City of Pensacola, Florida v. Kondrat'yev

1. Whether plaintiffs have standing to sue under the Establishment Clause when their only alleged injury consists of the feelings of “offense” produced by observing a passive religious display. 2. Whether, under Town of Greece v. Galloway, 134 S. Ct. 1811 (2014), passive religious displays with a long historical pedigree must be torn down because of claims that they have the purpose or effect of endorsing religion

Petitioner uses public funds to maintain a city park with a religious monument located within its boundaries. Respondents filed suit alleging violation of the Establishment Clause. Petitioner moved for summary judgment, arguing the monument fell under the Van Orden v. Perry, 545 U.S. 677 (2005), and Town of Greece v. Galloway, 134 S. Ct. 1811 (2014), “historical acceptance” approach. Respondents were awarded summary judgment based on the 3-factor test in Lemon v. Kurtzman(“Lemon test”). 403 U.S. 602 (1971). The Eleventh Circuit Court of Appeals affirmed. Petitioner appealed to the Supreme Court, arguing that the Respondents lacked standing under Article III, as the injury claimed by Respondents amounted to psychological harm caused by “observation of conduct with which one disagrees.” See Valley Forge Christian Coll.v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982) (psychological consequence does not amount to injury under Art. III). Petitioner stressed that the lower court decision furthers a split among circuits regarding Establishment Clause and Art. III standing issues, as well as deviates from the Supreme Court decisions in Van Orden and Town of Greece. The Supreme Court granted certiorari and issued summary disposition in accordance with the Court’s decision in American Legion v. American Humanist Assn., 588 U.S. ___ (2019). VACATED AND REMANDED.