American Atheists, Inc. v. Davenport

GORSUCH, Circuit Judge,

joined by PAUL KELLY, JR., Circuit Judge, dissenting from the denial of rehearing en banc.

I respectfully dissent from denial of rehearing en banc. Judge Kelly outlines several reasons why this decision is worthy of the full court’s attention. I write to note two more.

I

Our court has now repeatedly misapplied the “reasonable observer” test, and it is apparently destined to continue doing so until we are told to stop. Justice O’Con-nor instructed that the reasonable observer should not be seen as “any ordinary individual, who might occasionally do unreasonable things, but…