They don’t seem to have any idea what to replace it with, though.
It is likely, but not entirely certain, that there are five votes on the Supreme Court to overrule Lemon v. Kurtzman, a nearly half-century-old precedent preventing the government from advancing religion. It is also all but certain that the court will uphold the so-called “Peace Cross,” a 40-foot tall, cross-shaped monument in Maryland. One or two of the liberal justices may even join an opinion favoring the cross, which was erected to honor fallen soldiers from the First World War.
Yet, while several members of the court seemed eager to blow up much of the law preventing the government from advancing a particular faith in two consolidated cases argued on Wednesday — American Legion v. American Humanist Association and Maryland-National Capital Park and Planning Commission v. American Humanist Association — it is far from clear what will emerge to replace the toppled precedents.
True to form, Neil Gorsuch staked out the most radical possible position, at one point suggesting that plaintiffs who challenge government endorsements of religion shouldn’t be allowed to sue in the first place. As a general rule, a plaintiff must show that they were somehow injured by the party they are suing in order to file a lawsuit, a requirement known as “standing.” Yet Gorsuch suggested that no plaintiff may have standing to challenge a religious display on government property because their only injury is that they take “offense” to the display — and “mere offense” isn’t enough.
View the complete February 27 article by Ian Millhiser on the ThinkProgress website here.