“A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine,” Justice Samuel Alito warned the nation yesterday, “will strike many as aggressively hostile to religion.” Luckily, he wrote, the Supreme Court will spare the nation the spectacle of such a secular juggernaut by allowing the state of Maryland to maintain the 94-year-old, 32-foot-high “Peace Cross” on a pedestal high atop a busy intersection near Bladensburg, Maryland.
The case—American Legion v. American Humanist Association—produced a five-justice plurality for what appears to be a rather thin rule. What the Court decided is hard to discern. To understand why, read this portion of the syllabus:
ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B , II–C , III, and IV , in which ROBERTS, C. J., and BREYER, KAGAN, and KAVANAUGH, JJ., joined, and an opinion with respect to Parts II–A and II–D, in which ROBERTS, C. J., and BREYER and KAVANAUGH, JJ., joined. BREYER, J., filed a concurring opinion, in which KAGAN, J., joined. KAVANAUGH, J., filed a concurring opinion. KAGAN, J., filed an opinion concurring in part. THOMAS, J., filed an opinion concurring in the judgment. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. GINS BURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined.
For those scoring at home, that’s Cross 7, Humanists 2—but the seven are divided among at least four and maybe five different views of how a case like this should be decided. At a minimum, the divided lineup indicates that both the high court and the lower courts will continue to struggle with public-religion cases of all kinds.
By way of background, the Peace Cross was erected by private groups in 1925 as a memorial to the 49 citizens of Prince George’s County, Maryland, who died in World War I. The state took ownership of the site more than half a century ago and has maintained it with public funds ever since. Over the years, its location—at an intersection of the National Defense Highway that connects Washington, D.C., to Annapolis, Maryland—has become a busy suburban crossroads.
In 2012, the American Humanist Society brought a challenge to the Peace Cross on behalf of a group of its local members, non-Christians who were required to live and commute near this massive Christian symbol. The U.S. Court of Appeals for the Fourth Circuit, applying Supreme Court Establishment Clause precedent, held that the monument constituted an “establishment of religion” and was thus forbidden by the First Amendment.
The Supreme Court on Thursday reversed. One wishing to carry away a principle from the jumble of opinions would be reduced to this: If a monument has been up long enough to have taken on some other meaning than a religious one, it’s probably a bit much to ask people to pull it down (see Alito’s image of Godless-zilla rampaging across the landscape). The Latin cross in question, Alito writes, has become a symbol of sacrifice—not in general, but specifically in the context of World War I, as exemplified in the famous poem by John McCrae, which begins,
In Flanders fields, the poppies grow
Between the crosses, row on row.
So a venerable monument like the Peace Cross can stay. If a monument is newer, then—ask again later.
The problem bedeviling the justices is the persistence of what is called the Lemon test, derived from a 1970 religious-school-subsidy case, Lemon v. Kurtzman. This test asks whether the law (1) has a “secular purpose”; (2) a “primary effect” that advances or retards religion; and (3) the effect of creating “excessive entanglement” between Church and state. Got it? It’s great except nobody really understands it and pretty much everybody hates it. Alito wants to get rid of it and permit “categories of monuments, symbols and practices with a longstanding history” so long as they follow an American tradition of “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.” Sounds great except for two things: First, what does it mean? And second, this part of the opinion didn’t get five votes. Justice Elena Kagan peeled off, expressing a concern that a general rule invoking “history” is too broad.
Here is my quick assessment of the positions. Four—Alito, Chief Justice John Roberts, and Justices Stephen Breyer and Brett Kavanaugh—have had it with Lemon and wish to emphasize history. For Breyer, though, “history” mostly means how long a monument has been up: “A new memorial, erected under different circumstances, would not necessarily be permissible under this approach.” Kavanaugh, by contrast, wants to look at whether a monument is “rooted” in history and tradition—a test he suggests would allow newer (even, I suspect, brand-new) structures as well as old ones like the Peace Cross. Kagan wants to hold on to parts of Lemon and judge monuments case by case.
Justice Neil Gorsuch suggested the problem could be solved by eliminating the right of people like AHA members to sue at all. In his view, taxpayers who don’t want their tax dollars used for religious purposes should have to suck it up. Unless the government is forcing you to pray or withholding a job or benefit on religious grounds, you have no case.
Justice Clarence Thomas wrote separately to say that the Establishment Clause shouldn’t apply to the states at all. He has taken this position before; in addition, he also endorsed Gorsuch’s rules.
Finally, Justice Ruth Bader Ginsburg (joined by Justice Sonia Sotomayor) wrote an impassioned old-fashioned separationist dissent. Two thousand years of history have not wiped away the Christian symbolism of the cross, she wrote, and the majority’s suggestion that 95 years have done that to the Bladensburg cross is spurious. “An exclusively Christian symbol, the Latin cross is not emblematic of any other faith,” she wrote. Quoting an earlier dissent by retired Justice John Paul Stevens, she added, “‘Making a … Latin cross a war memorial does not make the cross secular,’ it ‘makes the war memorial sectarian.’”
As Ginsburg pointed out, there would be no need to destroy the cross—it could be moved to private land; but no matter the outcome, precisely because the symbolism is so powerful, somebody loses in each such dispute, and loses big. Breyer and Kagan seem to be striving to forge a durable center on this issue, allying with Roberts and Alito. If the effort fails, or the Court changes, Thomas, Gorsuch, and Kavanaugh seem ready to enact much more sweeping limits on the Establishment Clause.