In the most-watched church-state case of the year, the Supreme Court on Thursday allowed a 40-foot-tall cross-shaped war memorial in Bladensburg, Maryland, to remain on public lands and be maintained with public funds.
Writing for the Court, Justice Samuel Alito said that the cross is not a purely religious symbol because, when it was used for veterans’ graves and memorials, it “became a symbol of their sacrifice.” Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented, emphasizing that “the Latin cross is the foremost symbol of the Christian faith” and that public funds cannot be used to maintain the monument.
The case is a huge symbolic win for the Christian Right, which had made such memorials a centerpiece of their decade-long battle against the so-called “war on religion.” Undoubtedly, religious conservatives will spin the result as a validation of their expansive definition of “religious liberty” and public displays of all kinds: Christmas creches, religious displays in public schools, Ten Commandments displays at courthouses, and so on.
But hold on.
Actually, what was most surprising about the result is how relatively narrow and lopsided it was, with seven justices finding in favor of the memorial, known as the “Peace Cross.” Spin notwithstanding, today’s case changes very little.
First, Justices Stephen Breyer and Elana Kagan concurred in the result, noting that the memorial was erected “with the undeniably secular motive of commemorating local soldiers… the secular values inscribed on the Cross and its place among other memorials strengthen its message of patriotism and commemoration; and, finally, the Cross has stood on the same land for 94 years, generating no controversy in the community until this lawsuit was filed.”
Thus, Justice Breyer concluded, “the Peace Cross poses no real threat to the values that the Establishment Clause serves,” namely, prohibiting the state from favoring one religion over others.
How is a 40-foot-tall cross is a “secular” symbol? It’s not a secular symbol when it adorns churches or is worn around people’s necks. The answer, for both the Court’s conservative majority and its two moderate concurring justices, is that intention, history, and context matter more than the symbol itself.
Justice Alito’s majority opinion noted that there are many secular crosses: the logos of the Red Cross, Blue Cross/Blue Shield, and even Bayer aspirin, for example. So the question quickly turns from the cross itself to its overall context.
In this case, the American Legion was responsible for erecting the memorial back in 1925, but in 1961, the state of Maryland took ownership of it and the land it sits on. It’s now part of a park filled with other, smaller memorials as well, and it’s maintained with taxpayer money.
The age of the memorial counted for a lot. While Justice Alito offered plenty of speculation regarding the American Legion’s motives, he emphasized that this case is different from a new memorial, since in this case, the Peace Cross is practically part of the town at this point.
Crucially, that leaves open the question of whether a “secular” cross (or other religious symbol) could be erected as a monument today.
That question is frequently controversial, as conservative states often test the limits of church-state jurisprudence. Although, on the face of it, religious displays have no real effects on anyone–their presence doesn’t make anyone religious, and their absence doesn’t make anyone atheists–Christian conservatives have fought for decades to erect and maintain them.
For the last few decades, the consensus has been that as long as displays don’t favor any one religion, they’re constitutional. Thus we have Chanukah menorahs sitting next to Christmas trees in public squares. And, rather hilariously, installations from The Satanic Temple–which uses such laws to horrify the Christian conservatives who support them–in state capitol buildings.
On the surface, today’s decision seems to upset that consensus–and again, there’s no doubt that it will be spun that way. After all, this is the “Bladensburg Cross”–not the “Cross, Star, Crescent, and Statue of Baphomet.”
But that’s where the age of the memorial comes in. It’s been there for a long time. It was erected with a secular purpose. And, especially for Justices Kagan and Breyer, even if it might violate the Constitution to erect such a monument today, it’s not unconstitutional to keep it in place. It’s part of the civic landscape.
Moreover, the Court and concurring justices noted, no one’s complained about the memorial for over 80 years. (Indeed, two of the Court’s most ardent conservatives, Justices Gorsuch and Thomas, filed a separate opinion arguing that being offended is not even grounds to bring a lawsuit. That would make such monuments virtually impossible to challenge.)
What’s odd about the Court’s holding, though, is that it seems belied by the controversy itself.
On the one hand, the Court says, the monument isn’t forcing anyone to do anything, so why get so upset?
On the other hand, Christian conservatives get very upset when such monuments are removed. Is that just a coincidence?
Surely it is not. Surely Christian conservatives rightly understand that 40-foot-tall crosses say something about the place of Christianity in America. They affirm Christian hegemony, Christian centrality, Christian privilege. They support the view that America is a “Christian nation” not just descriptively (in terms of the number of adherents) but normatively as well.
That’s why they get so upset when such memorials are threatened. Notably, the precursor to the Bladensburg Cross case is a more famous war memorial in San Diego, the Mount Soledad Cross. That monument, a huge cross that towers over the city, was found to be unconstitutional in 2011, a decision that was used in religious right marketing campaigns for years. (In 2015, the Mount Soledad Cross was sold to a private organization, and the Ninth Circuit declared the case moot.) It was a focal point of the successful campaign to redefine “religious freedom” to include the power to turn gay people away from businesses and deny health insurance to women.
The Mount Soledad Cross is “just” a symbol, but it is a symbol that motivates people to action, and a symbol that says something about what kind of country we live in. Arguably (and to this child of a Jewish war veteran), it tells everyone who’s not Christian that they are living in someone else’s land.
All that being said, and despite the inevitable spin, today’s decision was not as earth-shattering as it might have been.
First, it basically left existing Supreme Court church-state jurisprudence in place. Some had hoped that the Court would finally junk its much-despised test in such cases–derived from the 1971 case of Lemon v. Kurtzman–but it didn’t do that, although it did say that the Lemon test isn’t applicable in cases like these.
Nor did anyone join Justice Thomas’s extreme view that the entire Establishment Clause may not apply to states, a position he repeated in a separate opinion today.
Had the Court taken a more extreme position, it’s easy to imagine conservative states erecting more religious displays, pushing the envelope on prayer in schools, and further moving the needle on government support of religious organizations. As it stands, however, today’s case says very little about such actions.
Still, for those who believe in the strict separation of church and state, Thursday’s result is a disappointment. At the end of the day, a 40-foot cross, “secular” or otherwise, will continue to stand at the corner of Bladensburg Road and Baltimore Avenue.