limit the city's active completely neutrally toward religion treating the jaycees monument no differently than any other plaintiffs however argue that the city that the constitution requires the city to treat this particular monument worse than any other which would send a message of hostility toward religion and threaten scores of monuments across the country including within this circuit i'd like to briefly address the forge and call it inconsistent with valley forge if you want but it's our press and what are we supposed to do with raven i love to take valley forge and raven together and valley forge says the psychological consequences of observing conduct he disagree  is not enough there has to be something more and raven found the something more in the fact that two of the plaintiffs were frequent campers in the national parks and said that they could no longer camp in this park because of the cross but  didn't say just to be fair didn't raven say that there that they you know they were forced to really relocate their camping or in the disjunctive have their right to use the state park condition upon the acceptance of unwanted religious symbolism which it called then called metaphysical or spiritual harm and i don't understand quite why psychological harm is insufficient but metaphysical and spiritual arm is sufficient and i'm qualified to decide the difference between psychological metaphysical but such as it is the fact of the matter was in raven that they incurred a cost to avoid it in countering display which is not alleged here i would also point to this court's subsequent decision in a c l u vs dixie county which is the plain of site in their ble brief and their plaintiff went to a court house to consider buying property encountered a display and was offended and then left and the court said merely encountering the display was not enough for purposes of standing so the bottom line here is that the pla an alleged anything more then feelings of offense and that's not enough under valley forge even assuming the plaintiffs have standing to turn to the merits and under town of greece the city of pensacola as actions are fully constitutional town of greece says that courts are no longer supposed to simply engaging wrote application of the lemon test in every case and instead the starting point is the historical practices and understandings under the establishment class in town of greece the court didn't just say the founders engage in legislative prayer therefore all legislative prayer is constitutional instead it considered history at the level of principle and identified legislative prayer as part of a broader historical phenomenon what it called quote a host of traditional practices that recognize the role religion plays in our society so let me ask you a quick question again now broken record time ribbon which not only on the standing issue but on the merits feels awfully close to this case and you know that the district court goes through the litany right it's like a foot taller cross it's on public land it's  law but even if it were a good law it's distinguishable if i could address why it's no longer a good law there's there's two separate reasons one is what you've identified the fact that that raven relied on the lemon test and the supreme court has moved away from the lemon test and said you have to consider history and reagan didn't consider history so that substantially undermines ravan the second reason reagan is no longer good law has to do with how reagan applied lemon's purpose prong that was the sole basis for  edwards versus aguilar in one thousand nine hundred seven and in both of those cases the supreme court applying women's purpose brown said that courts are bound to give to be deferential to a state's or government's articulation of a secular purpose and that once the state articulate a secular purpose the burden shifts to the plaintiffs to prove that that purpose is a sham and that's quite different from the purpose analysis and reagan and this court in an on bank decision in adler v do all that's to a six f third ten seventy and again in the king decision later which is site in our briefs follow the purpose analysis of the wallace versus jeffrey edwards  articulated the same method of a applying the purpose bronc the government has to identify a plausible secular purpose and the burden shifts to the plans and so if the court were to engage in that purpose analysis here the city's actions are plainly constitutional the city's plausible secular purpose is commemorating an important aspect of its history and culture and the plaintiffs haven't come forward with any record evidence legislative history and so forth proving that that purpose is a sham but though the facts of the case supported the primary purpose of this was religious day activities primarily the activities primarily the foundation for this over the course of the many decades at this crossroads there poor that it watch primarily religious and not primarily secular and not primarily historical except in some very broad way with respect your honor we would disagree pointing out first that the purpose analysis looks to the governments purpose not any particular private parties purpose and so the fact that the cross was used in religious services is no different from the ninth circuit's decision in weber  the cross to have he stirs services there to begin with i don't understand look at the government's purpose the purpose throughout was to have easter services there right that was the purpose that was the purpose they say some did it and then ultimately when the wooden cross got bad they put into the city paid for another cross like it but it was for easter services that was the jaycees purpose your honor the purpose test under limon looks to the government's purpose what was the government's purpose they haven't articulated a purpose that they paid for what the jaycees wanted w the government's purpose and what is evidence in this record of the government's purpose besides that purpose adopting that purpose of the j c under under the purpose test the government's purpose is commemorating an important aspect of its history it ok and this is not a park where there are all the monuments around it with all kinds of different things right that not immediately in the immediate how far away and this is in a prominent place how far where's the next my name and somewhere around the bonifay memorial is roughly two hundred yards away from and what is that that's a monument to a young man who died in a skiing accident several decades earlier but the purpose test looks to the government's purpose today and king this court's decision in can we look at the government's purpose historically to not the government had any purpose historically it was his jaycee's purpose mccleary says to focus on today but if you look historically the city's purpose was to allow all sorts of groups to use the parks as they saw fit and in this case for example are reserved and use the cross for his say tenet purposes and nobody would say that the city of pensacola is purpose is to establish satanism as a state religion that's not how the purpose inquiry goes and i point to several other circuits the ninth circuit in weber and the second circuit in american atheists both upheld crosses both finding that they had a secular purpose even three the three main circuit courts that they rely on found a secular purpose that was american humanists in the fourth circuit drunk in the ninth circuit are dead if you like again from a the government purpose is what the government's purpose is to commemorate an aspect of its history and culture which is what it does with over one hundred seventy other displays and why do i find that in the record where some i testified that there's no testimony in the record to that and under under king under king the there was no evidence in the record of what the purpose was for adopting the ten commandments as part of the seal and what the city official gave an affidavit the court said hey there's no evidence of why the city adopted the c e o and it said the lawyers representation in the briefs was stated the plausible secular purpose and that the court had to defer t unless the plaintiffs brought forward evidence proving that their that that purpose was a sham so let me ask you this i mean we've spent the last eight minutes or so talking about purposes your principal contention that you can win this case under a lemon or that we've moved on with respect to this sort of monument and the town of greece and van orden be at the plurality or justice prior require a different analysis or principle contend contention is we women are town of greece but we also w under lemon as shown by the ninth circuit's decision in weber involving the statue of jesus and by the second circuit's decision in american atheists let me ask you one last lemon question have you adequately preserved the fullness of your lemon argument your good a lot about purpose in the blue brief but none really about effect or entanglement except so far as i recall in a footnote on the last page of the brief you try to sort of amplify it in the gray brief but i'm not frankly sure if that's enough under our precedent to preserve the lemon argument that's prongs two and three which would be necessary for you to prove this while the district court rested its decision solely on women's first prong and so out of an abundance of caution we address the second and third prong in our opening brief in a footnote and then when the plaintiffs  raised that as an alternative ground for affirming the district court we addressed it fully in our reply brief well i thank you very much controlling and indistinguishable and in that case this court held that the maintenance of a christian cross in a government park for the purposes of easter sunrise services which again was the chamber of commerce's purpose in that case but was inferred because the government adopted that purpose was unconstitutional under the first prong of black men notwithstanding any historical significance and so can i ask your question right jeremy i actually think that that may be sort of the jumping off point for the distinction between reagan and everything that has happened since the last paragraph of raven's basically says we don't care about the history forget it and you read van orden and you return to greece and the supreme court cares passionately about history now and so how does reagan survive the new what i'll call van or get from that is actually from the pluralities decision not the the control controlling concurring opinion of justice brier but second of all the town of greece decision is a legislative prayer case and this court's precedents as well as the supreme court's precedents recognize the distinction between religious displays and legislative prayer so let me let me push back on that a little bit i mean as i read ton of greece took the court says in town of greece two things that i think you need to grapple with one it says mark referring to the earlier legislative purpose must not be understood as permitting  practice that would amount to a constitutional violation if not for its historical foundation the case teaches that the establishment clause must be interpreted by reference to historical practices and understanding so it seems to me that court in town of greece is saying whatever everybody else says this is not a legislative prayer case this is an establishment clause case and all establishment clause cases begin with history sure i mean the first of all time is not actually mentioned in the town of greece decision so in order to overrule them and something would be needed but the notion that the court would look to history as part of that analysis and justice kennedy wrote that opinion so you can look to his concurrence and the alleghany decision where he clarifies what his issue is and it's really with justice o'connor's endorsement test he never we don't need to define the precise boundary of establishment clause jurisprudence where we have evidence that the specific practiced was adopted by the first congress the same week that they had ratified the first amendment where there's been an unbroken you know history for two hundred years and that's  only the first reason why the town of greece analysis wouldn't apply here is because we don't have any evidence that the founders were in place in large christian crosses on government land but there's two other if you look at it as like a three legged stool there's two other reasons why legislative prayer can't fit within this other framework is that one of the main rationale is that it's an internal practice for the legislature is intended to accommodate the spiritual needs of of you know lawmakers as sort of citizens and that's a theme in in town of greece where the court says you know if this was an effort to proselytize to the public the fact that we might rule a different way but when it's actually an internal practice to accommodate the spiritual needs of lawmakers to connect them to a time a tradition of our founding fathers that's a city and placed a large permanent christian cross on its property for a year round to be clearly on and sit on town hall on top of city hall yes but little done to say why that's the problem and it wasn't necessary because a city hall is because the association with the government and what that affiliation would do when it was year round in a display that's exclusively christian versus something like a secularized holiday display you know atheist celebrate christmas he was talking about something that is exclusively religious year round he found that to be an extreme violation and again he cites the raven county case in support of that proposition so he knows even in parent that tickles that it would involve a cross on a public park so let me ask you this because i actually think you're right that given the fact that kennedy  writes town of greece that it's fair to sort of look back to allegheny the allegheny concurrence to kind of see what's going on the legislative history of town of greece so to speak but so i read it differently i mean when i read kennedy's concurrence he says marsh stands for the proposition you were saying that you know town of greece is unique because you can trace it all the way back and that certainly does make the specific practice issue in town of greece unique but kennedy says marsh that the early legislative prayer case stands not for the stance of the proposition not that specific practices common in seven hundred ninety one or except for an exception to the otherwise broad sweep the establishment clause but rather that the meaning of the clause is to be determined by reference to reference to historical practice and understanding whatever test we choose to apply must permit  not only legitimate practices two centuries old but also other practices with no greater potential for an establishment of religion a test for implementing the protections of the establishment clause that if applied with consistency would invalidate longstanding traditions cannot be a prop a reading of the clause and here you've got sure you can't trace it back i don't think you read your adversaries are going to so you can trace it all the way back in the same way you can lose a lot of prayer but you've got some really old crosses on public land there are several that they've pointed to that were put up on state property in before the first amendment applied to the states and that was a decision one nine hundred forty seven where the first amendment applied to the states and the rationale in greece is again that the very same people that wrote the first amendment sanction this practice so it's almost i don't want to say semantics but it's almost a semantic issue with calling it an exception because when we once called legislative paired exception he's saying that he thinks because again and now again he does say i'm content for present purposes remaining in the lemon framework and doesn't mention lemon in the in the town of greece case so he's not saying bird opting in it practiced in the lower courts including this court court has been consistent in saying until the lemon test explicitly overruled we are bound by it and that comes back to the supreme court's case and i get steamy where it says that the lower court shouldn't infer by implication that the supreme court overruled a precedent but the third so i was talking about a three legged stool of what the town agrees rationale plies stands on and it's not only the tracing back it's not only the internal practice but it's also the government wasn't doing those prayers and that the government was maintaining a practice of non discrimination and that even though they didn't have to go so far as to look outside of their their county borders or their town borders to look for non christian grabbers that if over time they saw a practice where where one faith was being excluded or you know just like this court held pelfrey where one you know categorically excluding certain face would not be allowed under the legislative prayer exception that holds true today and that's a theme that justice maybe set in discussing the rationale of marsh which was something about legislative prayer being a benign acknowledgment of religion and where you know contrast that with his example in allegheny of a massive christian cross on government property granted it know about your clients and what it was specifically about the cross they were offended per john clear to me what that crossed actually did to them can you be specific about that please sure i mean it in terms of standing or just in terms of more general how it affects them on a day to day in terms of standing in terms of standing absolutely i mean all this course standing precedence really recognized broadly speaking that  being subjected to an unwelcome religious message in the context or in the course of one's interactions with the government in this case a public park with many amenities that the city has placed is an injury unto itself in glass wrought for instance the court said that the greatest injury is the monument itself for these plaintiffs their non christians and their in a in a county or city where the government has put up one religious symbol there is no other religious symbol in their public park and it's a large christian cross and circling back to the purpose the city contends that there is no evidence of the original purpose but that's false because the one nine hundred sixty nine parks and recreation department minutes where the big government expressly approved to accept this cross is evidence of that original purpose which was for easter sunrise services and raven county there wasn't even that kind of concrete evidence and when you look at the king case where the court talks about the burden shifting it's talking about a situation when there is zero evidence of why the symbol was chosen and so the court said in that situation that rare situation where we have no evidence we can shift the burden but otherwise the court says that the burden doesn't shift of course this analysis applies only when there is no evidence of government  practice when evidence shows that endorsement or promotion of religion was a primary purpose for the challenge practice the inquiry ends and the practice violates the establishment clause well this particular situation there's no question but that the cross is passive the cross is not doing anything it's not coercing anybody it's not for anything actually actually it's things rather odd that you can be in a situation in which you have prayer at a meeting in which the room may be filled with atheist and humanist and that that clearly is something active now i understand the history of all that but we have this cross is just static it's just sitting there is not doing anything to anybody and so it's unclear to me what what the effect is on your clients or the effect is that it's telling them that they're outsiders in their own community that they are not as welcome as say a christian member of the community and this is amplified by the fact that the city is well there's nothing on this cross th says anything about anybody outside the community or anything else like that is just standing there well for instance the city hasn't accommodated jewish members of the community with you know a symbol for judaism they haven't  things one is that there was a complaint twenty years ago by william clapp and her and his declaration is in our in the record but second of all the the fact that the process has stood for several decades does not evidence a secular purpose or secular effect in fact the fourth circuit recently concluded that to the contrary the longer a religious symbols on government property the greater affront to those who are excluded by it might feel i'm still trying to understand how this passive cross with respect to the government was somehow diminished it's this it's a feeling of outsider ness that that one gets when they get the feeling that the government is promoting their one religion over theirs and the government the fact that unlike in reagan case where there was very little government action in this case the city this city has been actively involved in maintaining the cross it has you know co sponsored or at least facilitated some of the easter sunrise services and so the facts here are more flagrant than those in the reagan county case  and turning back to the purpose problem which is what we're focusing on although the court can can move on to the other two prongs of them as well if i can ask you one question before you get going down that road so in your analysis for instance i guess just sort of thinking out  the headstone markers at arlington cemetery that are marked with latin crosses all unconstitutional no your honor there not and several circuit courts have distinguish those crosses specifically from free standing crosses on government property the cemetery is a multi faith complex where the message isn't readily attributed to the government but rather the private individuals that are buried in the cemetery in the ninth circuit for instance and trump distinguished the large war memorial that case from those in arlington cemetery circling back though to to the to the purpose inquiry and what we're looking at macquarie actually doesn't support the notion that we look at the purpose today it actually says that the court cannot ignore history and where there's a history that shows a clear religious purpose i e for real you know easter sunrise service it can look at today's you know recent overman of of what that purpose is well is it the history of in this case the cross or is it american history in general well your honor no court that i'm aware of has ever looked to american history in general to support a cross display because there simply isn't any such history there's a few scattered cross that were up and there's enormous history about america and inside of a court house and so you know it said that even to breathe it so broadly would actually got the core of the establishment clause because if we look to the history they were state of stop washington's until the federal you know until the the establishment clause applies to the states the states were allowed to actually establish the court has gone and very long way away from that from where massachusetts establishes congregationalist and for example and that would be an establishment called file lation to pensacola puts up a cross and there  enormous difference in those two in terms of the establishment of the well the idea is just that you can't necessarily apply the whole history of the united states and i think when you go back to town of grief even though justice kennedy in the alleghany decision says we shouldn't only you know we should if there's something that's very close to this and that's you know in time to grease the extended legislative prayer to local governments even though they didn't have as much of a specific history but if they still say that we did don't need to define the precise boundaries where there is specific history to date five circuit courts have address religious display cases since town of grace and all of them have it here to the lemon test that's the second third fourth ninth and tenth so if lemon is not the test all five of those circuits were wrong as well as the sixth circuit that recently rolled in on a school prayer or school statement in town of greece the establishment clause must be interpreted by reference to references reference to historical practice and understanding agree or disagree without because this is separate from tracing it all the way back to seventy nine one seven if that's the bull's eye view that is sort of the  bull's eye on the target the second the next concentric circle is this the establishment clause must be interpreted by reference to historical practice and understanding is yes or no yes but i wouldn't say that over rules on that wouldn't be enough for this court to aband lemon and it is not a departure from the supreme court's pretense because it's always held the actions taken by the first congress are presumed you know consistent with a bill of rights i mean i guess i'm saying like i get it that ton of greece and march  different in the sense that you can go back to the first congress but what the court seems to be saying here is and tracing it back to kennedy's concurrence in allegheny even aside from the bull's eye history more generally the stuff that you're drawing was talking about history and tradition more generally that's the beginning of the establishment clause analysis in any case i'm not reading it to say that to be honest i think he's still speaking in the context of legislative prayer so and we're not there's no precedent that even though that might be some of the language there is no example of one that could apply because all the case law it on crosses and religious displays are to the contrary and so i think it's partially because there's not even if it's not a specific practice it's just doesn't fit within that framework because religious displa just weren't being put up you know in governments until they you know late eighty eight hundred so isn't that i mean isn't that sort of the kennedy concurrence of the writing and allegheny i mean that's that's not a legislative prayer case that's a display case a crush case and kennedy i think says they're r says look for reasons wholly apart from the establishment clause nobody was putting up creche displays at the founding nonetheless and then he launches into the historical analysis about sort of you know stuff that has happened in the interim and a lot of what he's talking about is about christmas christmas specifically and how that's become a secularized holiday and how the display was temporary and all of that was under the in the fact prom so if anything that chips away at the effect wrong but nothing is said about the purpose test and i think to judge justice kennedy's point that he would probably see the alleghany case passing the purpose probably because there was no evidence of the government in placing a religious symbol on his property to further religious purpose if you look at his concurrence or the pin salazar where there's an dicked about crosses he again distinguishes the example that i did in allegheny of the government in placing a a cross on its property versus some better and some private citizens and placing a cross in a remote area of the desert where the government wasn't involved and i think there's a distinction when the government has explicitly approved a religious symbol for religious purposes as was the case in reagan as was the case in mccreary as is the case here thank you so much  like to briefly address history and then for the purpose prong of lemon so judge newsom is correct that justice kennedy in allegheny county makes clear that history applies not just to legislative prayer or practice specific practices that the founders engaged in but looks more generally at how how the history and the news thousand clause played out so that he was a display case justice kennedy didn't point to any examples of creches at the time of the founding and yet he argued that history supported the government's practice in allegheny and this is also not unique to the establishment clause as the supreme court considers history with respect to the second amendment the fourth amendment many other amendments and it never has to look back you know the kind of case the supreme court didn't say well was their heat seeking technology at the time of the founding no therefore the fourth amendment doesn't apply but there's a recent second amendment case involving stun guns and the massachusetts supreme judicial court said there were no stun guns at the time of the founding therefore the second amendment doesn't apply and the supreme court summarily reversed because it looks at history at the level of principle at the level of broad practices and here there may not have been a lot of monuments at the time of the founding but if you look at how the government communicated at the time of the founding whether through public proclamations or through the great seal or through the few monuments that there were at the time of the founding the government repeatedly acknowledged the role of religion in american life and the city of pensacola's actions fall well within that tradition and are therefore permissible under town of greece we've also pointed out opposing counsel mention that there were new monuments at the time of incorporation of the establishment clause against the states but we did point to an example eight hundred sixty eight of a cross going on government land the very year that the establishment clause was incorporated through the fourteenth amendment turning to the purpose test again the question under purpose is what is the government's purpose and there are five circuits that have recently addressed the government purpose in the context of  case across or a statue of jesus three of those courts ended up striking down the cross and yet all three said that the government had a permissible secular purpose that was american humanist trunk and davenport so even when striking down across the circuits of said the government had a secular purpose turning to the web or case from the one circuit that that's a statue of jesus with arms stretched out and blessed standing alone on government land and it was placed originally for religious purposes it was used for private religious circuit services and yet the ninth circuit upheld the statue of jesus because it said it was far from any government seat just like this case privately initiated located in a recreational setting an important part of the area's history and culture and went unchallenged for sixty years and we have all of those same circumstances present here so this case is fully consistent with  circuit's decision and weber also the second circuit's decision in american atheists involving the ground zero cross that was across an equally religious symbol it was used in religious devotion at ground zero it was placed in a catholic church for several years as an object of religious devotion and it was recently formed it wasn't a long standing cross and yet the second circuit unanimously upheld the government's display of that cross because it was a symbol of hope and comfort after nine eleven and part of a broader effort to commemorate history so again pensacola is actions are fairly consistent there and in closing i'd simply point out that if the jaycees had held seventy five years of annual peace vigils and wanted to erect a monument to peace in the park nobody would have any problem with that but simply because the jaycees private events had religious content and this symbol has some religious content plaintiffs argue that the city has to be to treat that monument worse than any other monument and it's in price and that sends a profound message of hostility toward religion and the supreme court has said time and again that the establishment clause doesn't require that so the decision of the district court should be reversed thank you thank you both very much well argued on both sides will be in recess until tomorrow morning at nine