The Supreme Court blesses a cross-shaped war memorial in Maryland

By S.M. | NEW YORK

THE FIRST line of the First Amendment—“Congress shall make no law respecting an establishment of religion”—has inspired sharply divergent interpretations. To glance at the vote in American Legion v American Humanist Association, a 7-2 ruling handed down on June 20th, one might get the impression those differences have been largely ironed out over the 72 years since the court first addressed the meaning of the Establishment Clause in a school-bussing case from New Jersey. That impression is misleading. American Legion is no picture of judicial consensus: in additional to the plurality opinion six justices wrote separately to dissent or clarify their views. In all, seven justices agreed that a 40-foot cross-shaped memorial to soldiers who died in the first world war will continue to loom over a pair of roads in Bladensburg, Maryland. But very different opinions lay behind that decision and two justices expressed a much stricter view about the place of religious symbols on public ground.

Justice Samuel Alito, author of the plurality opinion, struck a more generous and less testy note than he often does. In their separate concurring opinions, Justices Stephen Breyer (on the left) and Brett Kavanaugh (on the right) both praised Justice Alito’s opinion as “eloquent”. Justice Elena Kagan—with whom Justice Alito sparred five years ago in another religion case—commended his ruling for showing “sensitivity to and respect for this nation’s pluralism, and the values of neutrality and inclusion that the First Amendment demands”. These four justices, along with Chief Justice John Roberts, formed partially overlapping Venn diagrams that save the Bladensburg cross with a narrow and historically nuanced justification.

The analysis in the main opinion is straightforward. Yes, Justice Alito wrote, “the cross has long been a preeminent Christian symbol”, but its use on public ground in Maryland “has a special significance” that is more secular than sectarian. The image of “row after row of plain white crosses marking the overseas graves” of fallen soldiers was “emblazoned on the minds of Americans” during the war, he wrote, and the American Legion’s decision to use the cross as its memorial “must be viewed in that historical context”. As a “prominent community landmark”, the memorial expresses “the community’s grief at the loss of the young men who perished” in battle. To require the demolition or “radical alteration” of the monument nearly a century later—in response to a challenge from atheists and non-Christians who view it as alienating—would not be a “neutral act”. It would be hostile to Christianity and to “the ideals of respect and tolerance embodied in the First Amendment”.

Justice Alito widened the lens beyond the busy intersection outside Washington, DC to reflect on other examples of symbols and institutions in public life. Crosses are found in “many registered trademarks”, he noted, from Blue Cross Blue Shield to Bayer, but non-Christians don’t bat an eye when flashing their health insurance cards or popping an aspirin. Residents of Corpus Christi, Texas or Providence, Rhode Island, don’t petition to change the deeply religious names of their cities. And communities often find meaning in certain faith-centred sites “without necessarily embracing their religious roots”. Notre Dame in Paris is a “striking example”, Justice Alito wrote. Tears and concern for the cathedral after the recent fire show Notre Dame is “a symbol of national importance to the religious and nonreligious alike”.

Justices Breyer and Kagan dissented from the Supreme Court’s legislative prayer case in 2014, but they were largely on board with Justice Alito’s approach this time around. Justice Kagan opted not to join in a disparagement of the so-called Lemon test—a fraught method of identifying Establishment Clause violations by looking for a secular purpose and effect and gauging the level of church-state entanglement. She also left her name off of a section drawing lessons from history “out of perhaps an excess of caution”. Better to analyse the matters “case-by-case”, she wrote, than to draw overly broad conclusions. Echoing a concern he expressed in the February oral argument, Justice Breyer clarified that “if the cross had been erected only recently, rather than in the aftermath of World War I”, it may not pass constitutional muster. Justice Alito included just enough references to “longstanding” monuments in his opinion—your correspondent counts four—to persuade Justice Breyer that his vote wouldn’t commit the court to upholding newly built crosses or those that seem to target members of religious minorities.

To the right and left of these centrist camps stood two pairs of justices with different ideas about what the Establishment Clause means. For Justice Neil Gorsuch, the plaintiffs who objected to the cross should not just lose their case; they never should have been able to sue in the first place. The “‘offended observer’ theory of standing has no basis in law”, he wrote, taking a flame-thrower to the “endorsement test” first developed by Justice Sandra Day O’Connor in 1984. That test, which the courts have never applied consistently, says a government policy or monument might violate the Establishment Clause if a reasonable observer regards it as an official endorsement of religion. “Really, most every governmental action probably offends somebody”, Justice Gorsuch wrote. The remedy is not to sue but to avert one’s eyes when something seems offensive. Justice Thomas signed this concurrence and penned one of his own repeating his idiosyncratic view that only the federal government—not states or cities—should be subject to the constraints of the Establishment Clause.

On the other end of the bench sat the lone dissenters in American Legion, Justices Ruth Bader Ginsburg (who took the unusual move of reading a portion of her dissent from the bench) and Sonia Sotomayor. For these stricter separationists, letting the “immense” cross remain on public land, supported with public funds, is a clear breach of the church-state wall. “Just as a Star of David is not suitable to honor Christians who died serving their country“, Justice Ginsburg wrote, “so a cross is not suitable to honor those of other faiths who died defending their nation”. The state’s endorsement of the cross “elevates Christianity over other faiths, and religion over nonreligion”. And there is no reason to fear a win for the humanists heralding the bulldozing of dozens of crosses around the country. Each cross must be analysed separately, Justice Ginsburg wrote, and those deemed unacceptable could be moved to private land.

In his concurrence, Justice Kavanaugh sounded a note of sympathy with Jewish veterans and others whose “sense of distress and alienation” led them to object to the cross. There are “genuine and important interests” on both sides of the dispute, he wrote, and although the constitution does not require it, perhaps the Maryland legislature would see fit to remove the cross or transfer the land on which it stands to private hands. He added a line few would contest. “[P]inning down the meaning” of the Establishment Clause “has proved to be a vexing problem”.