DANIEL VAUGHAN: Supreme Court upholds WWI memorial against progressive illiberalism

June 21, 2019

As we come to the end of the term, the Supreme Court ruled this week on the Bladensburg Peace Cross case between the American Legion and the American Humanist Association. The Supreme Court held 7-2 that the cross-shaped monument didn’t violate the constitution. The howling from the left was predictable and wrong — but it highlights something else. Progressives don’t mind government advancing their own beliefs — but they’ll fight tooth and nail to suppress those they don’t like.

As the Court lays out, the Bladensburg Peace Cross was erected in 1925 after World War I. Private individuals donated money to commemorate the deaths of 49 men during the war. Towards the end of the project, the American Legion stepped in to finish construction of the cross and placed their logo on it along with the words: “Valor,” “Endurance,” “Courage,” and “Devotion.”

Due to a variety of factors, upkeep for the Bladensburg cross was taken over by the city while the American Legion still used it for events. And for nearly a hundred years, the cross stood as a memorial of WWI for the community.

Then in 2012, the American Humanist Association decided that they were offended by the cross and sued to have it removed.

The Court quickly batted aside the idea that the cross established any religion, church, or expression of faith under the constitution. There’s a reason this case was decided 7-2, with only Ruth Bader Ginsburg and Sonia Sotomayor trotting out lousy arguments for tearing the historical monument down. The Court sidestepped the opportunity to strike down case law, in the form of the Lemon test, but it still reached the right conclusion.

Where it should have gone further is joining Gorsuch’s concurrence where he correctly pointed out that “offended observers,” which is what these atheists were in the case, have no basis to sue. We don’t allow hecklers and those offended to sue their way to a world they want to achieve, and there was no real harm here. As Gorsuch explains,

In a large and diverse country, offense can be easily found. Really, most every governmental action probably offends somebody. No doubt, too, that offense can be sincere, sometimes well taken, even wise. But recourse for disagreement and offense does not lie in federal litigation. Instead, in a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an “offended viewer” may “avert his eyes,” or pursue a political solution.

When you sue someone, you generally have to show how you’ve been harmed. The American Humanist Association and other atheist groups can’t show any harm. They’re just offended.

But the “offense standard” can go both ways. There’s a major cultural flare up every other week. Just this past week, people were up in arms over whether or not the LGBTQ pride flag should fly on the official flagpole at U.S. embassies. Under this standard, should those offended by the pride flag get to sue and have those flags ripped down?

Of course not — it would be insane for the courts to rule on every single offense, large or small, taken by someone.

In her opinion, Ginsberg hilariously asserts that the cross “elevates Christianity over other faiths, and religion over nonreligion.”

But in return, she wants to elevate NON-RELIGION over ALL other religions. It’s an assertion of state endorsed atheism, or deism, over all others. The Supreme Court rejected Ginsberg’s views decades ago in the 1952 case Zorach v. Clauson, where the court said:

We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary … To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. … [W]e find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.

But for the progressive left, this isn’t about ensuring a government free of established religion — it’s about attacking anyone of faith. They’ve made that abundantly clear time and time again. The American Humanist Association, like other atheist groups, seeks out monuments for this very purpose.

Progressive activists in Colorado have sued Jack Philips of Masterpiece Cakeshop three different times — despite losing in the Supreme Court — in attempts to beat him down. They don’t want a government free from religion. They want a government that enforces the progressive religion on everyone else.

Fortunately, the Supreme Court rejected this Ginsburg/progressive viewpoint 7-2, and the historic American monument can remain in place. This decision won’t be the last battle, nor should it until the Supreme Court ends its use of the Lemon test, but it is a signal that our foundational principles are still strong.

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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.