I’ve been meaning to write on the case that was recently heard by the Supreme Court, The American Legion v The American Humanist Association. This case was brought by the AHA through the Federal court system because the cross, in Bladensburg, Maryland, resides on public land and is maintained by public dollars. The circuit court (AKA Appeals Court), ruled against the Legion and the Supreme Court was petitioned to hear the case. In all SCOTUS cases, at least four justices have to agree to hear a case before it’s placed on the calendar so there was definitely some interest in this by the justices.
I decided to write about this today because of a post by Jack over at Atheist Revolution, advocating for the tearing down of the cross. I’m a staunch supporter of church/state separation, but I was a little bit conflicted over this case mainly because, originally, it was dedicated to some 49 soldiers from that very town, that gave their lives during World War I. Were they all Christians? I don’t know but I’m going to take a leap here and say that yes, they probably were, or their families were. that’s the conflict for me.
Initially, the monument was built on private land, but in 1961, the the land was turned over to the state because of a roads project. Now they had a sectarian monument on public land, which is expressly forbidden constitutionally and has been upheld by the court for decades.
But there’s more to the story: The monument was rededicated some 60 years later to all veterans, Well, not all veterans are necessarily Christian. For me, that’s a problem. But still, I am conflicted because the original intent of the monument was for those men who died during The War to End all Wars, and I was curious to hear (read) how the justices of the court would view it during the arguments presented. I was surprised to see that both Justice Kagan and Breyer (both liberals) were skeptical of the plaintiff’s (AHA) argument. This didn’t seem to bode well for the AHA but then, we shouldn’t depend on questioning from justices to determine the outcome of a specific case.
The reason I say this is because after the arguments to SCOTUS over the Individual Mandate, implemented by the Affordable Care Act (“Obamacare”), nearly every legal pundit on television or otherwise was certain that the plaintiff’s would prevail. Surprise! Chief Justice Roberts, a conservative, voted with the liberals of the court to uphold the mandate as a tax, even though that argument was never presented by the President’s Solicitor General, who argued the case for the administration.
It’s not a given, based on the questioning by any of the justices, what will occur in the Bladensburg case. I wonder why this case had to be presented at all. A simple solution would have been that the state sell the land where it would become private again. I’m certain that the American Legion, a national organization, would be able to raise the money necessary. The state, on it’s part, could set the price at whatever they wanted: even just a dollar. Did anyone consider this solution? Probably. I think this entire litigation, on the part of the Legion, was to try and place a crack or two the the wall of separation.
If the court upholds for the Legion, it seems it would have to be on a very narrow ruling. It may be that it’s because the monument is historic, commissioned in 1919 and dedicated in 1925. I’m not a legal beagle and that’s the only reason I can come up with for the court allowing the monument to remain. I’m sure there are other legal precedents that may apply as well, but then if that were so, then every case brought before the court would fall under those same precedents. It’s a conundrum, and we won’t know the court’s decision until sometime in June. I will be waiting with baited breath until then to read the decision, no matter which way it goes.
If the court sides with the American Legion, expect to see from the AHA, American Atheists, FFRF, and other secular organizations a doom and gloom outlook for the future of separation. These will come in the way of fundraising letters and emails. That a single case is ruled one way, does not mean the end of the First Amendment. Let’s think that the court, based on past precedent, will uphold the circuit court decision.