Establishment Clause

In Giant Cross Case, Justices Struggle to Clean Up a 'Dog's Breakfast' of Confusing Precedents

The alternatives suggested by defenders of the monument do not seem much better.

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SCOTUS

Yesterday's oral arguments in a Supreme Court case involving a giant cross vividly illustrated how hard it is to define "an establishment of religion" once you go beyond the clearly prohibited practice of forcing people to support a government-backed church. Justice Neil Gorsuch twice referred to the highly subjective test described in the 1971 case Lemon v. Kurtzman as a "dog's breakfast." But the alternatives suggested by the lawyers defending the cross, a state-owned World War I memorial that sits in the middle of a busy highway intersection in Bladensburg, Maryland, do not seem much more promising.

Under the Lemon test, a government-sponsored display violates the First Amendment's Establishment Clause if it lacks a secular purpose, if its "principal or primary effect" is to advance or inhibit religion, or if it fosters "an excessive government entanglement with religion." In 2017 the U.S. Court of Appeals for the 4th Circuit concluded that the Bladensburg monument ran afoul of the second and third prongs.

Neal Katyal, representing the state commission that is responsible for the monument, told the justices the test should be "whether or not there's an independent secular purpose," which suggests that the first prong of Lemon is the only one that matters. Later he revised that position, saying the real issue is the display's "objective meaning."

In divining the meaning of the Bladensburg cross, Katyal argued that four facts make it sufficiently secular to pass constitutional muster: It has been accepted as a war memorial for 93 years; it has an American Legion symbol at its center and the words "Valor, Endurance, Courage, Devotion" on its base; it includes a plaque of dead soldiers' names but "not a single word of religious content"; and it is "situated in Veterans Memorial Park alongside other war memorials" (although "alongside" is rather misleading, since the cross is isolated from the other monuments, which are across a highway and 200 feet to half a mile away).

These details, in Katyal's view, distinguish the Bladensburg cross from an Indiana monument that a federal appeals court deemed unconstitutional in 1993: "a huge cross with Jesus Christ nailed in the center of it in a public park." That cross, which bore the initials INRI, representing the Latin for "Jesus of Nazareth, King of the Jews," also was presented as a war memorial. But "the 7th Circuit said that is unconstitutional," Katyal said, "and we agree."

The American Legion, which is also defending the Bladensburg memorial, sees things differently. The organization's lawyer, Michael Carvin, argued that all such monuments are constitutional. He urged the justices to apply the "coercion test" that it used to uphold Christian prayers before town board meetings in the 2014 case Town of Greece v. Galloway. That test, Carvin said, "prohibits tangible interference with religious liberty, as well as proselytizing."

The justices immediately pointed out the difficulties with that approach. If the Establishment Clause is all about preventing "tangible interference with religious liberty," Justice Ruth Bader Ginsburg wondered, how is it distinct from the Free Exercise Clause? Gorsuch, meanwhile, suggested that "proselytizing" is just another word for "endorsement," which is impermissible under Lemon and seems to be what is happening when the government owns and maintains a 40-foot version of Christianity's central symbol on a highly conspicuous piece of public property.

"I don't see the daylight between proselytizing and endorsement," Gorsuch said. "It seems to me that you are taking us right back to the dog's breakfast you've warned us against." Chief Justice John Roberts agreed. "What you advertise is a pretty concise test," he said, "but it degenerates pretty quickly into, well, I need to know about this, I need to know about that, and becomes kind of a fact-specific test rather than the crisper one that you propose in your brief."

Justice Brett Kavanaugh noted that the four dissenters in Allegheny County v. ACLU, the 1989 case in which the Court said a nativity scene in a courthouse violated the Establishment Clause, all agreed that "the permanent erection of a large Latin cross on the roof of city hall" would be unconstitutional. "Because it constitutes proselytizing," Carvin said, "we certainly do agree." But if the government takes that cross, sticks it on a highway median, and calls it a memorial, it is no longer prohibited proselytizing, according to the American Legion. Katyal agrees that the cross in that context is constitutional—unless there's a statue of Jesus nailed to it.

Justice Elena Kagan, one of three Jews on the Court, pushed back against the argument that the Latin cross "has taken on a secular meaning associated with sacrifice or death or commemoration," as Acting Solicitor General Jeffrey Wall, who also urged the justices to declare the Bladensburg monument constitutional, put it. "It is the foremost symbol of Christianity, isn't it?" Kagan said. "It invokes the central theological claim of Christianity, that Jesus Christ, the Son of God, died on the cross for humanity's sins and that he rose from the dead. This is why Christians use crosses as a way to memorialize the dead. It is because it connects to that central theological belief."

But that does not mean every government-hosted memorial featuring a cross has to go, said Monica Miller, the lawyer representing the American Humanist Association and three local residents challenging the monument. The constitutionality of such displays, Miller said, depends on details such as the monument's purpose, history, location, size, and appearance. "It's very difficult, and I think that's why the Court hasn't come up with that one, you know, singular test, because the cases are complex," Miller said. "That's the Establishment Clause."

Several justices noted that the Court has failed to give judges clear guidance in this area. "If I were…a lower court judge and I get that type of analysis," Roberts observed, "I'm just going to throw my hands up."

Kavanaugh noted that the Supreme Court in recent decades has made little use of the Lemon test. "If the test isn't being used, that would suggest that the test doesn't work for this context," he said.

Gorsuch agreed. "It has resulted in a welter of confusion," he said. "Is it time for the Court to thank Lemon for its services and send it on its way?…I think a majority of this Court, though never at the same time, has advocated for Lemon's dismissal….What about all those poor court of appeals judges who are left still with confusion?" I will go out on a limb and predict that they will be no less confused after the Court reaches a decision in this case.

Addendum: Stanford law professor Michael McConnell, who filed a brief in this case on behalf of the Becket Fund, proposes an "historical approach" to the Establishment Clause that starts by asking what counted as "an establishment of religion" when the First Amendment was written. In that context, he says, displays like the Bladensburg cross would be constitutional, but unconstitutional practices would include, in addition to establishing an official church and coercing religious practice, "government action that favors one religion over another, that involves the government in doctrinal or ecclesiological issues, that invests religious bodies with political power, and much more." McConnell argues that "an historical approach is bounded and objectively administrable, but not as narrow as 'coercion' or as subjective as 'endorsement.'"

NEXT: Knock It Off, Lazy News Outlets. 'Momo' Isn't Telling Kids To Hurt Themselves.

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  1. Gotta fill in for Crusty:

    They’re going to squeeze that *Lemon,* until the juice runs down their leg.

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            1. He slung splooge at a lady FBI agent.

  2. Yesterday’s oral arguments in a Supreme Court case involving a giant cross vividly illustrated how hard it is to define an “establishment of religion” once you go beyond the clearly prohibited practice of forcing people to support a government-backed church.

    If it is that hard to define the standard beyond that, maybe that is a good clue that you shoudln’t try and do so. Things get hard when you start trying to torture meanings that are not there out of the document. Who knew?

    1. Yeah, I really do wish there was a Supreme Court precedent for saying that something is a-constitutional, i.e. not something addressed by the Constitution, and therefore not something that the Court should rule on one way or the other.

      Alas, you don’t take a position on the Supreme Court to sit on the sidelines.

      1. “Alas, you don’t take a position on the Supreme Court to sit on the sidelines.”

        No, you do it for the beer.

        h/t Brett “Beer Me” Kavanaugh

        1. [sniff]

        2. Boo!

          *Throws ice*

  3. “Several justices noted that the Court has failed to give judges clear guidance in this area.”

    In the sense that Bob Dylan mumbling something with marbles in his mouth is unclear, yes.

  4. Damn. Just sell the thing to a private entity for $1 and be done with it.

    1. I don’t think saying “there can no longer be publicly owned memorials” is a good solution either. The sollution is to tell the perpetually aggrieved atheists to go fuck themselves.

      1. Why should I be forced to pay for a monument I don’t want?

        1. You weren’t. Your pitiful contribution went to shit you do endorse.

          I think it’s well past time to stop pretend8ng each individual pays enpugh tax to make your objection. You don’t. So stop.

        2. You paid for the monument when it was built in 1919?

      2. I don’t think saying “there can no longer be publicly owned memorials” is a good solution either.

        Why not? Although that wouldn’t be the end result if they turned this monument over to someone else.

      3. No. Simply declare that any monument older than 25 years is historical, and protected.

        And no new ones.

      4. Brilliant, and you will naturally respond with great applause if a Muslim takes control of some local government, erects massive muslim displays with public money on public property and tells all the christians to go fuck themselves right? I mean theres no way you would be a hypocritical asshole who is all for the establishment of religion so long as it is the “right one” (read: christianity duh).

    2. “Group Sues Local Government for Selling Property to Religious Group for $1”

      Rinse and repeat

      1. “Group sues group for suing local government, wasting money”

        1. Auction. E-bay if needs be.

          1. @ a ab abdcd

            Yes that’s perfect. Auction the land with properly written easements requiring that the property be maintained in it’s current condition with the same setup, and the only bidders will be those who are willing to lose money maintaining it because they believe in it. Win win, no public money wasted and those who care get to put their money where their mouth is.

      2. Why would anyone sue over that and what standing would they have?

        1. There have been lawsuits with regards to the government selling something to religious institutions at below cost, including a Supreme Court case a couple of years back about public schools given Catholic schools old text books for free. The standing would be the same as this, no?

            1. I’m not going to disable my adblocker. What’s it say?

              1. NM passed a law to fund private school textbooks. A taxpayer sued because this included private religious schools. NM Supreme Court declared the practice illegal, but then reversed course when the Supreme Court ruled on that MO case about providing playground equipment to a religious school.

          1. What were the results of those lawsuits?

          2. Well, ok, sell it at auction. That way it would be considered a market rate.

            1. Hey, I don’t disagree with this idea at all. I’m just saying that the lawsuits will still come like a guy watching porn. Guaranteed

    3. re: ” Just sell the thing to a private entity…”

      Wouldn’t help. Remember that this started as a private monument on private land. Only after the government expanded a local road and made continuing maintenance unsafe did anyone consider giving the land (and the monument) to the government.

      (Unlike private citizens, the government maintenance crews can put out road cones and disrupt traffic when they want to cut the grass or water the flowers.)

      Selling the monument and land back to a private entity would recreate the safety hazard that both the private entity and the government found unacceptable.

      1. This is what bothers me about this particular case. Government did not build this monument, it was part of a privately owned memorial park that it is now separated from because government built roads around it. If the city erected a giant cross in the town square I could see the establishment issue. But this is an historical artifact currently maintained by government through no fault of the original owners. The whole argument strikes me as petty. And I am an agnostic and have no affection for crosses. It could be a statue of Mohammad for all I care.

        1. A statue of Mohammed? Yeah, that’d be no problem.

          1. Muslims might object…

            1. Muslims would begin killing people.

              1. Begin?

          2. Muslims might object…

      2. And this is why it’s a terrible precedent.

        Even if you agree with the overall idea (government shouldn’t own and maintain a 40 foot cross), the history of this particular case is such that the original error is the government’s.

        So if it’s not reasonable to “give back” the land and cross (as it seems), and it’s not reasonable to “give back” the cross and move it to private land (as it seems), then it can be acceptable for the government to continue maintaining it. Not because, in the general case, it is right for the government to do so, but because the government wronged the American Legion when it took it in the first place.

        But instead of arguing that, proponents keep arguing that either a giant 40-foot cross obviously evocative of Christianity is “secular” (a sophistic argument that doesn’t appear to have swayed any of the justices), or that any such monument would be fine, anywhere.

        The Humanists are wrong for pushing this, but it’s defenders are overstepping too. It’s a terrible case for any sort of clear precedent.

  5. What if people stopped bitching about things that are obviously not meant to indoctrinate anyone? I know it’s hard, but maybe we could all stop being little bitches?

    1. When the Apollo 8 crew read from the Book of Genesis during their famous Christmas Eve 1968 broadcast from orbiting around the moon, the fucking atheists sued claiming that their doing so violated the separation of church and state. That tells you everything you need to know about the atheists.

      1. I don’t think most atheists really give two shits, so long as the government isn’t pushing stuff on their kids at their schools. It’s just the perpetually aggrieved who give a shit about this stuff.

        It’s not the fault of all atheists and it most definitely not the fault of any agnostic, who are all chill for the most part

        1. I don’t think most atheists really give two shits, so long as the government isn’t pushing stuff on their kids at their schools. I

          I would be sympathetic if said Atheists were not totally fine with the government pusing shit on other people’s kids. We can’t teach the worship of God in schools but we can sure push the worship of government.

          1. John, not all atheists are statists.

            I am an Agnostic because I am not privy to the secrets of the Universe that I can exclude a Divine start to our Universe. Maybe we are beings inside God’s nutsack. Size is relative.

            I am a Libertarian because I don’t want people and government telling me what to believe.

            I love to shoot down Republican claims that the USA was founded as a Judeo-Christian nation. Exhibit A is that the Founders created a nation (for the first time in recorded history) that tried to separate religion from government.

          2. I had a roommate, a fellow atheist, who would CONSTANTLY bitch about the various ways government wastes money supporting religion, but only religion. He was cool with literally everything else government spends on.

          3. I am an atheists/agnostic (kinda go back and forth). I don’t want anyone to push any ideologue onto anyone. Hell I have found memories of growing up Catholic and don’t hold any ill will towards Christians; I just don’t believe in an all powerful deity that meddles in the affairs of mortals. Just as I don’t hold Christians to the statements of the loudest most obnoxious Christians (Phelps Church), I’d wish Christians would try to do the same (all though I know its hard when you have some asshole know-it-all yelling how your all god goobers).

            1. Like I said: “It’s not the fault of all atheists and it most definitely not the fault of any agnostic, who are all chill for the most part”

              See, agnostics are chill af

            2. I am an atheists/agnostic (kinda go back and forth).

              I know this is just semantics, and I know what you mean, but agnostic = atheist. If you do not have faith, that means you do not believe. When you do not believe, you are not a theist.

              1. re: “agnostic = atheist”

                No. And saying so is evidence that you are ignorant of the positions and beliefs of both groups.

              2. An atheist is someone who does not believe in the possibility of a god, whereas agnostics doubt there could be a god. It’s a slight difference to most, but to some of us agnostics it’s a profound difference.

                1. Yeah, I’m a non-practicing Deist.

                2. @BYODB
                  Ah, but definitions are the thing, no?

                  From Google’s dictionary:

                  atheist: […] a person who disbelieves or lacks belief in the existence of God or gods.

                  agnostic: […] a person who believes that nothing is known or can be known of the existence or nature of God or of anything beyond material phenomena; a person who claims neither faith nor disbelief in God.

                  Here, merely not believing (regardless of why you don’t believe) puts you into “atheist”. It’s only when you get more philosophical that you drift into “agnostic”. The reverse from your own definition, where merely not believing puts you in “agnostic”, and atheist requires more thought about how you think the universe works.

                  And of course, for most conversational purposes, atheist and agnostic are interchangeable in that they imply the same thing: whatever religious belief is being discussed, they do not have any belief and/or faith that it is correct. But anytime the distinction starts to matter, you really can’t rely on people knowing what you mean by which, and you have to define it (even if only for the purposes of that conversation).

              3. One means “without god” and the other means “without knowledge” so…

          4. I think we all know who you are talking about, John. It’s just nice to make the distinction between normal atheists who don’t have a chip on their shoulder and Capital-A Asshole Atheists.
            I suppose I’m an atheist, but I don’t give a shit if a public war memorial is a cross, or if someone says a prayer at a public meeting. Just don’t fund religious activities with public money or make laws imposing religion on people. Reading Genesis from the Moon was poignant and poetic. You have to be a real shit to get bent out of shape about that.

            1. From one atheist to another…..

              Amen!!

      2. As an Agnostic, that would annoy me but what two brave ass astronauts want to do with their time in space is up to them.

        Just end NPR, so we are not forced to listen/watch it if we don’t want to (For young people, back in those days there were only a few tv stations and radio stations so choice was not what it is now).

        To be fair, if government is not supposed to establish a religion but all you hear from government employees is God this and Jesus that and Bible verse blah blah blah- its fucked up that you as a taxpayer are paying for it and you don’t even believe in God.

        1. I also don’t subscribe to the religion of global warming. Get that shit out of schools!!

          1. Science is a worthwhile pursuit.

            Global warming and climate change are political agendas masquerading as science.

      3. @ John
        If they read from the koran you would have been super cool with that right?

    2. @ just sayin

      No doubt you would never bitch about a bunch of Muslim symbols being erected all over the place by your local tax dollar. Amrirght?

  6. Religious people thought that they could squeeze religious icons into secular society. Fuck them, change the memorial to be a symbol that is not religious and keep religion out of government.

    How is this hard? Don’t let government endorse religion and don’t let government try and curtail private religious expression.

    Its like government official praying before starting meetings. Fuck that. That’s endorsing a religion.

    1. Bullshit. The separation clause was never meant to ban all expressions of religious nature in the government sphere. It just meant no state religion.

      1. It’s kind of torturing the meaning of “make no law” no? I mean, laws were made to get the funding that paid for it I guess? But it seems a bit far from what the Constitution actually prohibits.

      2. I can see both sides on this one.

        The intent of the cross in this case is to memorialize the dead from WWI, not to proselytize. And I think that is pretty clear so it doesn’t in particular bother me much.

        However, the cross is most definitely the main symbol for a specific religion. As a religious non-Christian, I can see that very clearly.

        Frankly, I really don’t know what is best in this case.

        1. Let them change the memorial to a non-religious marker.

          As a veteran, I am fine with this.

          These religious markers should have never been put up but they should not be torn down either.

          There is not reason that this cannot be a compromise.

          1. Let’s leave up to the guys it’s dedicated to.

            1. That’s one option. Not sure how dead people would settle the debate.

              1. Let’s see a show of hands.

                OK, that’s zero votes from the people being memorialized.

                1. The people with eyes, have it?

          2. Goodbye Arlington Cemetery!!

            1. The graves have a marker based on what religion the dead soldier wants.

        2. You sound like you’re still pissed about Boniface and that oak, bear

      3. “It just meant no state religion.”

        Well there’s the rub. Is favoring one religion over another via government funded religious statues establishing respect for said religion? The law is such a mess because of different interpretations of this question. The simplest answer is also the one that requires zero aggression nor violation of anyone’s rights: Governments should simply not endorse any religion or religious symbolism whatsoever.

        1. So when a muslim goes to pray everyone gets a break? I’m ok with that.

          1. Not even close. When I say “rights” I mean negative rights. Do you understand the difference?

              1. That’s the sound of the winds of oxytocin not filling Tulpa’s sails.

                1. I’m sorry you’re upset because pointed out that your hypothetical was dumb.

                  1. It’s only dumb if, like the majority of people, you interpret rights as positive in nature. And judging by your answer above, you do.

                    1. You don’t even understand the question I asked you you fucking rube.

                    2. I assumed that it was a question in bad faith and a precursor to name calling and logical inconsistency.

                    3. As I said, you didn’t understand it. No one called YOU anything until YOU decided to be a snippy bitch. The “dumb” comment wasn’t directed at you.

                      Threaded commens how do they work?

                    4. The only other person on this particular thread was CMW who offered a metaphor rather than a hypothetical. Assumed without context from you, that you were responding to me.

                    5. And acted like a bitch based on your assumption.

                      And then blamed me because you fucked up.

        2. No. The cross is representive of the people who are there. If the people had mostly or all been Jews, it should be a Star of David. It is respecting the people it mournes by putting up an appropriate symbol of what they believed or were not demanding respect for the religion. The war memorial doesn’t commemerate Christianity. It uses a Christian symbol because the people it is commemorating were largely Christian.

          1. Can you be sure that every single person being honored was Christian, or would want a gaudy cross as commemoration of their service? It’s pretty clear what message is being conveyed by a giant concrete crucifix. And there are dozens of other alternatives that could be chosen than a cross. That said, this particular case is less black & white since, as I understand it, the monument was paid for by private funds and the government took possession via eminent domain. Thus the real question is can government funds be used to maintain a religious symbol left in their care?

            1. “Can you be sure that every single person being honored was Christian,”

              I can say I don’t partucularly care because people like you have exploited edge cases like that for a long time and it’s a huge part of the problem.

            2. It doesn’t matter if every single person were Christian. The people who built it thought a cross is apprropriate. The fact that you disagree doesn’t make it establishing or promoting religion. It just means you think they should have commemorated the people some other way.

              No matter how much you hate it, the fact remains that a large portion of the people in this country are religious. And those people have a right to see their symbols in the public square too where it is appropriate. This isn’t establishing a state religion. Just fucking get over it. Look the other way when you drive by. The evil cross isn’t going to hurt you. I promise.

              1. The people who built it thought a cross is apprropriate.

                The local majority in this area doesn’t get to decide whether something is constitutional or not.

                1. Don’t you have some child rapists to import?

                2. “The people who built it thought a cross is apprropriate.

                  The local majority in this area doesn’t get to decide whether something is constitutional or not.”

                  Even if they used private funds while doing so? Because its my understanding (I could be wrong) that they did so.

              2. There are always going to be majority and minority religions. Putting up symbols of the majority religions on public property is usually meant as an intimidation tactic or else why bother. There’s plenty of room for crucifixes and crosses on church properties.

                Grandfather this in and don’t build any new ones on public land.

              3. @ john
                You write:
                “the fact remains that a large portion of the people in this country are religious. And those people have a right to see their symbols in the public square too where it is appropriate.”

                Even you had to ad the “where appropriate” qualifier, which means it can be inappropriate, which means, we have to figure out on a case by case basis, which means it’s all a mess.
                What people “have a right to see their symbols in the public square”? How about satanists? You all for a large statue of Baphomet being erected in the public square with you tax dollars?
                Can you articulate what makes something “appropriate”?

            3. Thus the real question is can government funds be used to maintain a religious symbol left in their care?

              What about artwork in museums owned by municipal, state, or federal governments? What if it’s an ancient religion no longer widely practiced? What about spiritual/religious symbolism in the Native American History Museum?

              I’m not trying to pick a fight – I’m honestly curious where one draws the line.

              1. you can’t draw the line LynchPin. And you make a great point. If it is wrong for the government to maintain a cross on a war memorial, then I don’t see how it is not also wrong the government to own a museum that houses religious art of any kind. It is the same principle in both cases.

                1. Too bad you don’t know a lawyer who could start filing those cases John.

                2. you can’t draw the line LynchPin

                  I’m inclined to agree. Context matters a lot in these situations. The context might also change with time.

                  The logical side of the libertarian brain wants there to be a timeless and fundamental and objective rule that you can apply in these cases, but that’s just not how the world works. And I think we are actually richer for it, even if it does lead to conflict sometimes (that’s the Hayekian in me).

              2. What about artwork in museums owned by municipal, state, or federal governments?

                Why is this a thing?

                1. Meh. Of all the things that government does that offend my libertarian sensibilities, museums and parks and the like are pretty low on the list. There’s even a part of me that outright supports them.

          2. John, that’s not true.

            Jews and other religious groups are all lumped under Christianity for old stuff like that.

            The Tomb of the unknown soldier is a great example of memorializing all the troops and not picking a religious symbol. Its one of the most emotionally powerful ‘buildings’ that I have ever seen and I have witnessed huge cathedrals and the Arc de Triumph.

            1. Yes, you hate religion and would build something different. Good for you. That doesn’t make these people deciding differently a violation of the establshment clause.

              If it is such a crime to have a cross on public property, then should government employees be banned from wearing them as jewelry when at work or on government property? I don’t see why not. If the judge or the guy giving you your drivers test is wearing a cross that is just as much an endorsement of religion as this is? Basically you just want to ban all symbols of religion or mention of religion in any forum that in any way involves government. And that is not what the establsihment clause means. If you want that, change the Constitution. But stop torturing it to get your pony.

              1. I dont hate religion John.

                I live in the Bible Belt. I take these religious nut jobs to court all the time to get them to retract religious Blue Laws and preferences given to churches.

                A local church wanted to block a public road every Wednesday and Saturday so the parishioners could walk from building to building while church was active. I sued and won. The all cried like you are now. No problems because of not blocking that road.

                We couldn’t drink on Sunday because of religious folks didnt want it. The Prohibition showing us that a constitutional amendment was required to ban alcohol does not faze some of these people. So, we have fought to re-legalize alcohol sales on Sunday.

                1. A local church wanted to block a public road every Wednesday and Saturday so the parishioners could walk from building to building while church was active. I sued and won. The all cried like you are now. No problems because of not blocking that road.

                  If it had been two farmer’s markets, or two daycares, or two little league fields, would you have had a problem with it? Because unless the churches were getting some sort of accommodation that non-religious groups were not getting, then I don’t see how the religious aspect of it is relevant.

                  I think I’m with you on the alcohol sales on Sundays, though not only on religious grounds. Having said that, I also think this kind of thing might be best left to municipalities to sort out on their own, though I’m not sure when to draw the line and get higher levels of government involved.

                  1. Churches that are recognized by the state get tax breaks, love to hear the SC explain that ‘accommodation’ by modern interpretations.

          3. “If the people had mostly or all been Jews, it should be a Star of David”
            Interesting point. There is a public park in Denver that is laid out as a Stay of David. It is to comemmerate the holocaust.

      4. Bold claim John. You will need some citations.

        Was America Founded As A Christian Nation?

        The most damning evidence of a non-Christian past is a humiliating 1797 treaty with the Barbary Pirates. President Adams sought to stem unremitting Muslim raids against Mediterranean shipping and protect American sailors from African slavery. This obscure treaty submitted, “The Government of the United States of America is not, in any sense, founded on the Christian religion.”

        I have a good read about many of the Founders were Deists and felt that religion was personal and there should be a separation fo church and state.

        jamesMadison info

        1. I didn’t claim America was founded as a Christian nation. I am saying the establshment clause just means the government can’t have a state mandated religion. It does not mean that the government can never have any religious symbolism at all on public property or make any accomodation or recognition of the religious beliefs of its citizens. And that is all this is, a recognition of the religious beliefs of the people it is commemorating.

          1. Can we agree that government cannot pay for any religious items for public use?

            Accommodation for religious beliefs of its citizens is exactly what establishing a state religion is. Government is picked a winner religion- Christianity.

            Its keeping with 1A principles that Americans have many different religions and we will protect your right to exercise them without public assistance.

            1. How is building a war memorial assisting religion? Are you terrified the cross is going to transform you into an evil Christian?

              1. No John, I am not scared of that nor do I really care. But religious people like yourself do.

                That to me means that it DOES have religious significance and is barred by the 1A.

                1. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”

                  I’d, an agnostic who has quite a few problems with christianity, would argue that tearing down this monument would be just as much a violation of the amendment as if they were to erect it in the first place, if not more so.
                  We have here fanatical anti-theists seeking to impose their religious views via government force.
                  The proper response to people who think that their purpose in life is to be offended by existence is: “fuck off”

              2. Are you terrified the cross is going to transform you into an evil Christian?

                I am afraid that one rights violation will provide a justification for the next rights violation.

                If a huge cross at an intersection honoring war dead is no problem, then how about a huge cross at a public park? “It’s not going to turn you into a Christian” “The people want it there” “Just fucking get over it” And then the next, and the next, and the next.

                1. Don’t you have some child rapists to bring to the US thatyou should be dealing with?

                  1. Why would we want any more child rapists in this country? We already have you.

            2. “Can we agree that government cannot pay for any religious items for public use?”

              No.

          2. if the Founders were only concerned about the state establishing a religion, then why are religious oaths of office specifically prohibited in the US Constitution?

            Article VI, Clause 3: The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

            Article I, Section 9 prohibits a Catholic cardinal from holding public office.
            No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.

            The Papacy having their own nation and convening a title to an American politician would be unconstitutional.

            1. That means you can’t pass a law requiring people to be a certain religion to hold office. That has nothing to do with what we are talking about here.

            2. This is really poor history on your part.

              The Bill of Rights was only supposed to apply to the Federal Government. Most states had their own state religions after passage of the Bill of Rights. It’s good that this now applies to the states (thanks to the 14th Amendment), but that was not the original intent.

              And the prohibition against nobility was not meant to be directed toward Catholic cardinals. That was specifically intended to prohibit secular nobility from holding public office.

              The Founders were far more concerned with the state burdening religion than it was with religion burdening the state.

              1. It illustrates that the Founders we not just concerned about a national religion.

                There were concerned about a bunch of religious rules and dogma corrupting the United States like religion had corrupted Europe.

                I am up for your positions but you are not citing anything.

                1. Read the text again. The clause prohibits the US government from imposing a religious test for public office, i.e. demanding that someone belong to a particular religion, or prohibiting people from certain religions, in order to take office. They didn’t want to establish a state religion but they also didn’t want to prevent people from disfavored religions from serving.

                  They could have required a religious test, and that test could have been publicly renouncing any religious faith or affiliation.

                  The nobility clause really doesn’t deal with religion specifically.

              2. Go figure that a bunch of religious separatists who were oppressed might want to put some curbs on that. The intent seems pretty clear. What we have now is some pretty tortured language, and while I’m no fan of the implementation it’s ultimately proved to be a good thing keeping the two separate in my view. An amendment to clarify it would be nice.

      5. Even more it was meant for a National church only. New Hampshire kept its establish state church until 1817; Connecticut kept its establishment until 1818; and Massachusetts did not abandon its state support for Congregationalism until 1833.

        1. The American Revolution led to a significant separation between church and state.Increasingly religion was thought to be a matter of personal opinion which should not be dictated by government. Of the nine states that had established religions during the colonial period, three separated church and state in their new constitutions-New York, North Carolina, and Virginia. In the remaining six states, concessions were made allowing public support of more than one church

          1. That seems to be evidence that it isn’t as cut and dried as it seems.

            1. The evidence that the Founders did not want the feds involved in religion is very clear.

              As for states, we can go back and forth about the 1A and how is singles out “Congress shall make no law….” while the other Bill of Rights do not specify only Congress.

              All that is moot now with the 14th Amendment.

              The protected rights of all Americans citizens become the minimum standard for all state residents. Therefore all state constitutions should reflect that. For example, all states should have a constitutional protection that the right to keep and bear Arms shall not be infringed.

              Due to the 14th Amendment, all state residents have a right to be free from their state establishing religion.

              Furthermore, just because there were New Hampshire established churches does not make them constitutional. Appealing government wrongs was not common. look at all the local gun restrictions that nobody ever contested.

              1. The problem you have is that the evidence you are using to prove that the Founders intent preceeds the 14th Amendment, and thus is altered significantly by its effects. If they wanted an absolute prohibition of all government involvement, they would have said so from the beginning. The evidence, YOUR evidence, shows no such call for absolute prohibition at all levels of govt, which the 14th essentially creates when applied as you are applying it.

              2. “Furthermore, just because there were New Hampshire established churches does not make them constitutional”

                By the way this is an interesting turn of phrase, and not at all in line with my understandings of the Constitution.

                1. By the way this is an interesting turn of phrase, and not at all in line with my understandings of the Constitution.

                  It certainly wouldn’t be the first time the 14th was used to shit all over the 1st, 4th, 5th, 9th, 10th…

                  1. nor shall any State deprive any person of life, liberty, or property, without due process of law?

                    The courts let local jurisdictions shit all over the 14th as well.

              3. Due to the 14th Amendment, all state residents have a right to be free from their state establishing religion.

                Non sequitur. Where does the 14th amendment say that? It says a state can’t deprive persons of liberty, so free exercise & a federal case thereon is imported down to the state level. But the only way tax support of a religion could be a depriv’n of liberty is if taxes per se are a depriv’n of liberty?which has never been held.

                Seems to me this is a state case to be decided under the MD constitution’s non-establishment provision.

                1. @Robert
                  If you want to argue against Incorporation, go for it. But that’s an uphill struggle. As is, through Incorporation (from the 14th Amendment) the First Amendment now applies to states.

                  Absent Incorporation, you would be right, that this would be a matter for Maryland’s high court.

                  But that ship sailed a long time ago.

      6. The separation clause was never meant to ban all expressions of religious nature in the government sphere. It just meant no state religion.

        And said expressions by individuals are permissible. What crosses the line is when a government, not an individual, does it.

        It’s like how a soldier can, in plain clothes and speaking only for himself, publicly endorse a candidate for office. But if he’s wearing the uniform, he either has to bite his tongue until he’s out of it, or make painfully clear that he’s endorsing as a private citizen, and not as a member of the military.

    2. You’d have to change an awful lot of memorials in America if that is the new standard. Which is remarkably more similar to the standards in France and is pretty much foreign to the American experience

    3. I’m with lc1789 here, strange as that may be. I’d go further and say the government has no business putting up memorials in the first place. Stop stealing my money to pat yourselves on the back. Leave that to private organizations to decide which Confederates to honor, and to defend from SJWs.

      1. You not liking it doens’t make it unconstitutional. It is nice that you don’t like it but that is besides the point.

        1. John, those religious symbols were unconstitutional then and have been.

          I have mostly ignored the topic because I knew once this was discussed again after the 10 Commandants bullshit at fire stations 20 years ago, that Civil War soldiers on horses would be targeted.

          The Constitution does not prohibit soldiers on horses.

          There are plenty of groups that would pay to convert the memorials to non-religious symbols. No desecration or bullshit tearing down like with the Civil War memorials.

          1. This really isn’t comparable to Confederate monuments?. In this case, folks are arguing it’s unconstitutional. In the case of Confederate monuments, people are saying it’s improper. Totally different.
            ________
            ?And let’s be honest here, it’s not Civil War monuments and statues that are being targeted, it’s specifically Confederate ones. This is not an equal opportunity crusade.

        2. John, you liking them doesnt make the constitutional.

      2. I’d go further and say the government has no business putting up memorials in the first place.

        The cross was erected by the American Legion on private land that was turned over to the state.

      3. “I’d go further and say the government has no business putting up memorials in the first place.”

        But in this case, the government didn’t put up the monument. They basically seized the property it was on.

    4. Religious people thought that they could squeeze religious icons into secular society. Fuck them, change the memorial to be a symbol that is not religious and keep religion out of government.

      Actually that, in this case, is verging on the tyranny the FF sought to escape. The monument was private and purchased on the property right-of-way of the new local highway. By your own precepts the state shouldn’t have purchased it in the first place. If the government can purchase any religious symbol it likes and destroy it it’s just as much a violation of free speech and establishment as if it could just ban the religion directly.

    5. What you’re advocating, lc1789, sounds less like stopping the endorsement of a religion and more like open hostility to religion. Hostility to religion is an implicit endorsement of atheism – which is, counterintuitively, a religion.

      There has to be a line between endorsement and hostility. The proper standard should be neutrality – neither for nor against any one religion and neither for nor against the concept of religion.

      1. I’m not hostile to religion and even if I was, its the same 1A right to protect religious expression and being hostile to religion.

        I even advocate churches lose their tax free status. Treat them like every other business.

        1. Apologies if I was unclear. I was not saying that you were hostile to religion – I was saying that the position you advocated above looked like hostility. And while you are correct that being hostile to religion is (and should be) every bit as protected by the First Amendment as pro-religious action, the government has no business expressing such hostility.

          Re: churches losing their tax-free status – I don’t think it would really change anything. Churches are not tax-exempt merely because they’re churches, they are tax-exempt because they are non-profits. The only real difference in tax treatment is that churches are presumed to be non-profits on the basis of less paperwork than non-churches have to generate to get that same status.

  7. It invokes the central theological claim of Christianity, that Jesus Christ, the Son of God, died on the cross for humanity’s sins and that he rose from the dead. This is why Christians use crosses as a way to memorialize the dead. It is because it connects to that central theological belief.

    Hmm. As someone who was raised and still considers himself Catholic, I can honestly say that I haven’t associated the Cross as a memorial that directly with belief in the Resurrection. It certainly can take on that very specific meaning (although the Catholic in me would first associate the Cross with the dying for our sins part), but it’s also more of a general purpose way to signify that someone is/was a Christian.

    I would liken it to the American flag, which, in principle has very specific symbolic meanings (one star for each State, one stripe for each of the original Colonies, a blue field for unity, red for the blood, sacrifice, and valor of patriots, white for peace), but is usually just used as a way of saying “I’m an American”.

    1. I take it as meaning that most or all of the people there were Christian. If a town’s war dead had for whatever reason been mostly or all Jewish or Muslim, I would see nothing wrong with putting up a Star of David or Red Cresent instead of a cross. The memorial says something about the people it commemerates not what you should be or are.

    2. “but is usually just used as a way of saying “I’m an American”.”

      It can also mean “I listen to Kid Rock” and sometimes “NASCAR is a pretty cool sport”

        1. Are you disrespecting the flag?

          1. I am disrespecting something for sure…

  8. “whether or not there’s an independent secular purpose”

    OK. Birds rest on it.


  9. The memorial says something about the people it commemorates, not what you should be or are.

    This.

    It’s not about you. It’s about them. Their comrades had this put up for them.

    If you do something worth commemorating, your comrades will put up something for you.

    I don’t care how it makes you feel. It’s not about you.

    1. Right…it’s not about YOU. its about the Constitution and not that this cross has been eminent domained, it belongs to the government.

      Sell it to a private party and move it, change it so its not a cross, or ignore the Establishment Clause.

      I can tell you right now, Christians are not going to like everyone in the USA getting public monies for every religion.

  10. The idea that an historical monument isn’t historical if it’s religious in nature seems absurd.

    Is maintaining the church in Colonial Williamsburg a problem?

    If there’s a church of historical significance to the Reverend Martin Luther King, I’m not about to complain that its significance is religious rather than historical–just because it’s a religious building.

    If there’s a mosque, synagogue, or Mormon tabernacle that’s of historical significance, I’m not about to object on the basis that’s it’s religious either.

    All that being said, maybe the best thing to do is to privatize it? If the problem is that it’s in a public park, then maybe they should offer to sell it (or donate it) to a private organization that’s willing to maintain it with public access.

    1. Where does it stop?

  11. This entire thing is only a problem because the government is involved. As usual, government is the problem.

    Just privatize it all and be done with it.

    1. Is government the problem with the child rapists you want to import?

      1. Fuck off you lying piece of shit.

        1. You’re not going to live that one down, jeff.

          I sent that thread to a friend.
          He was amused.

          1. Fuck off you lying piece of shit.
            You as well lie about me all the time.
            Not surprising, really.

            1. https://reason.com/blog/2019/02/28/reason-roundup

              I invite everybody and anybody to verify for yourselves.
              It’s rather entertaining, in a train wreck sort of way

    2. See above. This particular memorial (and the land it sits on) started as private. Only when the government expanded a nearby road and made ongoing private maintenance unsafe did anyone consider giving the monument and the land to the government. Privatizing it now would recreate the safety problems that both the original owner and the government found unacceptable.

      1. So the government created the mess when they expanded the road and created the apparent safety nightmare.

        Privatize the memorial, reroute the road, problem solved.

        1. Rerouting the road is almost certainly no longer possible. It would be cheaper to buy new land and move the monument.

          Note that “cheaper” in this case is still “outrageously expensive”.

          1. Okay, fine, then do that. But just get it out of government ownership.

            1. If the objection is to gov’t funding of the monument, what if moving it costs gov’t more than maintaining it? I’m pretty sure it would!

              1. Moving it to a place that will remain outside of government property will solve the problem.

          2. I’m fine with “outrageously expensive”.

            The error was the government acquiring the monument int he first place, which it shouldn’t have done. The government should bear the burden for correcting the mistake.

        2. Look at an aerial photo of where it is now: a park island in a complicated 3-way interchange. To reroute it, you’d have to tunnel under the memorial while leaving the existing surface road for private access. & what if the Legion doesn’t want it back? Fugeddaboudit.

  12. You know, they could avoid the whole mess if the State of Maryland simply sells that tiny portion of the park to a private organization (such as the American Legion). Then the private organization could maintain the memorial from now on.

    1. You know, they could avoid the whole mess if the State of Maryland simply sells that tiny portion of the park to a private organization (such as the American Legion). Then the private organization could maintain the memorial from now on.

      God. Fucking. Damnit! The American Legion built the thing breaking ground on private land less than a year after the war ended. In the intervening decades, the state widened the roadways to the point that the Legion couldn’t safely maintain the memorial and the Legion turned the property and maintenance over to the state.

      The American Legion isn’t a religious organization and the builder they contracted has/had built other memorials and buildings for other religious/atheist/agnostic organizations. The only reason this isn’t a free speech issue is because a bunch of narrow-minded atheist zealots see any cross made for any reason as a religious symbol that must be purged from view from any public property.

      1. a bunch of narrow-minded atheist zealots

        …who also have rights, which must distress you to no end.

  13. OK, the cross or a star or a prayer wheel on public property isn’t much concerning compared to other government violations of the constitution. But there are about 350,000 religious structures in the U.S. so it isn’t clear to me why any symbols have to be on public property. For example, the local courthouse has a Christmas creche on the lawn and the usual atheist v. Christian brouhaha started. Christians maintained it was a important holiday tradition, etc. etc. Yet there are five Christian churches within two or three blocks of the courthouse, and not one of them put a creche on their lawn. So a cynical person might begin to wonder just how important it was for Christians to show the birth of their savior to the public?

    1. Suppose Ye Ole Order of Satanist had put up a monument to honor their fallen comrades, much in the vein of the Ten Commandment brouhaha in Oklahoma; do the same arguments apply? Are the same people defending some Iron Throne on public land?

      Or even a Spongebob memorial.

      If they are not treated the same, it is favoritism, and will not stand scrutiny.

  14. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

    The problem we have, is that people don’t seem to understand that the ‘wall of separation’ is one way.

    Religion is under ABSOLUTELY NO COMPUNCTION whatsoever. Churches, faiths, lone practitioners can do whatever they want–and Congress is forbidden to interfere.

    This means that religion can press for the laws they want, and if passed in language that is secular in nature, get them enacted into law. And they have. Quite a few of our laws have duplication in religious texts.

    As long as Congress never says this religions crap is okay, but that religions crap isn’t, they’re fine. Even if the country gets littered with public monuments that are religious. Why?

    Because Congress is FORBIDDEN from impinging on the free exercise of religion.

    And if the people freely want religious monuments on public ground, they should have no say.

    Atheists DEMAND that the government–all of it– impinge on faith. And that is unconstitutional.

    There is no –zero, zip, nada– right in the Constitution to be free FROM religion.

    The first right is to never have the government force any religion above any other.

    The second is to never have the government interfere with one’s practice of religion.

  15. A memorial isn’t there for the benefit of those memorialized. It is for the dubious benefit of the community that survives them. Memorials should be subject to a local standard, not a national one. If the community in this case turns Jewish, or Muslim, or FSM, then they are empowered to elect representatives who will tear those memorials down, and replace them (or not) as they see fit.

    For the Federal government to step-in, declare memorials unconstitutional, and order their disposal or destruction, there should be a powerful reason to overrule the community that created them. I just don’t see that compelling reason here.

    1. “A memorial isn’t there for the benefit of those memorialized.”

      No. It’s there for the living to realize the sacrifice the war dead made for the living.

      If the community at some point thinks this sacrifice is not worthy of memorializing, I really don’t want to live there.

      1. That is the sucky thing here. The building of the cross was all done in compliance with the Constitution as it was private donations on private land and the government made it a problem by Eminent Domaining the land.

        Its a war memorial for brave young men who gave their life for America and deserve respect.

  16. I understand how the 14th amendment brings down to state level free exercise, but not non-establishment.

    1. This is the problem Justice Gorsuch has such a difficult time with. Anything beyond outright coercion leaves wiggle-room for allowing these objects (memorials, plaques, the Ten Commandments art located in the Supreme Court itself, Aztec totem poles) to remain, under various guises. It’s the “dog’s breakfast” of case-by-case scenarios the Courts are tired of dealing with.

      I think the answer lies in allowing everything. If Arkansas, Florida or TX want to drown their towns in cruxifixes, they are free to do that. It doesn’t rise to the level of coercion. If City Hall starts building a church, or requires the townfolk to sign traffic tickets pledging their everlasting souls to Christ, then we have a problem. The conflation of “discomfort” with “religious oppression” is the problem, I think. I wouldn’t want to live in a town that was so theocratic, anyway, so maybe the crosses would serve as a fair warning not to move there.

  17. Here’s hoping that SCOTUS rules that leaving the monument up violates the Establishment Clause while tearing it down violates the Free Exercise Clause.

    1. Seeing as the only way out of that is either “move it to a place where we can give it back” or “move the road so we can give it back”, that’s acceptable to me.

  18. This entire issue gets worse when you know the entire story. This monument to those from the county who died in WWI was originally built on private land by private donations. It was also believed to be the first that listed African American soldiers with white soldiers on a monument. The property was taken by eminent domain many years later and now is in a traffic circle. It is called Peace Cross and has been a landmark for years.

    Could a ruling that it must come down set a precedent for eminent domain to take over such things to destroy religious symbols?

    1. It really upsets me that some compromise could not be reached to move the entire memorial to a private park or somewhere that is not jammed between roads.

      It also sucks that it gonna be a national fight over a religious symbol and war memorial.

      If this was a fight over 10 Commandments again, it wouldn’t be so bad. This is why I get pissed at religious zealots. They have to have their religious symbols and think the rest of the USA agrees with them.

      1. They have to have their religious symbols (paid for with public money or on public property) and think the rest of the USA agrees with them.

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  20. With certain members of Congress wearing Muslim identifiable clothing to work, where do we draw the line? How about the proselytizing they are doing on behalf of Islam and Sharia law? Just let the memorial stand and get on to more important issues. I am a Jew and could care less about the number of crosses that can fit on an island in the middle of a highway. Lets go after the current crop of anti-Semites instead.

    1. @max s
      This shows just how much double think you have in your head. If a Muslim wearing traditional Muslim clothes counts as proselytizing in your thinking. Have you always said every person wearing a cross necklace was proselytism? Have you said anyone wearing a Yarmulke was proselytism? Or is it suddenly proselytizing when it’s a religion that leaves you uncomfortable? Be honest know.

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  23. Indeed, Gary Johnson was on the side of forcing accommodation as I recall. Still probably the least awful candidate, but not very libertarian to many people that claim it.

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