“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.