There’s a “cross case” that heard oral arguments before the Supreme Court and I thought it would be a good time to look at an establishment clause case.
The case in question is The American Legion v. American Humanist Association, which involves a challenge to the Bladensburg Peace Cross in Bladensburg, MD. This memorial apparently offended someone at the American Humanist Association who sued, claiming that having the cross on government land was a violation of the Establishment Clause. After receiving opposite opinions from the district and circuit courts, the American Legion, who helped build the cross, petitioned the supreme Court to determine if the fact that the monument was in the shape of a cross was sufficient to make it unconstitutional.
Establishment Clause
I found several constitutional problems with the arguments offered by both sides as well as the justices’ questions. First, no where in the opinion does anyone actually quote the Establishment Clause. All of the arguments had to do with previous cases and how their opinions might be interpreted in this case. You may be thinking that since everyone knows the Establishment Clause there’s no real need to quote it. However, the oral arguments show just how wrong that idea is.
Congress shall make no law respecting an establishment of religion,
So the Peace Cross cannot be an Establishment Clause violation because Congress did nothing either to create the cross or to support its continued display. The cross was built by families and the American Legion in 1925 to commemorate local men who died in World War I. In 1961, the land the cross sits on was turned over to the Maryland-National Capital Park and Planning Commission, which now maintains the memorial. Over the years, as the area became more developed, the memorial became part of a park in the median of a state highway. Congress did not pass a law to have it built, neither did they appropriate money for its construction or ongoing maintenance, so there is no Establishment Clause violation. The only way this violates the Establishment Clause is if you somehow believe that those who wrote the First Amendment thought “Congress” meant any and all governments at all levels. Such an interpretation is a direct violation of the Constitution itself.
Establishing a Religion
For the sake of argument, let’s set aside the obvious fact that in this particular case the Establishment Clause is a direct restriction on Congress alone, and examine the arguments made for and against the removal of the cross. As I said, all arguments were based on previous court opinions and how they should be applied to this case.
Should the memorial be “grandfathered”, i.e., allowed to stand because it was built when we didn’t understand the establishment of religion as we do now? Should it be allowed to stand because using crosses to mark graves and memorials has been the tradition of this nation since its inception? Or maybe, because it has an objective meaning as a war memorial, the court can overlook the obvious religious symbolism? But under what situations could such a symbol be allowed to stand? Just how religious or sectarian could the symbol be? What if the cross had an image of Jesus hanging on it? What if there were other religious symbols on the memorial? Or if it had religious language displayed on it, how large could the print be before it would offend the Establishment Clause? What about Jewish or Muslim Americans who fought in WWI? Would the use of a cross in a memorial offend them? Would finding a secular reason for using a cross offend Christians?
What is ironic about all of the Establishment Clause jurisprudence in this case is the fact that no one seemed to notice that the court is establishing a religion.
ESTABLISH : To enact or decree by authority and for permanence; to ordain; to appoint; as, to establish laws, regulations, institutions, rules, ordinances, etc.
What the court was doing is establishing the rules by which public religious expression could be expressed. What religious symbols could be displayed on public land? Did the symbol have to have a secular meaning in order to be used? How visible could the religious symbols be before they offended the courts’ tests? The very court that claimed to be determining if a display was establishing a religion was establishing the religion of humanism as the default faith of public expression and what other religious expressions could be used in public. And they were doing it, presumably with the authority of law, even to the point of using force to make sure their opinion was obeyed.
To my knowledge, nothing that the state of Maryland was doing forced or coerced anyone to adopt any religious beliefs or to support any religious organizations. Maryland does not prevent others putting up other memorials displaying other religious symbols, or no religious symbols at all. In fact, the only people establishing a public religion, that could be expressed on public land and supported by public dollars, was the U.S. courts.
Free Exercise
In fact, by the federal government determining what religious expressions could be used in public displays, the court is also violating the Free Exercise Clause.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
If you wish exercise your religion by putting up a display, memorial, or any other public expression, it better not be prohibited by the federal courts. If a historic monument offends the religious sensibilities of a judge somewhere, they can order it be taken down and you will have to spend hundreds, thousands, or even millions of dollars to continue to exercise your religion in public. Does a student want to pray in school or does a local government wish to open its sessions with prayer? Even though the supreme Court has said that is not a violation of the Constitution, you better hope some judge doesn’t think otherwise. In short, the entire oral arguments around this case were which religious expressions would be established and which would be prohibited.
Conclusion
Once again we see the courts stomping all over our rights while they claim they are protecting them. The courts claim a Selective Incorporation Doctrine sovereignty over where to apply the Bill of Rights, yet completely ignore the language of the First Amendment. While claiming to protect us from those those who want to establish a religion, the courts establish one for us. They restrict our ability to express our religion publicly, then pat themselves on the back for protecting us from ourselves. They strain out the gnat of their own opinions and completely miss the herd of camels they must swallow for the tests they created in those opinions to work.
In short, the fact that any federal court even took this case is a violation of our right to freedom of religion. Rather than fussing and fretting over whether the court will allow the cross to stand, we should be pushing our representatives to stop the courts from interfering with our rights. If these judges will not obey their oaths to support the Constitution, they should be removed from office.
Instead, we fiddle around with court opinions while our nation and its Constitution burns.
