When Supreme Court Justice Elena Kagan joined the fragmented 7-2 majority that allowed the Bladensburg Peace Cross in Maryland to remain standing as it is, she said she found much to admire in her conservative colleagues’ reasoning – even those parts with which she disagreed.
The Supreme Court decision announced on Thursday was the latest in a long history of vexing constitutional questions about the place of religious symbols in the nation’s civic spaces – legal conflicts that have often contributed to the nation’s “culture wars” and its deep social divides.
And while she didn’t have too much to say in her short, partial concurrence with the high court’s majority decision, written by Justice Samuel Alito, she mostly singled out a section of historical analysis with which she couldn’t quite concur.
Justice Alito explored how Congress and other legislative bodies long included prayers at the opening of legislative sessions, despite the stormy and often bitter sectarian differences that existed within American Protestantism in the early years of the republic. He noted officials set these religious differences aside in order “to solemnize congressional meetings, unifying those in attendance as they pursued a common goal of good governance.”
Such history can indeed provide guidance as the court discerns the meaning of the Establishment Clause in such cases, Justice Kagan wrote, even though she didn’t want to sign on to historical, “originalist” reasoning as a matter of principle.
“But I find much to admire in this 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,’” she said, quoting her conservative colleague’s analysis.
“Here, as elsewhere, the opinion shows sensitivity to and respect for this Nation’s pluralism, and the values of neutrality and inclusion that the First Amendment demands,” Justice Kagan added.
BURDENS OF HISTORY
As the Monitor reported in February, the case of the Bladensburg Peace Cross is in many ways about the emotional burdens of history, as well as the quickly changing demographics that have altered the face of American pluralism.
In 2014 local residents and the American Humanist Society objected to the enormous Latin-style cross, which has stood prominently on a patch of municipally maintained land for more than a century, commemorating local boys who fell in World War I. Many Jewish veterans found the official government use of a cross to be both humiliating and theologically offensive.
“The government’s giant cross in Bladensburg sends an obvious message of religious favoritism, and today’s decision holding otherwise is deeply disappointing,” said Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief, in a statement. “The silver lining, though, is that the ruling is limited to the unique circumstances of this particular monument, and is hardly a free pass for government officials to promote their preferred religious symbols and messages in the future.”
Such purported “favoritism,” too, is understood within the current upheavals throughout American society, as it becomes both less Christian and less white. Explicit Christian symbols placed on government buildings and civic properties didn’t cause much of a stir before World War II, experts note. In his concurring opinion, Justice Stephen Breyer noted that removing a century-old monument would signal “a hostility toward religion that has no place in our Establishment Clause traditions.”
Today, however, many see such prominent symbols as marks of cultural and religious supremacy.
And at the heart of Justice Alito’s reasoning, many critics say, is a remarkable effort to secularize the most prominent and sacred symbol of the Christian faith: the cross.
In her dissent, Justice Ruth Bader Ginsburg emphasized the point. The “immense Latin cross,” here displayed prominently on a traffic island in Bladensburg, she wrote, “is the foremost symbol of the Christian faith, embodying the ‘central theological claim of Christianity: that the son of God died on the cross, that he rose from the dead, and that his death and resurrection offer the possibility of eternal life,’” she wrote, quoting a brief from the Baptist Joint Committee for Religious Liberty.
“By maintaining the Peace Cross on a public highway, the [Bladensburg] Commission elevates Christianity over other faiths, and religion over nonreligion,” continued Justice Ginsburg, whose dissent was joined by Justice Sonia Sotomayor. “Memorializing the service of American soldiers is an ‘admirable and unquestionably secular’ objective. But the Commission does not serve that objective by displaying a symbol that bears ‘a starkly sectarian message.’”
The 7-2 decision in this case, The American Legion v. American Humanist Association, is the result of a narrow ruling, which then fragments into different directions as the justices wrote their own separate opinions. That’s in spite of concerted and ongoing efforts of Chief Justice John Roberts to build comity and respect in the nation’s high court and, as much as possible, avoid bitterly divided 5-4 splits in culturally divisive cases like these.
“If you look at the earlier major religion clause opinions of the Roberts court, they have been much closer – if not to unanimity, then to a supermajority of justices, not just the 5-4 opinions,” says Mary Anne Case, professor at the University of Chicago Law School. “And Chief Justice Roberts has been able to make that happen.”
Still, there has been an erosion of what has typically been a “liberal” understanding of the Establishment Clause, scholars say.
Indeed, when it comes to the stormy legal debates over the meaning of the Establishment Clause, many conservatives disavow the interpretive expression “separation of church and state,” first articulated by Thomas Jefferson in 1801.
Liberals, however, often emphasize Jefferson’s “wall of separation,” and insist that the state must remain rigorously neutral, if not secular, in civic matters.
THE LEMON TEST
This approach was in many ways enshrined in what has been called the “Lemon test,” from a 1971 Supreme Court case, Lemon v. Kurzman, that conservatives, including the current five conservative justices on the Supreme Court, generally loathe.
Striking down a Rhode Island law that provided funds for parochial school salaries, the Supreme Court outlined a three-pronged test in order to pass constitutional muster: a law must have a secular legislative purpose, its primary effect must neither advance nor inhibit religion, and it must not foster an excessive government entanglement with religion.
“Justice Alito is telegraphing what we already know, that Lemon is not a particularly useful test for a majority of the court,” says Steven Schwinn, professor at the John Marshall Law School in Chicago. “At the same time, the court didn’t overturn it, which means there is theoretically an application of Lemon in a narrow class of cases.”
By ruling narrowly, the Peace Cross case did not replace the “Lemon test” with another, more conservative methodology. “Everybody’s got a slightly different take on it,” observes Professor Case. “We’ve got this cross and we’ve got several different, not to my mind fully worked out, but potential approaches for what happens for other similar monuments.”
In emphasizing a more pluralistic and tolerant approach, however, Justice Alito seemed to suggest that the meaning of a cross is in the eye of the beholder.
“The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent,” Justice Alito wrote. “For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark.
“For many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment,” he continued.
By contrast, Justice Ginsburg emphasized the historical role of the Establishment Clause as a “barrier” that protected the integrity of individual consciences in religious matters, especially in light of “centuries of turmoil, civil strife, and persecution, generated in large part by established sects determined to maintain their absolute political and religious supremacy,” she wrote.
“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.’”
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