BONUS: Andrew's Speech at the AHA's #HonorThemAll Rally (Patreon)

Here's the audio (and below is the transcript) of Andrew's speech to be delivered tomorrow morning (2/27/19) on the Supreme Court steps for the American Humanist Association's #HonorThemAll rally before oral arguments in American Legion v. American Humanist Ass'n over the Bladensburg Cross case we discussed in Episode 256.  Hope you enjoy!

Transcript:
-----------

So my job is to explain the law in plain English. Some days, that’s easier than others. (It’s become a special challenge now that we’ve elected a game show host as president.) But when it comes to the First Amendment’s establishment clause, my job has been pretty easy for the past 50 years. It goes something like this:

“In church, in your own home, on private property, do whatever you want. It’s a free country. But once you set foot on public property, when you’re on government-owned land, or in a government building, you have to care about more than yourself and just your own group. And so, in those public settings – like here – the government must be scrupulously neutral when it comes to religion. It can’t prefer one religion over another, and it can’t prefer religion generally over non-religion.”

In legalese, what I’ve just said is called the Lemon test, and it’s named after a 1971 Supreme Court opinion, Lemon v. Kurtzman. And while the case has some additional legal jargon in it, that’s basically the gist of it. Stay neutral.

Now we live in an age where it sometimes feels like every major Supreme Court decision is 5-4 along party lines, so maybe you’ll be surprised to learn that Lemon was 7-1. But it wasn’t really at all controversial at the time.

And if you think about it, maybe that shouldn’t be surprising. After all, no one religion is anywhere close to a majority in this country, so everybody has something to lose if the government picks favorites. There are more Jews than Pentecostals in America; more Hindus than Presbyterians; more Mormons than Lutherans; more Buddhists than Seventh-Day Adventists; more Muslims than Jehovah’s Witnesses. And there are more religiously unaffiliated – the “nones,” atheists, agnostics – than all of those groups combined. So yeah, when it comes to religion or irreligion, we really are a melting pot.

This should not be a hard case. If you have friends, or family members who think a 40-foot cross is “neutral” … well, just ask them to imagine a 40-foot Islamic crescent. Or a 40-foot statue of Baphomet. (Right.)

But this is why I care about this case: the petitioners are not just here to maintain a cross. They’ve asked this court to overturn Lemon v. Kurtzman. They want to replace it with a rule that would say any amount of government entanglement with, or endorsement of, religion is absolutely fine up until the point where it “coerces” you into actually worshipping another faith. That’s page 16 of their brief. It’s their words.

I don’t like hyperbole. Those of you who listen to my show know I’m not an alarmist. But it is difficult to overstate how radical petitioners’ argument is; how massively it would change the law. Under their view, the First Amendment excludes only compulsory church attendance and its equivalent. It would not exclude erecting Christian crosses on every government building in America. It would not exclude opening public events with explicitly sectarian Christian prayers. Incredibly, their rule would not even clearly prohibit say, Catholic-only scholarships, or grants to businesses run by Southern Baptists.

Antonin Scalia once said, “The judge who always likes the results he reaches is a bad judge.” That’s what I hope for from this conservative court. I am not here to rally for a liberal outcome in this case. I am not here to appeal to the justices’ sense of decency. I am here to plead for a very simple principle: that these justices should uphold the law rather than rewrite it. That is after all, what “conservative” used to mean. Thank you.