Here’s our annual review of Center activities for the past academic year, including Part III of the Tradition Project in Rome–with a keynote from Justice Samuel A. Alito; the fourth biennial Colloquium in Law and Religion, a new podcast series, and more. Check it out!
I have an essay about the Bladensburg Cross case at Public Discourse, where I isolate the holding (and wonder about whether there is actually a broader holding in the case), discuss the case’s implications for future religious displays, and speculate about the dynamics on the Supreme Court and elsewhere respecting these issues. A bit:
“The holding of American Legion lays out what could be called a jurisprudence of old religious monuments, symbols, and practices. When a religious monument, symbol, or practice, is old—whether it is a cross or a Ten Commandments monument or some other government practice of long standing—it is especially likely to be imbued with many purposes and messages that have changed and developed with time. Communities are entitled to maintain these religious monuments, symbols, and practices as part of their historical and cultural heritage, and the Court will no longer “roam the land, tearing down monuments with religious symbolism and scrubbing away an reference to the divine.” “The passage of time,” the majority said, “gives rise to a strong presumption of constitutionality,” and the Cross in this case clearly enjoys that presumption. It is both a Christian symbol and a symbol of war and patriotism. It is these things together.
Already, this holding works a considerable change in Supreme Court doctrine. It surrounds “old” religious “monuments, symbols, and practices” with a protective shield against judicial mischief in the name of the Establishment Clause. New religious monuments, symbols, and practices whose purposes are manifestly discriminatory, it is true, are not covered by the holding (more on this below), and the terms “new” and “old” are not defined. But the Court’s existing approach to state-sponsored religious displays is quite different. The much-reviled test in Lemon v. Kurtzman (1971) focuses on “the” purpose—“religious” or “secular”—of a display, as well as its “primary effect,” which the Court has subsequently interpreted in this context to mean whether a “reasonable observer” would perceive that the government is “endorsing” religion by displaying a monument or symbol. While Justice Kagan believed that the cross also survived under this approach, none of the other justices in the majority accepted Lemon, and all justices in the majority held that “old” displays have neither single purposes nor single meanings. This is flatly incompatible with the assumptions of Lemon.
There is overwhelming support on the Court for what would have been a broader holding. In Part II(A) of Justice Alito’s opinion, a four-justice plurality rejected the Lemon test and its “endorsement” application for these types of religious displays. It was something of a surprise that Justice Breyer joined the plurality. But it was a real shock that this part of Alito’s opinion was not officially joined by Justice Thomas or Justice Gorsuch. Those two justices authored respective concurrences in the judgment, which technically means that while they agree with the outcome, they do not join the Alito opinion’s reasoning. But both of them would have gone further than the plurality and rejected the Lemon test in its entirety. That they did not join Part II(A) rejecting the Lemon test—at least with regard to “old” displays—is baffling. For those who were hoping that something clearer would emerge from this case, it’s also rather exasperating.
Justice Thomas, in fact, goes so far as to say this about the Lemon/endorsement test: “the plurality rightly rejects its relevance to claims, like this one, involving ‘religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.’ I agree with that aspect of the opinion” (emphasis added). With Thomas, the reasoning in Part II(A) therefore has the explicit support of five justices. But because Thomas did not formally join Part II(A), the statement seems to be dicta, material in an opinion unnecessary to the judgment. Admittedly, the line between dicta and holding is not crystal clear, and the statement could even be read as an alternative holding. Justice Gorsuch’s concurrence in the judgment also has highly critical comments about Lemon, but Justice Thomas’s statement is a clear and explicit affirmation of the plurality’s position.
At any rate, the lesson of American Legion seems to be that the Lemon/endorsement test is rejected—at least for “old” religious monuments, symbols, and practices.”
I enjoyed reading and reviewing Richard Brookhiser’s recent book about John Marshall. Brookhiser has an easy and genial biographical style that has made for engaging narratives about Gouverneur Morris, James Madison, George Washington, and others. The Marshall book certainly fits into his larger body of work.
This new book looks a little different, however, and clearly has something of an edge in it. Here, Brookhiser is intending to intervene in contemporary points of fracture within American conservatism concerning freedom and American exceptionalism as a partisan for one side of that disagreement. It will be interesting to see whether the book retains Brookhiser’s trademark style or goes in a different direction. The book is Give Me Liberty: A History of America’s Exceptional Idea (Basic Books).
“Nationalism is inevitable: It supplies feelings of belonging, identity, and recognition. It binds us to our neighbors and tells us who we are. But increasingly — from the United States to India, from Russia to Burma — nationalism is being invoked for unworthy ends: to disdain minorities or to support despots. As a result, nationalism has become to many a dirty word.
In Give Me Liberty, award-winning historian and biographer Richard Brookhiser offers up a truer and more inspiring story of American nationalism as it has evolved over four hundred years. He examines America’s history through twelve documents that made the United States a new country in a new world: a free country. We are what we are because of them; we stay true to what we are by staying true to them.
Americans have always sought liberty, asked for it, fought for it; every victory has been the fulfillment of old hopes and promises. This is our nationalism, and we should be proud of it.”