By Andrew L. Seidel
The 40ft tall Christian cross, crumbling though it is, will remain in its traffic circle in Bladensburg, Md., because it’s been there for a long time and removing it would make people angry.
The conservative bloc on the Court went into this case seemingly united in an effort to bring “some clarity” to the caselaw surrounding the separation of state and church. In that respect, the court failed miserably. All told, there were seven separate opinions, concurrences and dissents, 87 pages, and odd bedfellows in a fractured, scattershot ruling. Only one thing is clear: the justices added no clarity to this area of the law, even though seven justices eventually voted to uphold the cross.
The conservative bloc failed in another respect. Conservative justices have complained for years that Establishment Clause law is fractured and unintelligible because the central test in that area is too. As I wrote back in February, the problem is not with the Lemon test, but with the Court’s unwillingness to apply that test. Instead, the court seeks to reverse engineer politically popular outcomes. At oral argument, justices and attorneys attacked Lemon repeatedly, but continued to come back to its core principles: no religious purpose, no religious effect, and no entangling the government with religion.
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