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, the classics, 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, 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.

I would like to bring to your attention, however, to 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 thedestruction of longstanding monuments, and I find muchof 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.

There are 11 comments.

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  1. Susan Quinn Contributor
    Susan Quinn

    What if I found your post offensive, Jim?! But of course, I don’t–I love it! I think all those people who decide their sense of decorum is a legitimate argument should find somewhere else to live. We are about tolerating diverse rules, people. Get over it!

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  2. Kay of MT Member
    Kay of MT

    Ah, another breath of fresh air.

    I hope you don’t mind, but I copied and pasted this to my brother, an 83 year old retired attorney and a retired 20 year USAF Officer. I thought he would thoroughly enjoy this post.

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  3. Jim McConnell Member
    Jim McConnell

    Thank you, @jimgeorge, for sharing an all-too-rare bit of humility, common sense and humor from the Supreme Court. It’s a hopeful sign.

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  4. Hank Rhody-Badenphipps Esq Contributor
    Hank Rhody-Badenphipps Esq

    I tend to think of the doctrine of standing as pernicious when applied to cases where no one suffers direct injury. An affront to liberty is bad for society even if it doesn’t rise to the level of discernible harm for any one individual.

    In this case I wouldn’t toss ’em out on the basis of standing. I’d shut ’em down on the basis of the establishment clause not forcing the government to deface religious symbols.

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  5. Jim George Member
    Jim George

    Kay of MT (View Comment):

    Ah, another breath of fresh air.

    I hope you don’t mind, but I copied and pasted this to my brother, an 83 year old retired attorney and a retired 20 year USAF Officer. I thought he would thoroughly enjoy this post.

    @kayofmt, please send my most cordial regards to your brother from a fellow retired attorney and a fellow former member of the Air Force (Strategic Air Command”! It is worth noting that we are also close to the same measure of, to use one of the many euphemisms for what we used to call age, advanced maturity! Sincerely, Jim

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  6. Kay of MT Member
    Kay of MT

    Kay of MT (View Comment):
    I hope you don’t mind, but I copied and pasted this to my brother, an 83 year old retired attorney and a retired 20 year USAF Officer. I thought he would thoroughly enjoy this post.


    Part of my brother’s returned opinion:

    Hi Kay,

    I am not a fan of those who would establish a state religion. Primarily because transgressions or established practices means severe punishment including death. Thankfully, we do not have a state religion.

    “Now we have members of congress openly calling for Islam to be taught in our public schools and for Islam to be our national religion. This is direct violation of their oath to support and defend our Constitution. Go look up the definitions of treason and traitor.

    I have no problem with people displaying their religious feelings in public or on private property so long as there is no interference with the Constitutional rights of others but I strongly disapprove of any religious display or activity by government officials on government time, on or using government property, or involving public funds.

    The ‘offended observer’ discussion is cute but I am not an offended observer, I an an offended taxpayer. Offended by government officials using my money to push their own religious beliefs.”

    • #6
  7. Unsk Member

    “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.”

    A courageous opinion in today’s world of ever celebrated and often angrily promoted aggrieved victimhood.

    • #7
  8. Kozak Member

    • #8
  9. Rightfromthestart Coolidge

    What’s this ? Common sense ?   From the Supreme Court ?  What’s happening to us ? 

    • #9
  10. Kay of MT Member
    Kay of MT

    Rightfromthestart (View Comment):

    What’s this ? Common sense ? From the Supreme Court ? What’s happening to us ?

    Hopefully it is the beginning of the end to the corruption of our Constitutional way of governance.

    • #10
  11. Clifford A. Brown Contributor
    Clifford A. Brown

    This accords with the decision, handed down on the 24th, about trademarks. An individual sought trademark protection for a clothing line  named and emblazoned with the letters: “FUCT.” Everyone understands what that reads or sounds like, as the business owner intends. The Court effectively finished off a longstanding law that gave discretion to federal bureaucrats to grant or deny valuable protection to certain expressions. At the same time, the Court seemed to invite and outline constitutionally valid legislation to address public concerns:

    Multiple justices explicitly raised or alluded to the possibility that Congress could move forward with a more carefully focused statute that does not discriminate on the basis of viewpoint. In a concurrence, Justice Samuel Alito noted that the Supreme Court’s role is limited and it cannot substitute a new statute in place of this one as it is written. In particular, his concurrence explicitly stated that new legislation could preclude registration of marks that contain terms that “play no real part in the expression of ideas.” Chief Justice John Roberts also focused on narrower statutory language in his divided opinion. Roberts commented that the government is not required to “give aid and comfort to those using obscene, vulgar, and profane modes of expression.” And in his opinion, Breyer asserted that the statute would not discriminate based on viewpoint if it prohibited registration of only highly vulgar or obscene words.

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