March 5, 2019
The Peace Cross is a veterans memorial in Bladensburg, Md. dedicated to 49 servicemembers who sacrificed themselves in service to WWI. When a committee including Gold Star mothers and veterans of the American Legion got together to create a homage to that loss, they chose the shape of a cross. That was almost one hundred years ago, and now that memorial is the subject of a Supreme Court case in which the Court is being asked to decide whether the memorial can constitutionally appear on public property.
Justice Brett Kavanaugh asked of the secularist legal group that started the case, “What is the role of this Court in a case like this?”
It is a discerning question that gets to the heart of at least one issue—how to deal with a feathertrigger culture that is ready to file a lawsuit and use a court order at a moment’s notice to encamp judicial precedent around its preferred social issue, isolating it from the normal push and pull of the political process.
Across the country, crosses and other religious symbols or displays are threatened with or subject to lawsuits because the current state of constitutional law permits a heckler’s veto over the presence of religious imagery on public property. Not only does current law allow almost anyone offended by a religious display to sue, it allows courts to inject themselves into a discussion about whether a monument is too religious to stay on public property with very little guiding principles.
As a result, longstanding debates about how a community should represent itself—by its veterans, by the holidays commonly celebrated, or by its history—are essentially taken out of the hands of the local government and put into the hands of the courts. Instead of a townhall with numerous residents advocating for multiple sides to an issue, it is a courtroom where all but the attorneys and the judge are forced to watch in silence as only the interests of the parties—and not the general community—are decided upon by a court.
This is not the democratic process that the Founders envisioned. The judiciary was supposed to be “the weakest of the three departments of power.” But current law leaves plenty of room for a court to make the call, enabling it to be used to replace the state legislature or city council. Important questions for local communities about displays in Bladensburg, Md., Pensacola, Fla., and other towns are consequently funneled to Washington, D.C.
We hope that this case will be an opportunity for the Court to finally decide its role in a case like this, and perhaps it will restore democracy to at least one social question.