Felix v. City of Bloomfield

KELLY, Circuit Judge,

dissenting from the denial of rehearing en banc, joined by TYMKOVICH, Chief Circuit Judge.

This decision continues the error of our Establishment Clause cases. It does not align with the historical understanding of an “establishment of religion” and thus with what the First Amendment actually prohibits. It also applies the wrong test, despite guidance by the Supreme Court that the Lemon / endorsement test is “not useful in dealing with [a] passive monument” such as the one at issue here. Van Orden v. Perry, 545 U.S. 677, 686, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005)…