My Goodreads friend Alan Johnson, author of a biography of Roger Williams, icon of religious freedom, posted this analysis of the recent American Legion v American Humanist Association:
THE BLADENSBURG CROSS CASE: American Legion v. American Humanist Association, U.S. Supreme Court, June 20, 2019
The official U.S. Supreme Court slip opinions for this decision are posted here.
This case involves the constitutionality, under the Establishment Clause of the First Amendment to the U.S. Constitution, of the ownership of the Bladensburg Peace Cross ("Cross") and the land on which it is situated by a state governmental entity (since 1961, the Maryland-National Capital Park and Planning Commission). The Establishment Clause states: "Congress shall make no law respecting an establishment of religion . . . ." In the twentieth century, the Supreme Court held that the Establishment Clause applies to state and local government by way of the Fourteenth Amendment. Everson v. Bd. of Educ., 330 U.S. 1 (1947). Eight of the nine current justices appear to accept this "incorporation" principle. However, Justice Thomas, in his opinion concurring in the judgment in the present case, reiterated a point he has made in earlier cases: the Establishment Clause is designed to prevent the federal government from interfering with state establishments of religion, not to protect individuals from state religious establishments. In Thomas's view, state establishments of religion are perfectly constitutional and legitimate. For a refutation of Thomas's position on this question, see pages 515-16n30 (Kindle loc. 8536-50) of my book The First American Founder: Roger Williams and Freedom of Conscience (Philosophia, 2015).
A photograph of the Cross is included in the appendix to Justice Ginsburg's dissenting opinion. The Cross is located in Prince George's County, Maryland. It is thirty-two feet high and sits on a large pedestal. Construction of the cross was completed in 1925 as a tribute to forty-nine soldiers from the area who died in World War I.
There are nine justices on the Supreme Court. Seven of them filed separate opinions in this case. Justice Alito's opinion was joined in full by three other justices (Chief Justice Roberts and Justices Breyer and Kavanagh). However, a majority requires at least five of the nine justices, and thus only the portions of Justice Alito's opinion that were also joined by Justice Kagan constitute the official Opinion of the Court with mandatory precedential authority on subsequent cases. Justice Kagan declined to join Parts II-A and II-D of Justice Alito's opinion, and those parts constitute only a plurality opinion (four of the nine justices), which, as such, do not constitute mandatory authority.
In significant and controversial cases, we are accustomed to seeing a 5-4 split between the so-called "conservative" wing (Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanagh) and the so-called "liberal" wing (Justices Ginsburg, Breyer, Kagan, and Sotomayor) of the Court. What is strange about this case is that Justices Thomas and Gorsuch refused to join in Justice Alito's opinion; instead, they filed opinions concurring in the judgment only. What is perhaps even stranger is that two of the supposedly "liberal" justices—Breyer and Kagan—joined Alito's opinion in whole or in part, thus making most of Alito's opinion the official Opinion of the Court. The following discussion of Justice Alito's opinion addresses only those portions in which both Justices Breyer and Kagan joined, thus making those sections the Opinion of the Court.
Justice Alito and the four justices who joined in the Opinion of the Court held that the Cross does not violate the Establishment Clause. They argued, against two millennia of religious history, that the Cross had and/or has a secular meaning. Additionally, "[a]s our society becomes more and more religiously diverse, a community may preserve such monuments, symbols, and practices for the sake of their historical significance or their place in a common cultural heritage." Indeed, "[f]amiliarity itself can become a reason for preservation." Moreover,
when time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance, removing it may no longer appear neutral, especially to the local community for which it has taken on particular meaning. A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion. Militantly secular regimes have carried out such projects in the past, [footnote omitted] and for those with a knowledge of history, the image of monuments being taken down will be evocative, disturbing, and divisive.
At the same time, "retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones. The passage of time gives rise to a strong presumption of constitutionality." With this statement, the Court appeared to be indicating that it might have held the Cross to be unconstitutional if it had been constructed in the recent past.
Justice Ginsburg, joined only by Justice Sotomayor, dissented vigorously. She cited classic Supreme Court cases from the twentieth and early twenty-first centuries in opposition to the emerging conservative orthodoxy. Icons of church-state separation such as Thomas Jefferson, James Madison, and Justice John Paul Stevens, as well as moderates such as Justice Sandra Day O'Connor, make explicit appearances in Ginsburg's quietly passionate prose. Ginsburg eviscerates the majority's unhistorical notion that a Latin cross such as the Bladensburg Cross could ever be understood to be a common, secular symbol: such a view insults not only non-Christians but also devout Christians, who for almost 2,000 years have considered the cross to be a holy symbol of their faith.
As against Alito's parade of horribles (inspired by developments in the French and Russian revolutions), Ginsburg observes that the Cross need not be torn down. The government could deed back ownership of the land and property to a private entity, or the Cross could be moved to private land. Quoting Justice Stevens, she states that "like the determination of the violation itself," the "proper remedy is necessarily context specific."
Justice Ginsburg concludes her well-reasoned and well-corroborated eighteen-page dissenting opinion with the following statement of her position:
The Establishment Clause, which preserves the integrity of both church and state, guarantees that “however . . . individuals worship, they will count as full and equal American citizens.” Town of Greece, 572 U. S., at 615 (Kagan, J., dissenting). “If the aim of the Establishment Clause is genuinely to uncouple government from church,” the Clause does “not permit . . . a display of th[e] character” of Bladensburg’s Peace Cross. Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 817 (1995) (Ginsburg, J., dissenting).
by Alan Johnson
Reposted with permission of Alan Johnson.
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