Trunk

dissenting from the denial of rehearing en banc,

Stein wrote this sentiment to express the flower’s indescribable, unchangeable essence. The panel appears to have transmogrified Stein’s ode to a rose into a new rule of law — “a cross is a cross is a cross.” Aas, that is neither good poetry nor valid law. Unlike roses, religious symbols can have multiple meanings, just as the Ten Commandments monument did in Van Or-den:

Van Orden v. Perry, 545 U.S. 677, 690 , 125 S.Ct. 2854 , 162 L.Ed.2d 607 (2005); see also McCreary County v. ACLU, 545 U.S. 844, 867-68 , 125 S.Ct. 2722 , 162 L.Ed.2d 729 (2005).

Van Orden tells us that the proper test to determine whether the government has violated the Establishment Clause by erecting or maintaining a religious symbol on public grounds depends on: (1) the government’s use of the religious symbol; (2) the context in which that symbol appears; and (3) the history of the symbol while under government control, including how long it has stood unchallenged. 1 See McCreary County, 545 U.S. at 867-68 , 125 S.Ct. 2722 (2005); Van Orden, 545 U.S. at 681 , 125 S.Ct. 2854 .

As to use, it is undisputed here that from the moment the federal government took…

Order; Dissent by Judge BEA.

ORDER

A majority of the panel has voted to deny the petitions for rehearing. A judge of the court called for a vote on the petitions for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing. Fed. RApp. P. 35(f). The petitions for rehearing and for rehearing en banc are DENIED.

Before: HARRY PREGERSON, M. MARGARET McKEOWN, and RICHARD A. PAEZ, Circuit Judges.

Order; Dissent by Judge BEA.

A majority of the panel has voted to deny the petitions for rehearing. A judge of the court called for a vote on the petitions for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing. Fed. R.App. P. 35(f). The petitions for rehearing and for rehearing en banc are DENIED.

BEA, Circuit Judge, dissenting from the denial of rehearing en banc, joined by O'SCANNLAIN, TALLMAN, CALLAHAN, and IKUTA, Circuit Judges:

Stein wrote this sentiment to express the flower's indescribable, unchangeable essence. The panel appears to have transmogrified Stein's ode to a rose into a new rule of law—"a cross is a cross is a cross." Alas, that is neither good poetry nor valid law. Unlike roses, religious symbols can have multiple meanings, just as the Ten Commandments monument did in Van Orden:

Van Orden v. Perry, 545 U.S. 677, 690 , 125 S.Ct. 2854 , 162 L.Ed.2d 607 (2005); see also McCreary County v. ACLU, 545 U.S. 844, 867-68 , 125 S.Ct. 2722 , 162 L.Ed.2d 729 (2005).

Van Orden tells us that the proper test to…