Justice John Paul Stevens's fiercely modest judicial method
Conservative Supreme Court could reverse decades of First Amendment law
The American Legion and its supporters recently filed initial briefs in The American Legion v. American Humanist Association, a Supreme Court case to be argued in February concerning the constitutionality of a 40-foot, 90-year-old memorial cross displayed and maintained by a state agency in Bladensburg, Md. Depending on how the court rules, however, much more is at stake.
Now that the court has turned decidedly to the right with the confirmation of President Trump's nominees, Justices Brett Kavanaugh and Neil Gorsuch, the American Legion's lawyers and supporters are arguing that the court should upend numerous court decisions and rule that the government can legally take action to promote or endorse a specific religion. This would effectively turn those who do not believe in that religion into second-class citizens.
Specifically, even though the formal questions presented in the case relate narrowly to whether the Bladensburg cross violates the First Amendment's Establishment Clause, the first legal argument in the American Legion's brief proclaims broadly that "coercion, not endorsement, is the proper standard" to judge Establishment Clause claims. Former Reagan Justice Department lawyer Michael Carvin and the conservative First Liberty Institute urge in the brief that the court should "clarify" that "coercive state activity" is required to violate the First Amendment.
This should be "compulsion by law" to "coerce belief in, observance of, or financial support for religion" by government, they claim. It is perfectly legal for government to promote or endorse a religion, they assert, regardless of whether it results in "feelings of offense and exclusion," since government is free to promote other nonreligious messages even if some disagree. Friend-of-the-court briefs by groups such as Liberty Counsel, The Becket Fund for Religious Liberty and the American Association of Christian Schools make similar arguments.
The best answers to these claims were provided by Republican-appointed Supreme Court justices years ago in response to efforts by Justice Antonin Scalia and others to adopt the coercion standard. In Lee v. Weisman (1992), Justice David Souter carefully demonstrated that the First Amendment's history shows the Founders "extended their prohibition" to include government action that endorsed or promoted religion, not just coercion.
Otherwise, he explained, the Establishment Clause would have been duplicative of the Free Exercise Clause, which clearly prohibits government action that coerces religious belief or practice. Government can promote other views in foreign or domestic policy, Souter explained, because there is no constitutional prohibition on such endorsement as the Establishment Clause, which makes religious beliefs "irrelevant to every citizen's standing in the political community."
Justice Sandra Day O'Connor explained further in her influential opinion in Lynch v. Donnelly (1984): The Establishment Clause prohibits government action that has "the effect of communicating a message of government endorsement or disapproval of religion," since such action sends a clear "message to nonadherents that they are outsiders, not full members of the political community."
In his opinion in Lee v. Weisman, Justice Harry Blackmun traced the court's precedents against government endorsement back to the first case in which the court made clear that the Establishment Clause applies to the states, Everson v. Board of Education in 1947, and pointedly reminded us that government "cannot be premised on the belief that all persons are created equal when it asserts that God prefers some."
In fact, precisely such consequences could flow if the court abandons precedent and adopts the coercion standard. Such a ruling would do far more than uphold historic memorial crosses as in Maryland. It would also sanction erection of new public crosses tomorrow on top of public schools, near state courthouses and next to houses of Congress. Public school teacher-led Protestant prayer would be permitted, so long as students could stand out in the hall if they objected, directly contradicting 50-year-old court decisions.
In some communities, some might push for official Catholic, Islamic or Jewish prayer instead, leading to the "anguish, hardship and bitter strife" predicted by the court in Engel v. Vitale when religious groups struggle for the government's "stamp of approval." Official banners proclaiming that "America is a Christian nation" could be posted at the White House and some state capitols, while public government banners in other states could proclaim that "We Believe Americans Should be Secular, Not Religious." Without the government as a truly neutral party, religious conflict in America can only grow worse.
Of course, none of this needs to, or should, happen as a result of this Bladensburg case. Even the American Legion's brief acknowledges that the court can uphold the presence of the memorial cross without changing Establishment Clause jurisprudence, and hopefully at least one of the court's five conservative members, such as Chief Justice John Roberts, will see no need to go as far as far-right advocates are pushing.
But if the five Trump- and Bush-appointed justices adopt the coercion test being pushed by the American Legion and its allies, all Americans will suffer the consequences. Such a decision would be only among the first in which the current 5-4 majority overrules precedent and harms our rights and liberties.
Elliot Mincberg is a senior fellow at People For the American Way and a former chief oversight counsel for the House Judiciary Committee.