In the wake of the dumpster fire that was Justice Brett Kavanaugh’s confirmation hearings, there was speculation in legal circles that the U.S. Supreme Court would lay low: It would avoid taking on controversial cases or overturning long-standing precedent.
But the Court’s action earlier this month suggests that patience, restraint, and avoiding hot-button issues are not going to be its new watchwords.
On November 2, on the eve of the first Shabbat since the anti-Semitic massacre in Pittsburgh, the Supreme Court agreed to hear an appeal to a decision striking down a 40-foot cross World War I memorial in Bladensburg, Maryland. The American Humanist Association (AHA) challenged the cross’ presence on government land, and the Fourth Circuit had ordered its removal. The Supreme Court often—though by no means always—overturns cases it agrees to hear. AHA has to win over at least one conservative justice, so many fear that the Court will allow the cross to stand.
But doing so would fly in the face of precedent. With the exception of allowing a makeshift cross at the 9/11 Memorial Museum, no final decision in any federal court has allowed the government to maintain and display a Christian cross on government land.
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Rightfully so. The cross is the symbol of Christianity. Using the cross as a collective war memorial not only disparages every Jewish, atheist, Buddhist, Sikh, Muslim, and other non-Christian in our military, it also represents—in 40 feet of concrete—the government aligning itself with one religion. (This, of course, is entirely different from the government maintaining a cemetery where individual soldiers choose personal memorials with religious imagery, including crosses; in other words, comparisons to the rows of crosses at American Cemetery at Normandy or Arlington National Cemetery are irrelevant.)
Accepting the cross case is precisely the kind of controversy experts assumed the Court would avoid. So why do it?
One of two things appears to be happening. First, it’s possible the experts were wrong and the conservative justices don’t mind courting controversy, even with the damage Kavanaugh caused to the Court’s reputation. The solid conservative majority is ready to begin checking items off the Federalist Society wish list.
The second possibility is more alarming, especially if you are someone who values our First Amendment and secular government: The conservative bloc does not see approving a 40-foot-tall concrete monument to Christianity on government property, and overturning decades-old precedent in the process, as controversial. Worse, perhaps they think they are avoiding controversy by allowing the symbol to remain.
If this is true, then those conservative justices essentially do not believe that the Constitution guarantees anything like the separation of state and church currently enjoyed by people in the United States. The justices will have bought into the Christian nationalist worldview that helped carry Donald Trump into office and will do untold damage to our republic and the principles for which it stands.
There’s another telling aspect of the Court agreeing to hear this appeal. In recent years, the federal courts have relied on a legal fiction called “standing” to avoid deciding the merits of constitutional or legal questions, instead deciding that the challengers cannot even bring the lawsuit in the first place. Rooted in Article III of the Constitution, standing is ostensibly meant to ensure that courts are only hearing “cases and controversies” that have been fully and adversarially argued. The details of standing and the various requirements—injury, causation, redressability—are less important than how the courts use it: to avoid making legally correct but politically unpopular opinions. Typically, courts say that plaintiffs are not injured by the violation or not injured enough. Standing jurisprudence is internally inconsistent and frustrating. Many of the major standing opinions from the Supreme Court involve groups seeking to uphold environmental protections or groups seeking to keep state and church separate. To avoid the outcomes plaintiffs seek, courts bar them from the courtroom altogether.
Standing is a dodge: a way to avoid what the judges might consider a mandatory yet distasteful outcome. For instance, our government has, as Alexander Hamilton wrote, “no particle of spiritual jurisdiction,” so no president has the power to declare a day of prayer. And yet in 1952, Congress passed a law requiring the president to do just that. In 1988, Congress went even further, passing a requiring the president to designate a specific day each year—the first Thursday of May—as a national day of prayer.
When the Freedom From Religion Foundation (FFRF)—where I work as an attorney and the director of strategic response—challenged this law, the federal district court correctly decided that it violated the First Amendment. On appeal, the Seventh Circuit did not disagree. How could it, when the First Amendment says “Congress shall make no law respecting an establishment of religion,” and this was Congress establishing a national day for prayer? Faced with an undeniable violation, the unassailable logic of the district court, and a popular law (67 members of Congress and 29 states filed amicus briefs defending the law), the Seventh Circuit decided that FFRF was not even able to bring the challenge, going so far as to hold that “If this means that no one has standing [to challenge the law], that does not change the outcome.” In other words, Congress can do precisely what the First Amendment prohibits because no one has standing to stop it.
Standing has been overused in the past 40 years to save judges from deciding unpopular opinions. Instead of allowing cases to proceed to ensure the Constitution is upheld, courts have used standing to permit violations of the simple rule that “Congress shall make no law respecting an establishment of religion.” During that time, the Court should have been upholding the First Amendment, not deferring to standing doctrine. But now that it has justices willing to toss that Establishment Clause aside, something scarier might be happening. The Court did not add standing to the list of issues presented in the cross case. Combine that with the fact that the Court is hearing the case at all, and this is a wrecking ball swinging toward the wall of separation.
The nightmare scenario might play out like this: First, religious symbols on government property will be approved. But because we live in a Christian-majority nation—a dwindling majority to be sure—Christian symbols will go up on government buildings and other publicly funded spaces. That means crosses, Ten Commandments, and nativity scenes, among others. The Bill of Rights is meant to protect the minority from the tyranny of the majority, but that won’t matter because the high Court will have stripped that First Amendment protection.
Second, courts will begin to abandon standing restrictions—they will decide in favor of Christian displays on the merits rather than bouncing plaintiffs out on a procedural technicality. In other words, they will take the opportunity to issue binding precedent that dictates the ability of Christians to impose religion on others, rather than leaving room for plaintiffs to bring challenges to such symbolism in the future. Now that there’s a conservative bloc on the court to decide cases on the merits in favor of, for instance, Christian nationalists, challenges will be heard and adjudicated in a way that ignores legal principles like state-church separation. Kavanaugh actually laid out this roadmap in a 2010 dissent.
That’s the nightmare. The Court will pick and choose, continuing to throw out inconvenient cases on standing, but not addressing it in cases where the conservatives are prepared to overturn decades of precedent and our founding principles.
The attack on the wall of separation between state and church is an attack on a fundamental freedom. It’s an attack on our Constitution. But it’s also an attack on true religious freedom. There can be no freedom of religion without a government that is free from religion. A secular government is the only guarantee of true religious freedom and, with this Supreme Court, it is in very real danger. We’ll know just how much when the court decides the fate of this cross.