, , , , , , , ,

Since 1925, a 40 foot cross was erected in Bladensburg, Maryland–a DC suburb–a memorial for local men killed in the first world war.  Several years ago, three local residents and the American Humanist Association demanded the cross be removed. They were offended, you see, and when one is offended by anything these days, their offense must be recognized, honored and praised.  Nothing and no one has greater moral standing and superiority than any member of the perpetually aggrieved class, because they’re offended, damn it, and everyone who is not just isn’t sufficiently woke!  They probably voted for Trump too, and they’re racists, and shut up.

I always tell my students, on our first day together at the beginning of each year, there is no such thing as a right never to be exposed to something with which they might disagree.  If we are to have a polite, civil society, it must ever be thus, or our discourse is defined by the narrow limits imposed by the angriest, most paranoid, partisan, cruel, malicious, stupid and most easily offended among us. Consider the feelings of others, of course.  Be polite and kind, but there are limits.

The Fourth Circuit Court of Appeals, buying the “offended observer” theory of standing, agreed with the offended, and ordered the cross removed.  The Offended Observer” theory is a way around the Constitution and the law, allowing anyone and everyone with a grievance to indiscriminately sue.  It’s a particularly pernicious perversion (did you like the alliteration? It just happened…) of the law, because it gives anyone, well intentioned or not, the ability to cause havoc when they have suffered nothing, other than the horror that comes with deciding they don’t like the sight or existence of something.  That any court of appeals would go along with it demonstrates just how low our system of justice has fallen.

Fortunately, the Supreme Court today–06-20-19–reversed that decision.  The entire decision is available here, but I’ll rely on excerpts provided by the invaluable Prof. Jacobson of Legal Insurrection.

From Justice Alito’s majority (7-2) opinion’s introduction:

Since 1925, the Bladensburg Peace Cross (Cross) has stood as a

tribute to 49 area soldiers who gave their lives in the First World War. Eighty-nine years after the dedication of the Cross, respondents filed this lawsuit, claiming that they are offended by the light of the memorial on public land and that its presence there and the expenditure of public funds to maintain it violate the Establishment Clause of the First Amendment. To remedy this violation, they asked a federal court to order the relocation or demolition of the Cross or at least the removal of its arms. The Court of Appeals for the Fourth Circuit agreed that the memorial is unconstitutional and remanded for a determination of the proper remedy. We now reverse.

Although the cross has long been a preeminent Christian symbol, its use in the Bladensburg memorial has a special significance. After the First World War, the picture of row after row of plain white crosses marking the overseas graves of soldiers who had lost their lives in that horrible conflict was emblazoned on the minds of Americans at home, and the adoption of the cross as the Bladensburg memorial must be viewed in that historical context. For nearly a century, the Bladensburg Cross has expressed the community’s grief at the loss of the young men who perished, its thanks for their sacrifice, and its dedication to the ideals for which they fought. It has become a prominent community landmark, and its removal or radical alteration at this date would be seen by many not as a neutral act but as the manifestation of ‘a hostility toward religion that has no place in our Establishment
Clause traditions.’ Van Orden v. Perry, 545 U. S. 677, 704 (2005) (BREYER, J., concurring in judgment). And contrary to respondents’ intimations, there is no evidence of discriminatory intent in the selection of the design of the memorial or the decision of a Maryland commission to maintain it. The Religion Clauses of the Constitution aim to foster a society in which people of all beliefs can live together harmoniously, and the presence of the Bladensburg Cross on the land where it has stood for so many years is fully consistent with that aim.

Arlington National Cemetery

This is a particularly important point:

The cross came into widespread use as a symbol of Christianity by the fourth century, and it retains that meaning today. But there are many contexts in which the symbol has also taken on a secular meaning. Indeed, there are instances in which its message is now almost entirely secular….

The image used in the Bladensburg memorial—a plain Latin cross6—also took on new meaning after World War I. ‘During and immediately after the war, the army marked soldiers’ graves with temporary wooden crosses or Stars of David’—a departure from the prior practice of marking graves in American military cemeteries with uniform rectangular slabs…. This national debate and its outcome confirmed the cross’s widespread resonance as a symbol of sacrifice in the war.

History and context do indeed matter, but the most important point is that while the cross is a recognized Christian symbol, it, like Christmas and Easter, have well and long established secular connotations/purposes.  One need not be a believing Christian to enjoy a Christmas tree, and to sing Christmas carols, many of which make reference to the Christian character of the holiday. Nor does one profess belief in Christianity to the exclusion of all other faiths, or no faith, by allowing their children to participate in an Easter egg hunt.  Justice Alito clearly understands this, as well as common sense:

The existence of multiple purposes is not exclusive to longstanding monuments, symbols, or practices, but this phenomenon is more likely to occur in such cases. Even if the original purpose of a monument was infused with religion, the passage of time may obscure that sentiment. As our society becomes more and more religiously diverse, a community may preserve such monuments, symbols, and practices for the sake of their historical significance or their place in a common cultural heritage….

With sufficient time, religiously expressive monuments, symbols, and practices can become embedded features of a community’s landscape and identity. The community may come to value them without necessarily embracing their religious roots. The recent tragic fire at Notre Dame in Paris provides a striking example. Although the French Republic rigorously enforces a secular public square, the cathedral remains a symbol of national importance to the religious and nonreligious alike. Notre Dame is fundamentally a place of worship and retains great religious importance, but its meaning has broadened….

… 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….

These four considerations show that retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones. The passage of time gives rise to a strong presumption of constitutionality.

Let’s take a moment to review the Lemon test, a three pronged means of analysis of religious issues established by the Supreme Court in Lemon v. Kurtzman (1971),   which is used primarily, but not exclusively, in considering statutes.  The prongs:

Does the law have a secular legislative purpose?

Does its principal effect advance, or hinder, religion?

Does it foster excessive governmental entanglement with religion?

Obviously, the cross, which rests on government property, does not evoke exclusively religious symbolism.  It requires nothing of the viewer, nor does it deprive them of anything.  As Thomas Jefferson said, it neither picks their pocket or breaks their leg.  Anyone gazing on it may choose to accept or reject any connotation.  The only governmental entanglement is its location,  A great many symbols and monuments resting on government property, should the offended prevail in this and other cases, would be liable to destruction, and we’d all be poorer for it.

From Justice Alito’s conclusion:

The Lorraine American Military Cemetery and Memorial, France

Applying these principles, we conclude that the Bladensburg Cross does not violate the Establishment Clause.

As we have explained, the Bladensburg Cross carries special significance in commemorating World War I. Due in large part to the image of the simple wooden crosses that originally marked the graves of American soldiers killed in the war, the cross became a symbol of their sacrifice, and the design of the Bladensburg Cross must be understood in light of that background. That the cross originated as a Christian symbol and retains that meaning in many contexts does not change the fact that the symbol took on an added secular meaning when used in World War I memorials.

Not only did the Bladensburg Cross begin with this meaning, but with the passage of time, it has acquired historical importance….

The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent. For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark. For many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment. For all these reasons, the Cross does not offend the Constitution.

It should be observed that the margin of majority in Supreme Court cases is always irrelevant.  However, because leftists  demand the court decide issues on their preferred policy outcomes rather than the Constitution and the law, and try to use these numbers to suggest decisions adverse to their interests invalid, we are stuck counting votes and fending off court packing schemes.  It will surprise no one to know it was Justices Sotomayor (the “Wise Latina”) and Ginsberg (she knew Thomas Jefferson personally) that would destroy the monument. Justice Gorsuch concurred, but focused on the mischief of the “offended observer doctrine:

The American Humanist Association wants a federal court to order the destruction of a 94 year-old war memorial because its members are offended. Today, the Court explains that the plaintiffs are not entitled to demand the destruction of longstanding monuments, and I find much of its opinion compelling. In my judgment, however, it follows from the Court’s analysis that suits like this one should be dismissed for lack of standing. Accordingly, while I concur in the judgment to reverse and remand the court of appeals’ decision, I would do so with additional instructions to dismiss the case….

This ‘offended observer’ theory of standing has no basis in law. Federal courts may decide only those cases and controversies that the Constitution and Congress have authorized them to hear….

Offended observer standing cannot be squared with this Court’s longstanding teachings about the limits of Article III. Not even today’s dissent seriously attempts to defend it. So at this point you might wonder: How did the lower courts in this case indulge the plaintiffs’ ‘offended observer’ theory of standing? And why have other lower courts done similarly in other cases? The truth is, the fault lies here. Lower courts invented offended observer standing for Establishment Clause cases in the 1970s in response to this Court’s decision in Lemon v. Kurtzman, 403 U. S. 602 (1971)….

The Constitution’s meaning is fixed, not some good-for-this-day-only coupon, and a practice consistent with our nation’s traditions is just as permissible whether undertaken today or 94 years ago….

In a large and diverse country, offense can be easily found. Really, most every governmental action probably offends somebody. No doubt, too, that offense can be sincere, sometimes well taken, even wise. But recourse for disagreement and offense does not lie in federal litigation. Instead, in a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an ‘offended viewer’ may ‘avert his eyes,’ Erznoznik v. Jacksonville, 422 U. S. 205, 212 (1975), or pursue a political solution. Today’s decision represents a welcome step toward restoring this Court’s recognition of these truths, and I respectfully concur in the judgment.

Some will argue that anyone sincerely offended is not arguing for the vindication of their fit of pique, but for important constitutional principles.  The Supreme Court has narrowly–in the sense this is not an all-encompassing decision that forever after alters First Amendment jurisprudence–but conclusively, rejected that argument, as must we all.  If we are to live together in peace, if we are to avoid outright civil war, we must all be able to live and let live, which includes the right to say to the perpetually aggrieved, “sorry; I have rights too,” or perhaps simply: “get a life.”

Arlington National Cemetery                               credit: stationwtfo.blogspot.com

In Maryland, at least, the honored dead may rest easy–for now.