Rob Boston: Supreme Court Says A Cross On Government Land In Maryland Can Stay. What Now?

June 20, 2019 – So what happened at the U.S. Supreme Court this morning with the Bladensburg Cross?

Americans United’s attorneys have been poring over the decision in American Legion v. American Humanist Association. It’s fairly complicated; just about every justice had something to say. Here’s a quick analysis:

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The majority allowed the cross to stand: The court voted 7-2 to uphold the display of the so-called “Peace Cross” on government-owned landed at a busy traffic intersection in Bladensburg, Md., a northeastern suburb of Washington, D.C. Justice Samuel A. Alito wrote the majority opinion, joined by Chief Justice John G. Roberts, Brett Kavanaugh, Stephen G. Breyer and Elena Kagan. Justices Clarence M. Thomas and Neil Gorsuch agreed with the result but wrote separately to explain their views. Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.

Alito’s opinion leans heavily on history. The cross was erected in 1925 to honor veterans of World War I. In Alito’s view, a cross can morph into a non-religious symbol, given enough time.

“With sufficient time, religiously expressive monuments, symbols, and practices can become embedded features of a community’s landscape and identity,” Alito wrote. “The community may come to value them without necessarily embracing their religious roots.”

Justices Breyer and Kagan aren’t completely on board: Breyer and Kagan agreed with the majority’s conclusion but were not willing to use this case to scrap decades of church-state jurisprudence or hand down a broad rule that all religious war memorials are now acceptable.

Writing for the two, Breyer asserted, “Nor do I understand the Court’s opinion today to adopt a ‘history and tradition test’ that would permit any newly constructed religious memorial on public land. The Court appropriately ‘looks to history for guidance,’ but it upholds the constitutionality of the Peace Cross only after considering its particular historical context and its long-held place in the community. A newer memorial, erected under different circumstances, would not necessarily be permissible under this approach.”

Justice Gorsuch says the case should never have been brought in the first place: Gorsuch argued that merely being offended by the presence of a religious symbol on public property should not grant someone legal standing – that is, the right to sue. He asserts, “This ‘offended observer’ theory of standing has no basis in law.” If adopted, Gorsuch’s crabbed view of standing could prevent a lot of people from having their day in court when it comes to certain church-state cases.

Justice Thomas, as usual, had the most extreme view: Thomas agreed with the majority’s conclusion but refused to endorse its legal reasoning. Thomas wanted the court to use the case as a vehicle to toss out basically all modern church-state law and start over again. He once again asserted his belief that the section of the First Amendment barring “establishment” of religion does not apply to state governments – so Alabama could declare an official church! Thankfully, this flaky view appears to be limited to Thomas.

Justices Ginsburg and Sotomayor penned an eloquent dissent: Ginsburg’s dissent, joined by Sotomayor, makes the obvious point that the Latin cross is a symbol of the Christian faith and doesn’t represent non-Christians.

“An exclusively Christian symbol, the Latin cross is not emblematic of any other faith,” Ginsburg asserts. “The principal symbol of Christianity around the world should not loom over public thoroughfares, suggesting official recognition of that religion’s paramountcy.”

Here’s the bottom line: This was always going to be a difficult case to win, given the conservative leanings of the Supreme Court these days. It’s a disappointing decision, but it may take some time to see its full effects. Our attorneys continue to analyze the ruling, but be assured that AU’s commitment to use all possible avenues to promote and defend the separation of church and state remains intact.

Americans United for Separation of Church and State is a nonpartisan educational and advocacy organization dedicated to advancing the separation of religion and government as the only way to ensure freedom of religion, including the right to believe or not believe, for all.  www.au.org

Rob Boston is senior advisor and editor of Church & State, AU’s monthly membership magazine.