I was trying in my last post to stick mostly to issues of remedy in the hypothetical world where a violation is assumed, because Establishment Clause jurisprudence ain’t my forte, but I’ll try and respond a little. (Except respond in that wishy-washy way where y’don’t actually cite many laws because y’don’t actually know that many…)
First off, hey, I am more than happy to abandon Lemon. To quote dear buddy Nino, “As to the Court’s invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and [government] attorneys.” If the one thing to come out of Salazar is a final stake through the Lemon test’s heart, that wouldn’t be too shabby.
But Scalia lost me a bit during the oral arguments yesterday, with his apparent bafflement with the idea that a cross might somehow not represent everyone. If you want to test that theory, just imagine a national monument to veterans that was a Wiccan symbol — and watch the fur fly and howls of fury ring out.
A cross is Christian. I do feel there’s ample leeway for crosses under the First Amendment when, like Argonne, a cross is erected — specifically at the time it was created — as a deliberate memorial to war, but there is some serious retconning going on with Sunrise Rock. And this is where I really agree with Buono — it is not the cross per se that is so offensive, it is the strong arm tactics that prevent the display of any other religion. As for the MLK Jr.’s church example, that would not be at all problematic, because the history there makes it abundantly clear that the governmental intent would not be promotion of any particular religion. The same can just as adamantly not be said to be the case for Sunrise Rock, where legislative protection has never been prefaced as anything other than protection-of-a-cross-because-it’s-a-cross.
And I’m not really sure Kagan was right about that when she said during the oral arguments that the VFW was free to change the speech, but I can’t find the article I was reading yesterday that covered that in more detail, so maybe I’m the one mixed up. (And if she is right, the government made a serious error. What if the VFW turned it into “a monument for the dead killed by the traitorous U.S. government on 9/11”?)
What bothers me most about the whole deal is the blatant bad faith of the government in all of these instances. I don’t think it’s really arguable that:
1) The overwhelming majority of these cases involve the government defending Christian symbols and refusing to allow the display and placement of non-Christian symbols; and,
2) If the Sunrise Rock cross had not specifically been a “cross,” Congress would not have wasted so many man hours writing new laws to defend it.
The fact the government can do this over and over and over again and then still put on the innocent act and breathlessly proclaim, “Oh! But it’s not about Christianity! It’s just about the memorial and our heritage!” every time it gets litigated bothers the hell out of me. And the bad faith in Sunrise Rock is even more apparent — this whole issue started up because they wanted to avoid having to let other religions also be displayed in the park. “Bad faith” almost doesn’t go far enough in describing the government’s tactics — they aren’t being subtle about their promotion of Christianity and they don’t even care.
To summarize: The government cannot weasel its way into promoting a particular religion by abusing loopholes, engaging in legislative creativity, and bending over backwards to escape black letter restrictions that prohibit the substance of what they are doing.
(And to clarify that statement a bit — no, I do not believe there is any “conspiracy” or deliberate intent to do this. It’s just the result of a series of unconnected acts by a largely-Christian legislative branch which results in an emergent pattern of Christian favoritism. But that doesn’t make it okay.)
As for the standing, I’m completely with you, and I think I may have came across more strongly than I truly feel. (Although the “is standing really-truly jurisdictional-in-the-classical-sense, particularly when its prudential” line of thought is an awesome subargument all in its own I might address later…) Still, what would happen in a case where the government did blatantly establish a religion? But in such a way as to not directly infringe on anyone else’s rights to practice? The injury would resemble some version of “mental distress” or “offended sensibilities,” but I don’t think it should be dismissed solely on that ground. We proved from Roe v. Wade that we can invent new standing tests when faced with sui generis injuries that don’t quite pass the standard test, and there are already allowances on tax payer standing when it comes to religion. So I think a reasonable argument can be made to recognize a different set of injuries that can provide for standing in the Establishment Clause context. “I’m offended” is never sufficient, but something more along the lines of “I am severely offended, and the Constitution protects me from having my religious sensibilities trampled on by the government in narrow situations that involve the state promotion of religion.” Only written so it sounds prettier.