Legal Docket: The Bladensburg decision

NICK EICHER, HOST: It’s Monday morning. We have a new week of programs planned for you on The World and Everything in It. Today is the 15th of July, 2019. Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Welcome back from vacation, Nick!

EICHER: Great to be back. Really is, I love what I do. Loved being on vacation, too. Enjoyed the ocean, enjoyed the pool, enjoyed the family, enjoyed some seafood… 

REICHARD: Sounds enjoyable!

EICHER: All of this in no particular order, by the way. Read some exciting fiction, which I never do anymore, so that was good.

REICHARD: Well, glad you got away for a while. Vacation is important to reset your mind and spirit. Glad you’re back.

EICHER: Well, I’m out of the loop, Mary. Help me back up to speed. What’re we doing today?

REICHARD: Today I want to dive into a few of the big decisions of the Supreme Court this past term. First, the Bladensburg Peace Cross opinion that lets the World War I memorial remain in place.

And then two cases the high court did not take up dealing with abortion.

EICHER: Yeah, sometimes what isn’t taken up can tell you more about what’s on the court’s mind than what is taken up and not really resolved.

REICHARD: Right. I called up a law professor who understands the dynamics of the current bench. I wanted him to dissect some of these opinions.

His name is Rick Duncan and he’s a professor of constitutional law at the University of Nebraska College of Law. He caught my eye on Twitter when he made a clever analogy about the Supreme Court justices. So that’s how we started.

DUNCAN: Yeah. Well, you know, what I did was I said, you know, SCOTUS is Thomas and Gorsuch plus Alito with a couple of studio musicians to back them up. And so if you know, the Beatles, Thomas and Gorsuch are basically John Lennon and Paul McCartney, the key players in the group. Alito is George, another important member of the group, and Kavanaugh and Roberts are just studio guys that they hired to play some background music. But I want to underscore that Kavanaugh might become Ringo if he learns from Gorsuch rather than Roberts, if he wants to be a little bit more bold and daring from Gorsuch rather than to be cautious and afraid really to  interpret the Constitution the way maybe Roberts is sometimes.

Yeah, I can see that! A fun way to conceptualize the court.

Okay, I want to move now into dissecting the big establishment clause opinion. The peace cross case; legal caption American Legion v. The American Humanist Association. 

That concerned a 40-foot cross at a Maryland intersection that commemorates men who died in World War I. 

A majority seven justices said the cross can stay, even though it’s on public property and maintained at public expense. They agreed it does not violate the establishment clause of the First Amendment. What’s your analysis of that opinion?

DUNCAN: Yeah. It’s, it’s complicated because the court issued numerous opinions…And, and it’s hard to find where five justices come down on an exactly the same point…but one thing is clear, uh, that the Lemon Test, I like to refer to it as a “dead precedent walking.”

The Lemon Test is the separationist test that says anything that endorses religion is unconstitutional. That is not consistent with the original meaning of the establishment clause. It’s a judge-made test. And it’s pretty clear that there were five justices who think that test really is no longer workable. And although they haven’t overruled it, it is sort of in the ICU on life sustaining support…

The second thing I think to get out of the court out of this case is that the court was very influenced by the length of time that this cross had been on public grounds. It had been on public grounds for almost 100 years. And so… they’re presumptively constitutional and the court is gonna apply a history and tradition test with respect to those old public monuments.

But that leaves open the question, what happens with a new public monument? Suppose for example, that the town of Carney, Nebraska…wants to display a large memorial cross to recognize local warriors who died in Iraq serving their country as opposed to in World War I. Is that constitutional or unconstitutional under the court’s new test?

So we’ll have to wait for another case to battle that question out. I’m curious about Justice Neil Gorsuch’s concurrence, where he agrees the cross should stay. But he would have overruled Lemon outright. 

I want you to comment on his line: “with Lemon now shelved, little excuse will remain for the anomaly of offended observer standing….” What does he mean by that?

DUNCAN: Well, what these cases involve is not, is someone who really hasn’t suffered an actual injury. Someone is walking through a park, sees a 10 Commandments display, and they go, oh, I’m offended. And they want to basically impose a heckler’s veto. Maybe I like to see that 10 Commandments display, but somebody comes along and they’re offended, rather than just avert their eye and walk away from it.

What they want to do is use the establishment clause to cleanse the public square from religious displays and therefore deny access to that display to someone say like me, who’s a willing audience for it.

So I think that’s what he was referring to: is normally in order to even get into court, you have to suffer a concrete injury in fact. Much more than simply looking at something that you dislike. I see things in public parks that I dislike every day. And that doesn’t mean that I’ve got a constitutional case every time I’m offended by something that government puts up in a building…

…in a building or a public park. Right. 

Well, I want you to address a listener who asks what’s the point of a concurrence, anyway. The result’s the same.

DUNCAN: Okay, well, I mean it’s to explain to the world why you think the majority opinion in this case didn’t go far enough. Sometimes it’s the other way around. Sometimes you think the majority opinion went too far, and so you’ll agree with the judgment upholding something, but you’ll write and say, I think the majority went too far. I won’t go this far. And again, that’s a message to the future that if you want this fifth vote, then you’re going to have to take this justice’s views into account. So yeah.

So, what we teach our students is you have to count to five, you have to get to five to figure out, you know, how far the rule goes. And in these establishment clause cases, the fifth vote goes further than the fourth vote. So you know, that’s a sign to the future, that there’s substantial support on the court for clearly overruling though the Lemon endorsement test, which is the strict separationist test that so many supporters of religious freedom don’t like because they think it has resulted in the cleansing of religion from the public square—or as Richard John Neuhaus put it the “naked public square.”

You know a lot of people were not happy with Justice Samuel Alito when he wrote for the majority that the cross has taken on a secular meaning. How do you take that?

DUNCAN: Well, I think what he said was that, and you know, and I think this is true, it had in part a secular meaning from the beginning. They used the religious symbol. But in part it was to say these folks were Christians who died believing in Christ.

But in part, it was also to say these people were Americans who died serving their country. And in almost every display has more than one purpose… you know, even a commandments display in part it’s obviously a display that recognizes the, the 10 Commandments of God and the “thou shalt nots” from the Bible. But it also recognizes historically the role of the 10 Commandments as part of the law of the United States.

You know, that shalt not kill becomes no murder. They shalt not steal becomes robbery is a crime. And so even the 10 commandments, which is, you know, clearly right out of the Bible, explicitly out of the Bible, uh, has more than one meaning.

And I think that’s what they’re saying is part of the problem with the Lemon Test is it required the court to figure out what the one meaning of something was and if it was religious then it was unconstitutional. And the court is really saying the Lemon Test asks us to do something that’s impossible.

OK, let’s move on to the abortion cases the court decided not to hear. What’s significant about that?

DUNCAN: Well, actually there were two cases. There was one case out of Indiana, Box vs. Planned Parenthood, and…it was anti- eugenic abortion law. It said that if the purpose of the abortion is to kill a baby because of its race or because of its gender or because it has a disability say Down Syndrome, that is unconstitutional.

Indiana federal courts, the district court and the court of appeals, struck that law down under Roe and Casey, because Roe and Casey basically legalizes abortion on demand for any reason or for no reason at all….

So the lower courts I think correctly interpreted Roe and Casey, the existing Supreme Court precedents. The case gets to the Supreme Court. They decided not to review it.

But what’s significant in that case, as well as the Alabama case, which involved a ban on dismemberment abortions… That law was also struck down by the lower courts. And once again, the United States Supreme Court denied cert.

What’s important, I think, in terms of the future in both of these cases is Justice Thomas. Although he concurred that these cases were not yet ripe for review by the Supreme Court, he said it’s only a matter of time before we have to take cases like this…Our abortion jurisprudence has created this horrible situation… So I think that’s the significance of these cases.

There were cases that the court didn’t take, but they were cases where Justice Thomas said, look, the time has come for us to take a long and careful look at Roe and Casey with a view towards overruling it, since the Constitution says absolutely nothing about a right to abortion.

Professor, it’s been really helpful to break this down some more. Thanks for doing that!

DUNCAN: You’re welcome. It was a pleasure.

Rick Duncan is a constitutional law professor at Nebraska College of Law. And a Beatles fan. 

And that’s this week’s Legal Docket.

(AP Photo/Kevin Wolf) In this Feb. 13, 2019 file photo, visitors walk around the 40-foot Maryland Peace Cross dedicated to World War I soldiers in Bladensburg, Md. 

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