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01/03/2019

Elliot Mincberg on the Maryland Cross Litigation
Michael Ramsey

At The Hill, Elliot Mincberg (People for the American Way): Conservative Supreme Court could reverse decades of First Amendment law.  From the introduction:

The American Legion and its supporters recently filed initial briefs in The American Legion v. American Humanist Association, a Supreme Court case to be argued in February concerning the constitutionality of a four-foot, 90-year-old memorial cross displayed and maintained by a state agency in Bladensburg, Maryland. Depending on how the court rules, however, much more is at stake. ....

Specifically, even though the formal questions presented in the case relate narrowly to whether the Bladensburg cross violates the First Amendment’s Establishment Clause, the first legal argument in the American Legion’s brief proclaims broadly that “coercion, not endorsement, is the proper standard” to judge Establishment Clause claims. ...

And the originalist claim:

The best answers to these claims were provided by Republican-appointed Supreme Court justices years ago in response to efforts by Justice Antonin Scalia and others to adopt the coercion standard. In Lee v. Weisman(1992), Justice David Souter carefully demonstrated that the First Amendment’s history shows the Founders “extended their prohibition” to include government action that endorsed or promoted religion, not just coercion.

There's not much originalist analysis beyond this claim but it's notable that both sides in the litigation claim an origianlist foundation.

(Via How Appealing).