On the Cross

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.”

Liberty as Bedrock

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.”

Puritans Here and Abroad

Whether it’s new books about the “city on a hill” metaphor or simply studies of the subject, Puritanism is hot (so to speak). Here is a new book that discusses Puritanism from an international perspective, exploring different varieties: Puritanism: A Transatlantic History (Princeton University Press), by David D. Hall.

“This book is a sweeping transatlantic history of Puritanism from its emergence out of the religious tumult of Elizabethan England to its founding role in the story of America. Shedding critical new light on the diverse forms of Puritan belief and practice in England, Scotland, and New England, David Hall provides a multifaceted account of a cultural movement that judged the Protestant reforms of Elizabeth’s reign to be unfinished. Hall’s vivid and wide-ranging narrative describes the movement’s deeply ambiguous triumph under Oliver Cromwell, its political demise with the Restoration of the English monarchy in 1660, and its perilous migration across the Atlantic to establish a “perfect reformation” in the New World.

A breathtaking work of scholarship by an eminent historian, The Puritans examines the tribulations and doctrinal dilemmas that led to the fragmentation and eventual decline of Puritanism. It presents a compelling portrait of a religious and political movement that was divided virtually from the start. In England, some wanted to dismantle the Church of England entirely and others were more cautious, while Puritans in Scotland were divided between those willing to work with a troublesome king and others insisting on the independence of the state church. This monumental book traces how Puritanism was a catalyst for profound cultural changes in the early modern Atlantic world, opening the door for other dissenter groups such as the Baptists and the Quakers, and leaving its enduring mark on what counted as true religion in America.”

Peace Cross Puzzlement

The Maryland Bladensburg Cross was allowed to stand. That’s the easy part. The hard part is what precisely prevented the Court–for the second time in as many Establishment Clause cases involving these kinds of issues (see also Town of Greece)–from cobbling together a majority opinion repudiating Lemon/endorsement and offering a new approach, even one limited to religious displays. Instead, we got:

  • a plurality opinion (joined by Justice Breyer) with lots of extremely critical commentary about Lemon/endorsement, but that does not overrule Lemon/endorsement even in this narrow area;
  • one concurrence that would have overruled Lemon/endorsement;
  • one concurrence that preserves Lemon/endorsement;
  • 4-6 votes for a history and tradition approach whose contours vary significantly depending on the justice;
  • two opinions concurring in the judgment that would have overruled Lemon/endorsement;
  • a dissent by Justice Ginsburg joined by Justice Sotomayor.

The puzzle: what prevented a majority from overruling Lemon/endorsement even in this specific area? Does Lemon/endorsement continue to apply in this area where the display is new and/or there is (lots of?) evidence of discriminatory motive? I find it difficult to understand how the extremely critical comments about Lemon/endorsement that four justices put their name to in the plurality, plus the views of another two justices that were ready to overrule Lemon/endorsement altogether, do not add up to some kind of actual overruling. Justice Kagan could certainly have written a concurrence in the judgment. Not to be, I’m afraid. Still, I’ll have more to say about the 4-6 votes for some variety or other of a history/tradition approach soon.

CLR in the HJLPP

I’m delighted to note the Center for Law and Religion edition of the latest issue of the Harvard Journal of Law and Public Policy. (Actually, it was entirely happenstance that one of Mark’s articles and one of my articles were published in the same issue.)

Mark’s piece is Masterpiece Cakeshop and the Future of Religious Freedom.

Mine is The Sickness Unto Death of the First Amendment.

Legal Spirits Episode 010: The New Abortion Laws

In this podcast, Center Director Mark Movsesian and Associate Director Marc DeGirolami discuss a raft of new laws passed by several states regulating abortion. They explore the constitutionality of these laws under the regime established by Roe v. Wade and Planned Parenthood v. Casey, and they think through what the laws might suggest about the growing cultural divisions in America. Mark and Marc survey some of the most restrictive and most permissive of these new laws, talk about the Supreme Court’s recent per curiam opinion in Box v. Planned Parenthood and some of the internal dynamics on the present Court suggested by the opinion as respects abortion, and offer some perspective on the Court’s historic ambitions with respect to this deeply controversial subject. Listen in!

ADDENDUM: Our friend, Professor Carter Snead, points out two small errors in the podcast. First, recent studies have shown that with treatment, viability can begin as early as 22 weeks. Second, the Alabama law has exceptions for situations posing a serious health risk to the mother and where there is a possibility that the woman poses a serious physical health risk to herself because of a serious mental illness.

Blaming Evangelicals for Losing the Culture War

Here is a book that argues that Evangelicals have only themselves to blame for their defeats in the culture wars. They cast their lot with an immoral President, the book argues, and now they will reap the consequences. In the emerging divide between classical liberals and post-liberals in American conservative politics, the author clearly identifies with the former and has harsh words of criticism for the latter. An interesting salvo in the battle for Evangelical politics, itself reflecting the internal fragmentation within American conservatism. The book is The Immoral Majority: Why Evangelicals Chose Political Power Over Christian Values (HarperCollins), by Ben Howe.

“In 2016, writer and filmmaker Ben Howe found himself disillusioned with the religious movement he’d always called home. In the pursuit of electoral victory, many American evangelicals embraced moral relativism and toxic partisanship.

Whatever happened to the Moral Majority, who headed to Washington in the ’80s to plant the flag of Christian values? Where were the Christian leaders that emerged from that movement and led the charge against Bill Clinton for his deception and unfaithfulness? Was all that a sham? Or have they just lost sight of why they wanted to win in the first place? From the 1980s scandals till today, evangelicals have often been caricatured as a congregation of judgmental and prudish rubes taken in by thundering pastors consumed with greed and lust for power. Did the critics have a point?

In The Immoral Majority, Howe—still a believer and still deeply conservative—analyzes and debunks the intellectual dishonesty and manipulative rhetoric which evangelical leaders use to convince Christians to toe the Republican Party line. He walks us through the history of the Christian Right, as well as the events of the last three decades which led to the current state of the conservative movement at large.

As long as evangelicals prioritize power over persuasion, Howe argues, their pews will be empty and their national influence will dwindle. If evangelicals hope to avoid cultural irrelevance going forward, it will mean valuing the eternal over the ephemeral, humility over ego, and resisting the seduction of political power, no matter the cost. The Immoral Majority demonstrates how the Religious Right is choosing the profits of this world at the cost of its soul—and why it’s not too late to change course.”

On Legal Conservatism

Here is a new book that traces the history of American legal conservatism before its “arrival” in the 1980s. I’ll have more to say about this in the coming weeks, but I look forward to reading this worthwhile new book: Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism (Cambridge University Press), by Ken I. Kersch.

“Since the 1980s, a ritualized opposition in legal thought between a conservative ‘originalism’ and a liberal ‘living constitutionalism’ has obscured the aggressively contested tradition committed to, and mobilization of arguments for, constitutional restoration and redemption within the broader postwar American conservative movement. Conservatives and the Constitution is the first history of the political and intellectual trajectory of this foundational tradition and mobilization. By looking at the deep stories told either by identity groups or about what conservatives took to be flashpoint topics in the postwar period, Ken I. Kersch seeks to capture the developmental and integrative nature of postwar constitutional conservatism, challenging conservatives and liberals alike to more clearly see and understand both themselves and their presumed political and constitutional opposition. Conservatives and the Constitution makes a unique contribution to our understanding of modern American conservatism, and to the constitutional thought that has, in critical ways, informed and defined it.”

Anti-Populism

Yesterday we posted a new book sympathetic to the new populism in American politics. Today, we post an unsympathetic new book that sees something unjustified and illegitimately entitled about the new populism, ascribing its rise to certain lacunae in progressive politics. The book is The New Populism: Democracy Stares into the Abyss (Penguin Random House), by Marco Revelli, an Italian academic and writer for the self-described communist paper, Il Manifesto.

“The word ‘populism’ has come to cover all manner of sins. Yet despite the prevalence of its use, it is often difficult to understand what connects its various supposed expressions. From Syriza to Trump and from Podemos to Brexit, the electoral earthquakes of recent years have often been grouped under this term. But what actually defines ‘populism’? Is it an ideology, a form of organisation, or a mentality? 

Marco Revelli seeks to answer this question by getting to grips with the historical dynamics of so-called ‘populist’ movements. While in the early days of democracy, populism sought to represent classes and social layers who asserted their political role for the first time, in today’s post-democratic climate, it instead expresses the grievances of those who had until recently felt that they were included.

Having lost their power, the disinherited embrace not a political alternative to -isms like liberalism or socialism, but a populist mood of discontent. The new populism is the ‘formless form’ that protest and grievance assume in the era of financialisation, in the era where the atomised masses lack voice or organisation. For Revelli, this new populism [is] the child of an age in which the Left has been hollowed out and lost its capacity to offer an alternative.”

Populist-Traditionalism in American Politics

Several new books have been documenting a new wave of politics in America: populist, low-middle class, traditionalist, “back row,” and other similar descriptions–a politics that blends together different features of the conventional left-right spectrum. Religious freedom seems to be part of the political equation for those who subscribe to it. Here is another book in this genre: The New American Revolution: The Making of a Populist Movement (Simon & Schuster), by Kayleigh McEnany.

“Kayleigh McEnany spent months traveling throughout the United States, conducting interviews with citizens whose powerful and moving stories were forgotten or intentionally ignored by our leaders. Through candid, one-on-one conversations, they discussed their deeply personal stories and the issues that are most important to them, such as illegal immigration, safety from terrorist attacks, and religious freedom.

The New American Revolution chronicles both the losses of these grassroots voters, as well as their ultimate victory in November 2016. Kayleigh also includes interviews with key figures within President Trump’s administration—including Ivanka Trump, Secretary Ben Carson, Jared Kushner, and many more—and their experiences on the road leading up to President Trump’s historic win. Kayleigh’s journey takes her from a family cabin in Ohio to the empty factories in Flint, Michigan, from sunny Florida to a Texas BBQ joint—and, of course, ends up at the White House.

The collective grievance of the American electorate reveals a deep divide between leaders and citizens. During a time of stark political division, Kayleigh discovers a personal unity and common thread of humanity that binds us nevertheless. Through faith in God and unimaginable strength, these forgotten men and women have overcome, even when their leaders turned their heads. An insightful book about the triumph of this powerful movement, The New American Revolution is a potent testament to the importance of their message.”

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