by Gerald J Russello
Justice Antonin Scalia gave a famous lecture at the Harvard Law School arguing that the rule of law is a law of rules. He was making the point that the Anglo-American system has expressed a preference that text and tradition should restrain judicial decision-making. As Ralph Rossum describes it, “where the text embodies a rule, judges are simply to apply that rule as the law.”
Although Scalia was speaking mostly about the constitutional text, the same interpretive approach assists in other issues. For example, the common law developed over time numerous rules to govern and discipline the legal process. Bypassing such rules in the hope of achieving the “right” legal ends results in arbitrary diktats of the judiciary that are unpredictable and subject to passing political fancy rather than enduring principles.
The jurisprudence of Earl Warren, which embodies this approach, remains the favored interpretive tool for liberals, though by different names at different times. You can see it in the embrace of “empathy” by judges like Justice Sotomayor. But one rule, the ancient doctrine ofstanding, may help preserve religious liberty – as a recent case suggests.
“Standing” sets out who can sue for injury. If you are hit by a car, you can
sue the driver for compensation for your injuries. If you enter into a contract and the other party breaches that contract, you are able to seek redress. But the question becomes more complicated when what is at issue is a more tenuous kind of “injury.”
What should be the standard when your injury is simply that you’re offended by some government action? Courts have developed rules about standing for such cases too. In a pluralist society, all sorts of people feel injured by diverse government actions, but allowing them all to have standing to sue the government would dissolve the social order. Yet that is exactly what one group is seeking to so.
In a long running case, the federal appellate court in New York – thanks to the Becket Fund for Religious Liberty – has asked a group of atheists to explain why they have standing to sue the Port Authority over the placement of the so-called World Trade Center Cross, a cruciform piece of fused metal found at Ground Zero, at the National September 11 Memorial & Museum, where it now resides.
The atheists complain that they are “insulted” and “offended” by the cross, and argue that its placement in the museum is unconstitutional. It needs to be removed, they say, or at least contextualized by a random selection of “atheist” objects, albeit not ones found at the Ground Zero site. That these individual plaintiffs have not actually visited the Museum seems to be of no moment. If a religious symbol is out there, somewhere, they believe the Constitution gives them a right to remove it.
We ought to note the pettiness and sheer civil rudeness of these claims. Earlier in this case, the atheists went after Father Brian Jordan, who was at Ground Zero after September 11 and gave comfort to the rescue workers there. The atheists claimed he was a “state actor” and thereby constituted the “establishment of religion.” That effort failed, but they continue trying to undermine a symbol in which many rescue workers and victims’ families find solace. The Cross was found on the site, not put there by mean-spirited Christians attempting to exclude others; the Cross, the court has pointed out, is as much as any other an historic artifact of the September 11 attacks.