Justice Gorsuch, The Peace Cross and the “Offended Observers”

As one who has spent most of a (long!) life as an attorney , I am painfully aware that reading most Court opinions is not viewed as the typical “easy reading” we see in novels and The Classics and biographies or other types of reading we do purely for enjoyment. I use the term “painfully aware” as I was required, in the pursuit of our practice, and in the interest of our clients due to my obligation to be as well prepared as possible, to read many opinions and some of them were, quite frankly, sheer, dreadful, boredom. Once in a while, as most notably in the case of the masterful writing of a Justice Scalia, one is treated to a lovely and pleasurable exception The Justice is sorely missed not only for his genius of the law, but for his unusual combination of humor and conviviality of the kind which engendered a close friendship with the Justice he probably most markedly disagreed with, Justice Ginsburg, and their shared love of Opera and great food and wines. Also, as one most interested in the High Court’s erratic treatment of issues relating to the Constitution and federalism, I savor every word of Justice Thomas’ opinions, but readily concede that they might not be everyone’s cup of tea, as they are often heavier in the fields of Constitutional history and jurisprudential development of those issues than most readers would readily be drawn to.

However, I would like to bring to your attention one of those rare opinions which is not only a lawyer’s dream, assuming that lawyer was at least slightly, or more, to the right of center, but should be one to give an unusual level of pure reading enjoyment to anyone with its blend of plain speaking, irreverent, tongue-in-cheek, slicing remarks about some of the abuses many of us believe the Courts have not only allowed, but, in some cases, even encouraged, such as the centerpiece of his concurring opinion in the Peace Cross case, The American Legion v. American Humanist Association.

It is laced with wittily incisive discussions of where the law has wound up in the area of The Establishment Clause by allowing, it is important to note, in some cases but not in all cases, a person who is offended by seeing something, as in this case, a 94 year old memorial to that area’s dead from World War I, to be permitted to claim “standing” to sue in a Federal Court for relief. Here is the way he opened his treatment of this “doctrine”, leaving little or no doubt of how foolish he thought the whole idea was:

“The American Humanist Association wants a federal
court to order the destruction of a 94 year-old war memorial because its members are offended. Today, the Court
explains that the plaintiffs are not entitled to demand the
destruction of longstanding monuments, and I find much
of its opinion compelling.”
“The Association claims that its members “regularly”
come into “unwelcome direct contact” with a World War I
memorial cross in Bladensburg, Maryland “while driving
in the area.” …… And this, the
Association suggests, is enough to allow it to insist on a
federal judicial decree ordering the memorial’s removal.
Maybe, the Association concedes, others who are less
offended lack standing to sue. Maybe others still who are
equally affected but who come into contact with the memorial too infrequently lack standing as well. …But, the Association assures us, its
members are offended enough—and with sufficient frequency—that they may sue.
This “offended observer” theory of standing has no basis
in law”

After a brilliant and sometimes comic “parade of horribles” he paints a vivid picture of the lunacy which has upset and concerned so many who see these decisions as crazy patchwork with little or no uniformity or predictability, he sums up a few of the most illogical results with some of the examples coming from the Court’s own building and those nearby on Capitol Hill:

“Courts ….. have upheld
Ten Commandment displays and demanded their removal;
they have allowed memorial crosses and insisted that they
be razed; they have permitted Christmas displays and
pulled the plug on them; and they have pondered seemingly
endlessly the inclusion of “In God We Trust” on currency
or similar language in our Pledge of Allegiance. No one
can predict the rulings—but one thing is certain: Between
the challenged practices and the judicial decisions, just
about everyone will wind up offended.
Nor have we yet come close to exhausting the potential
sources of offense and federal litigation Lemon invited, for
what about the display of the Ten Commandments on the frieze in our own courtroom or on the doors leading into it?
Or the statues of Moses and the Apostle Paul next door in
the Library of Congress? Or the depictions of the Ten
Commandments found in the Justice Department and the
National Archives? Or the crosses that can be found in
the U. S. Capitol building? And all that just takes us mere
steps from where we sit.”

Many of us have viewed the current phenomenon of the “perpetually aggrieved” , represented most graphically on today’s political scene by The Hon. (?) Maxine Waters of Los Angeles, whose most visible characteristic is an unrelenting, day in and day out, anger at everything about the United States, with a blend of some humor and a lot of concern for where all that vitriol can lead. In his closing lines, Justice Gorsuch gives voice to those concerns, with language which indicates to me that major changes in thinking may be taking place at the High Court, to be made even more permanent if the President gets an opportunity to make just one more nomination to that Bench:

“In a large and diverse country, offense can be easily
found. Really, most every governmental action probably
offends somebody. No doubt, too, that offense can be
sincere, sometimes well taken, even wise. But recourse for
disagreement and offense does not lie in federal litigation.
Instead, in a society that holds among its most cherished
ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an “offended viewer” may “avert his
eyes,” …or pursue a political solution. Today’s decision represents
a welcome step toward restoring this Court’s recognition of
these truths, and I respectfully concur in the judgment.”

A welcome step, indeed.

Thank you, Justice Gorsuch.

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