Let the 999th paper cut be noted, on the road to theocracy
The Supreme Court’s majority opinion begins with a little history, belying neutrality or objectivity, when it comes to Crosses. Regarding the Bladensburg Cross:
“…formed a committee for the purpose of erecting a memorial for the county’s soldiers who fell in World War I. The committee decided that the memorial should be a cross, which was not surprising since the plain Latin cross had become a central symbol of the war.”
To state that the Cross had become a symbol of the war, rather than “it has for 2,000 years been a symbol of Christianity used to mark the graves of Christians” is only SLIGHTLY less ridiculous than the editorial commentary that the Cross’s status was not surprising.
“Why do you atheists have to make such a big deal? It’s just a Cross. For a good purpose.”
The wall of separation between church and state erodes beneath the steady drip of “little things.” Each “little thing” codified by a SCOTUS ruling is used as justification for the next “little thing.” “In God We Trust” on coins is used to support arguments for adding “Under God” to the pledge, which is used to leverage inclusion of “In God We Trust” on paper money (along with a timely call that we fight back against Godless communists by showing them we are a Godly nation); leveraged to change the national motto from “E Pluribus Unum” to “In God We Trust”; leveraged to inscribe “In God We Trust” in courthouses; leveraged to claim the United States is a Christian Nation; leveraged to assert crosses are historically significant and not religious in nature; leveraged to pass RFRA laws, effectively allowing religious individuals to bypass general legislation by asserting that they have the right to, if their violation of a law is based on sincere belief.
Small thefts add up. Ask the “micro-traders” who skimmed $84 Billion from the NYSE, a few thousandths of a cent at a time, as documented in Michael Lewis’s book “Flash Boys.”
Ask Facebook, who converts our consent to use their application into license to resell the aggregate data patterns for billions.
Ask the characters of “Office Space” who “rounded up” on every checking transaction, as a way to defraud their employer. Their theft scheme has become our national business model, including at the level of stealing First Amendment separation of Church and State from under us, one minuscule ruling at a time.
The first 4 pages of the ruling, a summary titled the “Syllabus” recites a litany of previous, dubious concessions to religious establishment to justify this latest one.
I’m working through the 87 page ruling as I type. Thankfully, I have “Google Judicial Translate” enabled, to convert various phrases into standard English.
Not familiar with this feature? It was shown to me by the honorable Bruce S. Springsteen (no relation) when he translated Justice Antonin Scalia’s constant reference to “ceremonial deism.” “Ceremonial deism means “opportunistic hypocrisy.”
Preserving History?
Justice Alito writes that
“retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones.”
Translation: We don’t really honor Separation, and assert it is not our responsibility to undo times in the past when Establishment of Religion under Government auspices was done, but rather to justify it as “of cultural or historical significance” and thus immune.
“…identifying their original purpose or purposes may be difficult.”
Translation: Ignore our first sentence, where we told you the express original purpose and meaning of a Cross. If you try to tell us its purpose is Religion, that can’t be done. If you try to tell us it’s historically important, secular and familiar to the community, welcome.
“second, as time goes by, the purposes associated with a monument often multiply”
Translation: We will keep any and all religious references we have injected into public life, under the specious claim that they are not “solely” religious and have many meanings and purposes.
Cool… If I organize a yearly ceremony where a thousand atheists deliver bags of dog poop to the cross, that new meaning will be incorporated and accepted under this argument, right? You know, purposes multiply.
Third, the message of a monument … may evolve. Familiarity itself may become a reason for preservation.”
Translation: We will continue to ignore the original meaning, the dominant religion practiced, and the other rulings in similar cases which disagree. Ask a Jewish or Muslim soldier interred beneath a cross if the symbol has evolved? I’m sure white America was quite “familiar” with separate water fountains for blacks, but we didn’t preserve those monuments to slavery, did we?
Fourth, …
OK… I quit. As noted previously on this blog, I find it odd that Justice Clarence Thomas is not leaping to decry the entangled morass of legal rulings that make this area a minefield. Oh… that’s right. Thomas only speaks on the sorry state of contradictory “Separation” rulings when a ruling is handed down that favors the atheist. The same problems he identified in a case prohibiting the State of Utah from erecting roadside Crosses as memorials to fallen State Troopers are rampant in this ruling. But the ruling went his way, so he is silent.
Wait… I’m back. Deep on page 5 of this new Bladensburg Cross ruling, Justice Thomas argues that since the First Amendment says “Congress shall make no law respecting an establishment of religion” that the First amendment is explicitly intending to protect STATES who decide to establish religions! Holy Shit! (literally.) This is the kind of “small thing” that some future case will cite in support of a further religious establishment. And not every American will have read to page 5, let alone page 87, of this ruling.
I simultaneously have no doubt this ruling gets worse from here, and can’t believe that “worse” is any longer a possibility given how completely the First Amendment has been gutted to date.
Gorsuch: or “I Wonder What Merrick Garland Would Do?”
Page 6 of the Ruling, Justice Neil Gorsuch rolls out a call that the Lemon Test, the longstanding framework for assessing whether or not a government action is in conflict with Separation of Religion and Government, be discarded entirely in favor of the recently decided “Greece vs. Galloway” case:
Although [the ruling] doesn’t say it in so many words, the message to lower courts MUST (my emphasis on Gorsuch’s arrogance) be this: whether a monument, symbol or practice is old, or new, apply Town of Greece v. Galloway… not Lemon, because what matters when it comes to assessing a monument, symbol, or practice is not its age but its compliance with ageless principles.
Translation: From this point forward I unilaterally decree that Separation of Church and State must be interpreted to not matter, as long as we’ve been violating it anyway. Thus sayeth the Lord, myself, Neil Gorsuch.
In an ironic twist, I agree with Gorsuch that the American Humanist’s argument from the “Offended Observer” position is weak tea. The issue is not that a Cross offends. The issue is that the cross is being funded and maintained by public dollars on public land, and THAT violates Constitutional separation of the establishment clause.
Let’s Hear from “I Like Beer”
This ruling is significant enough that Justice Brett “I Like Beer” Kavanaugh has to add his two pints worth.
If Lemon guided this Court’s understanding of the Establishment Clause, then many of the court’s Establishment Clause cases over the last 48 years would have been decided differently…
Translation: I am about to display for you the blinding commitment to precedent I swore to in my confirmation hearings, by ignoring the precedent of Lemon by citing other cases that ignored Lemon, and which I admit would have gone in favor of Lemon, if I had actually USED Lemon. (Where have I heard this kind of logic before? Read Kavanaugh’s confirmation testimony.)
In every case Kavanaugh cites, the court effectively ignored the concept of instituting a neutral, equally applicable, NON RELIGIOUS approach to governance, in favor of allowing continuously expanding exceptions and exemptions. Each of these “bootstraps” are leveraged again and again to say, “See… Lemon doesn’t apply… because we refused to apply it.”
Kavanaugh’s second point condescends to Jewish and Atheist Amicus briefs by saying this ruling respects the
bedrock Constitutional principle: All citizens are equally American, no matter what religion they are, or if they have no religion at all.
Translation: I hear your whining, and I don’t disagree, but fuck you: nothing is going to change and we will not institute a Neutral, non-sectarian government. We will continue to use history, custom, exemption and any means we can conjure to continue giving preferential, discriminatory priority to religious symbols and government action.
Kavanaugh then gives a knowing nod and wink to States Rights by suggesting complainers have other avenues of recourse in their State legislatures.
Other federal, state, and local government entities generally possess authority to safeguard individual rights above and beyond rights secured by the U.S. Constitution.
Translation: We reserve the right in future cases to allow religious claims to trump secular governance, if so established by States… uh… forget about that 14th Amendment thing.
Kagan Concurs
Justice Kagan concurs in parts, adding that she does not wish to throw out Lemon entirely. (though, she does not in any way call on it here to dissent… so…? )
Here concurrence largely praises Alito’s claim that removing the cross would not be seen by a large number of people as a neutral act. This, to me, seems to be the nut of the flaw in Alito’s argument: Because a sectarian majority does not see application of a neutral, secular standard as a neutral choice, that makes siding with the sectarians reasonable? Oi!
Thomas’ Concurrence “In Judgment”
Thomas is weird. There. I got that out of the way. He agrees with the end result, but he disagrees with the arguments made by the majority, and so he does not agree with the opinion, only the judgment. Some notes
I find an interesting goalpost shift in Thomas’ opinion on page 52:
Putting aside the fact that Christianity is not a “sect,” religious displays or speech need not be limited to that which a “judge considers to be nonsectarian.”
Notice how Thomas wants us to look at some “requirement for religious speech to be non sectarian” rather than the basic, central tenet that “should” be under discussion: The governments ACTIONS and EXPENDITURES, and FORCE OF APPEARANCE should be clearly non-sectarian and not imply favoritism for any faith, or for faith generally over a non religious approach to the world. The government is here to govern, and placing Sectarian memorials is not a neutral function of governance.
Each and every time the SCOTUS faces a case in which one religion wants to make religious displays or speech on public ground, they studiously avoid the obviously fair neutral: No faith expressions will be allowed as a part of governance, since we cannot possibly waste time adjudicating whether or not all faiths get equal time. The simplest, neutrally applicable response is to say no religious symbolism shall be erected by our governments, as they have NOTHING to do with implementing the laws and governing.
Any such effort would find courts “trolling through… religious belief” to decide what speech is sufficiently generic.
Intriguing… Thomas does not want the court wasting time determing what constitutes sufficiently generic, yet in cases involving RFRA laws — cases which put the judiciary in the position of trolling through a citizen’s mental states to determine what constitutes a “sincere religious belief or practice” he has no problem.
Thomas continues Gorsuch’s ravaging of Lemon
The obvious explanation (for all the confusing rulings he outlines) is that Lemon does not provide sound basis for judging Establishment Clause claims.
Ah… I see… when a litany of cases argue a wide array of duplicitous reasoning to support religious establishment, blame Lemon for the contortions taken to avoid its simple test.
Gorsuch carries this on in his partial concurrence, arguing that none of the three tests advanced in Lemon can be understood by any mortal. I find it particularly disturbing that he mocks “reasonable observer” standard in assessing government endorsement of religion, but I’m “reasonably” certain he supports this license to legislate from the bench in other contexts that suit him.
He leverages previous breaches in the wall of separatoin to support his inability to determine what constitutes “entanglement.”
…what exactly qualifies as impermissible “endorsement” of religion in a country where “In God We Trust” appears on the coinage, the eye of God appears in its Great Seal, and we celebrate Thanksgiving as a national holiday (“to Whom are thanks being given”)?
Again, Gorsuch lauds “Town of Greece” for its brilliant principle to judge religious separation based on “tradition” rather than on the plain and simple language of separation.
With Lemon now shelved, little excuse will remain for the anomaly of offended observer standing, and the gaping hole it tore in standing doctrine in the courts of appeals should not begin to close.”
Gorsuch follows Thomas’ lead in diverting our attention from government action, onto individual offense.
We must not stoop to making our judiciary judge offense, OR legitimacy of “good-faith claims of religious belief”. Instead, simply stop combining religion with governance.
Beyond Belief 