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 four-foot, 90-year-old memorial cross displayed and maintained by a state agency in Bladensburg, Maryland. 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 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 non-religious messages even if some disagree. Friend-of-the-court briefs by groups such as Liberty Counsel, the Becket Fund, and the American Association of Christian Schools make similar arguments.
https://thehill.com/opinion/judiciary/423129-conservative-supreme-court-could-reverse-decades-of-first-amendment-law
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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 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.
