Humanists Face Off Against SCOTUS — My Latest for Splice Today

Earlier this month, the American Humanist Association (AHA) announced that the US Supreme Court will hear their case against the Peace Cross in Bladensburg, MD. The 40-foot tall cross is a World War I memorial that the AHA says is an explicitly Christian symbol on public ground, making it not only a church/state separation violation but also a slap in the face to non-Christians who served their country. The AHA’s legal counsel, led by senior counsel Monica Miller, first filed a complaint against the Peace Cross in 2014, and the 4th Circuit U.S. Court of Appeals ruled the cross was unconstitutional. However, according to the AHA, a month later both the government and American Legion separately filed petitions to the SCOTUS to overrule the decision. Now the Supreme Court has to face a case that, as the Freedom From Religion Foundation’s Andrew Seidel recently wrote, “could bring down the wall” separating church and state.

According to Seidel, there are only two possible reasons why the Supreme Court decided to take the case. The first is that conservative justices welcome such a controversial case because, he explains, SCOTUS’ “solid conservative majority is ready to begin checking items off the Federalist Society wish list.” The second is the conservative justices don’t think there’s anything wrong with a cross on government property and doesn’t think the cross is even a Christian symbol. “If this is true,” Seidel writes, “then those conservative justices essentially do not believe that the Constitution guarantees anything like the separation of state and church currently enjoyed by people in the United States. The justices will have bought into the Christian nationalist worldview that helped carry Donald Trump into office and will do untold damage to our republic and the principles for which it stands.”

Read the rest here.


  1. says

    Good article. I think the lede should rather have been Miller’s statement, however:

    the Court usually confines its Establishment Clause rulings to the narrow facts at hand. So even if we lose, it’s more likely to be a narrow rather than sweeping loss.

    I’m not someone who might be called a “court watcher”, intent on analyzing the opinions of individual justices as belonging to individual justices (and not the product of negotiation with 4-8 other people). Court watchers do have genuine insights that I can’t match, and they can sometimes predict court outcomes better than I, but they’re also prone to statements like the one you documented Seidel making:

    there are only two possible reasons why the Supreme Court decided to take the case

    While, again, my understanding of SCOTUS is far from the best around, I see a ton of these absolutist statements out there. They seem especially popular when discussing why cert was granted because if the case had been decided already they wouldn’t need predictions, they’d have the outcome.

    The truth is that cert can be granted for any reason at all: you can even negotiate with another justice to agree to hear a case they think is important if they vote to hear a case that you think is important. In this way a single justice – even a brand new one like Kavanaugh – can get the court to agree to take a case when none of the other 8 feel the case is a priority in any way or have any initial intention of overturning the appellate court’s ruling.

    Who knows why Justices horse-trade like this (you’d have to ask one of the good court watchers, preferably a long-time law professor), but they do. I’ve heard of at least one case where Frankfurter simply wanted the chance to argue the case with his peers. The way I heard it he didn’t expect to win them over, but he thought they should seriously consider arguments that (in his opinion) they had not yet adequately credited. If a justice is willing to use negotiating capital that way, there are very few cases that couldn’t be granted cert.

    Anyway, that isn’t a critique of your article, I just get annoyed at these people who read more into cert decisions than I think is reasonable because they assume that the only reason anyone would ever vote for cert is if they knew in advance they wanted to overturn a lower court ruling. That’s just not so.

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