Even before last month’s Supreme Court argument, the smart-money consensus was that those challenging the Latin cross that stands 40 feet tall on public land in Bladensburg, Md., would lose. Without debating that prediction, I want to make an obvious but, so far, underappreciated point: It really matters how the American Humanist Association and the other nonreligious plaintiffs lose.
If the justices permit the ultimate symbol of Christianity to remain, towering over other structures at the junction of two major roads, what theory will they use?
Will they say that even if such an object would be unconstitutional if erected today, this one should be grandfathered because it was put up by local citizens as a World War I memorial and stood without controversy for most of the ensuing 93 years?
Will the justices decide, as one lawyer, Neal Katyal, insisted in defense of the cross, that despite its origin as the centerpiece of Christian theology, a cross designated a war memorial acquires “an independent secular meaning?” (The Supreme Court’s leading precedent requires that in order not to violate the First Amendment’s Establishment Clause, a government display of a religious symbol must have a “secular legislative purpose.”)
The federal appeals court in Richmond, Va., applying Supreme Court precedents, found the cross unconstitutional. If the justices overturn that decision, will they take the opportunity to repudiate precedent and embrace an overtly more religion-friendly approach? If so, what will that approach be?
In the courtroom, one proposal came from Michael Carvin, one of the lawyers defending the cross, who argued that all religious symbols should be “presumptively valid except in the rare circumstances where they’ve been misused to proselytize.” The Becket Fund for Religious Liberty, an influential group that appears often at the Supreme Court on behalf of religious expression, went a step further in its “friend of the court” brief. It took the position that only those actions that would have been considered an establishment of religion “at the time of the founding” should be held unconstitutional today, an originalist test that the brief argued would prohibit only direct government control of religious doctrine or compulsion of religious observance.
I’ve arranged these options in order of magnitude, from the minimalist to the radical, so that it’s easy to see why it matters how the court decides this case, The American Legion v. American Humanist Association. Even the minimalist option is problematic, because there’s really no such thing as “just this one cross” at a moment of breathtaking convergence between a powerful social movement now battling the country’s secularizing demographic forces and a Supreme Court now populated by committed religious conservatives.
The court has upheld the public display of religious symbols before: a Nativity scene in the company of candy canes and reindeer in a city park and a Ten Commandments on a monolith on the grounds of the Texas State Capitol surrounded by many other historic monuments. It has never upheld a solitary Latin cross, let alone one four stories high. A brief filed by the Baptist Joint Committee for Religious Liberty and other Christian and Jewish groups on behalf of those challenging the cross emphasized the profound religious meaning of the Latin cross — “not just an elongated plus sign” but “a symbol that makes no sense apart from the crucifixion, the resurrection, and Christianity’s promise of eternal life.”
So while a Supreme Court endorsement of “just” this one cross would be a significant step toward opening the public square to more overtly religious expression, there is ample reason to think the court won’t stop there.
A core project of today’s Supreme Court under the leadership of Chief Justice John Roberts is to reorient the First Amendment’s two religion clauses, the one that prohibits religious “establishment” and the other that protects “free exercise.” Accomplishing this requires defining narrowly what counts as an establishment, as a 5-to-4 majority did five years ago in the Town of Greece case, upholding the practice of Christian prayers delivered at town government meetings on the ground that the prayers were simply speech that no one had to listen to.
And in the name of free exercise, the project requires broad carve-outs for religious believers from government regulation in the name of free exercise. This is a complex area where statutory and constitutional law intersect. In the 2014 Hobby Lobby case, the court allowed a business owner to refuse on religious grounds to cover birth control in his employee health plan in defiance of the Affordable Care Act.
That 5-to-4 decision was based on an interpretation of a federal statute, the Religious Freedom Restoration Act. The court’s most conservative justices — Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh — are currently trolling for a case that would provide a vehicle for reinterpreting the Free Exercise Clause to give the same robust protection for believers as the statute, in the court’s view, currently does. Achieving that goal means overturning a 1990 precedent, Employment Division v. Smith, which offered a parsimonious interpretation of the Free Exercise Clause and prompted Congress to pass the Religious Freedom Restoration Act in an attempt at a legislative workaround.
An opinion all four justices signed in January demonstrated their hunger for a case that could lead to that decision’s overturning. They explained why the court was not hearing an appeal brought by a public high school football coach who was fired for insisting on kneeling and praying on the football field after the superintendent told him to stop. The four justices noted, with evident regret, that the court had not been asked in that case to revisit either the 1990 decision or a 1977 statutory ruling that interpreted the Civil Rights Act of 1964 to place only a minimal burden on employers when confronted with a religiously observant employee seeking some sort of accommodation.
In fact, on the court’s current docket, there happens to be a new appeal that asks the justices directly to overturn the 1977 decision, Trans World Airlines v. Hardison. The new case, Patterson v. Walgreen Co., is awaiting the court’s action on whether to accept it for argument and decision.
Title VII of the Civil Rights Act requires employers to “reasonably accommodate” an employee’s religious practice as long as the employer can do so “without undue hardship” on the conduct of the company’s business. The court’s 1977 decision defined “undue hardship” as any accommodation that imposed more than a “de minimis cost” on the employer, an easy test for employers to meet and a very difficult one for religious employees. The only two dissenters then were the court’s most liberal members, Justices Thurgood Marshall and William Brennan, who argued for a more generous view of the required accommodation. That all the conservative justices were in the majority demonstrates how the polarity on church-state issues has shifted in the intervening decades.
The new case was filed by a Seventh-day Adventist whose need not to work on Saturdays was usually accommodated by the pharmacy company. In fact, he had received a promotion, but he was fired after refusing a shift during an emergency that occurred on a Saturday. The United States Court of Appeals for the 11th Circuit upheld Walgreen’s position that it offered all the accommodation required.
The appetite of the two newest justices, Mr. Kavanaugh and Mr. Gorsuch, for cases that would enlarge the constitutional playing field for religion appears nearly boundless. Along with Justice Alito, they are looking for vehicles for the court to expand the right of churches to receive direct public grants of money. Justice Kavanaugh, joined by the other two, issued a statement this month explaining why the court was not hearing a case challenging New Jersey’s prohibition against historic preservation grants to churches. The specific facts of the case then before the court were not sufficiently clear for the court to accept the church’s appeal, Justice Kavanaugh said. But he then added, gratuitously, that New Jersey’s position amounted to a “pure discrimination against religion,” a clear invitation to other churches in New Jersey or elsewhere to serve up such a case.
Two years ago, in an opinion by Chief Justice Roberts, the court held that a Missouri church was constitutionally entitled to compete for a state grant to enhance the safety of its preschool playground. In an unusual footnote, the chief justice wrote that the court’s decision involved only “express discrimination based on religious identity with respect to playground resurfacing” and that the court was not addressing “religious uses of funding or other forms of discrimination.” As an effort to limit the scope of the decision, the footnote was an obvious failure: Only three other justices signed onto it, and Justices Thomas and Gorsuch expressly disavowed it, meaning that the footnote did not speak for a majority of the court. Justice Gorsuch, who had been on the court for a little over a month, in fact took the occasion to write a separate concurring opinion in which he suggested that the court might consider overturning a 2004 decision that upheld a restriction on state scholarships for study for the ministry.
In that case, Locke v. Davey, Chief Justice William Rehnquist wrote for a 7-to-2 majority. The Establishment Clause would have permitted a state to offer ministry students the same scholarship eligibility as other students if the state wanted such an expansive scholarship program, the chief justice wrote. But if the state chose to limit its scholarships to those pursuing secular careers, he added, the Free Exercise clause did not entitle a ministry student to demand equal treatment. There must be some “play in the joints” between the two religion clauses, he concluded. It was one of Chief Justice Rehnquist’s last important opinions; he died the following year.
Although the Locke v. Davey decision is only 15 years old, it seems to come to us from a different world. What’s now in play is not the joints. It is, rather, the heart and soul of a diverse country that is going in one direction while the Supreme Court — as in other areas, including labor law and gun rights — is hurtling in the other, toward a destination fraught with uncertainty and danger.
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黄大仙救世报弟98期…… 【豪】【华】【别】【墅】【内】 【韩】【晟】【慵】【懒】【坐】【在】【沙】【发】【处】，【他】【勾】【了】【勾】【唇】，【似】【笑】【非】【笑】【瞥】【了】【眼】【对】【面】【面】【容】【紧】【绷】【的】【沈】【舒】【玥】，【嘴】【角】【的】【嘴】【角】【更】【为】【肆】【意】，【姿】【态】【依】【旧】【闲】【适】：“【真】【是】【稀】【客】【啊】，【不】【知】【沈】【大】【小】【姐】【来】【我】【这】【里】，【有】【何】【贵】【干】？” 【此】【时】，【沈】【舒】【玥】【拧】【着】【眉】，【面】【若】【寒】【霜】【盯】【着】【眼】【前】【这】【个】【男】【人】，【冷】【着】【声】【音】【开】【口】，“【韩】【晟】，【你】【到】【底】【在】【想】【什】【么】？” 【话】【落】，【男】
“【嗯】。【怎】【么】【了】？” 【叶】【仪】【放】【下】【手】【上】【的】【作】【业】，【给】【夏】【瑾】【侯】【回】【了】【话】。 “【明】【天】【出】【来】【吗】？” 【明】【天】？【叶】【仪】【觉】【得】【有】【点】【突】【然】【的】【感】【觉】。【转】【眼】【看】【了】【一】【眼】【才】【发】【现】【明】【天】【就】【是】【周】【日】【了】。【莞】【尔】【一】【笑】“【好】！【老】【地】【方】？” “【好】。【你】【现】【在】【在】【干】【嘛】？” “【写】【作】【业】，【好】【难】【啊】！”【叶】【仪】【看】【着】【手】【中】【明】【显】【超】【纲】【的】【作】【业】，【心】【里】【十】【分】【难】【受】，【但】【是】【却】【也】【无】【能】【为】
“【毒】【医】【传】【人】，【鬼】【医】【传】【人】，【如】【今】【都】【出】【现】【了】，【就】【差】【个】【圣】【医】【传】【人】。” “【到】【时】【候】【你】【们】【就】【可】【以】【实】【现】【当】【初】【三】【医】【的】【约】【战】【了】。” 【陈】【玄】【风】【嘴】【角】【噙】【着】【一】【抹】【玩】【味】【的】【笑】【容】【说】【着】。 “【你】【到】【底】【是】【谁】？【怎】【么】【会】【知】【道】【这】【么】【多】？” 【这】【位】【鬼】【医】【弟】【子】【眼】【中】【闪】【烁】【着】【惊】【异】【的】【神】【色】【注】【视】【着】【陈】【玄】【风】。 “【我】【是】【谁】【不】【重】【要】。” “【重】【要】【的】【是】【这】【鬼】【针】【如】【今】【落】
【意】【识】【清】【醒】【时】，【她】【的】【手】【被】【苏】【迟】【墨】【温】【柔】【的】【手】【握】【着】。 【下】【意】【识】【要】【拿】【手】【去】【摸】【眼】【睛】，【苏】【迟】【墨】【阻】【止】【她】，【温】【声】【道】： “【别】【碰】，【上】【了】【药】【水】，【手】【术】【很】【成】【功】。” 【苏】【眠】【手】【心】【里】【都】【是】【汗】，【她】【多】【担】【心】【手】【术】【失】【败】【啊】…… “【苏】【迟】【墨】，【你】【要】【告】【诉】【我】【什】【么】？” 【耳】【边】【温】【柔】，【带】【着】【丝】【丝】【的】【湿】【意】。 【她】【听】【见】【了】【苏】【迟】【墨】【的】【低】【笑】：“【我】【的】【初】【恋】【不】【是】【唐】【娟】黄大仙救世报弟98期【南】【天】【远】【哈】【哈】【笑】【道】：“【叶】【哥】，【你】【放】【心】【吧】，【只】【要】【有】【我】【在】，【不】【要】【说】【一】【个】【孩】【子】【了】，【就】【是】【一】【只】【苍】【蝇】，【都】【不】【会】【飞】【进】【去】【打】【扰】【你】。” 【说】【到】【这】，【那】【个】【晓】【燕】【忍】【不】【住】【打】【断】【道】：“【你】【们】，【是】【要】【在】【这】【里】【做】【一】【些】【非】【常】【重】【要】【的】【事】【情】【吗】？” 【叶】【玄】【这】【才】【转】【过】【脸】【看】【了】【眼】【那】【个】【叫】【晓】【燕】【的】【姑】【娘】，【沉】【默】【了】【一】【下】，【说】【道】：“【你】【说】【的】【不】【错】，【其】【实】【我】【是】【个】【非】【常】【有】【名】【的】【医】
“【白】【痴】，【过】【来】【一】【下】。” “【不】【是】【白】【痴】，【是】【白】【痴】！！！”【白】【素】【贞】【掐】【着】【腰】【红】【着】【脸】，【小】【眼】【睛】【瞪】【的】【滚】【圆】，【怒】【冲】【冲】【的】【看】【着】【贾】【德】：“【还】【有】，【你】【可】【以】【叫】【我】【小】【白】。” “【呵】【呵】……” 【听】【到】【贾】【德】【的】【冷】【笑】，【白】【素】【贞】【脸】【色】【一】【红】【有】【些】【不】【自】【然】，【她】【暗】【暗】【咬】【牙】，【怒】【视】【贾】【德】。【可】【爱】【的】【小】【脸】【蛋】【鼓】【鼓】【的】，【像】【是】【一】【个】【大】【包】【子】。 【对】【于】【小】【白】【这】【个】【称】【呼】，【她】
【上】【官】【思】【冉】【虽】【然】【觉】【得】【水】【仲】【亦】【今】【天】【这】【话】【说】【的】【过】【分】，【但】【她】【认】【为】【云】【冉】【香】【也】【不】【该】【把】【水】【仲】【亦】【赶】【走】。 【毕】【竟】【水】【仲】【亦】【还】【小】，【他】【一】【个】【人】【在】【外】【根】【本】【无】【法】【生】【活】。 “【表】【姐】，【小】【亦】【就】【这】【样】【出】【去】【了】，【怕】【是】【会】【遇】【到】【危】【险】。”【上】【官】【思】【冉】【想】【出】【去】【把】【水】【仲】【亦】【找】【回】【来】。 “【遇】【到】【就】【遇】【到】【吧】，【反】【正】【他】【现】【在】【不】【是】【我】【儿】【子】【了】，【我】【干】【嘛】【要】【管】【他】？” 【本】【以】【为】【云】【冉】【香】