Bladensburg Cross: Victory for Religious Freedom

From the Family Policy Alliance, a press release about the Supreme Court and the Bladensburg Cross:

Last week the Supreme Court released a 7-2 opinion that not only protected a 94-year-old World War I war memorial that is in the shape of a Cross, but it also took major steps to secure religious freedom for all.

What happened?

As a way of memorializing those who died defending freedom in World War I, a 40-foot Latin Cross was erected in Bladensburg, Maryland in 1925. The Cross stood relatively unmolested until several years ago when a group of atheists decided that merely viewing the Cross was offensive.

The Fourth Circuit ruled that the cross was an unconstitutional means of “government establishing a preferred religion” under an arbitrary legal test known as the Lemon test. The arbitrary nature of this test was highlighted in 2005 when the Supreme Court issued rulings on two different sets of religious monuments or displays on the same day and came to opposite conclusions.

What did the Court say?

In last week’s opinion, the Supreme Court not only reversed the decision of the Fourth Circuit in order to save the Bladensburg Cross, but it also took a hard look at the Lemon test. The Court spent the majority of its opinion discussing all the problems with the test itself. Justice Gorsuch further pointed out in his concurring opinion how it hasn’t been useful in deciding anything having to do with deciding whether government is “establishing a state religion” – not when it comes to religious displays, mottos, monuments, religious accommodations, religious subsidies or tax exemptions, religious expression in public schools, regulations of religious speech, or interference in internal church affairs.

So how would the Court have us deal with these sorts of challenges going forward?

Essentially, the Court will presume the constitutionality of long-standing monuments and traditions based on our history. This is a much simpler and much clearer way to deal with these issues.

Justice Gorsuch eloquently extended and clarified the Court’s rule this way:

“What matters when it comes to assessing a monument, symbol, or practice isn’t its age but its compliance with ageless principles. The Constitution’s meaning is fixed, not some good-for-this-day-only coupon, and a practice consistent with our nation’s traditions is just as permissible whether undertaken today or 94 years ago.”

What does this mean going forward?

It opens a lot of doors to proactively advance legislation that protects our timeless history and beliefs. Prior to the Court’s recent ruling, when we worked on religious liberty legislation, we were inevitably asked about the Lemon test – which was normally just a way to try to kill whatever bill we were working on.

Now Lemon can’t be used as a threat to your religious liberties. We can work on laws that protect student and educator rights in schools, doctors’ religious conscience beliefs, tax exemptions for religious organizations, religious displays, and internal church decisions without the threat that the Court will arbitrarily use Lemon against the expression of our faith in these realms.

This decision could spell the beginning of the end of ridiculous lawsuits that certain groups who are bent on removing any reminder of God from our culture bring against many small towns or groups they view as vulnerable.

We are thankful for the Court protecting religious freedom in this case, and we look forward to working with state legislators and allies to advance policies that allow religious freedom to flourish for all.

Those hostile to religion (and this increasingly includes Democrats) tend to take the position that the Constitution requires anything invoking the Christian religion must be sanitized from the public square.

Of course, Judaism or Islam are different matters. The National Menorah on the White House Ellipse has never been particularly controversial.

But Jews and Muslims vote Democratic. Christians vote Republican.

But banning anything religious, while allowing anything not religious, and even allowing things contrary to a lot of people’s religious convictions (such as funding abortions or flying the gay pride flag over a state capital) is to discriminate against religion.

Which frankly, is what a lot of people want to do.

But not a majority of the current Supreme Court.

Media Hypocrisy: Filibuster Judicial Nominee

Now, with Senate Republicans poised to use the “nuclear option” to quash a Democratic filibuster against Trump Supreme Court nominee Neil Gorsuch, the media is portraying this as some sort of radical coup d’état. But back in 2013, when the Democrats used the same tactic to get Obama judicial appointees approved, the media spin was much different.

From the Media Research Center, a roundup of media reaction from the time the Democrats went nuclear.



The print media were equally bad.

. . . the cable network news hosts and analysts weren’t the only ones championing the nuclear option. On the pages of the Los Angeles Times, Reid’s move was celebrated in a November 22 editorial “Democrats bust the filibuster, and good for them.”

The Times editorial board crowed: “We welcome this action not because it represents a comeuppance for arrogant Republicans but because filibustering presidential nominees is undemocratic and violates the spirit if not the letter of the Constitution, which says that the president shall appoint judges and other officials ‘by and with the advice and consent of the Senate’ — not by and with a supermajority of the Senate.” The Times went on to call it “a victory not just for the Democrats but for good government.”

That same day, The New York Times championed the procedure in an editorial headlined “Democracy Returns to the Senate.”

Of course, the Republicans would be foolish to let the Democrats use the “nuclear option” and not use it themselves. That would simply make them suckers. Of course, often the Republicans have acquiesced in the role of suckers, but they seem to be wising up.

Even if one believes that requiring sixty senators to confirm a presidential appointee is appropriate, what the Republicans are doing will make that outcome more likely. So long as the Republicans fail to retaliate for the Democrat’s use of the tactic, the Democrats will have no incentive to stop using it.

For readers with a tolerance for academic jargon, the proper tactic in a Prisoner’s Dilemma is “tit for tat.” Or in everyday language, “we are not going to let you get away with screwing us over.”

The “Living Constitution:” Trashing the Social Contract

An essay from The New American, a rather questionable source, but the essay itself is spot on:

This brings us to the opposition to President Trump’s Supreme Court pick, Judge Neil Gorsuch, who The New York Times actually calls a “Nominee for a Stolen Seat.” In reality, the Times advocates a perversion of judicial philosophy that long ago had stolen Americans’ birthright.

The paper complains that like Justice Antonin Scalia, Gorsuch “is an originalist, meaning he interprets the Constitution’s language to mean what it was understood to mean when it was written….” Leftists prefer the Constitution be considered a “living document,” interpreted to “suit the times” (and the Times). This just guarantees a dying republic.

Why? Consider: Imagine I violate the language of a contract to which you and I are party. You take me to court, but the judge determines that the contract can be interpreted to suit the times. You may object and say the “times” are being interpreted to suit me, but the judge is in my pocket.

Oh, he justifies this by saying he’s a “pragmatist.” Feel better?

The analogy is apt because, in essence, the Constitution is the contract the American people have with one another. It specifies the rights (of the people) and powers (of the different governmental arenas) of those party to it. It does have one significant flaw, however.

For it to work as intended, people must actually abide by it.

When they don’t, our very rights are in jeopardy.

Another analogy was drawn by Chief Justice John Roberts when, during his confirmation hearings, he said his job was only “to call balls and strikes.” Expanding on this, judges can in fact be likened to baseball umpires, while the players are the people, the game’s ruling body is the legislature and the rule book the Constitution.

Now, if a rule is thought inadequate, it’s the ruling body’s role to change it. Of course, the players, umpires or anyone else may lobby passionately in that regard. What, however, if an umpire considered the rule book living and said, “With the great pitchers in these times, three strikes are insufficient; I’m giving the batter four strikes”?

He’d be fired. And would it help his cause if he added an intellectual veneer to his cheating, saying “You don’t understand! I’m not a radical like those originalists! I’m moderate — a pragmatist”?

No, he’s a bad umpire — and he’d be history.

Likewise, all the terms describing justices — constructionist, originalist, moderate, pragmatic — are part of a pseudo-intellectual rationalization obscuring a simple truth: There are only two kinds of justices, good justices and bad justices. Good justices rule based on the founders’ original intent.

Bad justices don’t.

They put a spin on the Constitution to prove “by words multiplied for the purpose, that white is black, and black is white,” as satirist Jonathan Swift put it, so they can impose their agenda from the bench.

Some will say we mustn’t be hamstrung by a 200-year-old document. This gets at the big lie. There is a lawful way to make the Constitution “live:” the Amendment Process.

Yes, it can be long and difficult. This ensures that before our national contract is altered, the vast majority of those party to it (the people) agree on the change. “Living-document” judges, with an intellectual veneer and a sneer, usurp this power. The people are to decide when and how the Constitution will live — not five unelected lawyers.

Those who trade the rule of law for the rule of lawyers, to facilitate an unconstitutional agenda, tread a dangerous path. Their corruption of the establishment has led to precisely the kind of anti-establishment movement we see today. After all, if a game is judged and won or lost fairly, both sides can accept the outcome. But what happens when the vanquished know the judges fixed the contest for the other side?

That is the stuff revolutions are made of.

The living-document lie can be gussied up as “pragmatism” or something else, but it’s not a legitimate legal philosophy. We can have a living constitution or a living constitutional republic — but we cannot have both.

We don’t think the judges should literally always rule according to “original intent.” Sometimes previous Supreme Courts have made such a mess of the law that doing that would be like trying to unscramble an omelet. But what judges should not ever do is base their decisions on their policy preferences, violating each and every defensible rule of construction. That is indeed what most of the “landmark” decisions of the late 20th century did. We don’t need more of that.  We should, in fact, never vote for a presidential candidate who promises judicial appointees who will do that.