Conservatives seem to like the result in the Peace Cross case handed down by the Supreme Court this past week but the case doesn’t really say very much about what will happen in future cases involving memorials and displays.
The Court decided 7-2 that a 40-foot World War I memorial in Maryland in the shape of a cross is not an unconstitutional ‘establishment of religion’ in violation of the First Amendment. The memorial can stay on government land and be maintained with taxpayer money, under the Supreme Court’s decision. [American Legion v. American Humanist Association]
The result is clear, but the Court’s reasoning is a complete mess. The seven Justices in the majority split five different ways. Justices Alito, Roberts, Breyer, and Kavanaugh suggested the 3-part Lemon test from the 1970s [Lemon v. Kurtzman] does not apply to cases involving “longstanding monuments, symbols, and practices.” The Peace Cross is 95 years old. Writing for this group, Justice Alito, perhaps taking a cue from former Justice Anthony Kennedy in the Masterpiece Cakeshop case last year, suggested that “A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion.”
Justices Breyer and Kagan wrote in a separate opinion in the Peace Cross case “there is no single formula for resolving Establishment Clause challenges.” Justice Kavanaugh, writing by himself, suggested a new 4-part test to replace the old Lemon test. Justice Kagan, in another opinion, wrote in favor of two parts of the Lemon test, but said the other part was “problematic”. Justice Gorsuch wrote that the Lemon test is indefensible and that merely being offended by a memorial or display should not be enough to get someone in the courthouse door to challenge it. Justice Thomas wrote he would overrule Lemon outright because it “has no basis in the original meaning of the Constitution.”
So there you have it, whatever it is. The results apply to exactly one case and no new guidance was given for future cases.
The root of the problem, as I have suggested before, is that the Supreme Court in effect took the Establishment Clause out of the Constitution and replaced it with its own made-up ‘endorsement clause’. Under Supreme Court precedent, government can violate the Establishment Clause just by favoring one religion over another, appearing to approve or disapprove of a particular religion, making members of other religions feel unwelcome, or otherwise ‘endorsing’ a religion. Going this route doomed the Court to having to confront an endless stream of cases about memorials and displays, each of which has to be decided on fine shadings of fact with no real guidance for the next case.
This is not at all what James Madison had in mind when contemplating religious liberty. He saw real religious persecution in his own colony of Virginia, with the government setting up an official state religion and throwing preachers with contrary views in jail. The Establishment Clause, in Madison’s view, was meant to protect “individual liberty of conscience”. Nativity scenes and war memorials in the shape of a cross would not have troubled Madison because they don’t even come close to establishing an official state religion like the one in colonial Virginia.
Justices Thomas and Gorsuch wrote in their concurrences in the Peace Cross case that the Supreme Court should return to the original public meaning of the Establishment Clause, which, as Madison said, protects liberty of conscience and prevents official state religions that compel belief and support.
It takes a long time for Supreme Court jurisprudence to change. It’s plausible that the Thomas-Gorsuch school of thought will eventually carry the day, if only because the Supreme Court has made such a complete mess of things with its ‘endorsement’ approach and does not seem to be able to extricate itself from its own intricacies any other way. Three generations of imbecile decisions is enough. It’s time to throw in the towel and restore the Establishment Clause to its original meaning.
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