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Judiciary

SCOTUS Rules Against Left's War on Peace Cross

It was a big win for religious liberty, though the separate opinions leave too much wiggle room.

Nate Jackson · Jun. 21, 2019

Religious liberty won another big victory at the Supreme Court on Thursday, though we wish it had been even bigger and clearer. In American Legion v. American Humanist Association, seven of the justices agreed that the 40-foot cross erected in 1925 by the American Legion to honor 49 Marylanders killed during World War I does not represent an “establishment” of religion. Most Americans might think that’s a no-brainer, but the atheists who sued actually prevailed in the Fourth Circuit Court, and Justices Sonia Sotomayor and Ruth Bader Ginsburg both agreed with the plaintiffs.

We say the victory for religious liberty could have been bigger because the seven justices in the majority split five ways in coming to their ruling. That means its implications for future cases in lower courts is diluted and unclear.

Justice Stephen Breyer joined in the end result, but he (along with Elena Kagan) argued that the Court’s opinion would not necessarily “permit any newly constructed religious memorial on public land” because “there is no single formula for resolving Establishment Clause challenges.”

However, as Justice Neil Gorsuch wrote in his concurring opinion, “What matters when it comes to assessing a monument, symbol, or practice isn’t its age but its compliance with ageless principles. The Constitution’s meaning is fixed, not some good-for-this-day-only coupon, and a practice consistent with our nation’s traditions is just as permissible whether undertaken today or 94 years ago.”

Gorsuch also argued that taking offense is not sufficient for standing to sue in such cases because there has been no “concrete and particularized injury.” This, he explained, “will bring with it the welcome side effect of rescuing the federal judiciary from the sordid business of having to pass aesthetic judgment, one by one, on every public display in this country for its perceived capacity to give offense. In a large and diverse country, offense can be easily found.”

Justice Clarence Thomas went the furthest, arguing that the three-part test for determining establishment of religion set in the 1971 Lemon v. Kurtzman ruling should be thrown out entirely. Thomas rightly said it “has no basis in the original meaning of the Constitution.”

Justice Samuel Alito, who authored the prevailing majority opinion, summed up the matter: “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.” Unfortunately, that last phrase — “aggressively hostile to religion” — precisely defines today’s Left, and that’s why a clearer ruling from the Supreme Court would have been welcome.

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