I had the opportunity to attend oral arguments at the Supreme Court today in the Maryland Cross case.
Overall, it was very encouraging. Here are a few quick observations:
1) Justice Gorsuch had the best line of the argument. There was discussion about the discredited Lemon test and whether it should be used. No one - neither the petitioners, respondents, nor apparently any of the Justices - wanted to use the Lemon test. Gorsuch commented how odd this was since the Lemon test was supposed to be used for this exact type of case. He asked the lawyer: "Is it time for this court to thanks Lemon for its services and send it on its way? The crowd roared with laughter.
2) The Constitution's answer to Justice Gorsuch's question is a resounding "Yes!"
3) Justice Kavanaugh asked great questions and seemed to be inclined to uphold the display of the Cross and, more importantly, to acknowledge that the Cross represents Jesus Christ in a way that is consistent with the Constitution. We'll see how this works out - but I viewed his questions and comments as encouraging and positive.
4) Finally, it made me uneasy that much of the discussion seemed to center on hypothetical facts having nothing to do with this case. I understand that the Justices are concerned with how their decision in this case will impact other pending and future cases. However, the Constitution says that their job is to decide a winner and loser in this case based on the law and the facts of this case. I hope they will do that and not allow hypothetical facts to influence justice in the case at bar.
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