The difference between SCOTUS uprooting lower court power-grabs completely vs. only reversing them on narrow grounds is the difference between a surgeon removing 100 percent of a tumor and just 80 percent. In other words, it makes all the difference. Even after today’s 7-2 SCOTUS ruling reversing a Fourth Circuit decision to rip out a WWI memorial cross in Bladensburg, Maryland, the war on God in the public square and America’s Judeo-Christian heritage will continue, because all but two justices refused to affirm the true meaning of the First Amendment’s Establishment Clause and refused to confine the judiciary to its proper sphere.
For conservatives who believe it’s OK to accede to judicial supremacism, crowning the courts the final arbiter of political and social question, as long as we do it with “our guys” on the bench, today is another example of why we are far from getting a majority of “our guys” on the Supreme Court. Every time the Supreme Court sides with the Left, they win absolute and unconditional victory. Just look at marriage. When the court sides with the Right, the left-wing legal groups and the lower courts just come back for more.
This case cannot be viewed in a vacuum. Random organizations are getting standing to sue against public prayer, all sorts of religious symbols, or the mention of God in many contexts. The Supreme Court clearly sees this trend and how many lower courts are violating previous Supreme Court decisions. SCOTUS had an obligation to go broad in today’s ruling, because the lower courts are going broad. Instead, the court went narrow and totally punted on the issue of standing, which will allow the anti-God groups to sue in most other similar cases and continue to win in lower courts.
There are numerous cases where lower courts are getting away with banning prayer by county officials and county meetings, despite the Supreme Court clearly ruling for it in Town of Greece v. Galloway. Only Thomas and Gorsuch would have granted the appeal from Rowan County, North Carolina, last year after the same Fourth Circuit ruled the county can’t engage in prayer at the opening of a meeting.
Now we know why. Only Thomas and Gorsuch fully believe in the true meaning of the Establishment Clause – that A) it only applies to coercing people to engage in certain religious activities, as reiterated by Thomas in today’s concurrence in judgement; and B) no outsider should be able to get standing to sue something that is not a cognizable as an individualized harm simply because he is “offended,” as Gorsuch made clear in his concurrence, joined by Thomas. Furthermore, as Thomas said, the Establishment Clause doesn’t even apply to state and local government, only to the feds. It’s unclear whether Gorsuch holds that view at this point.
The majority opinion, written by Justice Alito and joined by Chief Justice Roberts and Justice Kavanaugh, as well as liberal Justices Kagan and Breyer, was just a diffident screed on how this particular cross was around too long and too steeped in history to destroy. Not only does this not stop lower court rulings against public prayer, but it keeps litigation alive even against the display of inanimate objects under slightly different circumstances. Alito, writing for the majority, based his opinion on the fact that the monument was “first established long ago,” giving it several legs up over something newly erected.
Also, Alito felt that given this particular context, there was “secular meaning when [crosses were] used in World War I memorials” and “the fact that the cross is undoubtedly a Christian symbol should not blind one to everything else that the Bladensburg Cross has come to represent.” Thus, he left the door open to litigation against new displays of crosses or Ten Commandments.
While the majority opinion criticizes the antiquated and unworkable “Lemon test,” which tried to define an establishment violation by a certain threshold of secular meaning in a symbol or act of government, the court did not overturn it.
The reality is that none of these issues we are confronted with today rise anywhere near the threshold of a violation of the Establishment Clause, even if done by the federal government. During the House floor debate over the First Amendment on August 20, 1789, James Madison explained the purpose of the Establishment Clause as follows:
Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.
That is all the Establishment Clause means. As Thomas wrote in today’s concurrence, “The plaintiff claiming an unconstitutional establishment of religion must demonstrate that he was actually coerced by government conduct that shares the characteristics of an establishment as understood at the founding.” In other words, it doesn’t matter whether the symbol is old or new, has a mix of secular meaning or is exclusively religious. So long as nobody is coerced into action, there is no violation.
On September 25, 1789, the very same day the House of Representatives voted on the First Amendment of the Bill of Rights — to “make no law respecting an establishment of religion” — it passed a resolution requesting President Washington to declare a “day of public humiliation and prayer.” This day of prayer and thanksgiving to God, in the words of the great Roger Sherman, was to replicate “the solemn thanksgivings and rejoicings which took place in the time of Solomon, after the building of the Temple,” a “precedent in holy writ” he thought “worthy of Christian imitation on the present occasion.”
President Washington issued the proclamation on October 3, to be observed on November 26 that same year. What was the nature of this public day of prayer? To beseech God “to pardon our national and other transgressions” and “to promote the knowledge and practice of true religion and virtue.”
Justice Kavanagh, in his concurrence with the majority opinion, continued his trademark of trying to dogmatically show how the court’s opinion is “consistent with the Court’s case law,” as if he never wants to deviate from bad prior decisions. He then offered a mealy-mouthed definition of the Establishment Clause that reiterates how the lawsuits will continue:
And the cases together lead to an over-arching 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.
He should have stopped at the word “coercive.” His additional qualifier makes all the difference in 95 percent of the remaining illegitimate attempts to get the courts involved in overturning decisions that should be made by local communities. I warned last year that Kavanaugh was weak on the issue of anti-religious groups getting standing to sue, even though he ruled the right way on the merits.
Justice Breyer, in his concurrence, went a step further and downright suggested that a “newer memorial, erected under different circumstances, would not necessarily be permissible” under the approach of the majority opinion. Watch for lower courts to feast on that the same way they feast on Breyer’s dissent in the Heller gun case.
Justice Gorsuch best encapsulated the long-term effects of his “conservative” colleagues’ refusal to cut out the anti-constitutional cancer categorically from our jurisprudence:
Nor have we yet come close to exhausting the potential sources of offense and federal litigation Lemon invited, for what about the display of the Ten Commandments on the frieze in our own courtroom or on the doors leading into it? Or the statues of Moses and the Apostle Paul next door in the Library of Congress? Or the depictions of the Ten Commandments found in the Justice Department and the National Archives? Or the crosses that can be found in the U.S. Capitol building? And all that just takes us mere steps from where we sit. In light of today’s decision, we should be done with this business, and our lower court colleagues may dispose of cases like these on a motion to dismiss rather than enmeshing themselves for years in intractable disputes sure to generate more heat than light.
This can be applied to immigration, religious liberty, election law, and a host of other issues. When in Masterpiece Cakeshop, the majority opinion written by Kennedy ruled that Jack Phillips didn’t have to bake the cake, but made it clear it was only due to unique circumstances, it invited endless litigation, which the Left continues to win every day. Perhaps it is time for conservatives to finally change the way we view the role of the courts to begin with, rather than pursuing the elusive quest for domination in the game of judicial tyranny.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.