In response to Steve’s recent description of the Bladensburg Peace Cross case as a ‘great day in court’ for religious liberty, I’d like to point out once again that, with rare exceptions, there’s no such a thing as a great day in court — because even when you think you’ve won, what you’ve lost is going to be much more significant in the long run.
Thomas Jefferson said: ‘To compel a man to subsidize with his taxes the propagation of ideas which he disbelieves and abhors is sinful and tyrannical.’ So that’s how this issue of ‘establishment of religion’ was understood at the time of the founding, by at least one of the principal founders.
As Steve points out, the Bladensburg Peace Cross is ‘on government property, tended to and cared for with public dollars’. This means that its continued display compels many people who disbelieve and abhor the ideas it propagates to subsidize them with their taxes.
Justice Alito claimed that removing the display would be hostile towards religion. But it would merely refrain from offering a privileged position — that is, one supported with tax dollars — to one particular religion. And if offering a privileged position, supported by tax dollars, isn’t what is meant by ‘establishment’, I don’t know what is. And apparently neither did Jefferson.
Now, if such a display were on private property, tended to and cared for by private funds, and government insisted on removing it, that would be hostile towards religion.
When anti-gun zealots argue that modern pistols and rifles are not protected by the 2nd Amendment because they do not ‘share the characteristics of arms as understood at the founding’, they’re using the same reasoning that the court is using in this case.
And when anti-free-speech zealots argue that media like radio, television, and the internet are not protected by the 1st Amendment because they do not ‘share the characteristics of speech as understood at the founding’, they’re using the same reasoning that the court is using in this case.
Finally, consider the concept advanced by Justices Gorsuch and Thomas: while ‘truly established’ is bad, a little bit of establishment is okay, as long as it’s not too much. (How do we know how much is too much? We ask the court, on a case-by-case basis.)
I invite you to try applying that concept to arms, or to speech, and see if you still like it. You won’t. But it’s exactly how we’ve ended up with limitations on guns that aren’t ‘truly infringements’, limitations on speech that aren’t ‘truly abridgments’, and so on. A little infringement, a little abridgment, a little establishment, those are okay, so long as it gets us what we want… right?
As I’ve said before, either words matter — ‘truly matter’ — or laws don’t.
Interestingly, it would have been reasonable to argue that the display should remain in place for the same reason that, for example, a statue of Robert E. Lee should remain in place if it’s already there — not because anyone is endorsing the views that Lee held, or the actions that he took, but because it’s a historical fact that at one time, enough people did endorse those things that they felt justified in erecting the statue. To remove the statue would be hostile to history.
But instead, the case was argued and decided on religious rather than historical grounds; and the decision, in classic Supreme Court form, trades a result of minor significance for a grant of enormous power. It’s the judicial equivalent of trading a bag of shiny beads and trinkets for Manhattan Island.
So this was actually a pretty crappy day, not just for religious liberty, but for liberty of all kinds, since (1) it has reinforced the court’s use of selective originalism to arrogate to itself ever more power, and (2) it has hoodwinked even people like Steve into cheering them on as they do it.
Well played, Justices.
