Brett Stuff
Judging the Judges
Term Year: 2018

17-1717 & 17-1718

The American Legion, et al., Petitioners v. American Humanist Association, et al.

Maryland-National Capital Park and Planning Commissioner, Petitioner v. American Humanist Association, et al.

Summary Analysis

DATE: 2019-06-20
DOCKET: 17-1717
NAME: The American Legion, et al., Petitioners v. American Humanist Association, et al.

   AUTHOR: Alito
   JOINING: Roberts, Breyer, Kagan, Kavanaugh
   GOOD: Yes

OPINION: Concurring
   AUTHOR: Breyer
   JOINING: Kagan
   GOOD: Yes

OPINION: Concurring
   AUTHOR: Kavanaugh
   JOINING: None
   GOOD: No

OPINION: Concurring
   AUTHOR: Kagan
   JOINING: None
   GOOD: No

OPINION: Concurring
   AUTHOR: Thomas
   JOINING: None
   GOOD: No

OPINION: Concurring
   AUTHOR: Gorsuch
   JOINING: Thomas
   GOOD: Yes

OPINION: Dissenting
   AUTHOR: Ginsburg
   JOINING: Sotomayor
   GOOD: Yes

Case Commentary

As I see it (which would be as Non Lawyer and Non Legal Professional, who cares very little about the Letter of the Law), there are three basic types of laws.

I feel like elaborating on Market Laws for a second. A Free Market would have (by definition, mine if no one else's) no Regulations. While a Totalitarian Regime would have Complete Legal Coverage over The Marketplace. We are fast approaching the state of Complete Legal Coverage.

As an Ideological Libertarian (please call me an Anarchist, as it's far more accurate), I am against Complete Legal Coverage.

On the other hand, Jerks be Jerks. And for whatever reason, Jerks seem to like pursuing Careers in Politics. So, it does not appear the level of Legal Coverage is going to diminish any time soon.

The case at hand, however, is not about Market Laws; but rather, Morality Laws.

It's about The Establishment Clause.

Per Thomas:
The Establishment Clause states that "Congress shall make no law respecting an establishment of religion."
Thomas (being Thomas) picks this phrase apart. And I don't know if this is exactly how he slices it, but I think it is fair enough (to his methodology, if nothing else).
Of course, I think it is highly unfair (impractical, etc.) for one person to claim to be able to say (much less, summarize) what another intends. So if you care about such things (such things being Thomas' Opinion), please see Thomas' Opinion.

In the end, I interpret Thomas' Opinion as being quite accepting of a Theocracy (a Religiously Run State), as long as said Theocracy was created at the State Level and not the Federal.

Um, Thomas can suck it.

More importantly, I think I've figured out why I liked Thomas so much in the past.

I'm going to say (which means the following may not be accurate... and after saying Thomas can suck it, it is highly unlikely Thomas would agree that) he pulls apart legal phrases and looks at the meaning of the individual words (which is very nice when one is trying to learn the meaning of those individual words), before he stitches it all back together.

But in the end, I do not believe Thomas can see the forest for the trees.

Thomas is so wrong in this instance (his analysis is so counter to the intent of The Constitution), it's mind blowing.

The Case at hand concerns The Bladensburg Peace Cross. It's a Honking Big Cross that resides on Public Lands and has resided there for close to a Century.

Ginsburg's (a.k.a. The Dissent's) principle argument in This Case (as far as I can tell) is that The Bladensburg Peace Cross is quite clearly (and I would have to agree) a Religious Symbol.

I mean, it's a Honking Big Cross. And I believe those who chose to erect this Honking Big Cross knew exactly what they were doing and why... for fundamentally Religious Reasons... so as to imply those who died in WWI sacrificed their lives in pursuit of the light, or something like that.

Unlike the Dissent, it does not follow in my mind (from The Establishment Clause) that simply because something is a Religious Symbol the government is barred from owning, using, or displaying said Religious Iconography.

Previously (in theory, at least), The Court would have used The Lemon Test to decide when and where Religious Iconography can be used. But apparently, a lot of words have been wasted on The Lemon Test over the years. But nobody seems to care about it, least of all me.

In other words (as is my reading of Gorsuch's Opinion), The Court ignored The Lemon Test in this case and has been ignoring it for years.

What I really liked about Gorsuch's Opinion (a Justice who I seem to be holding in higher and higher esteem these days) was the notion that the Original Plaintiffs in this case (the American Humanist Association) do not have Standing, that being Morally Offended does not give one Standing.


Take note, Thomas, that's how you play The Word Game.

Of course, the counter to not having Legal Standing by virtue of Moral Offence (a Crime Against Man and/or an Aberration in the Eyes of God, you know, if I have anything to say about it) is to point out that Tax Money is at play; and so (and as a Tax Payer), one has a vested interest in the Disbursement of Government Funds.

And on first light I would have accepted this argument. But I believe the counter to that is the idea (however erroneous) that the Government Represents its Constituency... by definition: i.e. Democratic Elections Grant Legitimacy. And as such, any Budgetary Expenditures (having been approved by the appropriate Governmental Agency) represent The Will of the People.

Now, I don't agree with the later. I believe a prime function of The Constitution is to Protect the People from Bad Government (call it Corruption). But whatever. As far as Abstract Principles go, that whole The Will of the People thing is pretty solid.

Thus, I like the idea that the Petitioners lack Standing.

Anyhow, like I said, The Lemon Test is dead, so in his Opinion Kavanaugh took a swing at a replacement. But (in my ever so increasingly humble opinion) he missed.

But, hey!

With so many folks trying, maybe I should Throw my Ideological Hat in the Ring, as well.

In Second Grade (or thereabouts), the Government Funded Public School to which I attended taught that there was a Separation Between Church and State.

Church Exits!

State Exits!

But rather than believing never the twain shall meet, I believe it is impossible for them not to. After all (and as I conceive it), the basis for many laws is some sort of Moral Code: where Moral Code is syntactical sugar (i.e. a synonym) for some sort of Religious Belief. And beyond that, I think one could argue (which I now shall) that Western Man's current fetish with a Code of Laws in the first place derives from Moses and his Ten Commandments... and/or all those other Religious Proscriptions enshrined in The Bible... or your favourite Religious Work.

It's not really possible (or even desirable) to extract The Church from (and out of) The State... and this was never the intent of The Establishment Clause. Rather the intent was that all Religions (or No Religions, so All Intellectual Ideologies) should be given equal conceptual weight under The Law... which really, provides no clarity, so let me start over.

One Religion, Any Religion, or No Religion may not be given any bane or boon that is not given to the others.

Essentially, it's legal invisibility.

Want Equality of the Sexes under The Law? Then, prohibit any law which mentions Sex.

Want Gender Neutrality under The Law? Then, prohibit any law which mentions Gender.

And so on and so forth down the line.

Leading to the obvious conclusion that if you want a State to be Religiously Neutral, said Government may pass no law (Budget, Regulation, and so forth) in which the words Religion (or any pseudonym for the same) appear.

Thus, in The Case before us, if one wishes true Religious Neutrality, we must not concern ourself with the treatment of The Bladensburg Peace Cross (an obviously Religious Monument if ever there was one); but rather, the treatment of a Generic Monument.

May the Government maintain a Monument?


So, the Government may, also, maintain a Religious Monument.

I thank you for your time.

Judging the Judges

Next Entry


$$ $$

The Sign of the Beast

I mean, if you want to outlaw Religious Iconography...

© copyright 2019 Brett Paufler
A Personal Opinion/Editorial