On a publicly owned traffic circle in Bladensburg, Maryland, sits a 32-foot-high Latin cross, erected almost a century ago as a memorial to the World War I dead of Prince George’s County. Today’s 7-2 ruling of the Supreme Court of the United States, rejecting a challenge to the cross under establishment clause grounds, ensures it will stay right there as long as the locals want it there.
I’ve been writing here about establishment clause cases here for a long, long, long time. What’s noteworthy about today’s decision is that a five-justice majority constituting the center of this court (from L-R, Kagan, Breyer, Roberts, Kavanaugh, Alito) basically has settled on a test for these cases that pulls together what the court did in the legislative prayer case with Justice Breyer’s now decade-plus-old concurrence in Ten Commandments cases: If the object or practice in question is sufficiently old, and if it wasn’t initiated for the purpose of excluding other faiths but rather shows “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,” then it’s going to be constitutional.
“Retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones,” Justice Alito wrote. “The passage of time gives rise to a strong presumption of constitutionality.” As to what it all means, and why, yet again, Justice Thomas would have gone much further, keep reading.
I want to be clear on one thing from the jump. The court isn’t saying, as some had suggested in the past, that the cross isn’t a religious symbol. It’s more an argument that “when it came to memorializing WWI, crosses were really popular back then”:
Immediately following the war, “[c]ommunities across America built memorials to commemorate those who had served the nation in the struggle to make the world safe for democracy.” G. Piehler, The American Memory of War. Although not all of these communities included a cross in their memorials, the cross had become a symbol closely linked to the war. “[T]he First World War witnessed a dramatic change in . . . the symbols used to commemorate th[e] service” of the fallen soldiers In the wake of the war, the United States adopted the cross as part of its military honors, establishing the Distinguished Service Cross and the Navy Cross in 1918 and 1919, respectively. And as already noted, the fallen soldiers’ final resting places abroad were marked by white crosses or Stars of David. The solemn image of endless rows of white crosses became inextricably linked with and symbolic of the ultimate price paid by 116,000 soldiers. And this relationship between the cross and the war undoubtedly influenced the design of the many war memorials that sprang up across the Nation.
This is not to say that the cross’s association with the war was the sole or dominant motivation for the inclusion of the symbol in every World War I memorial that features it. But today, it is all but impossible to tell whether that was so. The passage of time means that testimony from those actually involved in the decisionmaking process is generally unavailable, and attempting to uncover their motivations invites rampant speculation. And no matter what the original purposes for the erection of a monument, a community may wish to preserve it for very different reasons, such as the historic preservation and traffic safety concerns the Commission has pressed here.
As for this cross, they can’t suss out a lot about the motives:
More than 3,500 Jewish soldiers gave their lives for the United States in that conflict, and some have wondered whether the names of any Jewish soldiers from the area were deliberately left off the list on the memorial or whether the names of any Jewish soldiers were included on the Cross against the wishes of their families. There is no evidence that either thing was done, and we do know that one of the local American Legion leaders responsible for the Cross’s construction was a Jewish veteran.
And, look, Justice Alito writes, you don’t really want to get rid of every cross in a public monument, do you?
Similar reasoning applies to other memorials and monuments honoring important figures in our Nation’s history. When faith was important to the person whose life is commemorated, it is natural to include a symbolic reference to faith in the design of the memorial. For example, many memorials for Dr. Martin Luther King, Jr., make reference to his faith. Take the Martin Luther King, Jr. Civil Rights Memorial Park in Seattle, which contains a sculpture in three segments representing “both the Christian Trinity and the union of the family.” In Atlanta, the Ebenezer Baptist Church sits on the grounds of the Martin Luther King, Jr. National Historical Park. National Statuary Hall in the Capitol honors a variety of religious figures: for example, Mother Joseph Pariseau kneeling in prayer; Po’Pay, a Pueblo religious leader with symbols of the Pueblo religion; Brigham Young, president of the Church of Jesus Christ of Latter-day Saints; and Father Eusebio Kino with a crucifix around his neck and his hand raised in blessing.
The court’s majority effectively jettisons the decades-old Lemon test (which called on courts to look at “the purposes and effects of a challenged government action, as well as any entanglement with religion that it might entail” based on whether a “reasonable observer” would conclude that the action constituted an “endorsement” of religion), in favor of this new history-and-traditions test. And they lean hard into “Look, even if you think the cross is hostile to people, just imagine what message tearing it down is going to convey at this point.”
[I say “effectively” because Justice Kagan is pretty sure she’s on board with this but wants to be cautious, and Justices Thomas and Gorsuch wouldn’t have any problem with any of this stuff in the first place.]
On to the other opinions: Justices Breyer and Kagan write to emphasize their limits here: that the case would be different if there was evidence that the organizers had “deliberately disrespected” members of minority faiths or if the cross had been erected only recently—this test doesn’t apply to new monuments. And Justice Kagan notes that this is all centered on “sensitivity to and respect for this Nation’s pluralism, and the values of neutrality and inclusion that the First Amendment demands.”
Justice Kavanaugh, interestingly, writes separately to make what Sam Bagenstos rightly classifies as a Justice Kennedy-esque move: assert that this was a difficult case, and (as he did in oral argument) insisting that he took both sides seriously:
I have deep respect for the plaintiffs’ sincere objections to seeing the cross on public land. I have great respect for the Jewish war veterans who in an amicus brief say that the cross on public land sends a message of exclusion. I recognize their sense of distress and alienation. Moreover, I fully understand the deeply religious nature of the cross. It would demean both believers and nonbelievers to say that the cross is not religious, or not all that religious. A case like this is difficult because it represents a clash of genuine and important interests. Applying our precedents, we uphold the constitutionality of the cross. In doing so, it is appropriate to also restate this bedrock constitutional principle: All citizens are American, no matter what religion they are, or if they have no religion at all.
Kavanaugh then pivots to something that he also voiced in oral argument, and that initially sounds good but ultimately feels a bit empty: the idea that, “Hey, we’re not the last straw. Get your government to change its mind”:
The Court’s ruling allows the State to maintain the cross on public land. The Court’s ruling does not require the State to maintain the cross on public land.
But if you’re a member of a religious minority, that’s not the point. The establishment clause itself is what’s supposed to protect you.
Justice Thomas would have gone much further, not only doubting whether the establishment clause applied to the states (as opposed to “Congress shall pass no law...”), but for the first time AFAIK stating that the “no law” part might mean that things that aren’t laws might not count, anyway. And he and Justice Gorsuch both would hold, unlike the other seven justices, that merely being an “offended observer” isn’t enough to give someone the right to sue over such things in the first place. Instead of being offended, they (and only they) assert, “in a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an offended viewer may avert his eyes or pursue a political solution.”
To be fair, they do raise one question for the majority that will have to wait for another day:
[T]he plurality continues on to suggest that “longstanding monuments, symbols, and practices” are “presumpt[ively]” constitutional. And about that, it’s hard not to wonder: How old must a monument, symbol, or practice be to qualify for this new presumption? It seems 94 years is enough, but what about the Star of David monument erected in South Carolina in 2001 to commemorate victims of the Holocaust, or the cross that marines in California placed in 2004 to honor their comrades who fell during the War on Terror? And where exactly in the Constitution does this presumption come from? The plurality does not say, nor does it even explain what work its presumption does.
In dissent, Justices Ginsburg and Sotomayor say about what you’d expect: It’s a giant cross. It doesn’t reflect or represent everyone, and it sure looks like the government is endorsing a specific religion:
As I see it, when a cross is displayed on public property, the government may be presumed to endorse its religious content. The venue is surely associated with the State; the symbol and its meaning are just as surely associated exclusively with Christianity. “It certainly is not common for property owners to open up their property [to] monuments that convey a message with which they do not wish to be associated.” Pleasant Grove City v. Summum, 555U. S. 460, 471 (2009).
To non-Christians, nearly 30% of the population of the United States, the State’s choice to display the cross on public buildings or spaces conveys a message of exclusion: It tells them they “are outsiders, not full members of the political community,” County of Allegheny, 492 U. S., at 625 (O’Connor, J.,concurring in part and concurring in judgment).
Moreover, Justice Ginsburg writes, it was intended as a Christian symbol at the time it was erected:
Every Court of Appeals to confront the question has held that “[m]aking a . . . Latin cross a war memorial does not make the cross secular,” it “makes the war memorial sectarian.”
The Peace Cross is no exception. That was evident from the start. At the dedication ceremony, the keynote speaker analogized the sacrifice of the honored soldiers to that of Jesus Christ, calling the Peace Cross “symbolic of Calvary,” where Jesus was crucified. Local reporters variously described the monument as “[a] mammoth cross, a likeness of the Cross of Calvary, as described in the Bible,” “a monster [C]alvary cross,” and “a huge sacrifice cross,” The character of the monument has not changed with the passage of time.
So would they tear it down? Not necessarily. “Recognizing that a Latin cross does not belong on a public highway or building does not mean the monument must be torn down. Like the determination of the violation itself, the proper remedy is necessarily context specific. 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.”
More decisions tomorrow, including, maybe, on the census/citizenship question.
