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The Supreme Court is about to hear the biggest threat to separation of church and state in decades

The wall of separation is about to collide with wrecking balls named "Neil Gorsuch" and "Brett Kavanaugh."

The "Peace Cross" whose fate will soon be decided by the Supreme Court. (Photo by Mark Gail/For The Washington Post via Getty Images)
The "Peace Cross" whose fate will soon be decided by the Supreme Court. (Photo by Mark Gail/For The Washington Post via Getty Images)

The Supreme Court will hear two cases on Wednesday that never should have been filed in the first place.

The outcomes in American Legion v. American Humanist Association and Maryland-National Capital Park and Planning Commission v. American Humanist Association, two consolidated cases considering the fate of a cross-shaped monument in Maryland, are as preordained as anything in the Supreme Court can be. Every single member of the Court’s conservative majority will almost certainly vote to uphold the cross. They may even be joined by some of the liberal justices.

The American Humanist Association’s decision to file these cases is the jurisprudential equivalent of suicide. Even before Justice Anthony Kennedy left the Supreme Court to be replaced by the far more conservative Brett Kavanaugh, any lawsuit challenging Maryland’s “Peace Cross” was doomed. Kennedy long denounced his court’s decisions ordering religious monuments removed from public land as “an unjustified hostility toward religion.”

And, again, every single member of the Supreme Court’s current majority is well to Kennedy’s right.

Incoherence

The American Humanist cases concern the Constitution’s prohibition on “an establishment of religion” — and what that prohibition has to say about government displays that honor a particular religion. And the only good thing that can be said about these cases is that they could bring coherence to an area of the law that is a cacophony of overlapping and sometimes competing doctrines.

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The Supreme Court’s never overruled its 1971 decision in Lemon v. Kutzman, which requires all laws to have a “secular legislative purpose,” a “primary effect” that “neither advances nor inhibits religion,” and that forbids laws which “foster ‘an excessive government entanglement with religion.'” Yet the justices frequently criticize Lemon, often ignore it, and sometimes layer new legal rules on top of it.

“Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried,” the late Justice Antonin Scalia wrote in a particularly colorful opinion, “Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District.”

Liberal justices, as well as the moderate conservative Justice Sandra Day O’Connor, largely rallied around the so-called “endorsement test,” which “prohibits government from appearing to take a position on questions of religious belief or from ‘making adherence to a religion relevant in any way to a person’s standing in the political community.’”

Meanwhile, in 1992’s Lee v. Weisman, Justices Kennedy and Scalia offered two competing versions of a “coercement test,” which provides, in Kennedy’s words, that “government may not coerce anyone to support or participate in religion or its exercise.”

And then there’s Justice Stephen Breyer’s odd controlling opinion in Van Orden v. Perry which seems to turn on whether a particular religious monument is likely “to prove divisive.” Or Justice Kennedy’s opinion in Town of Greece v. Galloway, which suggests that the government has broad discretion to celebrate religions so long as it neither coerces religious adherence, discriminates among faiths, nor classifies “citizens based on their religious views.”

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For years, this incoherence enabled sadistic law professors to torture their students with Establishment Clause hypotheticals that literally no one knows how to analyze under existing law. The American Humanist cases allow the Supreme Court to bring order to this chaos, though the new order is likely to be extremely favorable to government endorsement of religious faith.

Two paths

Because American Humanist is two consolidated cases, it features two different briefs on behalf of two different parties that wish the Peace Cross to remain undisturbed.

In one corner is a team of lawyers led by Neal Katyal, the former acting solicitor general under President Obama. Katyal’s brief on behalf of the Maryland-National Capital Park and Planning Commission offers a sensible-seeming, relatively moderate approach that tries to slot the Peace Cross into existing doctrines.

Much of Katyal’s brief focuses on the factors Justice Breyer deemed dispositive in Van Orden, a similar case upholding a Ten Commandments monument displayed on the Texas state capitol grounds. Like the Texas monument, the Peace Cross stood for many years without causing major social divisions. Like the Texas monument, the Peace Cross is one of several monuments — many of which are secular — displayed in close proximity.

The Peace Cross was erected to honor World War I veterans, and stands near monuments to World War II veterans, Korean and Vietnam veterans, the War of 1812, victims of the Pearl Harbor Attack, victims of the 9/11 attack, and soldiers who fought in the nearby Battle of Bladensburg.

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In the other corner stands a team of lawyers led by Michael Carvin, an archconservative Jones Day partner who represents the American Legion.

Carvin is what happens if you allow toxic masculinity to take the bar exam. He’s best known for his work on Ledbetter v. Goodyear Tire and Rubber, the now-discredited decision preventing a longtime victim of sex discrimination from seeking equal pay for equal work — and for two unsuccessful attempts to convince the Supreme Court to gut the Affordable Care Act. During his oral argument in King v. Burwell, the second of these Obamacare cases, Carvin repeatedly interrupted the three women justices — prompting Justice Sonia Sotomayor, at one point, to advise him to “take a breath.”

Carvin’s brief calls for a sweeping, wholesale invalidation of nearly all Supreme Court decisions enforcing the Establishment Clause. “The Establishment Clause was designed to prohibit coercion,” and that’s pretty much it, according to Carvin. “By making a constitutional claim out of feelings of offense and exclusion, the endorsement test grants a heckler’s veto over speech supportive of religion that does not apply to any other form of government speech,” Carvin writes at one point, in the sort of line that would be right at home in an opinion column titled “Debate Me, Coward.” Under Carvin’s coercion-only test, it’s not even clear that the Establishment Clause would forbid outright discrimination among different faiths.

Because originialism, the belief that the Constitution must only be read as it would have been understood by the framing generation, is now fashionable among conservatives, Carvin spends much of his brief quoting famous dead men who seem to support his position. Yet, if anything, the dialogue between Carvin and the American Humanist Association’s Monica Miller merely reveals why originalism is useless in so many cases. For every time Carvin quotes James Madison “earnestly praying” to “the Supreme Lawgiver of the Universe,” Miller can quote Thomas Jefferson’s warning that “governmental religious favoritism ‘tends only to corrupt the principles of that very Religion it is meant to encourage, by bribing with a monopoly of worldly honours and emoluments, those who will externally profess and conform to it.’”

Nevertheless, there’s an off chance that Carvin’s extreme position will garner five votes on this Supreme Court — and a much higher likelihood that a slightly more moderate version of Carvin’s coercion test will prevail. Earlier this month, the Supreme Court voted along party lines to allow a Muslim death row inmate to be executed without his spiritual adviser present, despite the fact that Christian inmates were allowed to have a Christian chaplain comfort them in their final moments. This decision likely can be explained as much by conservative skepticism of the death penalty defense bar as it can by animus towards Muslims, but it is an ominous sign for anyone seeking to preserve the rule that government cannot discriminate among faiths.

What’s at stake

In his own preview of the American Humanist cases, The Atlantic’s Garrett Epps tells the heart-wrenching story of an aging Vietnam veteran who, after a court ordered an Oregon “war memorial” shaped like a cross taken down, confronted the workers assigned to remove the cross with a shotgun and then threatened to blow his own brains out if the court’s order was carried out. The standoff ended peacefully, and the cross was eventually moved to private land.

Less sympathetic than the veterans who wish to see their fallen friends honored by public monuments are the conservative white Christians who, frightened by the fact that they are losing dominance in American society, demand that the law must preserve their cultural primacy. White rage should not inspire sympathy, but it remains a powerful force in the United States — one powerful enough that it placed a manifestly unfit racist in the White House.

For these reasons, it’s fair to ask, as Justice Breyer appeared to ask in Van Orden, whether targeting government monuments to religion is worth it. Why should we add to the pain of men and women who served their country and take solace in monuments like the Peace Cross? Why kick the MAGA bear, and risk triggering a backlash that could doom the nation to be lead by men like Donald Trump?

Justice O’Connor offered one answer to these questions 35 years ago. When government endorses a particular religious view, it “sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” If we are to be a nation where everyone is created equal, then we must recognize that Muslims, Jews, Hindus, and atheists are as much a part of the American community as Christians.

The Supreme Court offered another answer in Lemon. “Political division along religious lines was one of the principal evils against which the First Amendment was intended to protect,” Chief Justice Warren Burger wrote for the court. And “the potential divisiveness of such conflict is a threat to the normal political process.”

If government may fund religious displays, lawmakers are likely to divert funding from essential services like schools, roads, or police in order to pay for these displays. Other lawmakers may tax nonbelievers to fund such displays. Candidates will campaign on promises to advance one religion over another if elected. Elections could become referendums on religious identities instead of debates over policy.

Permitting government to endorse religion will not placate the MAGA bear. It will feed it.

It is likely that we will soon find out if Burger was right that, when the government may advance religion, it will provoke conflicts that threaten the political process itself. The Supreme Court’s new majority will almost certainly vote to uphold the Peace Cross, and it is likely to dismantle decades of precedent in the process.

The wall between church and state crumbles, and the Supreme Court has lined it with dynamite.