Travis Weber is Director of the Center for Religious Liberty at Family Research Council. This article appeared in The Federalist on November 10, 2017.
This Veterans Day, millions across America will celebrate the sacrifice and service of millions more who have laid down their time and treasure—and in many cases their lives—for our country. At a time when our nation daily worships at the altar of self-fulfillment, and honor for such service increasingly falls by the wayside, those in Bladensburg, Maryland now have to contend with federal judges who want to take away their veterans memorial.
Just last month, in American Humanist Association v. Maryland-National Capitol Park and Planning Commission, a panel of three judges from the U.S. Court of Appeals for the Fourth Circuit claimed a 90-year-old, cross-shaped memorial honoring those who fought in World War I is unconstitutional (as an establishment of religion in violation of the First Amendment) and ordered the memorial modified or taken down. Attorneys have since asked the full appeals court to review the case, but for now the panel’s order stands.
Once again, a handful of judges charged with properly interpreting the Constitution turned tail on their duties, informing us that what the Founders of our nation and Framers who drafted the Establishment Clause were actually trying to do was not merely prohibit a national church, but scrub any reminders of religion from the public square.
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We should not let their legalese and purported brow-rubbing confuse us. As the dissent points out, the majority has it exactly wrong. Besides that for most of our nation’s history memorials like this were not challenged, the evidence is clear that the Founders were trying to prevent compelled worship of any one version of Christianity (that’s what they fled from in Europe)—not eliminate all public displays of religion (which they instituted and practiced in the New World).
Courts today shouldn’t be able to hide behind bad rulings like Lemon to defend their ignorance of this clear constitutional background. Nor should judges impose their own restrictive, anti-religious understandings on the very Americans they are entrusted with serving.
Compounding the harm of this twisted understanding of the First Amendment are the legal rules that allow activists to use the courts to sue for myriad supposed Establishment Clause violations in the first place. Known as the rules of “standing,” these are the requirements someone has to meet to get into court.
Normally, the individual bringing legal claims has to show a real and concrete injury—that he or she was forced to act differently or was damaged financially. Yet upset litigants can sue for alleged Establishment Clause violations if they were “offended” in some way, or in some cases when they can show they were “harmed” because their tax money led to an alleged Establishment Clause violation.
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The portion of the Fourth Circuit’s recent opinion in American Humanist Association that discusses standing highlights how extreme this doctrine has become. Quoting its own opinion in Suhre v. Haywood County, the court declared that “in religious display cases, ‘unwelcome direct contact with a religious display that appears to be endorsed by the state’ is a sufficient injury to satisfy the standing inquiry” (emphasis mine).
Suhre in turn relied on several Supreme Court cases that for decades have problematically opened courts to any and all upset wannabe litigants. For the American Humanist Association to sue in this case, it was good enough that the group “has members in Prince George’s County who have faced unwelcome contact” with the cross-shaped veterans memorial.
Some still might ask what the big deal is. Under current standing rules, far too many groups and aggrieved would-be litigants can use the judicial branch of government to achieve ideologically driven goals they never could achieve through Congress or the executive branch. Aside from warping the balance of power our Constitution is supposed to provide, this legal activism curtails the freedom of many communities like Bladensburg around the country. It allows a small, meddlesome minority (see Section I of this report) to force public religious displays down although the members of these communities almost always support them. Sometimes all it takes for a longstanding memorial to be taken down is one cranky individual to claim he was “offended.”
In light of such disruptive and undemocratic dynamics, it would do our legal system well to embrace Justice Kennedy’s reminder from the Supreme Court’s recent Establishment Clause ruling in Town of Greece v. Galloway that “[o]ffense . . . does not equate to coercion.” Indeed, being offended once in a while is a necessary part of a free society. The Supreme Court should adopt just such an approach on the issue of standing.
Ultimately it is up to the Supreme Court to fix the current problems with the standing doctrine. While many would benefit from such a fix, it is likely our veterans would especially appreciate it. Indeed, their monuments depend on it.