December 6, 2018 - LAW AND RELIGION FORUM

At the First Things site today, I have a post on The American Legion v. American Humanist Association, the Maryland Peace Cross case, in which the Court granted cert last month. I argue that the Court could use the opportunity to get rid of the endorsement test in Establishment Clause cases. Here’s an excerpt:

Last month, the Supreme Court agreed to consider an important Establishment Clause case from Maryland, The American Legion v. American Humanist Association. The case, which presents a challenge to a Maryland cemetery’s use of a 40-foot cross as a public war memorial, gives the Court a chance to clarify its views on the constitutionality of state-sponsored religious displays. In particular, the case provides an opportunity for the Court to do away with the so-called “endorsement test,” which holds that a display violates the Constitution if a hypothetical, reasonable observer would see it as an endorsement of religion. Conservatives have criticized the endorsement test for decades, and with a new majority on the Court, they may finally have the votes to discard it. American Legion could turn out to be one of the most significant Establishment Clause cases in a long time.

American Legion is also the subject of a recent “Legal Spirits” episode Marc and I recorded. But you have already listened to that. Right?

97815416172301 I’m ambivalent about the current polarization here in America. Sometimes, it seems to me that we really are in the middle of an unprecedented crisis, in which two large parties, secular progressives and religious conservatives, truly distrust one another and can find nothing in common. At other times, it seems to me that things aren’t so bad, in historical terms. Early 19th Century America, before the Era of Good Feelings, was pretty rough. Just go back and read some of the campaign literature from 1800. There was a fair amount of political violence at the end of the nineteenth century. Two presidents were assassinated in the space of less than 20 years. There were the 1960s. And of course we did have a Civil War in this country.

History is a good antidote to despair. It teaches us that things have been bad before–and will no doubt be again! A new history of America, A Nation Forged by Crisis: A New American History, from Basic Books, highlights the contingencies of our past. The author is Jay Sexton (University of Missouri). The publisher’s description follows:

A concise new history of the United States revealing that crises–not unlike those of the present day–have determined our nation’s course from the start.

In A Nation Forged by Crisis, historian Jay Sexton contends that our national narrative is not one of halting yet inevitable progress, but of repeated disruptions brought about by shifts in the international system. Sexton shows that the American Revolution was a consequence of the increasing integration of the British and American economies; that a necessary precondition for the Civil War was the absence, for the first time in decades, of foreign threats; and that we cannot understand the New Deal without examining the role of European immigrants and their offspring in transforming the Democratic Party.

A necessary corrective to conventional narratives of American history, A Nation Forged by Crisis argues that we can only prepare for our unpredictable future by first acknowledging the contingencies of our collective past.