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 4-foot, 90-year-old memorial cross displayed and maintained by a state agency in Bladensburg, Md. Depending on how the court rules, however, much more is at stake.
...the American Legion’s lawyers and supporters are arguing that the court should upend numerous court decisions and rule that the 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 nonreligious messages even if some disagree....
The best answers to these claims were provided by Republican-appointed Supreme Court justices years ago in response to efforts by Justice Antonin Scalia and others to adopt the coercion standard. In Lee v. Weisman (1992), Justice David Souter carefully demonstrated that the First Amendment’s history shows the Founders “extended their prohibition” to include government action that endorsed or promoted religion, not just coercion.
Otherwise, he explained, the Establishment Clause would have been duplicative of the Free Exercise Clause, which clearly prohibits government action that coerces religious belief or practice. Government can promote other views in foreign or domestic policy, Souter explained, because there is no constitutional prohibition on such endorsement as the Establishment Clause, which makes religious beliefs “irrelevant to every citizen’s standing in the political community.”
[read more for longer history of precednts]
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Originally Posted by Chris
