Florida Cross Case (with an aside on Dems Border Bill)

These days, the Supreme Court only fully decides around seventy cases as seen in the opinions of the Court section of its website. This is somewhat misleading though because they do take action on many more, including similar lower court opinions that are returned to be re-examined pursuant to an opinion.  So, e.g., a cross case from Florida was sent back this week.

Given the reluctance of the lower court opinion, more so the concurrences, I'm sure the judges will with relief rule the other way.  This is rather likely the correct path given the current Supreme Court majority though it is not clear to me that the two cases are the same.  I say this accepting there are similarities and the dissimilarities probably do not matter to this Supreme Court.  This is part of judging: unless you are Justice Thomas, perhaps, you deal with the hand in place and work off that.  Legislating is somewhat comparable in its own way, working off the art of the possible and its own limits.*

The cross involved in the Supreme Court case was erected as a memorial to WWI dead and this was of significant note to the majority opinion. There was other details that was flagged by the other side, such as a religious ceremony that suggested sectarian characteristics. But, the alleged secular symbolism of a cross to honor the dead, particularly WWI dead (cf. dissent) was of singular importance here.  The longstanding nature of the display was relevant overall, yes, including in making it clear (while questioning the whole affair) the old tests did not apply.

The pertinent facts are undisputed.  In 1941, the National Youth Administration erected a wooden cross in the eastern corner of Pensacola’s Bayview Park to be the “focal point” of what would become an annual Easter sunrise program.  The program itself was organized by the Pensacola Junior Chamber of Commerce (a/k/a the “Jaycees”) and soon became a tradition, with people gathering for Easter services during World War II to pray, among other things, for “the divine guidance of our nation’s leaders” and for faith to “see through the present dark days of war.”

Is this really the same thing?  You have the time element, yes, but it also suggests that all displays of that caliber are not the same.  The cross was the "focal point" to what amounts to a clear sectarian ceremony.  It was not just a memorial for war dead that can be opposed on grounds that a cross is inherently a Christian symbol.  There is more to it than that.  The ceremony continues. Yes, it was also eventually also used to honor war dead.  So, the opening to apply the Supreme Court case is right there.  Plus, the state funds used for upkeep is smaller.  Nonetheless, the purpose and ongoing effects are different than a cross monument itself. 

OTOH, the majority opinion really didn't offer much to suggest an invitation to parse specific instances in a class of cases that "involve the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious association."  If the displays have some blatant discriminatory character that targets certain groups, an exception might be found.  As noted in the last entry, the general rule supporting felony disenfranchisement was not applied to a state law with a blatant racial purpose.  But, this was a small exception to the general rule.

BTW, the Supreme Court opinion helpfully classifies the various religious liberty cases into various categories. It also calls into question the application of the Lemon Test (including as channeled into the reasonable observer test, apparently)  in actual cases.  Doctrinal tests tend to be flexible as compared to general principles.  Fine enough.  And, even those are not applied totally literally. For instance, basically theistic endorsements of a certain caliber have been accepted though similar things even as state mottoes and the like would be questioned (Scalia himself noted this in oral argument) if we said things like "In Jesus We Trust."

How far to take this in this area is surely debatable -- as seen by the splits in the very case.  Ultimately, you will weigh various things in the context of the situation. And, a gigantic cross on public land that is used for Easter ceremonies to me seems problematic.  

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* This arose recently regarding a border emergency aid bill when the Senate (final vote 84-8 though a 92-8 vote was referenced I cannot find) basically tied the hands of the House.  Leadership really wanted to put in a stronger response to address treatment of immigrants detained, which has received lots of "this is HORRIBLE" reactions. One particularly horrible image is a father and daughter face down dead while trying to cross. The Trump Administration's actions here are severely lacking, worsening a problem that was already a humanitarian crisis before him.

The votes weren't there. The "problem solving" Dems particularly didn't want to go too far. Thus, AOC and other more progressive Democrats cried foul.  Rightly so.  Only so much could be done with the Republicans in control of the Senate, but a good argument can be made that the Senate Democrats made it too easy for them.  A push to end the session for the summer recess and appeals to "compromise" when dead children are involved also rankles.

There is a limit here but within those limits more can be done.  One more thing.  That link to the vote was found by my own research. Article after f-ing article cited the greatly bipartisan Senate vote without linking to it or saying who voted against it.  It is bad enough that online media apparently found a way to stop workarounds to their paywalls more completely lately.  Why cannot they link to or cite such information?  Turns out SEVEN of the eight who didn't vote are Democrats who are running for POTUS. Why didn't any (including Sen. Kirsten Gillibrand) vote "no" on the record?  The eight that voted against the final vote are a few liberals and Lee and Paul. Useful information to cite, people.