Why are Offended Observers ("grrrr") so Offended?

 Here is a thought I had this morning when thinking about how anyone could be deeply offended by a war memorial in the form of a cross. I mean who are these people that find something so harmless deeply offensive?

I think that the fault lies with the Supreme Court and decades of strict separationist jurisprudence. It caused people to believe they had a constitutional right to a naked public square, a strictly secular public domain. Nothing in the text or history of the Constitution would justify such a belief; but decades of Supreme Court Establishment Clause jurisprudence might.

So, picture someone driving past the Bladensburg Cross and feeling that somehow this display was unconstitutional, was a denial of his or her constitutional right to a completely secular public square. Now comes the growls and the offense--not so much at the memorial, but at the thought that the city was taking away constitutional rights.

Hopefully, this kind of taking offense will begin to disappear once the people get used to a more pluralistic public square, one that recognizes that both secular monuments and religious monuments are legitimate in a diverse nation such as America is. The public square should recognize all of us: 1000 points of both secular and religious light, not merely 500 points of secular light.

First Amendment Fall 2025 Second Week Coverage

-- Finish material from last week: Our class discussion will focus primarily on: the American Legion case p. 1801-1812 and on the Kennedy case and Stone v Graham.

--Legislative Prayers: Marsh v. Chambers (link); Town of Greece (casebook p. 1792-1801). When reading the Town of Greece opinions, do not overlook Justice Thomas' concurring opinion
(at p. 1797) in which he speaks of the EC as a "federalism provision." What does that mean?

 

Video Number 5  

 

American Legion Case: Various Tests

 Consider the two tests discussed by the Majority and the dissent in American Legion:

I. Justice Alito's Plurality Opinion: The Lemon test does not apply to the retention of "established, religiously expressive monuments, symbols, and practices." More Alito: "The passage of time gives rise to a strong presumption of constitutionality." p. 1804 & 1805. 

See also p. 1806 where Alito states that rather than looking to Lemon's "grand unified theory" of the Establishment Clause, "we have taken a more modest approach that focuses on the particular issue at hand and looks to history for guidance." 

II. Justice Ginsburg's dissent: She applies the Lemon endorsement test and asserts that "a display of a religious symbol" is "presumed to endorse its religious content." p. 1810

Now consider Justice Kavanaugh's concurring opinion on p. 1807-1808:

"[T]he Court today applies a history and tradition test in examining and upholding the constitutionality of the Bladensburg Cross....And the cases together lead to an overarching set of principles: If the challenged government practice is not coercive and if it (i) is rooted in  history and tradition; or (ii) treats religious people, organizations, speech, or activity equally   to  comparable  secular  people,  organizations,  speech,  or  activity;  or  (iii) represents  a   permissible  legislative  accommodation  or  exemption  from  a  generally applicable law, then  there ordinarily is no Establishment Clause violation. The   practice   of   displaying   religious   memorials,   particularly   religious   war  memorials, on public land is not coercive and is rooted in history and tradition. The Bladensburg Cross does not violate the Establishment Clause. . . ."

So, where does the opinion leave newer displays, ones that are not yet “established” by the passage of time?

How long is long? 

What test applies to newer displays? 

Suppose the City of Kearney erects a cross monument for local soldiers who died fighting in Iraq or Afghanistan? Or a nativity display during the month of December?

Would Lemon apply? 

Or some kind of historical traditions test that would uphold the types of displays existing throughout American history?

In Flanders Fields

 

In Flanders Fields

By John McCrae

 

In Flanders fields the poppies blow

Between the crosses, row on row,

    That mark our place; and in the sky

    The larks, still bravely singing, fly

Scarce heard amid the guns below.

 

We are the Dead. Short days ago

We lived, felt dawn, saw sunset glow,

    Loved and were loved, and now we lie,

        In Flanders fields.

 

Take up our quarrel with the foe:

To you from failing hands we throw

    The torch; be yours to hold it high.

    If ye break faith with us who die

We shall not sleep, though poppies grow

        In Flanders fields.

 

In American Legion, the Court took up the torch of liberty; and so the dead can sleep well in Flanders Fields. 

Bladensburg Peace Cross

Takeaway From American Legion Decision

 So what exactly did the Court do?

Did the Court overrule the Lemon test? Or is it buried but without a stake in its heart?

Although there are several different opinions making up a 7 to 2 majority, the Court reached a consensus that goes at least this far:

 the Lemon test will not apply to the retention of “[long] established, religiously expressive monuments, symbols, and practices.” In the words of Justice Alito’s majority opinion, “The passage of time gives rise to a strong presumption of constitutionality.” (p. 1804)

Applying the presumption of constitutionality, the Court concluded that “the Bladensburg Cross does not violate the Establishment Clause.” (p.1806)

The presumption is a strong one, but could be rebutted if there is evidence that an established symbol was displayed to be “deliberately disrespectful” of religious minorities.(quotation edited from the edited opinion)

How long is long?

What test applies to newer displays?

Suppose the City of Kearney erects a cross monument for local soldiers who died fighting in Iraq or Afghanistan?

Would Lemon apply?No, clearly not after Kennedy.

Or some kind of historical traditions test that would uphold the types of displays existing throughout American history?

What about a Nativity display in a public park?

Here is a favorite passage of mine, that I think focuses on how these religious cleansing cases are viewed by many ordinary citizens:

Fourth, when time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance, removing it may no longer appear neutral, especially to the local community for which it has taken on particular meaning. 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. Militantly secular regimes have carried out such projects in the past, and for those with a knowledge of history, the image of monuments being taken down will be evocative, disturbing, and divisive.p. 1805

In the last 5 years, we have witnessed many such cases of rioters tearing down and vandalizing many monuments--of Lincoln, of Jefferson, of Washington, and many others--and indeed these images on our television screens are disturbing and very divisive.