The last few weeks of June traditionally feature a slew of Supreme Court decisions, often high-profile and controversial ones that mark the end of the current term.
This year promises to be no different as court-watchers anticipate rulings that include such questions as the constitutionality of asking a person’s citizenship on the 2020 U.S. Census as well as the legality of gerrymandering, the practice of drawing congressional boundaries that favor one party over the other.
As of today, the High Court has issued decisions in 45 of the 69 cases it has heard this term, thus leaving 24 pending decisions expected by the end of the month.
For evangelical Christians, one of the most watched cases of the term centers on the “Bladensburg Peace Cross.”
What’s it all about?
The Bladensburg World War I Memorial, also known as the “Peace Cross,” is a 94-year-old monument located in Maryland. It was commissioned by the American Legion to honor 49 servicemen who died in battle. When it was first erected, the land on which it rested was private property. Nearly four decades later the land was transferred to Maryland’s Capital Park and Planning Commission.
Decades of peace prevailed until the American Humanist Association objected to the monument, claiming that its inherently Christian symbolism violated the separation of church and state.
Rarely has a so-called doctrine been more misused, misinterpreted and abused then the so-called “separation of church and state” mantra that liberals, atheists and agnostics love to cite.
Thomas Jefferson is the author of the phrase “separation of church and state,” but he never intended for it to communicate that religion has no place in the public square. He used that phrase in an obscure letter to the Danbury (Conn.) Baptists, who were concerned that government would interfere with people’s expression of religion. Jefferson reassured the group that the establishment clause of the First Amendment built “a wall of separation.”
All the Founders agreed that the wall of separation was one-way – it limited Congress, not the Church, not individual Christians. Unfortunately, the meaning of “separation of church and state” has been flipped on its head and distorted for political and ideological purposes.
But what’s really at stake with the Bladensburg case? Here is a quick summary from my friend and colleague Bruce Hausknecht, Focus on the Family’s legal analyst:
If the Supreme Court agrees with the Fourth Circuit, similar war memorials in Arlington National Cemetery and around the country would have to be removed. And what about the thousands of iconic white crosses set in perfect rows in military cemeteries all across Europe commemorating the final resting place of U.S. soldiers who died in combat there? Those sites are managed by a U.S. federal agency. Would they have to be removed as well?
Whether it’s a Christian cross in a desert, Christmas crèches on the courthouse lawn, Ten Commandment monuments at the state capitol, the phrase “In God We Trust” on our currency and in our National Motto, or “Under God” in our Pledge of Allegiance, the Supreme Court—and the lower courts that look to it for guidance—are still looking for an over-arching principle that provides consistent answers to the question: Is it constitutional, or not?
The simple answer—that religious images in our public life do not “establish religion” at all – still manages to evade the Court after decades of grappling with mixed success over the various factual situations that come before it based on Establishment Clause challenges.
The ongoing problem with this area of the Supreme Court’s jurisprudence results from problems in applying the various “tests” or “rules” the high court has created over the years to examine religious symbolism in public life.
For example, the Court has come up with phrases like the “Lemon test,” the “modified Lemon test,” the “coercion test,” the “endorsement test,” and the “neutrality test” in an effort to determine what is constitutional and what is not.
The Lemon test, named after the decision where the Court created it, Lemon v. Kurtzman, may be the worst of the lot. The late Justice Antonin Scalia famously compared the Lemon test to “some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” Translation: The Supreme Court sometimes uses the Lemon test, and sometimes not, and sometimes denounces it entirely, only to use it again in the next case.
The Court’s reputation as well as the public’s confidence in its work product depends on the Court being able to logically explain how it reaches each decision. Inconsistency is dangerous to both.
With each new Establishment Clause case comes the hope that, finally, the Court will come up with one workable test to replace the existing ones.
That has proven to be an elusive goal for a long time now, and perhaps the most we can hope for in the upcoming Bladensburg Memorial decision is a well-driven stake through the heart of the Lemon test ghoul.
But there looks to be at least some good news on the horizon. The Bladensburg Memorial may well be able to stay where it is. The consensus of those court-watchers who followed the oral arguments in February was that a majority of the justices were sympathetic to the arguments for keeping the monument in place.
Still it remains to be seen whether the Court will provide a useful test for the next such case. And the one after that.
Please join me in praying for a favorable outcome in this case – and let me know what you think about it in the comments section.