One of the most pernicious developments in modern law has been the creation of “offended observer” standing in Establishment Clause cases. Essentially, the Supreme Court has carved out an exception to normal rules of standing (which require a plaintiff to establish a concrete harm to their rights) for the special purpose of challenging any government acknowledgment of religion.
As a practical matter, this has been one of the most divisive and biased procedural elements yet devised in constitutional law. Under this unique doctrine, a few plaintiffs can undo decades of community consensus and rip apart long-standing traditions — not because they have been coerced in any way but simply because they were “offended” when they heard a public prayer or saw a nativity scene on public land.
But offense works both ways, doesn’t it? If one man is offended to see a cross on public land, isn’t another man offended to see it torn down? Well, yes. And today’s 5-4 Supreme Court ruling that a war-memorial cross in the Mojave Desert can stay (at least for the time being) contained some interesting clues that the Court is now concerned with more than one kind of “offended observer.” In his concurrence, Justic Alito says:
Congress chose an alternative approach [selling the land the Veterans of Foreign Wars] that was designed to eliminate any perception of religious sponsorship stemming from the location of the cross on federally owned land, while at the same time avoiding the disturbing symbolism associated with the destruction of the historic monument.
Why care about “disturbing symbolism?” Isn’t the only “disturbing symbolism” that matters the symbolism that’s disturbing to our poor offended observer? By noting the obvious public effect of tearing down a war-memorial cross under court order, Justice Alito is bringing us back to common sense. If we’re worried about “offense,” then the feelings of more than one thin-skinned person are at issue.
My favorite portion of the opinion implicitly (though poignantly) acknowledges this very fact. Here is Justice Kennedy, delivering the judgment of the Court:
But a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.
How true this is. Symbols do matter, and a court order forcing government officials to tear down a cross dedicated to those who died defending their nation would send its own symbolic message — that honor and sacrifice matter less than brazen ideological agendas, and that one man’s hurt feelings can trump the will and spirit of an entire community.
We cannot desecrate the memory of the fallen for the sake of soothing the troubled soul of a single man. If the cross offends him so much, he can learn to look away.