Far be it from me to sit in judgement on the Supreme Court, but then playing armchair judge is a pastime for most of America. And the case of American Legion v. American Humanist Association practically begs for review (pardon the pun), particularly with so many individual opinions being written in spite of the 7-2 ruling (to be honest I wasn’t aware the Court could even issue anything other than a 5-4 ruling anymore). In this case I think the Court got it exactly wrong largely based on those express opinions as reported in the Washington Post, which I will be referencing throughout this piece, so feel free to call me out if there is some nuance of legal thought I am overlooking by not reading the entirety of their opinions. However I do believe the underlying premise is sound.
The initial argument is basically that a cross on public land favors a specific religious point of view, which is unconstitutional. The mental gymnastics that the justices who voted to allow the cross to stay had to go through are particularly astounding, and the fact that so many of them took so many paths to get there shows that there really isn’t any clear logic or reasoning to support it, unlike the opposition argument. Note that this in itself does not indicate they are wrong; there can be several good arguments in favor of something, and reasonable people can disagree about which one is the best. However the fact is that none of the arguments put forward by the justices are good or even sufficient arguments, particularly as a matter of practical law when considering that they will be used as precedent in other cases.
What sort of cases? Consider for a moment the issue of Civil War memorials. While many of these memorials may not have a religious component, some may, and all of them are subject to First Amendment challenges (either by those who want to tear them down or those who want to keep them up). Let’s consider the justices opinions in terms of these memorials:
Justice Alito, from the main opinion (WP):
“For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark. For many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.”
Alito was joined in deciding that the cross may remain by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Stephen G. Breyer, Elena Kagan, Neil M. Gorsuch and Brett M. Kavanaugh.
Take out “the Cross” and replace it with “the monument” and this passage would apply equally well to every Civil War memorial in the country. I know from personal experience it would apply to the entirety of Monument Avenue in Richmond, VA.
Justice Gorsuch, according to the Washington Post, “would have dismissed the case because he believes the “offended observer” has no legal standing to sue.” So if you’re offended by Civil War memorials… tough titty.
“Breyer said he was persuaded by the specifics of the case: that crosses are specifically linked to World War I sacrifice and that the cross had stood for 94 years without controversy.” (WP) Oh, good. Because the Civil War happened before WWI, and many of those monuments stood even longer than that without controversy. Because, y’know, a lack of controversy in the past totally trumps any present controversy. Or future controversy. Just ask Dred Scott.
To be fair, a couple of justices did give me hope of nuance, even if I didn’t love the way they decided. “Kagan praised Alito’s ruling, but said she refused to join it in full “out of perhaps an excess of caution.” “Although I too look to history for guidance, I prefer at least for now to do so case-by-case, rather than to sign on to any broader statements about history’s role in Establishment Clause analysis,” she wrote. Kavanaugh said that the decision allows the cross to remain on public land but does not require it. Maryland officials could make other arrangements, he said, such as transferring the land to a private group.” (WP) From reading these comments, I’m almost persuaded to believe they might be thinking about the same sort of issues I am. Of course I might be flattering myself (wouldn’t be the first time), but it is nice to see a bit of judicial restraint even in the face of a poorly decided issue.
I understand that reasoning by analogy is flawed, but I am only using an analogy to highlight my point, not to establish it. And the point is this: decisions coming out of the Supreme Court, particularly ones that have a sizable majority such as this one, set a strong precedent for the entire country. I am a fan of stare decisis and history as much as the next Court watcher, but even more I am a fan of an awareness of the future and what it might hold. While nobody can predict that with even a reasonable modicum of accuracy, it’s not too hard to draw reasonable conclusions from the present, and a bit of restraint in current decisions could yield significant room to maneuver in future cases.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Boy, that’s a mouthful, ain’t it? And it covers so much ground in so little space. Enough ground to keep us arguing over exactly what even one clause means over two hundred years later, and there are three distinct clauses that cover three, arguably very different, aspects of life. So why do all of these fall in the same amendment? And what does it all mean, anyway?
For me personally, it’s not just a matter of “these are the most important things, so let’s put them all first.” The entirety of the Bill of Rights was adopted at the same time, so there’s no reason to say any one amendment is more important than the others, and it’s kind of curious to try to mash together a bunch of unrelated ideas and hope they hold together (unless you think the Founding Fathers were the world’s first DJs. Come to think of it… dibs on that name.) There’s a common thread there, if you look past the surface and consider what the purpose of each of those acts is, and what their deeper meaning is and was at the time of the founding of our country.
I believe the First Amendment is about freedom of thought and the expression thereof. To be able to think or believe something is essentially meaningless in a society without the legal capability to express that belief, and each of those clauses covers one of the primary means by which people of the time communicated with each other. Whether from the pulpit or in the pews, by voice or the printed page, or even simply gathering in the town square and letting their voices be heard, these were the ways that people could let their thoughts and beliefs be known. So what are the implications for our modern society of that interpretation?
For starters, I believe that a strict literalist reading is just silly. To restrict the realm of free speech only to the items identified by a two hundred year old document is to assume that not only were the Founding Fathers great authors and statesmen, they were also prognosticators able to see the advances of technology yet to come and said, “Verily, that internet looks most interesting, but mayhap we best restrict the freedom of expression only to those technologies that exist in our day and age, lest we somehow bungle the whole experiment. Harrumph, harrumph.” (Because that’s exactly how they talked.)
Next, note that “Congress shall make no law respecting an establishment of religion“. That means that any law like prayer in schools, hanging of Commandments, or anything else that is an official state recognition of religion is out. This also covers pathetic dodges like attempting to make religious shrines “secular” monuments. By the same token, any attempt to restrict people from “the free exercise thereof” is also banned, so stopping folks from displaying a manger scene on their own property is as unconstitutional as banning a sign that says “God hates fags.” You don’t have to like it or agree with it, but it cuts both ways. That’s the way I read it.
Also, while it’s been said before, I think it’s worth noting and reinforcing that the First Amendment is not there to protect popular speech. That’s easy; if the majority of people like what you have to say or believe, and in particular if the people who trod the halls of power are comfortable with what you are saying and how you say it, then you have nothing to fear in terms of what you say or do being restricted. It is the unpopular speech, the vile speech, the speech we would prefer not to have to endure in our comfortable lives that most needs protection. Whether it is jerks who claim military service they never gave or idiots who deny the Holocaust, we need to protect and allow all speech. Let us not forget that there was a time in our country’s history when speaking out against slavery, or in favor of equal treatment for people of all ethnicities or genders, was equally offensive in polite society and the halls of power.
Finally, and this is the big one, expression is merely the final extension of thought. To give freedom of expression without freedom of thought is like saying “Any customer can have a car painted any color that he wants so long as it is black” (thank you Henry Ford.) Being given the choice between “yes” and “yes, please” is no choice at all. Likewise, hate crime legislation is wrong on two points: first, it presumes we can know the true thoughts and motivations of another person. Honestly, I don’t know why I do the shit I do half the time. I’m supposed to understand why other people do things? And even if I did, the First Amendment gives us the right to believe what we want. You don’t have to like it, and you don’t have to agree with it. If the way someone expresses those beliefs is a crime, then let them be punished in accordance with the crime they committed, but not for the thoughts in their head.
Unless we’re okay with making thoughts a crime.