Monday, June 24, 2019

Your Rights, Part III, Establishment Clause Edition-On 3Q

It is a big cross. A really big cross. Forty feet in height, made of granite and concrete, The Bladensburg Peace Cross stands tall and straight for all to see.
The Peace Cross, sponsored by the American Legion, was built in 1925 in the aftermath of World War I to memorialize the sacrifice of 49 Prince George’s County servicemen. It was paid for by the Legion, and by subscription of local residents and businesses. In 1961, maintenance of it was passed to the Maryland-National Capital Park and Planning Commission, and the land it currently stands on is State land, in a traffic median, the cost of maintenance paid for by the taxpayers of Maryland.
If you are just a little bit attuned to the First Amendment (religion portion), you might be interested in how that last part meshes with “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
It is a perceptive question, one that the Supreme Court grappled with and decided this last Thursday in American Legion v. American Humanist Association. The Peace Cross, they ruled in a 7-2 decision, may continue to stand on public land and be paid for with public funds.

This is the kind of wonky, incredibly subjective ruling that makes my heart go pitter-patter. I’m not sure I agree (or disagree) with the result, but I love the tortured efforts of most of the Justices to do the best they could under difficult circumstances. This is not an easy one.

How much government is too much government when it comes to religion? For most of us, the best we can do is apply a test analogous to the famous Justice Potter Stewart test for obscenity: “I know it when I see it.” Of course, the relevant word in there seems to be “I,” but, as a matter of law, there must be some standards.
In Lemon v. Kurtzman (1973), the Supreme Court made a credible effort to provide guidelines. A law or practice is constitutional if it has a secular purpose, its principal effect does not advance or inhibit religion, and it does not create an “excessive entanglement with religion.”

Conservatives hate the Lemon test (and several, in their Opinions in American Legion, express that dislike pungently). It puts them at the disadvantage of constantly have to explain why what’s obviously religious somehow doesn’t violate the Lemon rules. Judges, even Supreme Court Justices, like to appear thoughtful, tempered, with their rulings springing from eternal, incontrovertible laws, and not just clever advocates who managed to “win” a case.

American Legion exposes this problem, in part because the Cross is so obtrusively and permanently visual. This is not some charming Christmas montage mounted for a couple of weeks outside a Currier and Ives Town Hall, and it’s not even comparable to the religious prayers offered in public meetings in the Court’s nose-blind decision in 2014’s Town of Greece vs. Galloway. It’s a big, permanent, highly visible, primary symbol of a religion. You just cannot miss it.

The ruling was 7-2 in favor of permitting the Peace Cross to remain undisturbed, with 2 of the “Liberal” justices, Breyer and Kagan, joining the conservative majority, and Justices Ginsburg and Sotomayor in dissent. But read the opinions and dissents, and what you really see is a battle of rationalizations in the face of two incontrovertible (to my mind) facts: The monument has been there for 94 years (58 on public land), and IT’S A REALLY BIG CROSS. 

Justice Alito, in his Opinion, took the 94 years as his central organizing point: “The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent.” To Alito’s way of thinking, the symbol of the cross in general has taken on an additional secular meaning, particularly in the design of memorials and monuments, where religious symbols to honor the dead would be expected and considered appropriate. As to the Lemon Test, Alito thought it was both inapplicable and of no value in this context, since it failed to take into account the age of those symbols and monuments, making it harder to discern the original motivations of those who built them. If Alito’s Opinion is actually new law, then it abolishes the test’s application to “established, religiously expressive monuments, symbols, and practices.” Put another way, if it’s old enough, “what’s there is there.”

There is a logic to Alito’s position when he reaches this point (Justice Breyer has also been respectful of old monuments and Justice Kagan joined Alito’s Opinion, in part), but it’s not unreasonable to assume—even though he professed to leave other church-state cases untouched for now—that his intent is to have a no-restrictions future. Alito maintained that, when the Peace Cross was built, crosses were a symbol of World War I (I suspect he got this idea from images of thousands of crosses dotting European military cemeteries), which effectively transmuted the cross from a religious to a secular totem. He then went further to say that, even when the original purpose of a monument was clearly religious, it could, over the passage of time, also take on secular or at least dual status. He cited Notre Dame as such an example.

Because of that, Alito articulated what he clearly intends to be a new standard—Lemon is dead with the dead, and old monuments, regardless of their religious content, should be given a fresh new presumption of Constitutionality. Alito did not place a time frame on how old a monument needed to be, a point on which Justice Kagan, in her concurrence, drew a distinction. “Although I too look to history for guidance, I prefer at least for now to do so case-by-case, rather than to sign on to any broader statements about history’s role in Establishment Clause analysis.” Justice Breyer, in his concurrence, also signaled that his support for Alito’s opinion was reliant on the narrowness of its application; Breyer was accepting of this particular Peace Cross, under these particular set of facts, and his support could not presumed in other instances.

To my way of thinking, the “Notre Dame as National Symbol” analogy is actually a fascinating one, and arguably completely at odds with any type of Original Intent analysis. An elegant and persuasive amicus brief filed on behalf of some of the challengers of the Cross demolishes the idea:
"By ordaining that governmental and religious authorities operate in separate spheres, the Framers sought to safeguard religion from governmental influence and interference, so that all may worship and pray, or not, according to the dictates of individual conscience. And they undertook to quell the ‘hatred, disrespect, and even contempt’ that historically has resulted ‘whenever government ha[s] allied itself with one particular form of religion.’ Engel v.Vitale, 370 U.S. 421, 431 (1962)."—Brief of Religious and Civil-Rights Organizations as Amici Curiae in Support of Respondents.
Even if you discard the thoughts of people like Jefferson, Madison, and Franklin, the fact was that many early settlers were religious refugees from Europe. Maryland itself was organized as a haven for persecuted Roman Catholics. The descendants of these early settlers were the ones who rejected the idea of a single religion—and demanded that rejection be incorporated into a Constitutional Amendment.

So, what makes a religious symbol morph into a sufficiently secular one so as to justify public support? Alito seems to imply that it’s a bit like making Madeira—you take religious monument, pour it into an ostensibly secular cask, and send it around the Horn for a few years and suddenly the grapes have become wine.

All snark aside, there are several serious issues with Alito’s formation beyond its possible breadth, not the least of which is that it implies that any old religious monument, even the most clearly sectarian, may be transferred to public ownership (and be entitled to public support) by the action of a secular government dominated by co-religionists. That’s not necessarily a theoretical problem.

But these considerations were irrelevant to the remainder of the conservative wing. Justice Kavanaugh also joined all of Alito’s opinion and added a concurrence, even more forcefully rejecting Lemon. Kavanaugh’s language is careful to be respectful of other faiths, but he also suggested an entirely new test, which, in its application, would set a very low bar: is the practice at issue coercive, and is it rooted in history and tradition? Not to make an obvious point, but it’s clear that government doesn’t need to be coercive with regard to one faith to give preferential treatment to another. The Kavanaugh Test seems to have been derived from only one portion of the Establishment Clause.

Justice Thomas reiterated not just his opposition to Lemon, but, more importantly and controversially, his position in Town of Greece regarding the scope of the Establishment Clause. In Thomas’ view, the Establishment Clause applies only to the Federal Government and not the States, and even if it does apply to the States, there would be no violation here because the Clause only applies to laws passed by a legislature, and there was no actual coercion by government in this instance. I will leave you to contemplate on your own time Justice Thomas’ personal vision that Alabama, Maryland, Texas, or California could adopt a state religion.

Justice Gorsuch joined in Alito’s Opinion, and also explicitly rejected Lemon, but added a twist: He would have rejected the Plaintiff’s claims out of hand for lack of standing, and, in one of his more colorful lines (which underlies a real future strategy of attack for potential litigants), labels and then dismisses them as “offended observers.” Gorsuch also added something a little Sphinx-like: “[W]hat matters when it comes to assessing a monument, symbol, or practice isn’t its age but its compliance with ageless principles. The Constitution’s meaning is fixed, not some good-for-this-day-only coupon, and a practice consistent with our nation’s traditions is just as permissible whether undertaken today or 94 years ago.”

I don’t know what Gorsuch’s intent was, but since he found the Peace Cross acceptable, presumably it was “a practice consistent with our nation’s traditions.”
There is an emergent theme here. Look more closely at the stated reasoning of Alito, Gorsuch, Kavanaugh, and Thomas, and you can see a consistent deference, verging on favoritism, when it comes to religion.

It appears that this is the drift that Justice Ginsburg was calling out in her Dissent (joined by Justice Sotomayor). A giant “Latin” Cross doesn’t become a secular totem because it is used to commemorate a secular event, or, for that matter, because it was ubiquitous in either the majority’s, or the majority of the Court’s, upbringing. The Cross is a primary representation of Christianity, as it is Christ on the cross—Ginsburg calls it “the foremost symbol of the Christian faith.” The idea that all American soldiers of other faiths who were fatalities in World War I were buried in Europe under that cross, with the consent of their families, is ludicrous. One cross cannot possibly represent all faiths. Accordingly, Ginsberg writes, having Maryland maintain and support this particular Peace Cross on a public highway, “elevates Christianity over other faiths, and religion over nonreligion.”

What Ginsburg is saying seems to me to be obvious (although she clearly doesn’t have a winning hand). But it also seems she’s braying at an ascendant conservative moon. As Alito obliquely acknowledges with his assertion that this cross now has now “taken on a secular meaning,” conservatives increasingly see their religious beliefs as having been integrated into part of the secular world, and, as a result, those beliefs can be institutionalized without offending the First Amendment. If anything, Alito says, “destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.”
With that, Alito gives it even more special status—not only must the public, including those of other faiths, or no faith, passively support the Cross, but the First Amendment demands they ensure it is affirmatively defended.

I said above that I wasn’t sure whether or not I agreed with the result that the Cross could stay. Personally, I wouldn’t move it, out of respect for the families. But what I do worry about is that American Legion isn’t just about a cross, as Town of Greece wasn’t just about a few prayers at a public meeting. It’s a peek into an emerging world where the First Amendment is both sword and shield for a potent, determined group that wants to advance its religious agenda at the expense of those who don’t share its faith or its views. That inversion is being enabled and quite literally encouraged by a Supreme Court that is sending signals that anything goes.

It is a very good time to be a religious conservative. For the rest of us, our rights are a little less certain.

Or, to put it more simply (quoting from that amicus brief), “‘Religion & Govt. will both exist in greater purity, the less they are mixed together.’ Letter from James Madison to Edward Livingston (July 10, 1822).”

For more material, including access to the opinions, briefs, and scholarly commentary, consult SCOTUSBLOG at

And, to read about how the changing composition of the Court potentially impacts their rulings, see Your Rights, Part I, and Your Rights, Part II
The original of Your Rights, Part III, Establishment Clause Edition, was first published in on on June 24, 2019

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Michael Liss

Monday, May 27, 2019

In Your Hands My Dissatisfied Countrymen: The Jaquess-Gilmore Mission

“I worked night and day for twelve years to prevent the war, but I could not. The North was mad and blind, would not let us govern ourselves, and so the war came.” —Jefferson Davis, July 1864

By the time Sherman’s armies had scorched and bow-tied their way to the sea, by the time Halleck had followed Grant’s orders to “eat out Virginia clean and clear as far as they go, so that crows flying over it for the balance of the season will have to carry their own provender with them,” and by the time Winfield Scott’s Anaconda Plan was finished squeezing every drop of life out of the Confederacy, there had to be those who wondered what possible logic would lead intelligent men like Jefferson Davis to make such a catastrophic choice.

Yet, the South almost won the gamble. With secession, they had challenged the core of the American Experiment, the democratic principle of equal rights, general (male) suffrage, government by a majority, and a peaceful transition of power when that majority so indicated. They also posed an existential question for the North: Was adherence to a principle, even a cherished one like the Union, worth lives and property?

The Civil War is fascinating on so many levels, but what made it fundamentally different than any other conflict that preceded it was that, for the first time, two peoples with the ability to exercise electoral oversight engaged in a protracted armed conflict. This implied something new. The simplest mechanisms of civic beliefs: the right to disagree publicly, to organize, to place elected leadership on notice that their jobs could be at risk, would all play an unexpectedly crucial role in the manner in which the war began and was ultimately prosecuted.

There is no question that the issue was ripe. The Jefferson Davis quote, self-serving though it may be, reflects the reality of a political war that had been going on for more than a decade. The South (or at least the Fire-Eaters, who were more influential than their numbers would imply) had talked themselves into eternal dissatisfaction. They had also convinced themselves that the North would lack backbone when pushed. Threatening to leave if Lincoln were to win the election wasn’t just bluster. The South saw him as a real threat, and secession mutterings progressed to secession organizing. Several Southern States did legislative groundwork in anticipation of a Lincoln win, and they swung into action immediately thereafter. Between December 20,1860 and February 1, 1861, South Carolina, Mississippi, Alabama, Florida, Georgia, Louisiana, and finally Texas seceded, all before Lincoln could even take the Oath of Office.

Of course, that wasn’t the entire South—there was significant Unionist sentiment in many places, and slaveholding Border States actually remained loyal. Bear in mind as well that in no state, even in the Deep South, did slaveholders or even slaveholding families represent a majority. But, as William Freehling points out in The Reintegration of American History, a different type of political culture predominated, one that was far more hierarchical and patriarchal. It wasn’t just that the economic elites (often meaning the Planter Class) held power. It was the way they expressed that power: A plantation required a self-sacrificing leader making all the decisions and receiving in return obedience from inferiors—slaves, employees, tradesmen, wives, and people of a lower social standing. Apply that mind-set to politics, and you have the few choosing for the many.

As to the North, the picture was more complex, in part because divergent views had greater access to power. There were plenty of Southern sympathizers, not just Copperheads but also “Doughfaces” like outgoing President James Buchanan. There were bankers and business people who wanted access to Southern markets. There were also many rank and file Democrats who stuck, out of loyalty, with an increasingly Southern-dominated party. But, just as Southern anger burned, so did resentment in the North. The constantly escalating Southern demands, always couched in hyperbolic terms, grated. Lincoln himself had made this point powerfully at Cooper Union in 1859—the South demanded not just Northern obeisance, but also Northern complicity in what many thought of as a profound moral wrong.

Secession made it palpable, real, and now. It forced Northerners to decide whether the whole thing was worth it. Maybe another set of concessions would work, but, if not, why not just let the slavemongers go their own way, and be done with the problem altogether? The entire country held its breath.

It was at this point that the South (or, at least South Carolina) took a fateful step: They fired first, shelling Fort Sumter in Charleston Harbor on April 12, 1861. Northern public opinion moved sharply in the direction of intervention, but Lincoln’s call for 75,000 volunteers to respond also induced four Southern States, first Virginia, the big prize, then Arkansas, North Carolina, and Tennessee, to join the Confederacy.

Why did South Carolina do it? There was no strategic reason—Major Anderson lacked the supplies to sustain his command for any length of time. It’s reasonable to suspect that the aristocratic Southern leadership, steeped in the culture of honor and duels, and contemptuous of a presumed Northern lack of manly fiber, simply assumed it would be easy.

But if the firing on Fort Sumter misjudged the situation, a second Southern assumption was far better. No quick strike was going to end the rebellion. They could fight a largely defensive war—the North would have to come to them, and they felt they had superior military leadership, easier logistics, and far better knowledge of the topography. In short, the South could win just by not losing, and the longer the war went on, the greater the risk to Lincoln that public support would erode.

In the short run, this is exactly what occurred. Poor generalship and tactics led to Northern defeats on the battlefield and at the ballot box: In 1862, Democrats gained 27 seats in the then-184-seat House of Representatives. Northern fortunes picked up militarily in 1863 and early 1864 with the victory at Gettysburg and the capture of New Orleans, but by midsummer they were back to slogging it out again, with heavy loss of life.

Criticism of Lincoln intensified. Seemingly everyone from across the Northern political spectrum found something to dislike in his policies. Influential thought-leaders like William Cullen Bryant, Horace Greeley, and Theodore Tilton came to the conclusion that Lincoln was a failure and needed to be replaced. Others started a John C. Frémont movement, which would have seriously impacted Lincoln’s chances in the general election. At the Republican National Convention in Baltimore, whispers began for a Grant candidacy. Lincoln did secure re-nomination, but, right afterwards, hostilities broke out again with his own party after he pocket-vetoed the Wade-Davis Reconstruction Bill, which was far more punitive than he wanted and would have seized control of the process from the Executive Branch.

The disappointments mounted. In June 1864, Confederate General Jubal Early launched a surprise raid on Washington itself, and almost broke through. By August, against a backdrop of continued military frustrations and a revitalized Democratic Party about to nominate General George McClellan, Lincoln wrote his famous “Blind Memo” to his Cabinet: “This morning, as for some days past, it seems exceedingly probable that this Administration will not be re-elected. Then it will be my duty to so co-operate with the President elect, as to save the Union between the election and the inauguration; as he will have secured his election on such ground that he cannot possibly save it afterwards.” At the very time that memo was written, a serious attempt was made to have a second convention, in Cincinnati, on September 28, to replace Lincoln as the nominee.

Weariness with the war wasn’t confined to the North, although Davis was more secure as a result of his six-year term. The public wanted something done. This gave rise to an unusual number of peace talks, peace feelers, and ad hoc peace conferences. Lincoln even sent the ever-complaining Horace Greeley to one. But perhaps the most interesting is the only one that engaged Jefferson Davis directly, the ragtag Jaquess-Gilmore Mission.

Colonel James Jaquess was a Methodist preacher and soldier from Illinois, James Gilmore a businessman from New York with contacts in the South. Jaquess had long had an obsession with bringing peace to both sides, and requested leave to travel South to meet with like-minded people. Finally, in June of 1864, Lincoln gave a pass to the two to travel to Richmond and attempt to connect with the Confederate President. They were given no formal status or negotiating authority, but were made generally aware of Lincoln’s bottom line—a reconstituted Union, the end of hostilities, and emancipation.

After a preliminary meeting with Judah P. Benjamin, then the Confederacy’s Secretary of State, they were granted an audience with Davis himself on July 17, 1864. What followed was an extraordinary back and forth that may give us as clear a roadmap to Davis’s thinking as we could possibly find. Jeffries later published an account of the meeting, and, making allowances for period language and perhaps a little puffery, it is worth reading in its entirety.

What first strikes you is how absolutely clear Davis was: The war could only end with the North withdrawing. The blame was entirely on them (“At your door lies all the misery and the crime of this war—and it is a fearful, fearful account.”). The North, by insisting on Union, “would deny to us what you exact for yourselves—the right of self-government.” When Jaquess suggested that he had many Southern friends who wished reconciliation, Davis disagreed: “They are mistaken… They do not understand Southern sentiment.”

Jaquess was a determined man, and he pressed his case. Surely peace was desirable? Davis was unmoved: “I desire peace as much as you do. I deplore bloodshed as much as you do; but I feel that not one drop of the blood shed in this war is on my hands; and I look up to my God and say this. I tried all in my power to avert this war. I saw it coming, and for twelve years I worked night and day to prevent it, but I could not. The North was mad and blind; it would not let us govern ourselves; and so the war came, and now it must go on till the last men of this generation falls in his tracks, and his children seize his musket and fight his battles, unless you acknowledge our right to self-government. We are not fighting for Slavery. We are fighting for independence, and that or extermination we will have.”

Over and over Davis returns to his central themes. Independence is non-negotiable. The South hates the North and will never rejoin it, and the North has no right to demand it stay. Each State is only in the Union as a result of a consent that can be withdrawn at any time.

Jaquess then proposes something so far-fetched that it is incredible he could have possibly thought either Lincoln or Davis would ever agree to it: An armistice, followed by a national vote that would choose between two competing proposals—(1) Peace with Disunion, or (2) Peace with Union, emancipation, no confiscation, and universal amnesty.

Davis rejects it, first with the technical objection that one Southern State had no legal right to end slavery in another. But then, in just a few words, he defines why any vote would never be acceptable, no matter the terms: “We seceded to rid ourselves of the rule of the majority, and this would subject us to it again.”

With that, the substantive part of the discussion is over. Jaquess and Jeffries take their leave, and on the way out are met by Judge Robert Ould, who had helped arrange the meeting. Judge Ould inquired about the results: “Nothing but war—war to the knife,” said Jeffries. Jaquess, who had staked so much emotionally on his ability to broker peace, was clearly disappointed at Davis’ fixation on an impossible result. Quoting Hosea 4:17, he adds, “Ephraim is joined to his idols—let him alone.”

Lincoln was too shrewd to let pass the political gold that had just been handed him, and he let the interview be published. For many months, he had been criticized for expanding his war aims to include the end of slavery, allowing his opponents to claim that peace was being held up for the (despised) black man. But Davis’s position, made clear and explicit, showed that peaceful reunion was out of the question, regardless of the disposition of the slavery issue. A conference the next month, between Jeremiah S. Black and Jacob Thompson, who had served together in Buchanan’s Cabinet before Thompson resigned to join the Confederacy, broke up over the same issue: There was nothing Lincoln could offer on any collateral issue that was generous enough to convince Davis to give up on the idea of independence.

If Davis was gambling on either military successes or electoral ones to turn the tide, they turned out to be singularly bad bets. McClellan was nominated by the Democrats on August 31st, but had to repudiate a key portion of the Democratic Platform that called for an immediate cessation of hostilities without preconditions. Sherman took Atlanta on September 2nd, and Republican opposition to Lincoln’s nomination began to crumble. Philip Sheridan’s successes in Virginia’s Shenandoah Valley become front page news, and Lincoln was reelected handily on November 8th.

The walls begin to close in on the South: Former Supreme Court Justice John Campbell, who had resigned from the Court shortly after Fort Sumter, and been named Confederate Assistant Secretary of War, refers to “the bereavement, destitution, impoverishment, waste, and overturn that war had occasioned on the South.” Letters from desperate wives and family members cause the desertion rate in Lee’s and Joseph Johnston’s Armies to soar. Richmond itself falls, and Davis and the remnants of his Confederate government flee. Lee surrenders. A few days later, Lincoln is dead, and, dying with him, any chance of a compassionate Reconstruction.

Davis is unrepentant (and somewhat delusional) to the end. He holds fast to his dream of victory, even after Appomattox. He writes to his wife on April 23rd, “[I]t may be that a devoted band of Cavalry will cling to me and that I can force my way across the Missi. and if nothing can be done there which it will be proper to do, then I can go to Mexico and have the world from which to choose a location.”

That image, of Davis riding off, a nearly abandoned majority of one, might be a metaphor for his Presidency. Jaquess was right: Ephraim was joined to his idols

"In Your Hands" was first published on Memorial Day, May 27th, 2019 on

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Michael Liss