Bench Memos

Law & the Courts

Huge Win for Religious Liberty Today

Supporters of the memorial cross in Bladensburg, Md., gather outside the Supreme Court in Washington, D.C., February 27, 2019. (Lawrence Hurley/Reuters)

Today the Supreme Court handed down its decision in American Legion v. American Humanist Association, the long-awaited case regarding the World War I memorial in Bladensburg, MD. The Court’s decision to stop militant atheists from tearing down the historic ‘Peace Cross’ memorial is a major win for religious liberty. Unfortunately, while Justice Alito’s majority opinion harshly criticized the Lemon test, he apparently did not have the votes to overrule it completely. Even as written, Justice Kagan refused to join the sections of the opinion most critical of Lemon.

Several conservative justices wrote separately, further pointing out Lemon’s shortcomings. Justice Kavanaugh surveyed the types of Establishment Clause cases and showed that Lemon didn’t explain the Court’s jurisprudence in any of them, calling it “bad law.” Justice Gorsuch savaged the practice of allowing Establishment Clause challenges to proceed on the basis of mere offense to an observer while other First Amendment challengers have much harder standing requirements.  And Justice Thomas suggested taking a step even further back and reconsidering whether incorporating the First Amendment religion clauses against the states could be squared with the original understanding of the Constitution and its amendments. He also encouraged the Court to explicitly overrule Lemon, writing, “It is our job to say what the law is, and because the Lemon test is not good law, we ought to say so.”

What is even more concerning than leaving bad precedents on the books is that Justices Ginsburg and Sotomayor would have required the cross to be torn down, arguing that every cross displayed on public property presumptively amounts to an unconstitutional endorsement of religion. As liberal groups are at work compiling secret lists of potential Supreme Court nominees in hopes that a Democrat will win in 2020, Americans should ask whether those secret judges would be equally extreme in coopting the Constitution for an aggressively secularist agenda.

Most Popular

Elections

Kamala Harris Is No Moderate

Kamala Harris, they assure us, is a “moderate.” A moderate what? Moderate compared to whom? Senator Harris is a moderate autocrat. During the Democratic primary debates, she vowed to ban so-called assault weapons by executive order. When Joe Biden pointed out that the president has no such power and is ... Read More
Elections

Kamala Harris Is No Moderate

Kamala Harris, they assure us, is a “moderate.” A moderate what? Moderate compared to whom? Senator Harris is a moderate autocrat. During the Democratic primary debates, she vowed to ban so-called assault weapons by executive order. When Joe Biden pointed out that the president has no such power and is ... Read More
Elections

Kamala Harris’s Abortion Absolutism

Abortion policy is just one of several areas in which California senator Kamala Harris, Joe Biden’s running mate, has sworn to abuse executive power to assert her preferences if Congress won’t legislate as she’d like. Her authoritarian instincts were frightening when she was running for president herself, ... Read More
Elections

Kamala Harris’s Abortion Absolutism

Abortion policy is just one of several areas in which California senator Kamala Harris, Joe Biden’s running mate, has sworn to abuse executive power to assert her preferences if Congress won’t legislate as she’d like. Her authoritarian instincts were frightening when she was running for president herself, ... Read More
Politics & Policy

The Biden Apex

For Joe Biden, life is looking pretty sweet right now. After stumbling badly in the first three Democratic-primary contests, he mounted arguably the fastest and most surprising comeback in U.S. political history. He’s ahead in both national and swing-state polling against Trump. Most of the media are offering ... Read More
Politics & Policy

The Biden Apex

For Joe Biden, life is looking pretty sweet right now. After stumbling badly in the first three Democratic-primary contests, he mounted arguably the fastest and most surprising comeback in U.S. political history. He’s ahead in both national and swing-state polling against Trump. Most of the media are offering ... Read More
Elections

Don’t Count on Kamala Harris

On the menu today: all about Kamala Harris -- why her political instincts never quite lived up to the potential her fans expected, how she turns the “law and order” arguments upside down, and whether her campaign offers some warning signs about her ability to thrive in the executive branch. What Separates ... Read More
Elections

Don’t Count on Kamala Harris

On the menu today: all about Kamala Harris -- why her political instincts never quite lived up to the potential her fans expected, how she turns the “law and order” arguments upside down, and whether her campaign offers some warning signs about her ability to thrive in the executive branch. What Separates ... Read More