Hamlet, Shakespeare’s melancholy Dane, epitomized the man paralyzed by indecision, never sure how he should feel or act. With the decision to deny review in the case of California’s Mount Soledad Veterans’ Memorial, the U.S. Supreme Court’s long-awaited guidance on religious traditions feels like an extended version of that play.
The latest decision — or lack thereof — comes because the Department of Justice and veterans organizations asked the Court to review a decision from the Ninth Circuit, the most overturned federal circuit in the nation, which found that a cross in the veterans’ memorial violates the U.S. Constitution.
Simply put, the high court’s lack of guidance on the Establishment Clause has produced chaos. When the Supreme Court denied review from a case involving roadside crosses honoring state troopers who perished in the line of duty, Justice Clarence Thomas dissented and noted the law on the subject was in “shambles.” With the latest decision to forgo a decision, Justice Samuel Alito issued a more restrained assessment to the same effect: “This Court’s Establishment Clause jurisprudence is undoubtedly in need of clarity.”
In fairness, the Supreme Court apparently denied this case because it is not yet in final form. Even the ACLU brief to the Supreme Court admitted, “This case is far from over.” So a decision may yet come for Mount Soledad, but until then, confusion reigns.
The chaos extends to multiple areas, including invocations, memorials, Nativity scenes, Ten Commandments displays, and even recitations of the Pledge of Allegiance. Yet, all these subjects have something in common: No one knows what is allowed and why.
Accommodation of religious heritage was commonly understood by our nation’s founders. Even Thomas Jefferson, who referred to the so-called “separation of church and state” in private correspondence to the Danbury Baptists to assure them that the federal government would not intrude in church matters, attended Christian worship services in the Capitol — and for good measure ordered the Marine Corps Band to play at worship. Practices such as invocations and the use of religious symbols such as a memorial cross were taken for granted.
But practices accepted for many decades are now unclear, and we have contradictory decisions from federal appeals courts. One Supreme Court justice wryly noted that memorial crosses, Nativity scenes, menorahs, and Ten Commandments displays violate the Establishment Clause . . . except when they don’t. Courts can’t even agree on the correct standard of review in these cases. The so-called Lemon test (after a decision by that name) has proved — in an often used pun — to be a lemon of a test.
Groups like the ACLU and American Atheists continue to press the point. Their clients are often the so-called “offended observer,” who sees a roadside cross adorned with flowers and a photo and assumes this is an effort to establish the Christian faith roadside . . . by some floral-worshipping sect perhaps? As long as these suits persist, chaos will reign. The Supreme Court needs to weigh in and provide guidance. Even Hamlet eventually made a decision; it’s time for the next act in this play.
— Hugh Hewitt is a lawyer, law professor, and host of the nationally syndicated radio talk show The Hugh Hewitt Show. Joseph Infranco is senior counsel with the Alliance Defense Fund and heads the Defense of War Memorials Project, a joint project of ADF, Liberty Institute, and the American Legion. ADF attorneys filed a friend-of-the-court brief with the U.S. Supreme Court in the Mount Soledad case.