Docket for 17-1717 (Supreme Court docket #17-1717)
Docket for 18-18 (Supreme Court docket #18-18)
The American Legion v. American Humanist Association (and its linked case Maryland-National Capital Park and Planning Commission v. American Humanist Association) will be heard at 10:00 am on Wednesday, February 27th, with 70 minutes of oral arguments scheduled, slightly over the normal 1 hour.
Issues #17-1717 : (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
Issue #18-18 : Whether the establishment clause requires the removal or destruction of a 93-year-old memorial to American servicemen who died in World War I solely because the memorial bears the shape of a cross.
This is a case that I will be watching very closely, because it could result in the biggest change in Establishment Clause jurisprudence since Lemon v. Kurtzman and indeed could result in the overturning of Lemon.
Lemon (and the Lemon test) have been a miserable cluster **** ever since that case was decided many years ago and the court has frequently ignored its own Lemon test when deciding cases, as the Lemon test has often been unworkable or resulted in irrational jurisprudence.
Hopefully, the Supreme Court will overturn Lemon once and for all and greatly narrow the scope of prohibited behavior under the Establishment clause. Behavior that amounts to an outright establishment or practical establishment of religion should, of course, remain out of bounds. But a passive memorial which happens to be in the shape of a cross and primarily memorializes soldiers should be permissible.
I, myself, am a non-theist, yet I find absolutely nothing about this memorial to be offensive or oppressive to me in any way. I am absolutely fine with this memorial and would be more offended by its removal due to Constitutional misinterpretation.
There are a large number of amici briefs, accessible via the Scotusblog and Supreme Court links I have provided at the top of this post, not to mention the merits briefs by the various parties to the case. The link just above is to the Cato Institute’s amicus brief in this case.
The United States has filed an amicus brief in support of Petitioners and will participate in oral arguments. Here is the link to their brief:
Should be very interesting. This is the only case being argued on Wednesday.
