Town of Greece: Written Constitution vs Common Law Judge-Made Constitution

Some lawyers believe that the meaning of text of the Written Constitution is irrelevant, and that the only thing that matters is the ideological and moral preferences of the contemporary Supreme Court sitting as an ongoing constitutional convention proposing and ratifying constitutional doctrine by a vote of 5 to 4.

But what do you do when the Supreme Court decides a case that says text and history govern?

Here is what the Court says in Town of Greece to make clear that not only is Marsh still good law, it should not be viewed as some kind of a "legislative prayer" exception to the Establishment Clause:

"Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change." p.1729

This is an original meaning originalism approach to the Establishment Clause that looks to how the text was understood by the Framing generation. How does that statement apply to our passive display cases involving Nativity Displays and War Memorial crosses?

But what about the offended observers, people who refuse to avert their glance but rather demand that the display be cleansed from the public square to eliminate the source of their offended eyes?

But again, consider the fact that wars were fought in Europe over differences among different Christian denominations and these same objections were made in the First Congress:

Respondent argues that we should not rely too heavily on "the advice of the Founding Fathers" because the messages of history often tend to be ambiguous and not relevant to a society far more heterogeneous than that of the Framers. Respondent also points out that John Jay and John Rutledge opposed the motion to begin the first session of the Continental Congress with prayer.
We do not agree that evidence of opposition to a measure weakens the force of the historical argument; indeed it infuses it with power by demonstrating that the subject was considered carefully and the action not taken thoughtlessly, by force of long tradition and without regard to the problems posed by a pluralistic society. Jay and Rutledge specifically grounded their objection on the fact that the delegates to the Congress "were so divided in religious sentiments . . . that [they] could not join in the same act of worship." Their objection was met by Samuel Adams, who stated that "he was no bigot, and could hear a prayer from a gentleman of piety and virtue, who was at the same time a friend to his country."  Marsh v. Chambers at p. 2

How does this apply to the offended observer who complains he is offended by a Nativity Display? What would Sam Adams say to the offended observer?

Observe that in American Legion the majority cited Town of Greece for support when it abandoned Lemon and the Endorsement test in favor of a presumption of constitutionality for practices that are based upon a longstanding history and tradition recognizing "the important role that religion plays in the lives of many Americans." (majority opinion at p. 28 of advance sheet).

It is difficult to think of a typical passive religious display, such as a war memorial, a nativity scene, or a Ten Commandments display, that would be struck down under the Establishment Clause today. One that disparages other religions or threatens damnation would not be such a typical display and would doubtlessly be struck down.