The Turnabout on Religious Freedom

6/22/19
from The Wall Street Journal,
6/21/19:

Liberals used to favor broad claims of liberty. Prof. David Skeel says the Obama-era culture wars helped change that.

In an age when contentious historical monuments are targeted for destruction, the Supreme Court decided Thursday to let one stand. At issue in American Legion v. American Humanist Association was whether a 40-foot concrete Latin cross on public land violates the First Amendment’s Establishment Clause: “Congress shall make no law respecting an establishment of religion.” By 7-2, the justices said it doesn’t. “It was a sound, if narrow, decision,” says David Skeel, 57, a law professor at the University of Pennsylvania. “The court seemed to be signaling to the lower courts that they shouldn’t order monuments taken down just because there’s a religious significance to the symbol.” On the other hand, “it said nothing about whether a new monument might fall afoul of the Constitution.” In sum, “the Bladensburg Cross is fine—because it’s old. But that doesn’t mean people are free to erect crosses on public land.”

The American Humanist Association’s failure makes one wonder if the effort to extirpate religion from the public square is fizzling out. Are the great Establishment Clause cases—Engel v. Vitale (1962), which outlawed organized prayer in public schools, or Lemon v. Kurtzman (1971), which stopped states from supporting parochial schools—a thing of the past?

Attitudes shifted in the legal academy, too, with a growing body of scholarship contending that the First Amendment is too favorable toward faith. “They’re not denying that the Constitution regards religion as special,” Mr. Skeel says. “They’re arguing that it shouldn’t—that there’s no basis for treating religion differently from impulses like conscience or conviction. I think this is all part of the same shift. There’s now an interest in putting limits on the free exercise of religion.” That’s in part the result of a great incongruity in the ideology of the contemporary lef

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