One of the foundational principles of our system of justice is that if you want to sue somebody you have to demonstrate some harm you have suffered at their hands. That’s what gives you “standing” in court, that is, the right to stand in court and make your case and press for justice.
If you can’t point to some demonstrable harm, you can’t file a lawsuit. If folks could file lawsuits just because they didn’t like somebody or because that person made them feel bad, our courts would be awash in frivolous lawsuits. We’ve got enough of those as it is.
But for some reason, the Supreme Court and the courts below them have dispensed with any rational view of standing on religious liberty cases since 1947 and the Everson case.
Since then, all anyone has needed to march right into the Supreme Court on matters of religious liberty is to be offended by whatever it is that happened. Somebody reads the Bible in school, somebody gets offended, they file suit (even though they suffered no demonstrable harm of any kind), and the Supreme Court throws the Bible under the bus. And suddenly nobody can read the Bible in public schools. The same with prayer in public schools, the posting of the Ten Commandments, and prayers at graduation.
And such expressive activities are prohibited not just in the one place where the complaint came from, but everywhere, all over the fruited plain, just because one person got his nose bent out of shape at somebody else’s free exercise of religion.
When I lived in Boise, our city council came for a Ten Commandments monument that had stood as a silent sentinel of the truth in a city park for 39 years. It had been given to the city by the Fraternal Order of Eagles to give the youth of our community a set of principles to live by, at a time (1965) when juvenile delinquency was spinning out of control. The monument stood in an unobtrusive part of Julia Davis Park –most Boiseans didn’t even know it was there — and hadn’t bothered anybody in four decades. In fact, to my knowledge, not even one complaint about the monument had ever been made.
But an atheist on our city council was royally offended, in high dudgeon, and he was determined to remove it. He tried to do it by stealth, putting it in a pre-council meeting agenda and disguising it by referring to it in a way that nobody would know what he was talking about.
But conservative activists tipped off by a concerned member of the city staff went to that meeting in protest. We discovered that the city had scheduled the removal of the monument for the Friday of that week, giving us three days to slow things down. (City crews had already painted orange lines around the monument to show the guys with the equipment where to dig).
The only realistic option was to go to court. I became one of the two plaintiffs in the case, which was lodged in federal court. My calculus was quite simple. If atheists in other cases can file a federal lawsuit simply on the basis of being offended, then so could I.
So that was part of my argument. People are offended at seeing the monument, so they are entitled to sue in federal court? Well, said I, I am offended at the prospect of not seeing the monument. Its removal is offensive to me, and besides, it’s offensive to the Constitution, which guarantees the free exercise of religion.
Predictably, perhaps, the judge, a federal activist by the name of Edward Lodge, threw my case out of court and fined me $10,000. (This was for attorney’s fees, even though the city had an entire raft of attorneys who did nothing but look after the city’s legal business.) So not only was my right not to be offended thrown in the ash can, I had to pay for the privilege.
My experience confirmed that the only folks who can use being offended as legal standing for a lawsuit are enemies of Christianity. If you are a friend of the truth, fuhgeddaboudit. You have no rights. They have rights, but you don’t.
The Winds of Change
But that may be about to change, and not a moment too soon. The Supreme Court recently upheld the constitutionality of a towering religious monument on public land, the Bladensburg Memorial Cross in Maryland.
Wrote Judge Samuel Alito, in the majority opinion (emphasis mine throughout), “when time’s passage imbues a religiously expressive monument, symbol or practice with this kind of familiarly and historical significance, removing It may no longer appear neutral.”
In other words, the law is supposed to be neutral. It’s not supposed to take sides. But if a religious symbol is yanked out of the ground after standing unmolested for 100 years, that’s hardly neutral. That’s outright hostility.
“For some,” Alito wrote, “that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices to our Nation. For others still, it is a historical landmark.
“For many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.”
In other words, the Court said, there is no respect for diversity or tolerance for differing views when a Cross is destroyed under court order. Rather, it displays a kind of rabid intolerance and animus toward Americans who have rights protected in the Constitution.
Bottom line: the Supreme Court said Christians have a right to be offended too. They are not second-class citizens who have to go to the back of the civil rights bus (the right to the free exercise of religion is a civil right). They get to sit right up front along with everybody else.
Perhaps this is the first glimmer of the dawn of a new day of religious liberty for Christians, the one group in America who can be virulently discriminated against with no recourse. It’s a good day for Christians, for the Constitution, and for all of America.