Reality Check 101

It is rare that the Supreme Court of the United States (SCOTUS) hands down a 7 to 2 decision by arriving at it through five varying opinions.  But that is what happened on June 20^th when the court decided that a cross-shaped World War I memorial on public land was NOT a constitutional violation in the case of American Legion v. American Humanist Association (here cited as “Bladensburg”).

The monument stands in the middle of a traffic circle owned by the Maryland-National Capital Park and Planning Commission (NCPPC) in Bladensburg, Maryland, not far from the Washington D.C. area.  The 40-foot-high monument was constructed over six years between 1919 and 1925 on private land in order to remember 49 fallen soldiers.  It was transferred to public land in 1961.  In 2014, some Prince George County residents sued the American Legion through the American Humanist Association.  Because the monument is owned and maintained through a county agency.  The goal was to have it removed as a violation of the “separation of church and state”.

At play in American Legion was the 1^st phrase of the 1^st clause of the 1^st amendment to the U.S. Constitution.  It reads simply; “Congress shall make no law respecting the establishment of religion”.  Over the last several decades, that phrase, which was apparently self-evident at our nation’s founding, has become the playground of progressives and a line in the sand for conservatives.  Nothing better illustrates this than the criticisms against the SCOTUS decision in comparison to the Court’s justifications for it.

The disappointment on the Left seems to center on the fact that the Bladensburg decision marginalized most of what has become known as the “Lemon Test” (Lemon v. Kurtzman I, 1971).  In simple terms, the test boils down to whether a situation is secular enough, neutral enough, and does not cause government entanglement. 

Jay Michaelson, writing for the Daily Beast (“Supreme Court’s Liberals Join Conservatives to Say 40-ft Cross is ‘Secular’”), admits in a moment of clarity that “religious displays have no real effects on anyone”.  But after that bit of honesty, he proceeds to fall back on Lemon-style arguments.  He complains that the “Christian right” has used religious memorials as “centerpiece[s] of their decades-long battle against the so-called ‘war on religion’”.  In reference to the Mount Soledad Cross in the San Francisco area, he opines that such religious displays tell non-Christians that “they are living in someone else’s land”.  Michaelson is not only assuming that, according to secular standards, there is not really a campaign from the Left against public expression of religion, but also that public displays must always be mostly, if not completely, secular – the first Lemon test.  If that were not case, there would be no reason for him to be concerned.

In the opinion of Tyler Broker (“The Blandensburg Cross is a National Disgrace”), the real issue is one of “religious bigotry” through taxation – the Lemon tests of government neutrality and entanglement.  What offends Broker is not just the display of the cross, but the ownership and maintenance of it by Maryland’s NCPPC.  In his view, since the resources come from tax revenues, Maryland is using “forced extractions by government to convey beliefs” which is illegal “by any fair reading of the First Amendment”.  Apparently, for Broker, any display which indicates “either political or religious” beliefs is tantamount to forced proselytization.  Indeed, if messages, carved in stone or seasonally displayed in public parks and facilities, actually forced citizens to change behaviors or convictions, Broker is right on.

The responsibility of the Supreme Court to determine exactly what “establishment” means is not accomplished by interpreting the fluctuations of history or cultural mutations, but under constitutional law.  With that in mind, the declarations of the 7 to 2 decision are telling.

Writing for the majority, Justice Samuel Alito offered important insights into the Court’s reasoning.  Albert Mohler offered a good summary in his June 24^th “briefing” (“The Peace Cross Still Stands: An Analysis of the Supreme Court’s Big Decision for Religious Liberty”).  He noted that when all is said and done, for SCOTUS, establishment of religion by government is a matter of intent, purpose, symbolism and any condition of governmental hostility.  For any pre-existing displays, intention is historical and cannot be supposed by contemporary standards; even so, in this case, there was no indication of discriminatory intent.  Symbols are just that and, over time, take on multiple meanings and purposes as is blatantly evident throughout society.  Finally, if there is anything that would exhibit government hostility toward religion, it would be the forcible expungement of religious monuments and other displays that have been accepted and become part of the community’s fabric over time.  His statement is poignant: “A government that roams the land tearing down monuments with religious symbols and scrubbing away any reference to the divine will strike many as aggressively hostile to religion”.

Justice Neil Gorsuch added one other important observation.  In a multi-faceted nation, someone somewhere will always be offended by something.  Being offended by something is not enough for an establishment challenge.

The good news is that for the sake of true religious liberty, the Blandensburg decision is not isolated anymore.  In 2014, the Court ruled that “ceremonial prayer”: included in government activities is permissible (Town of Greece v. Galloway).  In 2017, SCOTUS determined that a Christian school could not be blocked from state-funded programs (Trinity Lutheran Church of Columbia, Inc. v. Comer). 

These long-overdue shifts toward religious freedoms have been hard fought. The most egregious aspect of these cases, however, is that people of faith have so lacked in the courage to defy the left on the state and local levels.  Praise God for the American Legion.