June 20, 2019

"ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B , II–C , III, and IV, in which ROBERTS, C. J., and BREYER, KAGAN, and KAVANAUGH, JJ., joined, and an opinion with respect to Parts II–A and II–D, in which ROBERTS, C. J., and BREYER and KAVANAUGH, JJ., joined. BREYER, J., filed a concurring opinion, in which KAGAN, J., joined. KAVANAUGH, J., filed a concurring opinion. KAGAN, J., filed an opinion concurring in part. THOMAS, J., filed an opinion concurring in the judgment. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined."

That's the line up in American Legion v. American Humanist Association, the case about the 32-foot cross on public land that honors soldiers who died in WWI. The American Legion won — the case is reversed and remanded. It will take me a little time to find my way through those opinions. The precedents in this area of the Establishment Clause have been very confused, and (as someone who taught those cases for many years) I want to know how the Court puzzled through them this time.

I hope to have something more soon or eventually. It's interesting that only Sotomayor and Ginsburg dissent. Breyer was the key vote in the 10 Commandments cases 14 years ago, so what he has to say is important. Maybe I'll start there.

ADDED: Breyer's concurring opinion is short, and it is joined only by Justice Kagan. The vote was 7-2, so there's a majority without including Breyer and Kagan. I'm reading this opinion first simply because Breyer was the decisive vote in the 2 10 Commandments cases in 2005, where he voted against the display in one and for it in the other. I blogged that here, with the conclusion:
So multifactored, contextualized judgment continues to be the rule about government displays with some religious content, and there will be borderline cases where the outcome is uncertain and reasonable judges will disagree.

Maybe the best advice is for the strict separationists to choose their battles well. And certainly, one thing is clear: leave the old monuments and courthouse friezes alone.
Now, onto Justice Breyer's new effort (which relies heavily on his concurring opinion in the 10 Commandments case (Van Orden)):
I have long maintained that there is no single formula for resolving Establishment Clause challenges. See Van Orden v. Perry, 545 U. S. 677, 698 (2005) (opinion concurring in judgment). The Court must instead consider each case in light of the basic purposes that the Religion Clauses were meant to serve: assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its“separate spher[e].”
I agree with the Court that allowing the State of Maryland to display and maintain the Peace Cross poses no threat to those ends. The Court’s opinion eloquently explains why that is so: The Latin cross is uniquely associated with the fallen soldiers of World War I; the organizers of the Peace Cross acted with the undeniably secular motive of commemorating local soldiers; no evidence suggests that they sought to disparage or exclude any religious group; the secular values inscribed on the Cross and its place among other memorials strengthen its message of patriotism and commemoration; and, finally, the Cross has stood on the same land for 94 years, generating no controversy in the community until this lawsuit was filed. Nothing in the record suggests that the lack of public outcry “was due to a climate of intimidation.” Van Orden, 545 U. S., at 702 (BREYER, J., concurring in judgment). In light of all these circumstances, the Peace Cross cannot reasonably be understood as “a government effort to favor a particular religious sect” or to “promote religion over nonreligion.” Ibid. And, as the Court explains, ordering its removal or alteration at this late date would signal “a hostility toward religion that has no place in our Establishment Clause traditions.” Id., at 704.

The case would be different, in my view, if there were evidence that the organizers had “deliberately disrespected” members of minority faiths or if the Cross had been erected only recently, rather than in the aftermath of World War I. See ante, at 29; see also Van Orden, 545 U. S., at 703 (opinion of BREYER, J.) (explaining that, in light of the greater religious diversity today, “a more contemporary state effort” to put up a religious display is “likely to prove divisive in a way that [a] longstanding, pre-existing monument [would] not”). But those are not the circumstances presented to us here, and I see no rea- son to order this cross torn down simply because other crosses would raise constitutional concerns.

Nor do I understand the Court’s opinion today to adopt a “history and tradition test” that would permit any newly constructed religious memorial on public land. See post, at 1, 4 (KAVANAUGH, J., concurring); cf. post, at 8−9 (GORSUCH, J., concurring in judgment). The Court appropriately “looks to history for guidance,” ante, at 25 (plurality opinion), but it upholds the constitutionality of the Peace Cross only after considering its particular historical context and its long-held place in the community, see ante, at 28−30 (majority opinion). A newer memorial, erected under different circumstances, would not necessarily be permissible under this approach. Cf. ante, at 21.

As I have previously explained, “where the Establishment Clause is at issue,” the Court must “‘distinguish between real threat and mere shadow.’ ” Van Orden, 545 U. S., at 704 (opinion concurring in judgment) (quoting School Dist. of Abington Township v. Schempp, 374 U. S. 203, 308 (1963) (Goldberg, J., concurring)). In light of all the circumstances here, I agree with the Court that the Peace Cross poses no real threat to the values that the Establishment Clause serves.
Next, I want to look at how the 2 new Justices handled the old question.

MORE: Gorsuch writes — with Thomas joining — to say the decision should be based on standing. Article III requires federal courts to hear only cases that where the plaintiff has a "concrete and particularized" injury, and here, the plaintiff is merely an "offended observer."
In a large and diverse country, offense can be easily found. Really, most every governmental action probably offends somebody. No doubt, too, that offense can be sincere, sometimes well taken, even wise. But recourse for disagreement and offense does not lie in federal litigation. Instead, in a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an “offended viewer” may “avert his eyes,” Erznoznik v. Jacksonville, 422 U. S. 205, 212 (1975), or pursue a political solution.
ALSO: The Alito opinion, which is mostly a majority opinion — read the post title for the gory details — concludes:
The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent. For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark. For many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment. For all these reasons, the Cross does not offend the Constitution.
AND: Justice Kavanaugh writes alone and separately to say the Lemon test deserved worse treatment than the majority gives it:
As this case again demonstrates, this Court no longer applies the old test articulated in Lemon v. Kurtzman, 403 U. S. 602 (1971)... Today, the Court declines to apply Lemon in a case in the religious symbols and religious speech category, just as the Court declined to apply Lemon in Town of Greece v. Galloway, Van Orden v. Perry, and Marsh v. Chambers. The Court’s decision in this case again makes clear that the Lemon test does not apply to Establishment Clause cases in that category. And the Court’s decisions over the span of several decades demonstrate that the Lemon test is not good law and does not apply to Establishment Clause cases in any of the five categories.
Justice Kagan, on the other hand, writes alone and separately to take a friendlier view toward the Lemon test:
Although I agree that rigid application of the Lemon test does not solve every Establishment Clause problem, I think that test’s focus on purposes and effects is crucial in evaluating government action in this sphere—as this very suit shows.
Thomas writes alone and separately to say something he's said before: The Establishment Clause does not limit state and local government but is a restriction solely on the federal government. And, even if it did, it should only be interpreted to prohibit government coercion of religion. And he wants to do away with Lemon entirely:
As to the long-discredited test set forth in Lemon v. Kurtzman, 403 U. S. 602, 612–613 (1971), and reiterated in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 592–594 (1989), the plurality rightly rejects its relevance to claims, like this one, involving “religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.” Ante, at 15–16, and n. 16. I agree with that aspect of its opinion. I would take the logical next step and overrule the Lemon test in all contexts. First, that test has no basis in the original meaning of the Constitution. Second, “since its inception,” it has “been manipulated to fit whatever result the Court aimed to achieve.” McCreary County v. American Civil Liberties Union of Ky., 545 U.S. 844, 900 (2005) (Scalia, J., dissenting); see Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 398–399 (1993) (Scalia, J., concurring in judgment). Third, it continues to cause enormous confusion in the States and the lower courts. See generally Utah Highway Patrol Assn. v. American Atheists, Inc., 565 U. S. 994 (2011) (THOMAS, J., dissenting from denial of certiorari). In recent decades, the Court has tellingly refused to apply Lemon in the very cases where it purports to be most useful. See Utah Highway, supra, at 997–998 (collecting cases); ante, at 13 (plurality opinion) (same). The obvious explanation is that Lemon does not provide a sound basis for judging Establishment Clause claims.
PLUS: I wonder if any ordinary citizens spend any time at all wondering just how dead Lemon is or should be. I'm thinking no. To me, Lemon is just an outline form to be used in constructing lower court opinions.

AND NOW: I'm looking at the Ginsburg dissent (joined by Sotomayor). It begins:
An immense Latin cross stands on a traffic island at the center of a busy three-way intersection in Bladensburg, Maryland.
We're advised in a footnote to look at a photograph it:
That goes a long way toward making the argument.

Ginsburg goes on to stress just how religious and specific to Christianity the cross is:
“For nearly two millennia,” the Latin cross has been the “defining symbol” of Christianity, R. Jensen, The Cross: History, Art, and Controversy ix (2017), evoking the foun- dational claims of that faith. Christianity teaches that Jesus Christ was “a divine Savior” who “illuminate[d] a path toward salvation and redemption.” Lynch, 465U.S., at 708 (Brennan, J., dissenting). Central to the religion are the beliefs that “the son of God,” Jesus Christ, “died on the cross,” that “he rose from the dead,” and that “his death and resurrection offer the possibility of eternal life.” Brief for Amici Christian and Jewish Organizations 7.6 “From its earliest times,” Christianity was known as “religio crucis—the religion of the cross.” R. Viladesau, The Beauty of the Cross: The Passion of Christ in Theology and the Arts, From the Catacombs to the Eve of the Renaissance 7 (2006). Christians wear crosses, not as an ecumenical symbol, but to proclaim their adherence to Christianity.
It just doesn't belong on that traffic circle, she writes, but that doesn't mean it needs to be destroyed. It could be moved to private land. Ginsburg notes that the majority says the lower court "entertained" the idea of "amputating the arms of the cross" to turn it into "a non-religious slab or obelisk," but really, the court only "entertained" it in the sense of observing that it was one of the plaintiff's ideas. Nevertheless, the thought of doing something so disrespectful and destructive will point many of us back to Justice Breyer's makeshift solution: Old things carved in stone should be left alone. (That's my paraphrase, written in 2005, when the Court decided Van Orden.)

74 comments:

Mike Sylwester said...

What's Blogger's character limit for article titles?

Mike Sylwester said...

Admit it. This title is just click-bait.

Mike Sylwester said...

.... and you won't believe what happened next!

Annie C. said...

allahpundit has an article about it here:

https://hotair.com/archives/2019/06/20/7-2-scotus-rules-peace-cross-can-remain-public-land/

Sebastian said...

"The precedents in this area of the Establishment Clause have been very confused"

No kidding. That's what you get when you start fabricating stuff. It's a puzzling puzzle.

"I want to know how the Court puzzled through them this time."

Con law: puzzling puzzles.

"so what he has to say is important"

After all, he is one of our overlords. Con law is just a prophecy of what he will do in fact--though even that is too much to ask in these US of A.

Meanwhile, the Constitution doesn't change. It just says Congress shall make no law etc. By the way, did Congress make a law? Details, I know.

rhhardin said...

Interest in SC cases is pretty much limited to what did they fuck up this time.

gilbar said...

Our Beloved Professor Althouse said... interesting that only Sotomayor and Ginsburg dissent

I assume that she means, it's interesting that ONLY the wise Latina and the reanimated corpse of RBG dissented. Surely no one is surprised that They Dissented?
I haven't read their dissent yet; but i assume that their problem wasn't with the Establishment of a religion, but that it was the establishment of a religion besides their own (the religion of Stateism)?

Original Mike said...

Is "it wasn't hurting anyone" a precedent? Should be.

Mike Sylwester said...

Was any justice in a coma when this ruling was made?

If so, how did that justice rule?

gspencer said...

“The Religion Clauses of the Constitution aim to foster a society in which people of all beliefs can live together harmoniously, and the presence of the Bladensburg Cross on the land where it has stood for so many years is fully consistent with that aim.”

What about the presence of a crescent moon? Or the amplification of the call to prayer? Name any society where Islam was dominant where all beliefs lived together harmoniously.

n.n said...

Separation of Church, of Mosque, of Synagogue, of Temple, of Chamber, of Den, etc. and State.

rhhardin said...

Defeat for atheists, says Drudge.

Browndog said...

The Court is getting criticism, and rightfully so-

For not taking on the Lemon Test, and abolishing it once and for all.

Since they are too cowardly, these exact cases will be in front of the court again. Only the names will change.

iowan2 said...

Will be interested in the Con Law Prof sees in the decision.
From a layman, the Establishment clause was just that. Prohibition to establishing a national religion. ei, The Church of England.

All was good until we get a SCOTUS opinion based on a constituency letter from Jefferson. I saw a political response to a letter from voters, not a constitutional determination.
Separation of Church and State. While not a Constitutional foundation, and not foundational to the works of Jefferson, became a foundational tenet of SCOTUS. Anything of the most tangential connection of govt, to faith, Coach leading a team prayer in a public school, became a violation of the Constitution. The reverse, Elected govt bodies restricting free exercise of faith, was OK, (forcing an employer to pay for abortions).

BarrySanders20 said...

Waiting for a wokester to tear it down.

wholelottasplainin' said...

Anyone been to Arlington Cemetery or the one in Normandy? Crosses all over the place, with a few Stars of David.

On government property!!!!

The horror! THE HORROR!!!

BleachBit-and-Hammers said...

A lot of people died, attempting to save other people from dying. Dying for someone else is an amazing deal. It should be honored.

Screw the left.

Mike Sylwester said...

I'm anticipating your next article where you criticize a long, convoluted sentence.

iowan2 said...
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Lucid-Ideas said...

There's a large and growing group of people permanently discontented - not at religious encroachment on public space - at religion's existence in the first place, and that it has any space of any kind to itself at all.

At the end of the day that's the real contention. Not separation between religion and public life, but no separation between their 'secularism' and public life.

MadisonMan said...

Why do they feel the need to put C.J., or JJ or J after the names. It's not like people don't know who is who.

iowan2 said...

An explanation of the 14th amendment incorporation doctrine would be nice. Old: Congress shall make to law. Shouldn't we read the New: State and Federal congress, shall make no law?

Incorporation seems anti federalist,conflicting with the overarching principle of the Constitution. Directly overriding power of sovereign States.

SDaly said...

The Court must instead consider each case in light of the basic purposes that the Religion Clauses were meant to serve: assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its“separate spher[e].”

So Breyer's concurring opinion opens with a series of lies?

Browndog said...

"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."

Yes, but did you rule it was,in fact, hostility towards religion?

No.

Like in the Colorado baker case, you ruled as long as you don't show blatantly obvious animus towards religion when you ban religious expression, have at it.

Earnest Prole said...

Breyer concluded, "I know it when I see it."

iowan2 said...

The Constitution states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

SCOTUS interprets exercising their will
The Court must instead consider each case in light of the basic purposes that the Religion Clauses were meant to serve: assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its“separate spher[e].”


BarrySanders20 said...

"Incorporation seems anti federalist,conflicting with the overarching principle of the Constitution. Directly overriding power of sovereign States"

Not really. At least 2/3 of the states had to approve the 14th amendment to the Constitution, so any ceding of power from state to federal was done voluntarily by those 2/3. The privileges or immunities clause in the 14th ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States....") closely tracks the "privileges and immunities" clause in the original Constitution, but very clearly was a post-war expansion of the concept to prevent states from infringing on federal rights - such as those in the First Amendment. So it was all done properly with consent of the states themselves.

BleachBit-and-Hammers said...

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

Bader doesn't compute.

iowan2 said...

Not really. At least 2/3 of the states had to approve the 14th amendment

Valid point. That still does not get the 1st amendment away from the words."congress shall make no law"
The incorporation doctrine was of no importance until FDR.

Steve M. Galbraith said...

Isn't this a typical Establishment clause ruling? The Justices split here and concur in part there; ten part test here and a seven part test there. It's mind numbing trying to figure out what the Court thinks on the question.

Otto said...


Don't fret Ann this is America. Bike down to your favorite Cafe, drink a latte and take scenic pictures of nature this Sunday morning and be "cleansed". We await for the classic atheist Sunday post.
Alas " grace abounds from age to age".

Tommy Duncan said...

"The Latin cross is uniquely associated with the fallen soldiers of World War I; the organizers of the Peace Cross acted with the undeniably secular motive of commemorating local soldiers; no evidence suggests that they sought to disparage or exclude any religious group; the secular values inscribed on the Cross and its place among other memorials strengthen its message of patriotism and commemoration; and, finally, the Cross has stood on the same land for 94 years, generating no controversy in the community until this lawsuit was filed.'

I think there is a message in this for the City of Madison and the removal of the Civil War era memorial plaque at Camp Randall.

bagoh20 said...

I wish those who hate public religious symbols would just ask themselves: "does this really hurt me or anyone else enough to forcibly rob those who do value it of that simple concession from me, even if I am sometimes technically correct?" Would it kill you to let those who sacrificed so much for your liberty have that simple respect given? Is it worth all the angst it will cause with my fellow citizens to fight it?

The purpose for the display is pretty important and so the answer to the reverse of that question is "yes, it absolutley is worth it to honor those men this way. It is worth the fight, as it was for those who it honors.

BarrySanders20 said...

Ratification of a constitutional amendment requires 3/4 of states after 2/3 of both houses of Congress, so I fail my citizenship test above. Deport me now. Somewhere with moderate temperatures, near oceans and mountains, with a good wine region. Maybe somewhere in Chile.

SDaly said...
This comment has been removed by the author.
SDaly said...

I wouldn't say that 3/4 of the states voluntarily agreed to the 14th Amendment. The Southern States were coerced into signing it. New Jersey and Ohio revoked their ratfications.

Paul said...

"It's interesting that only Sotomayor and Ginsburg dissent."

Time for Ginsburg to retire....

Yancey Ward said...

The history of the 14th Amendment's ratification is one of those areas almost no Americans are familiar with. As SDaly has already alluded to, the Confederate states refused to ratify the amendment (with the exception of Tennessee). This led to Congress passing the Reconstruction Acts that set up military rule of the recalcitrant states, and mandated that they could not be readmitted to the Union until they ratified the amendment as one of the conditions (there were others).

It was basically, "ratify it or else." It kind of devalues the meaning of voluntary ratification since the states couldn't leave the Union, either, as proven by the war.

Browndog said...

"The Latin cross is uniquely associated with the fallen soldiers of World War I; the organizers of the Peace Cross acted with the undeniably secular motive of commemorating local soldiers; no evidence suggests that they sought to disparage or exclude any religious group; the secular values inscribed on the Cross and its place among other memorials strengthen its message of patriotism and commemoration; and, finally, the Cross has stood on the same land for 94 years, generating no controversy in the community until this lawsuit was filed.'

This one cross can stay because it's not really a cross, just kinda looks like one. Crosses are a religious symbol symbolizing the crucifixion of Christ.

This one is secular. And really old. If you have a really old non-secular cross on public land, we might let you keep it. It depends.

-SC

Richard Dolan said...

Alito's opinion had a bit of the spirit of Justice Kennedy to it, with a heavy emphasis on the facts and a resistance to adopting a clear rule. Lemon is a bit deader than it was before this decision, but it's still not quite dead yet. Alito's opinion, with its focus on the long-standing nature of this memorial and its unique historical significance in light of the symbols associated with WWI, leaves an opening for that ghoul to pop out and shuffle around in less well developed historical settings, and so continues as the living dead despite the many attempts to kill it off for good.

traditionalguy said...

We are winning our culture wars again. All it took was a rational SCOTUS majority assuming the proper neutral position. Thank you DJT.

The Hate America First goal that had been mostly winning at the SCOTUS for 80 years has been erased.

To say that the Establishment Clause prohibits a Cross Memorial to war dead works exactly the same as saying that it prohibits awards of Congressional Medals of Honor to the fighting men who made the USA what it is today a million times more than a rotten old SC Justice practicing ideological war against the American people has ever done.

Jim Gust said...
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Jim Gust said...

Gorsuch has the better argument, IMHO.

Hammond X. Gritzkofe said...

S.Alito: "...and its removal or radical alteration at this date would be seen by many not as a neutral act but as the manifestation of ‘a hostility toward religion,’”

Yeah. Like a radical alteration of the word "marriage."

Otto said...

Hate is for survival but love is for living.

Birkel said...

How different will things be when Trump wins in 2020 and RBG gives up?

BUMBLE BEE said...

Another strike on the "Wise Latina" bullshit.

Jim at said...

Freedom of religion. Not from.

Ken B said...

Gorsuch has the right idea I think.

There cannot sensibly be a prohibition just on the shape unmoored from the purpose of the building. If I start a religion that uses as its symbol the shape of the capital dome, does the capital dome have to come down? this suggests to me the 7 got it right.

Milwaukie guy said...

The establishment clause, or non-establishment, was a stricture that applied to the federal government only. Around half the states had established religions at the time and they weren't struck down as unconstitutional. Later state legislatures disestablished their particular churches.

"Separation of church and state" comes from Jefferson's letter [1803?] to Danbury Baptist Church and is generally thought to be in the Constitution.

Sebastian said...

"I have long maintained that there is no single formula for resolving Establishment Clause challenges"

The better to follow his own whims. In these US of A, law is not even a prophecy of what the courts will do in fact.

Congress shall make no law, therefore a cross on a traffic island somewhere may/must not stay. Cuz logic.

HoodlumDoodlum said...

That goes a long way toward making the argument.

Does it? I guess the idea is that some forms of expression aren't appropriate in the public square/using public land or resources if the expression is too large and visible--those Christians need to keep their expression closeted or at any rate on their own private land.
Can you image now inappropriate it would be for a large, public, celebratory parade or other similar function devoted to expressing a particular view or belief to use public space, funds, and resources? That's downright unamerican and not something anyone would take pride in--such a thing simply wouldn't be tolerated. Keep your expressions small, quiet, and private.

Caligula said...

"Gorsuch writes — with Thomas joining — to say the decision should be based on standing."

So, perhaps Gorsuch is adding a new and not necessarily irrelevant perspective? In most civil actions courts set a pretty high bar for proving that one has standing, and perhaps being offended by something you don't have to look at should be insufficient?

Browndog said...

At least Gorsuch and Thomas stayed within 1st Amendment protections, which is what this case was supposed to be about.

The rest applied "war" and "time" to divorce the cross from it's religious meaning, thus allowing it to stand.

No win at all for religious freedom. May have caused for harm.

gilbar said...

Yancey said... It was basically, "ratify it or else." It kind of devalues the meaning of voluntary ratification since the states couldn't leave the Union, either, as proven by the war.
Yes, BUT! if they HADN'T (tried to have)left; they Could have refused to ratify.

and mandated that they could not be readmitted to the Union
not technically true; on account of because they'd Never LEFT the Union, they were still members, but in a state of rebellion; whose congressmen would not be seated until ratification; etc.

I'm picking nits, but i'm not; they'd never left the Union, so they couldn't reJoin the Union... It's Union forever. Ask my Great-Great-Grandfathers, they'd wouldn't have understood it either; but they'd have used artillery on you to help You understand it

My name goes here. said...

Yeah, what gilbar said.

YoungHegelian said...

For those who don't know the demographics of the DC area, the "Peace Cross" is located in Bladensburg, MD, which is in Prince Georges' County, immediately east of the District of Columbia. It is a local landmark for the residents.

For as long as I've been in the DC area, the Blandensburg area has been majority black. It now has its share of Latino immigrants (27% of the residents Spanish speaking), but it's still majority black. A bunch of out-of-town white atheists messing with the Peace Cross would have been seen by the residents as a racist assault on their community & history.

Of course, the feelings of the locals don't affect the constitutionality of the memorial one way or the other, but it needs to be said that the Cross wasn't in a community of white Southern Fundamentalist Yahoos who are so often vilified by the MSM. It was a landmark in a community of Black & Latino Christians.

Murph said...

But recourse for disagreement and offense does not lie in federal litigation.

I sure wish more people held that opinion.

Darrell said...

Is it over twenty-five years old?

It stays. Case dismissed.

The Godfather said...

I'm most interested in J. Thomas's view that the Establishment Clause doesn't apply to the States. Intuitively, that makes sense. The First Amendment says "Congress shall make no law" regarding an establshment of religion. With respect to most Bill of Rights provisions, it's plausible say that they are included within the 14th Amendment's "privileges or immunities of citizens of the United States", and/or"due process of law" provisions, but just on the basis of language it's hard to see how "Congress shall make no law" becomes "Maryland shall make no law regarding an establishment of religion". If that interpretation were adopted, States could go back to their old practices of establishing particular religions, but given the pluralism of our society it seems unlikely that would happen. Perhaps some States would establish the generic religion of "Christianity", but most, I think, would not exercise the power.

But cases like this one wouldn't bother the Federal Courts, so that would be a plus.

Fen said...

I wish those who hate public religious symbols would just ask themselves: "does this really hurt me or anyone else enough to forcibly rob those who do value it of that simple concession from me, even if I am sometimes technically correct?" Would it kill you to let those who sacrificed so much for your liberty have that simple respect given? Is it worth all the angst it will cause with my fellow citizens to fight it?

Not just the angst but the more dangerous radicalization. The problem with driving around and executing the wounded after you've won the culture wars is that there are always people like me, in the treeline, watching everything you do.

I used to be a gentle young man. Now I have a bucket list of names. That didn't happen in a vacuum.

Fernandistein said...

I wish those who hate public religious symbols

Who hates it?

would just ask themselves:

"How would you like for your tax money to be used in the upkeep of a Ganesh statue, or a Muslim or Satanist shine?"

"does this really hurt me or anyone else

They don't hurt anyone at all. They're just objects.

enough to forcibly rob

That seems to be what you're advocating, via taxation since the cross is on public land and maintained by public employees who are paid with tax money.

Would it kill you to let those who sacrificed so much for your liberty have that simple respect given?

Would it kill you to be a capitalist, and pay for your own monuments to your own private beliefs, rather than a socialist, wherein the government supports your private, emotion-based hobby?

TJM said...

the two left-wing loons, Mummy Ginsberg, and fake Catholic, the Unwise Latina, dissent. Real shocker

Fen said...

"How would you like for your tax money to be used in the upkeep of a Ganesh statue, or a Muslim or Satanist shine?"

Or funding SJW Colleges and Planned Parenthood?

Fen said...

Would it kill you to be a capitalist, and pay for your own monuments to your own private beliefs,

Did we also pay for your education? Try reading slower:

"The monument, erected in 1918 in Prince George’s County, Maryland, on land that is now public..."

Did you catch that?

Not that I mind, I work for the Other Guy. And I think Christians are stupid for turning the other cheek. You want to radicalize them into another Crusade - hey - I'm right there with ya.

vanderleun said...

I note the quote: "I used to be a gentle young man. Now I have a bucket list of names. That didn't happen in a vacuum."

I would make a variant of it: "I used to be a gentle young man. Now I have a bucket list of names. That didn't happen in a vacuum. And now I am an old man and life imprisonment just doesn't have the inhibitory power it had 50 years ago."

Fen said...

John Hinderaker over at Powerline has an interesting pov:

In other words: we won’t let these atheist killjoys tear down ancient monuments with crosses, but don’t try erecting any new ones. This approach is explicit in Justice Breyer’s concurring opinion:

The case would be different, in my view, if there were evidence that the organizers had “deliberately disrespected” members of minority faiths or if the Cross had been erected only recently, rather than in the aftermath of World War I.

A newer memorial, erected under different circumstances, would not necessarily be permissible under this approach.


Not the victory we thought it was.

(see what a poor troll I am, John? You ban me for criticizing Paul inserting his NeverTrumpism into everything, even *gasp* your flirt-fight about soccer, and yet I refuse to likewise censor you. No worries, I enjoy bathing you in your own hypocrisy. Smells like coconut... Looking forward to your opus when your advertisers deplatform you for ThoughtCrime, especially if it's for being too critical of NeverTrumpers. That would be delicious)

Fen said...

I would make a variant of it:

Yah but I have a watcher (waves to agent Garcia who had to cut her maternity leave short)

But yes, have fun with it. Make it your own however you like ;)


(Agent Garcia is fond of Macadamia Nut Cookies, just in case)

narciso said...

Yes, that's very weak tea, oolong maybe, but the lemon test (I might call it the invisible ink test) was some silly construct made to satisfy Douglas and co.

Bay Area Guy said...

Under a Trump administration, we're gonna build more crosses. Believe me. Big marble crosses. Tall crosses. The biggest crosses you ever saw. And we're gonna build them on government property. Big ass government property. Vast, expansive lands of large white, marble crosses. And we're gonna have atheists and Muslins pay for these big ass crosses.

And we're gonna build the biggest and best crosses you ever saw. And more crosses than any other administration in the history of the United States. Obama didn't build any crosses. He doesn't really like crosses. He's probably a Muslim. But that's not who we are. We like crosses, and we're gonna build them - bigger, taller, faster and better than ever!

Narr said...

YUGE crosses! Replace the stars in the flag with crosses! Tattoo crosses on all newborns!
Replace Christmas trees with Christmas crosses! Crosses! Crosses!

Narr
Everybody must get crossed!

rcocean said...

Basically, you had 2 justices standing up for the Constitution. 2 ACLU Leftists wanting to cleanse the public square of anything Christian (Ginsberg. Sotomeyer). 2 Leftists deciding they'd join in to appear "Reasonable". and the 3 remaining moderate-conservatives giving us the usual narrow, waffle burger.

Had Hillary -and not Trump - won, this would've been a 6-3 or 5-4 decision to get rid of the cross. With Breyer writing a "reasonable" majority position, and Ginsburg concurring that we need to destroy every cross everywhere.

Once again, Trump saved us.

Bunkypotatohead said...

I've driven through Bladensburg a couple times. They should leave the cross alone, and bulldoze the rest of the town.

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