It’s funny how a group of smart fourteen- and fifteen-year-olds using logic and cogent argument can one-up today’s U.S. Supreme Court.
It happened in an Advanced Placement U.S. Government class at Frederick Douglass High School in Upper Marlboro, Maryland. According to the Washington Post, teacher Tessa Guarracino assigned the Bladensburg Cross case as a moot-court exercise. Students were divided into groups of three: two were lawyers told to represent opposite sides of the matter, and the third was the deciding judge.
The case asked whether a massive forty-foot World War I memorial in the shape of a Latin cross that has been standing for ninety-four years could remain on a busy public traffic island in Bladensburg, Maryland, and be maintained at taxpayer expense, or whether it violated the Establishment Clause*.
But where seven members of the court saw a historic symbol that, despite its blatant Christian symbolism, was not constitutionally infirm, most of Guarracino’s students-cum-judges saw the obvious: a cross that communicated an unconstitutional endorsement of religion by the government.
High school students, albeit advanced ones, saw the cross as clearly out of sync with the principles of church-state separation. Unfortunately, that is not the direction the court is going, and, with the addition of Justices Neil Gorsuch and Brett Kavanaugh, we have only begun to see the court’s newfound enthusiasm for entangling religion with government. Sadly, two of the court’s liberal justices, Elena Kagan and Stephen Breyer, have indicated a willingness to join their more conservative colleagues in moving the law in that direction at least incrementally. Right now, only Justices Ruth Bader Ginsburg and Sonia Sotomayor are dependable sentries in the fight to keep religion and government in their separate spheres.
The upshot of American Legion v. American Humanist Association is that old religious symbols such as crosses or Ten Commandments monuments on public land or as part of government seals will be allowed to remain. How old? We don’t know—no doubt it will be a pressure point tested in the years ahead. The idea is that old monuments that have stood for a long time without controversy have the patina of constitutionality, because in addition to their overtly religious message, they have gained important historical and cultural significance.
But this history and tradition test misses the mark in profoundly important ways. It enshrines in perpetuity religious symbols that received government endorsement when erected. Rather than correct this as a historical wrong and bring government back to strict neutrality on questions of faith, the court has cemented in place the blithe way so many towns, cities, and states cleaved to the majority’s religion when questions of “who are we and what do we stand for?” arose.
It’s not a surprise that the answer typically was “We are Christian, and we stand for Christianity” in public pronouncements and displays. Yet the Supreme Court now says these monuments that even to the most casual observer communicate a religious hierarchy, declaring a preference for religion over nonreligion and one faith over another, can be maintained at public expense.
The court’s newest justices, Gorsuch and Kavanaugh, wrote separate concurrences in American Legion that to varying degrees are chilling to read. Gorsuch would make religious display cases almost impossible to bring by eliminating standing to sue based on being offended. Kavanaugh, while paying lip service to the interests of Jewish war veterans and others who feel excluded by a giant war memorial in the shape of a cross, comes out on the side of the cross.
“Abandoning offended observer standing will mean only a return to the usual demands of Article III, requiring a real controversy with real impact on real persons to make a federal case out of it,” Gorsuch wrote.
This would make any religious display anywhere on government property—think of a huge cross atop a city hall—impervious to suit. There is no “real impact” on real people according to Gorsuch. Making a nonbeliever feel like a second-class citizen would not be a cognizable harm in his view.
Kavanaugh, on the other hand, offered his own version of either naïveté or disingenuousness by suggesting there are other ways to remove religious monuments beyond asking the federal courts for help. You could get the governor or other state or local government officials to take them down, Kavanaugh helpfully explained. Or the state legislature could enact laws to allow these executive-branch officials to do so, he offered.
Yeah, because leaving the protection of religious minorities and atheists to elected officials has worked so well in the past.
Here’s a news flash: There would be no need for the courts to step in to protect church-state separation if politicians were willing to do so. It can take an act of career-sacrificing bravery for a politician to keep religion out of government. And these rare acts of courage can often be accomplished only if the political leader can point to the court’s Establishment Clause jurisprudence as a ready justification.
For instance, in 2016 Tennessee’s state legislature passed a bill to make the Bible the official state book. The Republican governor vetoed it, saying it would unconstitutionally endorse religion. To get a sense of how politically risky this was, the polls in Tennessee found two out of three Tennesseans supported the bill. Take away the courts as a threatened backstop, and there will be little standing in the way of this type of mischief and much more.
Tessa Guarracino’s students had it right. The Bladensburg Cross, sitting as it does on public land and maintained with tax dollars, violates the Constitution. The further afield we move from this principle, the more likely we are to be force-fed religion as a component of citizenship. And, as history bears out, that never turns out well for anyone.
*The Center for Inquiry (CFI) filed an amicus curiae brief in the Bladensburg case.