This week, the Supreme Court ruled 7-2 that the 40-foot tall Bladensburg Peace Cross can remain on public land, in the middle of a busy intersection. The cross is owned and maintained by the State of Maryland. The Court reversed the Fourth Circuit’s decision that the display was an unconstitutional violation of the Establishment Clause.
There are many opinions in this case that give us an idea of how much the justices disagree about the meaning and application of the Establishment Clause. Justice Alito wrote the opinion, joined by Roberts, Breyer, and Kavanaugh. Kagan joined them, except in the sections of the opinion that were critical of the Court’s Lemon test. Breyer filed a concurrence, joined by Kagan. Kavanaugh filed a concurrence. Kagan filed a concurrence in part. Thomas filed a concurrence. Gorsuch filed a concurrence, joined by Thomas. Ginsburg dissented, joined by Sotomayor.
Only the dissenters understood why the Establishment Clause was obviously violated.
Dissenting Ginsburg and Sotomayor
The picture of the big cross should have resolved the Establishment Clause controversy in favor of the Humanists. It is a large, government-supported cross. It is not surrounded by any other religious symbols. The picture shows that Christianity is definitely preferred by its sponsor, the Maryland government.
The two dissenters understood that point. They argued that neutrality is a key value of the Establishment Clause. And—importantly—that the cross is a “defining symbol” of one religion, Christianity. By upholding the public cross, the government of Maryland elevates Christianity over other faiths, and religion over non-religion. That violates the Establishment Clause, in the dissenters’ view, and my own. The test for an Establishment Clause violation should be simple: whether the law or display prefers one religion over others or no religion. It should be a simple, direct and non-complicated test.
Justice Ginsburg was very clear that the Christian Cross is not the Jewish Star of David. Christians do not use the star, and Jews do not use the cross. Nor is the Latin cross the major symbol of the First World War. The American Doughboy is. The Doughboy can represent everyone in the war. But the cross cannot. And the cross did not have to be destroyed. The dissenters reminded readers “In some instances, the violation may be cured by relocating the monument to private land or by transferring ownership of the land and monument to a private party.”
Ginsburg repeatedly made the point that the cross is Christian. This was to distinguish her approach from Justice Alito, who wrote in the Opinion of the Court that the cross had become secular. Alito’s opinion demonstrates that Christians win at the Supreme Court by persuading justices that the symbol most essential to their religion is actually secular.
Opinion of the Court by Alito, With Roberts, Breyer, Kavanaugh, and Sometimes Kagan
Alito saw it that way. Although he acknowledged that the cross can be Christian, it is not always Christian. Over time, the cross has “taken on a secular meaning.” Alito gave a long history of the secularization of the cross, explaining how time has transformed it from Christian to secular. He recognized the cross as a universal symbol of the First World War. He found secularism even in the purely religious instances of the cross’s origins. He mentioned that the cross’s initial fundraising events referred to Maryland citizens as “trusting in God, the Supreme Ruler of the Universe,” and that their motto was “One God, One Country, and One Flag.” A Catholic priest and a Baptist pastor spoke at the cross’s dedication ceremony. The keynoter at that same service said the cross was “symbolic of Calvary,” which is the place where Jesus was crucified.
Those facts should have confirmed that the cross is a religious symbol of one religion only. Instead, Alito insisted time has changed the symbol to one that everyone can share over its World War I meaning. His opinion described some of the religious history of the United States and concluded that moving the monument would demonstrate hostility toward religion, not the neutrality that the dissenters more appropriately recognized.
Alito, like some of the other justices, was critical of the Establishment Clause’s famous Lemon test. Lemon was a 1971 Establishment Clause case involving school-funding that asked whether the law had a secular purpose, whether its principal or primary effect either advances or inhibits religion, and whether there was an excessive government entanglement between church and state. The Court has used the test repeatedly, but with repeated criticism from justices who oppose any type of separation between church and state. Justices who think the cross is not religious have a hard time keeping church and state separate, as this opinion demonstrates.
Kavanaugh, Thomas, and Gorsuch Add Different Points
Kavanaugh’s concurrence praised Alito’s discussion of history and tradition. He pointed out many problems with Lemon. In an interesting tone, he expressed sympathy for the Jewish war veterans who explained the cross excluded them. Although the Court has upheld the cross, he pointed out that Maryland could change this situation. Maryland can speak through its legislature, its people and its constitution. This is good news that the state could do more. But it seems a reason to say the cross is unconstitutional rather than to uphold it, yet tell someone else that they could change the situation.
Thomas concurred only in the judgment. He repeated his point from other cases, that the Establishment Clause should not be applied to the states. Moreover, he adds, “this religious display does not involve the type of actual legal coercion that was a hallmark of historical establishments of religion.” Thomas would also overrule Lemon. There is no support for the enforcement of the Establishment Clause from Thomas’s bench.
Justice Gorsuch, joined by Thomas, would dismiss the case for lack of standing. Gorsuch said the Court’s standing doctrine, which arose from Lemon, mistakenly kept observers like the Humanists in court instead of dismissing them because they are “offended observers.” Gorsuch thought the Court was mistaken to allow offended observers into court, and they should not do it anymore.
The two kinda-surprises in the case are Justices Breyer and Kagan. All the criticism of Lemon in the case did raise the question whether they would defend it.
Breyer’s Concurrence With Kagan, and Kagan Partly Concurring
Breyer reiterated the point of his concurrence in one of the Ten Commandments cases, insisting that there is “no single formula for resolving Establishment Clause challenges.” In this case, he agreed with Alito’s decision that the cross has secular meaning and that it really gives a message of patriotism and commemoration. He agreed that the government does not favor one religion over another, and it would be hostile to religion to remove or alter the cross. He concluded that the Peace Cross “poses no real threat to the values that the Establishment Clause serves.”
Kagan joined Breyer, but he did not join her partial concurrence. She defended the Lemon test and how it has been able to resolve some issues that came before the Court. Unlike the other Justices, she is ready to keep Lemon in business. Yet she was also eager to praise Justice Alito’s opinion, even citing portions of his opinion:
But I find much to admire in this section of the opinion—particularly, its emphasis on whether longstanding monuments, symbols, and practices reflect “respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans.” Ante, at 28. Here, as elsewhere, the opinion shows sensitivity to and respect for this Nation’s pluralism, and the values of neutrality and inclusion that the First Amendment demands.
It is very odd that Kagan and Breyer completely missed the point that a Christian cross is a symbol for Christians, and not a patriotic symbol for all Americans. In her recent dissent, with Ginsburg, Breyer, and Sotomayor, in the Muslim death penalty case, Kagan wrote that
“The clearest command of the Establishment Clause,” this Court has held, “is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982).
The four dissenters in that case thought Alabama was discriminating against Muslims, and would have granted the prisoner a stay. Instead, he was put to death.
When I taught the Court’s recent Muslim and Buddhist death penalty cases yesterday, one student asked if the Court preferred Buddhists to Muslims, because the Muslim did not get his execution stayed but the Buddhist did.
That is a shocking question to ask about the voting of the Court’s justices. And yet Justice Kagan joined six other justices in doing just that: allowing the State to favor Christianity by owning and maintaining a Christian cross on public property, while insisting that the core symbol of Christianity is really secular. Larson, however big a role it played in the death penalty area, does not appear in the cross case.
Seven justices forgot that this is not a Christian nation and that every person is not a Christian. With all their complicated arguments about what the Establishment Clause means, only two of them remembered that the State must not prefer one religion to any other. That is a simple test that should be applied regularly.