Card v. City of Everett

FERNANDEZ, Circuit Judge,

concurring:

While, with all due respect, I cannot fully join in Judge Wardlaw’s opinion, I do concur.

I applaud Judge Wardlaw’s scholarly and heroic attempt to create a new world of useful principle out of the Supreme Court’s dark materials.¹ Alas, even my redoubtable colleague cannot accomplish that. The still stalking Lemon test² and the other tests and factors, which have floated to the top of this chaotic ocean from time to time in order to answer specific questions, are so indefinite and unhelpful that Establishment Clause jurisprudence has not become more fathomable. Would that courts required neutrality in the area of religion and nothing more or less.³

More to the purpose, this case, as Judge Wardlaw wisely notes, is controlled by Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005). Because of that and because I see no possibility whatsoever that the presence of this monument has established, or has tended to establish, or will establish religion,⁴ I concur in the result.

1 . Cf. Milton, Paradise Lost, Book II, ll. 915-16.

2 . See Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398, 113 S.Ct. 2141, 2149, 124 L.Ed.2d 352 (1993) (Scalia, J., concurring) (“Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again .... ”).

3 . See Newdow v. U.S. Congress, 328 F.3d 466, 490-91 (9th Cir.2003) (Fernandez, J., concurring and dissenting), rev’d, Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004).

4 . See Newdow, 328 F.3d at 491-93 (Fernandez, J., concurring and dissenting).