Constitutional Law

When is a 40 ft. Cross on Public Land Not a Religious Endorsement? When SCOTUS Says So, That’s When.

The Supreme Court ruled on June 20, 2019 that a 40-foot World War I memorial in the shape of a Christian cross on Maryland public land does not violate the U.S. Constitution.

The American Humanist Association, a nonprofit that promotes the separation of church and state, originally sent a letter  to the Maryland-National Capital Park and Planning Commission in 2012 asking that the cross be replaced “with something more appropriate and universal.”

Two years later, the humanist association filed a Federal lawsuit against the commission on behalf of three local residents, arguing that the cross’ presence on state-owned land violated the religious freedom protected under the First Amendment.

Ina fractured decision, the justices held that the First Amendment’s establishment clause, which bars the government from unduly favoring one religion over another, does not require the removal of the monument from its location in a traffic median in the Washington, D.C., suburbs.

I chose to write about the case not because of its end result, which was predictable, but because the way the decision came down – with so many split opinions and the disparate reasoning attached to them – demonstrates how arguing cases before this SCOTUS is very different than previous configurations of the Court.

Justice Samuel Alito wrote the majority opinion, getting four additional votes from Justices John Roberts, Stephen Breyer, Elena Kagan and Brett Kavanaugh but joining only parts of Alito’s opinion. Breyer and Kavanaugh then each wrote concurring opinions. Kagan joined Breyer’s opinion, and also wrote her own shorter “opinion concurring in part.” In addition, Justice Clarence Thomas wrote his own concurring opinion, yet joined another concurring opinion by Justice Neil Gorsuch. Follow that? It’s basically 7 votes for the cross staying for about six different reasons.

Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.

Justice Alito wrote the main opinion which he broke down into several parts. In a nutshell, In the main section, which no one specifically joined, he stated that since the time the cross was constructed, it has come on to take a non-religious meaning – that it symbolizes the sacrifice made by the fallen soldiers of WW I. He noted how the Armed Forces issues the Navy Cross and the Distinguished Service Cross, both of which began after WW I. He also noted that no one would suggest changing the religious names given to towns by Spanish settlers in the 17th century – Los Angeles, San Diego, San Francisco. That, regardless of the original intent, this monument, like those names, have taken on secular, community meanings.

In other sections, joined by Roberts, Kavanaugh and Breyer, Justice Alito looked at the Court’s ruling in Lemon v. Kurtzman. In Lemon v. Kurtzman, a 1971 case about public funding for private religious schools, the court laid out a broad three-pronged test for determining when a government law or practice violates the establishment clause. The “Lemon test” said that to be constitutional, the law or practice must (1) have a secular purpose, (2) neither advance nor inhibit religion as its principal effect, and (3) not result in “excessive entanglement” of government and religion.

But in 2005, the Supreme Court didn’t use the Lemon test in determining the fate of another arguably religious display on public land. The decision in Van Orden v. Perry let a Ten Commandments monument remain standing on the Texas state Capitol grounds. Alito also said that SCOTUS has upheld prayers before public meetings on a regular basis – based in part on the historical context of the Founding Fathers having an official chaplain begin sessions of the First Congress. (For those playing along, the main case in that context is Town of Greece v. Galloway) He said the Lemon test, while ambitiously trying to apply a single rule for all Establishment cases, was not applicable to every Establishment case, particularly where the Court was evaluating long-established practices.

Justice Breyer, joined by Justice Kagan, agreed that the Lemon test did not apply here and that no one was harmed by this historical monument as there was no evidence that non-Christians were excluded from this inscriptions and when it was erected. He added that the Court must distinguish between “real threat” and “mere shadow.” I think this opinion makes too light of the way folks of other religious sects or atheists would feel in a town with a large cross in its public square. It would be hard for them to understand how this was not an Establishment of religion by favoring one religious sect over the other. He also states that it is clear the the Court is not just approving all old monuments because they are old, but his expressed language appears to be saying exactly that. He stated: The Court “looks to history for guidance,” and it upholds the constitutionality of the Peace Cross only after considering its particular historical context and its long-held place in the community, see. A newer memorial, erected under different circumstances, would not necessarily be permissible under this approach.” Sounds like he’s saying if its old its OK if its new its not.

Though joining Breyer’s opinion Justice Kagan felt obligated to write her own six-sentence opinion saying that she felt Lemon was applicable to this case.: “I think that test’s focus on purposes and effects is crucial in evaluating government action in this sphere—as this very suit shows.” Sounding more like a politician than a Supreme Court judge she stated she also found “much to admire in [the historical 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.”  

  Justice Kavanaugh agreed with the majority that the historical context of the Peace Cross meant it was not (or no longer) an Establishment of religion but wrote his own opinion to make two points: (1) Lemon is not applicable to all Establishment Clause cases; and (2) Plaintiffs have other remedies – they can petition there State government to pass a law banning the Peace Cross; or elect new leaders to vote to move the cross off public land or stop using tax dollars to maintain it. He said that even if the Federal Constitution allowed the Peace Cross to stand, a State law, under its State Constitution could give more rights to plaintiffs and cause the cross to have to come down. Therefore there were alternative remedies that could be pursued by the aggrieved parties.

Justice Gorsuch wrote his own opinion, joined by Justice Thomas. He took his own shot at Lemon, which he argued the Court has “shelved” since Town of Greece v. Galloway. He wrote that in Lemon, the Court dealt with the issue of who had a right to bring such lawsuits deciding that they could be brought by “offended observers.” This was the standing used by the plaintiffs in this case – that as they drove by the monument in Maryland, they were offended by it as a preference of the government for Christianity over other religions or over non-religion.

Gorsuch wrote that it was time for “offended observer” status to go – that this level of standing was too vague and that Federal courts require there to be a “real controversy” before the filing of a lawsuit. He stated that “the monument here is clearly constitutional in light of the nation’s traditions. Although the plurality does not say it in as many words, the message of today’s decision for the lower courts must be this: whether a monument, symbol, or practice is old or new, apply Town of Greece , not Lemon because what matters when it comes to assessing a monument, symbol, or practice is not its age but its compliance with ageless principles.”

While Justice Thomas agreed with Gorsuch, he then issued his own “Hold My Beer” opinion. Thomas said it was time to expressly overrule Lemon. First of all, he said there was no proof that the Establishment Clause was even meant to apply to the States. He said that the First Amendment reads “Congress shall make no law respecting an establishment of religion” so that it only applies to laws passed by Congress. Of course, the 14th Amendment has long been read to make the Federal Constitution (and thereby its Amendments applicable to the States but why dicker on that issue). He also said that “coercion” is a mandatory part of any Establishment case – that is, the plaintiff filing the claim must prove that the government practice or monument coerced him into expressing or participating in a religious belief and that there was no such evidence in this case.

Thomas went on from there, though. He said that it was time to expressly overrule Lemon v. Kurtzman altogether. He stated the test “has no basis in the original meaning of the Constitution; it has been manipulated to fit whatever result the Court aimed to achieve.” This sounds like language meant to signal a clear willingness to overrule Griswold v. Connecticut and Roe v. Wade, two key decisions involving privacy and abortion rights.

In a strong dissent, Justice Ginsburg and Sotomayor voted to take the Peace Cross down or at least off public lands. Maybe because I agree with it, Justice Ginsburg’s opinion seems to me to be the clearest and most direct of all the opinions. Basically it states “If a 40 foot Latin Cross – the main symbol of Christianity- on public land in the middle of the town is not an endorsement of the Christian faith by the government, then nothing ever is or will be.” She calls out the hypocrisy of the plurality for making a distinction based on old versus new monuments. She points out that when it was erected in the 1920s, the speeches of the day said that the Peace Cross stood as symbol of Calvary (where Christ was crucified), representing how these soldiers sacrificed their lives like Jesus Christ did.

She said that the Court was wrong to look at how crosses in graveyards in Flanders Field and other places became symbols of the fallen, not of their faith. She said that a cross on a grave states “A Christian is buried here.” She notes that Stars of David and not crosses were placed on Jewish soldiers’ graves, and goes on to state that when that particular graveyard was constructed the fallen of other faiths or of unidentified faiths were shipped home to be buried in another graveyard. She makes a point in this section of her brief to quote extensively from amicus curiae briefs filed by both Jewish and Christian veterans who wrote in opposition to the Peace Cross being maintained. She references for example that stating that the Latin Cross is now a secular symbol for the fallen of WW I does “a disservice” to people of the Christian faith.

She said the remedy here is easy: transfer the Peace Cross to another location – like a graveyard – or transfer the land to the American Legion which would render it a non-governmental display. She mocked the plurality’s decision that no one was harmed by this monument or that there was no coercion inherent in a 40 foot cross in the middle of town:

“When the government places its power, prestige [or]financial support . . behind a particular religious belief, the government’s imprimatur makes adherence to that religion relevant . . . to a person’s standing in the political community. Correspondingly, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.” 

She argued that the Court turned the Establishment Clause on its head in deciding that a 40 foot Latin Cross in the middle of the town on municipal land is not an endorsement of one religion over another ignoring the First Amendment’s requirement of government neutrality in religious issues: “Today the Court erodes that neutrality commitment, diminishing precedent designed to preserve individual liberty and civic harmony in favor of a“presumption of constitutionality for longstanding monuments, symbols, and practices.”

Yes I think Ginsburg and Sotomayor got it right. But just as important, the decision may be a symbol of things to come. This Court, like no other SCOTUS before it, has been unpredictable in its application and support for long-established legal precedent. It has on several occasions looked the other way when a particular court ruling from the past might render a different outcome than the current bench would like to see or it has twisted the facts as it has here to make the particular outcome it wants to see fit the cases it wants to use.

It seems to leave the door wide open to re-visit nearly every SCOTUS case from the past that we have relied on to shape our lives.

Read the full decision here:

follow me on Twitter @oscarmichelen

One reply on “When is a 40 ft. Cross on Public Land Not a Religious Endorsement? When SCOTUS Says So, That’s When.”

LOL if this were a giant star inside of a crest how fast it would be taken down as unconstitutional. For once Uncle Tom Thomas maybe didn’t have the most ludicrous opinion. I think Fake Merrick Garland edges him out for the win.

Leave a Reply to Fancy Pants George Cancel reply

Your email address will not be published.