Establishment Clause

"Cleaning Up the Lemon Mess"

"What lower courts and local governments desperately need is not guidance on hypothetical cases that have never arisen. They need guidance on the many cases they're wrestling with today. Lemon doesn't provide that guidance. It makes the problem worse."


Prof. Michael McConnell (Stanford), one of the top Religion Clauses scholars in the nation, passes along some thoughts on the Maryland Cross arguments:

The Supreme Court heard oral argument yesterday in American Legion v. American Humanist Association, which is an Establishment Clause challenge to a 94-year-old cross memorializing World War I veterans. After argument, it seems likely the Court will uphold the cross. It also seems likely the Court will jettison the Lemon test, which has long sown confusion for lower courts and local governments alike. Unfortunately, however, oral argument gave the Court little help in finding a legal standard to replace Lemon. That is particularly disappointing because a better standard does exist—and it focuses on the historical elements of an establishment of religion at the time of the founding.

[1.] Yesterday's oral argument revealed plenty of dissatisfaction with Lemon. Justice Gorsuch reflected the mood when he called Lemon a "dog's breakfast," said that Lemon has produced a "welter of confusion" in the lower courts, and suggested that it's "time for this Court to thank Lemon for its services and send it on its way." Justice Kavanaugh and Chief Justice Roberts seemed to agree Lemon is too subjective to be useful. And Justices Thomas and Alito have criticized Lemon in the past. So it looks like Lemon won't control. The question is what will replace it.

[2.] On that question, Neal Katyal, arguing for the Maryland Commission that owns the cross, was no help. He urged the Court to uphold the cross based on its secular "purpose" and "objective meaning"—which is no different from the Lemon test.

Michael Carvin, arguing for the American Legion, which put up the cross, was a bit more helpful. He offered a "coercion" test with an exception for "proselytizing." Under that test, any "tangible interference with religious liberty" that amounts to coercion is unconstitutional, as is any government effort to "proselytize." This is similar to the standard offered by Jeff Wall, who argued for the United States.

But the Justices were plainly skeptical of this coercion-plus-proselytizing test. Justice Gorsuch said there is no meaningful difference between "proselytization" and "endorsement." Chief Justice Roberts, too, said the proselytization exception "degenerates pretty quickly into … a fact-specific test." Unfortunately, they are correct. Courts have experimented with "endorsement" for thirty years, and it is now clear that the test this most resembles is Mr. Rorschach's. Swapping in "proselytization" for "endorsement" is not much improvement.

[3.] So what should the Court use to replace Lemon? At one point, Chief Justice Roberts discussed the amicus brief I filed on behalf of the Becket Fund, which argues that the Court should adopt a historical approach. Under this approach, the question is not whether the government is "endorsing," "coercing," or "proselytizing" in matters of religion. The question is whether the government's actions share the characteristics of "an establishment of religion" at the time of the founding. After yesterday's argument, I'm more convinced than ever that a historical approach offers the best way out of the Lemon mess.

Under a historical approach, the first question is what constituted "an establishment of religion" at the time of the founding. This is not a difficult question to answer, as nine of the thirteen colonies had an establishment. These establishments shared six characteristics: (1) government control over the doctrine and personnel of the established church; (2) mandatory attendance in the established church; (3) government financial support of the established church; (4) restrictions on worship in dissenting churches; (5) restrictions on political participation by dissenters; and (6) use of the established church to carry out civil functions. In applying this approach, the burden of proof is not on the government to show that the First Congress or the colonies engaged in the exact same practice. Rather, the burden is on the plaintiffs to show that the government's conduct shares the historic characteristics of an establishment.

The historical test includes coercion, because so much of the historic establishment of religion was coercive. But it is far more textured than merely a coercion test. It includes 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. In short, an historical approach is bounded and objectively administrable, but not as narrow as "coercion" or as subjective as "endorsement."

[4.] This approach yields a clear result in the Maryland Peace Cross case: displaying the cross is constitutional. The government is not controlling religious doctrine, compelling religious observance, sending money to a religious organization, or punishing dissenting worship. It is simply using a religious symbol to memorialize fallen soldiers—a practice that is consistent with the "unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789." Lynch v. Donnelly, 465 U.S. 668, 674 (1984).

Our founders made every attempt to be religiously inclusive (within the demographic range of the day), but they did not regard the use of religious terminology or religious symbolism in the ordinary course of civic events as presenting an "establishment" issue. For example, a committee including Benjamin Franklin and Thomas Jefferson, tasked with designing a national seal, proposed an image of Moses and the Israelites crossing the Red Sea with the words "Rebellion to Tyrants Is Obedience to God." The national motto, the national anthem, and even the words with which Supreme Court hearings are begun contain religious references. Use of a cross to memorialize the war dead is not much different.

[5.] The historical approach is consistent with the vast majority of the Court's existing precedent, and indeed provides a better explanation for most of the cases. School prayer is unconstitutional because the government uses its power to control religious doctrine (by composing an official prayer) and compel religious observance (by pressuring children to say it). Engel v. Vitale, 370 U.S. 421 (1962). Test oaths are unconstitutional because they restrict political participation by dissenters. Torcaso v. Watkins, 367 U.S. 488 (1961). Laws giving churches veto power over liquor licenses are unconstitutional because they assign civil authority to the church. Larkin v. Grendel's Den, 459 U.S. 116 (1982). Laws giving exclusive funding to religious groups are unconstitutional because they mirror the exclusive taxes that supported the established church. Cf. Mitchell, 530 U.S. 793.

In particular, the historical approach gives objective content to the core principle of neutrality. The principle of neutrality has been malleable, at least as used in the Court's cases, because the Court has never clearly identified an objective baseline from which "neutrality" and "nondiscrimination" should be judged. Some opinions assume a baseline of complete secularism in government affairs, such that almost any religious references—whether "under God" in the Pledge of Allegiance, or prayers at city council meetings—are viewed as "advancement" of religion or denominational discrimination. This is ahistoric, produces hostility toward religion, and impoverishes public culture. A more objective baseline consists of the body of historical practices that have been widely accepted throughout the nation's history and are consistent with the historical meaning of the Establishment Clause.

[6.] The Court's main concern at oral argument was not with the cross at hand—which most Justices seemed to agree presents an easy case—but with hypothetical future cases that might involve more overtly sectarian displays. Justice Kagan, for example, asked what would happen if a city erected several "crosses around town" because the "values of Christianity" were "important to this community."

This is an important question under any approach. But the historical approach offers several good answers. First, as Deputy Solicitor General Jeff Wall emphasized for the United States, "all of the hard cases on this test are imaginary." There are 230 years of history since ratification of the Constitution—over 150 years of which took place before the Establishment Clause was held to be incorporated against the states—and there is no evidence of any locality anywhere putting up crosses around town to emphasize the values of Christianity. Judicial intervention was not necessary to prevent these extreme cases from happening.

There is a strong case to be made that the Court's intervention over the last forty years has made things worse, not better. The Court's efforts to draw fine lines where no objective lines can be drawn is the cause of, not the solution to, much divisiveness over religious symbols. The "symbol" most advocates from both sides want is a win in the Supreme Court.

Contrast the historical approach. The Virginia Assessment Bill, which was successfully opposed by Madison and Jefferson, explicitly rested on a claim that "the general diffusion of Christian knowledge hath a natural tendency to correct the morals of men." It is a far cry from that sort of explicit attempt to emphasize the "values of Christianity" and the use of a solemn symbol to honor soldiers from Bladensburg who died in World War I.

The historical approach is not "anything goes." A key element of an establishment at the time of the founding was government involvement in religious doctrine. Sometimes this meant the government enacted laws specifying official religious teaching—as when Parliament enacted the Articles of Faith, which set forth the official tenets of the Church of England. Other times it meant the government declared one particular faith as the official religion—as when South Carolina in its 1778 constitution provided that "[t]he Christian Protestant religion shall be deemed and is hereby constituted and declared to be, the established religion of this State." Under the historical approach, then, the question would be whether a government display shared these characteristics of an establishment. In an extreme case, the Court might conclude that erection of a symbol outside the ordinary context of civic events is tantamount to declaring an official religion—particularly if (as would likely be the case if this ever happened) the legislation or official acts authorizing the placement of the cross included statements to that effect. But the outcome would not turn on vague notions of "proselytization" or "endorsement"; it would turn on an objective comparison of the challenged government action to known historical practices.

[7.] What lower courts and local governments desperately need is not guidance on hypothetical cases that have never arisen. They need guidance on the many cases they're wrestling with today. Lemon doesn't provide that guidance. It makes the problem worse. A coercion-and-proselytization test doesn't provide that guidance. It sends courts back down the endorsement rabbit hole. Only the historical approach offers an objective path forward.

NEXT: No, Corporations Aren't People, and It's a Good Thing, Too

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  1. My Lord, if they start interpreting the Constitution according to original understanding, WHAT WILL BECOME OF REPRODUCTIVE FREEDOM FOR WIMMIN?: that is, after all, the primary reason we have a Constitution in the first place!!!

    1. Off-topic abortion ranting?
      Too much CPAC, I’m cuttin’ you off!

      1. The topic of this OP is the advisability of using “original understanding ” to define Constitutional rights.
        Which OP are you commenting on?

        1. The lemon mess one.

          1. You can shoehorn in abortion lotsa places on this blog (not just originalism, race too!, doesn’t mean I won’t notice.

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      2. If the comment section here is getting too hot for Sarcastrated just wait until he meets his maker and sees how hot it is downstairs.

        1. I do like this new fire and brimstone Jimmy the Dane.

          1. Certainly better than the ‘you and your ilk will first against the wall when the revolution comes’ ‘I just mean you’ll be arrested!’ Jimmy the Dane.

            No courage in that guy.

    2. Maybe if they start interpreting the Constitution according to its original understanding, they’ll rediscover the Ninth Amendment, and that among the unenumerated rights reserved by the people are the rights to decide what to do with their own bodies, and whom to marry, and what they can smoke, and how to make an honest living without asking the government “Mother may I?”

      1. The number of expert originalists in the Conspiracy comentariat, and how much the disagree, makes me wonder how much clarity Prof. Volokh’s prescription would actually bring.

      2. All of your list of goodies makes sense, except for “whom to marry”. There the aggressive lobby wants the state to do something to them– treat them like an M/F marriage. You can “marry” your ’65 Mustang, if you want: you just can’t force the voters to ratify and incentivize your choice.
        Nice try though

  2. All this fuss could be easily avoided by just selling the land and its cross. Get the government out of such non-government roles. Stop putting up statues, leave that to private people and organizations who can decide on whatever religious or SJW grounds they want who to honor and dishonor.

    1. Not really, it’s about a matter of principal, the cross itself is largely immaterial. These things matter. After all, the baker in Masterpiece could have just baked a single damn cake, what’s the big deal, right?

      1. The principle being for government to butt out? to mind its own business?

        1. If you think rephrasing things to your liking changes the fundamental issues at stake, you’re mighty mistaken.

          1. I was positing a simple way to avoid the issue at stake. You seem intent on insisting on the principle that government not only can, but must, butt into life wherever possible.

    2. Agree.

      The govt is fighting to keep a cross.

      Intention and history and blah blah blah don’t matter.

      Simply put, TODAY the govt is trying to keep a cross (and spend funds too).

      It’s gotta go.

      1. Welp, apedad and alphabet commentator agree. It’s 2019 folks, like it’s not that hard. Therefore, the rest of use should just pack it up then, no need for further comments folks.

        Move along, move along. Nothing to see here.

      2. Its a cross, not a rabid dog. Its not going to hurt anyone.

        1. Then it was a waste of money to put it up.

          1. The government didn’t spend any money to put this cross up. See below. The cross (and the land it is on) was donated to the government after a road expansion made continuing private maintenance of the monument untenable.

          2. “Then it was a waste of money to put it up.”

            It’s a monument to war dead. /That’s/ why it was put up. It’s /still/ a monument to war dead. The government wasn’t involved in designing or placing it or anything. People /donated/ their money to put it up (on private land, no less), so nothing was “wasted.”

            The government simply used eminent domain to take it from the original owners so it could build a road more expeditiously.

            The monument exists as a continual reminder of the human cost of war, with a design that everyone knows reflects the time in which it was erected.

          3. ABC is slowly drifting into chemjeff territory. People have reset explained why your facial analysis is ignorant so I’ll refrain.

    3. All this fuss could be easily avoided by just not protesting.

      All this fuss could be easily avoided by just not speaking.

      All this fuss could be easily avoided by just getting rid of your guns.

      All this fuss could be easily avoided by just letting soldiers be quartered with you.

      All this fuss could be easily avoided by just pleading guilty.

      1. And what principles do any of those options serve? The right, and duty, of peasants to obey a government?

        1. All this fuss could be easily avoided by just understanding sarcasm.

      2. One notices that /none/ of those are at play in this case, in which the monument is not infringing anyone’s rights, except perhaps the right to be continually outraged. No, not even that. One can be outraged and can protest and can speak to one’s heart’s content.

        However, from the comments of the justices it appears one cannot force the state to tear down a monument to war dead that has an ancient design one dislikes. Sorry.

        1. an ancient design one dislikes???

          That’s all you see when you look at a cross – an ancient geometric figure?

    4. re: “All this fuss could be easily avoided by just selling the land…”

      Not really. Remember that in this particular case, the land (and the cross) were originally bought and maintained by purely private actors. Only when the government expanded the nearby road in such a way that ongoing maintenance became a safety hazard did anyone consider giving the land to the government. (Unlike private citizens, government maintenance crews are allowed to put out traffic cones and disrupt traffic while they are cutting the grass, watering flowers, etc.) Giving the land back to the original owners would just recreate those safety hazards.

    5. abcdef becomes a liberatarian, asking the government to get out of such “non-government roles” like traffic management. Wow. What next, he asks the government to get out of making religious decisions about people’s health care choices?

  3. The historical approach is all well and good, and perhaps the best, but lower courts practically NEED a test or bright line rule. First, the don’t really have the capacity for Originalism’s necessary research, and Second, many courts’ judges have no desire for engaging in Originalism.

    For example, this is what happened with post-Heller/McDonald cases, which was an explicit call for lower courts to engage in Originalism rather than follow some made up rule. Rather than engage in historical analysis to see if a particular gun control law was historically accepted/paralleled, most lower courts immediately defaulted to a (sorta) intermediate scrutiny test that took the narrowest reading of Heller possible (that only complete handgun bans and restrictive storage laws were unconstitutional).

    So where does that leave us on this issue? Kinda right back where we started.

    1. There is an easily defined test contained in this article that draws from history.

    2. Here is your bright line rule – the federal government cannot establish or sanction an official church. There you go. That is all the historical and relevant interpretation of the establishment clause you need.

    3. I think the historical aspect can play an addendum to the Lemon rule. “Monuments and such that have been standing for 25 years or more can continue standing and being maintained, even if on public lands. ”
      –addendum. If it’s knocked down, it can be put back up.

    4. Second, many courts’ judges have no desire for engaging in Originalism.

      Originalism: Younger than Kim Kardashian, and less popular, but to its fans it is The Way.

      1. Rev. Arthur L. Kirkland: Dumber than Kim Kardashion, more historically illiterate, MUCH less popular, and to his readers, completely incomprehensible.

        While the Rev. Kirkland continues to trumpet that originalism is some kind of newfangled travesty, invented by Justices Scalia and Thomas, he simply demonstrates his ignorance, or his dishonesty, with this canard. It was 200 years ago, in the case of Dartmouth College
        v. Woodward, that no less a light than Chief Justice Marshall used originalism to determine the meaning of the Contracts Clause. Not only did Marshall examine the original meaning of the Constitution, he discussed in detail the distinction between original intent originalism and original public understanding originalism. Of course, the Rev. will never acknowledge this honorable and ancient precedent for originalism, even though it is a demonstrable historic fact, because it doesn’t fit his preferred narrative. Which only proves what a dishonest jackass he is.

        1. I’m a dishonest jackass.

          You’re a stale-thinking bigot on the losing side of the culture war.

          I am content.

      2. What theory of interpretation did Justices John Marshall, Joseph Story, John Harlan (1st and 2nd), O.W. Holmes, and Robert Jackson use?

        1. There was no justice in history more outcome-driven in his constitutional interpretation than John Marshall.

  4. Engel v. Vitale should not be good law under an historic test

    Its not state control or funding so is not an establishment.

    Applying “free exercise” to a school prayer [like with the Pledge of Alligance] will protect dissenters from being forced. Its enough.

    1. Keep in mind also the good fight had to tackle “my child shouldn’t have to see your child’s cross in school and therefore your child is prevented from wearing one.”

  5. Comments in the OP about original historical establishment practices strike me as maybe too narrowly on point. I suspect a broader search of the record would deliver more variety and more conflict.

    Also, on what historical basis do you exclude experiences from 4 states which don’t have a history of establishment? Maybe they don’t have that history because they actively sought to exclude it. If so, why would anyone suppose that would be irrelevant to the analysis?

    A further complication might be found in cases where religious establishment began under colonial governments?thus telling little or nothing about U.S. constitutional intent, however long they may have continued after ratification.

    An important point about a colonial-era establishment is that at some point it did not continue, but that may not be the only point. What suggests its characteristics are especially relevant to deciding what constitutes establishment now? Thinking that way may establish a too-narrow set for what should be proscribed.

    Finally, the whole argument seem tone deaf to the pervasiveness of quasi-establishment norms in smaller and more isolated communities today?where they can be a notably active threat to liberty.

  6. Asin the previous discussion of this case, I don’t see how, under this “historical” approach, a proclamation by Congress that “Zeus is the Lord of the country” would violate the 1A.

    McConnell is disingenuous, as he often is, in his claim that this approach would prohibit school prayer like Engel v. Vitale. He surely knows that problems with school prayer go well beyond having the government write a prayer and order it recited.

    It is also inaccurate to claim that the cross “is simply using a religious symbol to memorialize fallen soldiers?a practice that is consistent with the “unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.” It is being used to memorialize certain specific, identifiable, soldiers. Indeed, that seems to be the reason some defend it – that all were Christians.

  7. Another issue entirely absent from the above Establishment Clause discussion is when the government grants a denominational preference or discriminates in favor of one religious group. In the past, the Court has applied strict scrutiny to determine whether the government has engaged in religiously preferential conduct.

    My firm (a nonprofit) is representing several families in challenging the San Diego Unified School District’s “anti-Islamophobia initiative,” which was developed in collaboration with the Council on American-Islamic Relations (CAIR). The program grants special protections to Muslim students and empowers CAIR to vet and revise school curriculum to depict a more “inclusive” portrayal of Islam. There are no anti-Christophobia or anti-Semitism initiatives.

    We argue that because the initiative singles out Islam for distinctive treatment, it triggers strict scrutiny. The school district failed to show any evidence of Islamophobia in the schools, and it did not justify its partnership with CAIR, an Islamic advocacy group. And so the initiative violates the Establishment Clause.

    I’m not sure a historical approach would properly address the San Diego case. But one thing is certain: Lemon needs to be squeezed.

  8. as Deputy Solicitor General Jeff Wall emphasized for the United States, “all of the hard cases on this test are imaginary.”

    Well, I don’t agree that putting up crosses all around town is a hard case, but there are hard cases. Maybe the reason some practices are uncommon is that it is understood that they are unconstitutional.

    To argue that “We no longer need to stop people from doing this, because nobody has been doing it,” is an idiotic argument. “No car has slid off this mountainside road since we put up guard rails, so I guess the guard rails can be taken down.”

    1. “Well, I don’t agree that putting up crosses all around town is a hard case”

      What makes that an easy case for the historical approach?

      “To argue that “We no longer need to stop people from doing this, because nobody has been doing it,” is an idiotic argument. “No car has slid off this mountainside road since we put up guard rails, so I guess the guard rails can be taken down.”

      That is indeed an idiotic argument. Also idiotic is thinking that that’s the argument McConnell is making.

      1. Show your work, jph – what is the distinction you think exists between McConnell’s logic and bernard11 analogy?

        1. The distinction should be completely obvious to anyone reading the McConnell piece in good faith. I’m not surprised you don’t get it, because you have repeatedly demonstrated that you are either too dumb or dishonest to understand arguments you don’t agree with.

          Why don’t you explain where McConnell makes the argument bernard11 pretends he does?

          1. There are 230 years of history since ratification of the Constitution?over 150 years of which took place before the Establishment Clause was held to be incorporated against the states?and there is no evidence of any locality anywhere putting up crosses around town to emphasize the values of Christianity. Judicial intervention was not necessary to prevent these extreme cases from happening.

            Care to try again?

            1. Why would I try again? You just quoted a passage demonstrating that bernard11’s analogy is idiotic. You just are too stupid to realize it.

              1. jph You have an odd idea as to what constitutes intelligent discussion on a topic.

                1. My ideas of what constitutes intelligent discussion are perfectly normal and I’ve made my position perfectly clear on multiple occasions. Sarcastr0 is not worth having an intelligent discussion with because he’s too stupid to understand what’s being discussed. Something that he demonstrated, once again, in this very thread.

                  1. Then instead of calling him names and insulting him, why not just stop interacting with him? Since you think he isn’t worth having an intelligent conversation with.

      2. If the historical approach makes that a hard case so much the worse for the historical approach.

        1. Why is an unrealistic hypothetical designed to test the contours of the approach (I’m willing to bet that Justice Kagan put some thought into her question) being a hard case for the historical approach a bad thing for the historical approach?

          1. Because by any reasonable standard the hypothetical is an establishment of religion. How can it not be?

            Which is one reason the historical approach is nonsense.

            Let me repeat the objection I made elsewhere. McConnell’s approach makes the assumption that the Establishment Clause only bans the sorts of establishment that the founders were familiar with. But there is no reason whatsoever to make that assumption. Just because the government wasn’t planting crosses everywhere doesn’t mean the Establishment Clause doesn’t bar that – it doesn’t mean the founders would have thought that was just fine.

            When someone here occasionally suggests that the 2A protects only the types of weapons in use in the 18th century, they are widely ridiculed. Yet that’s the sort of logic McConnell is using. The Constitution does not del only with matters the founders were familiar with. It lays out principles for dealing with other things as well.

            Eugene may consider him a “top Religions Clause scholar,” but I’ve never found his arguments – at least solar as they have been presented here – impressive.

            1. “Because by any reasonable standard the hypothetical is an establishment of religion. How can it not be?”

              That doesn’t answer my question. Kagan intended* her question to be a hard case for the historical approach. Regardless of the test proposed there are going to be hard cases. Of course, part of the reason the question is hard is because (apparently) that wasn’t the kind of thing that states did when they had established religions.

              What test are you proposing instead?

              “When someone here occasionally suggests that the 2A protects only the types of weapons in use in the 18th century, they are widely ridiculed. Yet that’s the sort of logic McConnell is using.”

              No it isn’t. The sort of logic that McConnell is using is the sort of logic that says that the Second Amendment only protects arms that a person can carry, not crew weapons.

              * I’m guessing, because she’s a competent justice and I don’t think she would throw a softball to the historical approach in a situation like this.

              1. What test would I suggest?

                Well, I don’t agree that the Lemon test is so bad. I think it is clearly superior to this “historical” test, which is far too permissive IMO.

                Consider a law granting Baptists a $1000 tax credit. Would that be ok, do you think?

                If not, which of McConnell’s six principles would it violate? None that I can see.

                1. Broadening my example, I see nothing in McConnell’s idea that would prevent government from granting privileges only to adherents of some faith, or denying them on that basis either.

                  I see nothing to prevent it from printing “Jesus is our Savior” on the currency, etc.

  9. I don’t think it is any coincidence that as we chase God out of the public square our society becomes increasingly more deviant. Heck now the Left thinks murdering babies ought to be legal. What next?

    1. Superstitious right-wing bigots are among my favorite faux libertarians.

      Carry on, clingers.

      1. The Devil is going to have a lot of fun with Cuckland.

        1. Do the Conspirators still wonder why strong liberal-libertarian mainstream schools reject the invitation to emulate shambling conservative-controlled campuses by hiring more right-wing professors?

          Or why movement conservatives have lost the culture war in modern America?

  10. There is a basic flaw in McConnell’s approach. He describes certain characteristics of religious establishments at the time of the founding, and concludes that these were exactly and only the things the Establishment Clause was intended to outlaw.

    This seems to me to be utterly unsupported. How do we know this? Yes, these were cases they were familiar with, but unless someone asked them about other, then hypothetical, issues, we cannot know what they would have thought.

    McConnell goes on to argue, effectively, that we are bound by this rather narrow view, and are not allowed to consider other cases, unknown to the founders, where government gets inappropriately involved in religion. I don’t buy that either. We are not required to close our eyes to over two centuries of history, or to imagine that the intrusions into religious liberty the founders were familiar wither the only ones the Constitution bans. That’s like saying the Air Force is unconstitutional.

  11. Happy (1/4th of a) Birthday to the OP. (Or is it better form to wait a day, and post this on 1 March???)

  12. So, hypothetically, if the cross went, what would happen to oh, the Native American History Museum with its ceremonial/spiritual/religious displays?

    1. By virtue of being in a museum, rather then a roadside erection, the context changes.

      Same with by virtue of being an individual grave marker in Arlington, rather then a roadside erection, context changes.

  13. Choose reason. Every time.

    Especially over sacred ignorance or dogmatic intolerance.

    Most especially if you are older than 12 or so. By then, childhood indoctrination fades as an excuse for backwardness, ignorance, bigotry, gullibility, and superstition. By ostensible adulthood it is no excuse.

    People are entitled to believe as they wish, and any comfort that religion brings to people is good, but responsible people neither advance nor accept superstition-based arguments in debates among adults, particularly with respect to public affairs. ‘My fairy tale can beat up your fairy tale’ is an especially childish argument.

    Choose reason. And education, tolerance, science, progress, inclusivity, and modernity. This means avoiding ignorance, dogma, superstition, bigotry, insularity, and pining for good old days that never existed.

    Choose reason. Every time. Be an adult.

    Or, at least, try.

    1. Looks like Cuckland chose stupidity and bigotry.

    2. In other words, do as I say, not as I do?

      1. Arthur Kirkland and Richard Dawkins have answered the deepest questions about human existence.
        Anyone who disagrees with them is a goober.

  14. One very simple way to address the case at hand would be to extend Valley Forge somewhat and roll back the special standing rules by which, unlike in other matters, anytime somebody doesn’t like something the government says or does it automatically creates standing in establishment clause cases.

    If something more than simply not approving of the art the government sponsors is required to establish a case or controversy, many of these monument type cases would go away without having to work out the exact standard to use. We could wait for the cases where an establishment clause violation results in a plaintiff experiencing an actual concrete injury, and decide what standard to use then.

    This would result in an even-handed approach. If objecting to government sponsoring a display of Piss Christ is regarded as nothing more than advocating censorship by people whose only claim of injury is merely their nonjusticiable personal belief the art offends them, objecting to government sponsoring something like this ought to be treated, for constitutional purposes, the same.

  15. I wonder why they can’t just let the American Legion buy the site and administer it themselves. Are there limitations on what public property they can sell?

    1. They owned the site when they first put up the monument. They continued to own the site and to maintain the monument until the government expanded a nearby road to the point that it was no longer safe for them to maintain the site. Only at that point did anyone consider giving the land and the monument to the government. (Unlike the rest of us, government maintenance crews are allowed to put up road cones and disrupt traffic when they want to cut the grass and water the flowers.)

      If the government gave the site back to the AL, it would recreate the safety concerns that both the original owners and the government objected to.

  16. Regarding “there is no evidence of any locality anywhere putting up crosses around town to emphasize the values of Christianity.”

    “U.S. Supreme Court rules the city of Grand Haven cannot put up a cross on public land”

    Mount Soledad Easter Cross in La Jolla, put up “by the community” on city land.

    “A utility pole in an Ozark, Mo., city park had been fashioned into a cross shape and has stood that way year-round. During the holiday season, lights on the cross had been illuminated as one of several lighted displays on a popular drive-through tour”

  17. I’ve long enjoyed reading Michael McConnell on the history of the religion clauses. But I am disappointed that he uses “an historical” in this post ? a barbarism. In fact, going off memory here, I recall being happy that he used “a historical” in the amicus brief. Maybe Luke or someone else at Beckett made the change before filing. But a man of Michael’s intelligence and academic stature should not be writing “an historical.” The h is not silent. Paging Bryan Garner.

    1. A “Britishism” = a “barbarism”?

    2. Nick, “an historical,” or “an historian,” can fall uneasily on ears accustomed to American speech. But the more you talk about history, and the wider the circles in which you discuss it, the more times you note speakers who suppress pronunciation of the “h” in “history” (there are some in the U.S., and many in other English speaking cultures) experience pronunciation difficulty without the “an.” After a while, it seems simple courtesy to use the “an,” and let Americans get used to it.

      1. No thanks. The “h” is pronounced. It’s not that hard. Does McConnell also spell color with a u? No one is going to look down on you for writing “a historical”; some definitely will for using “an.” I’ll stick with the authorities who prefer an “a,” including the Chicago Manual of Style, the Associated Press Stylebook, Bryan Garner, Eric Partridge, Mark Twain, . . . . When I see someone write “an historical” (I hope you agree that “an history” is an abomination no matter where you come down re: historical), I just know that the writer pronounces the “t” in “often.” Don’t be that person.

        1. Silent letters are an abomination.

          1. They ar an abomination.

      2. Stephen,

        There may be some who find the use of “an” easier than “a,” but in my experience that usage by American English speakers is a pretty reliable marker of pretentiousness.


        1. bernard11, try it yourself. Suppress the “h” and say it both ways. Say it aloud. See how when you suppress the “h,” (which is normative pronunciation for educated people in much of the English speaking world), and when you don’t say “an,” you end up sounding like you are speaking with a music hall cockney accent? It isn’t pretentious to notice that, and to avoid it, especially among professional historians who interact internationally and regularly encounter various pronunciation.

          It may be that ordinary American custom is to suppose that anyone who is a professional historian, or who interacts internationally, is pretentious, but I hope that isn’t your usual expectation.

          For what it’s worth, I don’t think anyone in the profession looks down on Americans who don’t say “an.” If they did, then I might agree with you that it would seem pretentious.

  18. Stephen,

    I admit my experience is limited, and I may observing a random coincidence rather than a real correlation.

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