The Supreme Court has ruled 7-2 that the Blandensburg “Peace Cross” is constitutional, though that resolution comes with a variety of caveats. Only Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented fully with the majority.

There are a lot of parts to this, so let’s go in order.

THE BACKGROUND

The case of The American Legion v. American Humanist Association involved the 40-foot-tall “Peace Cross” (a.k.a. the Bladensburg Cross), a World War I memorial in Prince George’s County, Maryland.

While supporters of the cross said it was a perfectly legal war memorial, the AHA argued that it was really just a giant advertisement for Christianity — maintained using taxpayer dollars via the Maryland-National Capitol Park and Planning Commission — and any reasonable person looking at the cross would agree.

You can read a longer history of the case right here, but before getting into the details of what the Court said, it’s important to recognize why the AHA and its allies felt they were in the right. The question the Supreme Court had to answer was this: “Does the Establishment Clause allow the government to permanently and prominently commemorate Christian veterans — and only Christian veterans — by funding, maintaining, using, and displaying a massive concrete Latin cross in the center of a heavily-trafficked intersection at the entrance of town?”

The AHA said the answer was no — and that a decision against them would be a mistake — for the following reasons:

1) The Bladensburg Cross violates the Establishment Clause.

The cross is Christian. It’s the symbol everyone associates with Christianity. And if the government is promoting this cross/memorial, it’s aligning itself with a particular religion. That’s illegal.

2) The Bladensburg Cross effectively denigrates the contributions of non-Christian veterans.

If this really is meant to be a war memorial, then using a Christian symbol sends the message that non-Christians who sacrificed their lives for this country need not be memorialized. Supporters may argue the memorial represents all veterans, but the symbol they’re using is not some universal symbol of sacrifice. It’s a symbol of one particular religion. Obviously.

3) A victory for the government would be bad news for Christians.

If this cross is declared legal, think about what that would mean: The Supreme Court would basically be saying the cross is not a uniquely Christian symbol but rather some generic symbol representing death. In other words, when you see the cross, don’t think of Jesus. The devout Christians who treat the cross seriously would likely take offense to that. The AHA says a ruling in favor of the government, for this reason, would be a “Pyrrhic victory” for Christians.

4) The fact that this Cross has been up for decades doesn’t make it legal.

History and tradition aren’t good reasons to let something illegal slide. The Supreme Court has even said as much when it comes to Establishment Clause cases. Hell, they struck down forced prayer in public schools even though we’d been doing that for a long time.

5) The Cross isn’t merely some passive display.

Supporters of the memorial argue that it doesn’t “force” you to become a Christian, so what’s the big deal? The AHA says that’s irrelevant. This is a giant cross in the middle of a busy intersection. The Supreme Court has previously said a smaller cross atop city hall was already “extreme” and an “obvious” violation of the law… so this has to be worse, right? In addition, groups have used the Bladensburg Cross as the centerpiece for “Town-sponsored events that include Christian prayer.” So don’t say it’s just a passive symbol.

6) Saying the Bladensburg Cross is illegal would not affect other Christian war memorials.

Despite rumblings to the contrary, there are very few stand-alone giant cross memorials on public property. This one is uniquely illegal.

7) The Lemon Test is a good way to analyze the legality of religious displays, and we don’t want to mess that up.

The “Lemon Test” was established by the Supreme Court in 1971 as a way to objectively decide whether a religious statute violates the law. It says the statute must be secular in nature, neither advance nor inhibit religion, and not create some excessive entanglement between church and state. If any of those prongs are violated, the statute is illegal.

The Bladensburg Cross advances Christianity. You could even say it creates entanglement between church and state. Therefore, it violates the Lemon Test. To say the cross is legal would mean throwing away the Lemon Test and a standard that has worked for several decades. Why mess with something that’s not broken?

8) No one’s asking for the Bladensburg Cross to be destroyed.

While one possible solution is to remove the “arms” of the cross and create a secular “obelisk” memorial, the AHA would be perfectly fine with it being moved to private property.

I would also note that one of the amicus briefs in the case raised another concern: Standing.

While the government wanted this case judged on its merits, many of their advocates wanted the case dismissed on the grounds that the people suing don’t really have legal justification for doing so. In response, a number of law professors told the Court to ignore that line of thinking because dismissing the case on those grounds would ruin the whole concept of standing with regards to illegal religious displays.

If exposure to a government sponsored religious display is categorically insufficient to confer standing, then what is being displayed does not matter. There would be no standing in any religious-display case, however egregious its facts. … This Court’s Establishment Clause jurisprudence has been grounded in sensitivity and nuance. But these standing arguments are capable of neither. They would sweep aside generations of Establishment Clause doctrine and all the sensitivity and nuance embedded therein. These arguments are ones the Court should resist.

It’s a fair point: If the people who drive by this cross every day, as residents of the city, can’t complain about the promotion of Christianity, who can?

THE DECISION

Writing for the majority, Justice Samuel Alito looked to the historical nature of this monument, saying that “established, religiously expressive monuments, symbols, and practices” should get a pass. He admits this is a Giant Christian Cross, but bizarrely claims it’s now “indisputably secular,” as if the religious identity of the GIANT CHRISTIAN CROSS has been obscured over time.

He also says that trying to neutralize the problem now could be perceived as anti-religious. So Christians get a victory by the very nature of having done something illegal a long time ago — and if we try to fix the problem now, it would hurt their feelings. Christians are the real victims in all this. Right…

What about the Lemon Test? Alito ignores it here precisely because of the supposed historical nature of this Cross, as if the passage of time renders the test unusable.

In essence, he’s saying there’s no longer anything explicitly Christian about this Giant Christian Cross. The Religious Right may like the conclusion he reaches, but they’re celebrating today because they know this case is about preserving Christian privilege. There are lots of winks going around in Christian Right circles today. Oh, this Cross isn’t Christian at all. Nope. Not even close. Hahahahahaha.

By way of comparison, Alito cites Notre Dame as a church becoming a cultural symbol and city names like “Providence, Rhode Island” — but he ignores how Notre Dame is and always has been a Catholic church. It’s still used as one. No one is pretending it’s secular. City names may have religious origins, but they are in no practical way still “Christian cities.”

This Cross was always intended to be a Christian symbol, and its supporters treat it as a Christian symbol, and strangers who see it acknowledge it as a Christian symbol. To pretend otherwise is be willfully blind about why it’s there.

The good news is that the Lemon Test hasn’t been officially discarded. But the conservative justices are saying there are times when it can be ignored. Like whenever they want to pretend it doesn’t matter. Like right now.

They’ve taken the teeth out of the test and carved out an exemption that allows certain Christian displays to slide through the law.

I suppose it could’ve been worse. (Justice Clarence Thomas wants the Lemon Test abolished entirely. And Justice Neil Gorsuch calls the test “a misadventure” that has been superseded with more modern methods.)

Alito concluded:

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. 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. For all these reasons, the Cross does not offend the Constitution.

Justices Stephen Breyer and Elena Kagan concurred with the ruling but made clear their decision was limited to this specific case. If another city erected an identical cross today, it would rightfully be seen as an endorsement of religion. It’s history that provides an out in this case. In other words, they didn’t use the Lemon Test, either.

A newer memorial, erected under different circumstances, would not necessarily be permissible under this approach.

Justice Brett Kavanaugh also concurred but laid out his reasons for why the Lemon Test should be ignored and offered his own replacement theory — I supposed we can call it the Kavanaugh Test:

If the challenged government practice is not coercive and if it (i) is rooted in history and tradition; or (ii) treats religious people, organizations, speech, or activity equally to comparable secular people, organizations, speech, or activity; or (iii) represents a permissible legislative accommodation or exemption from a generally applicable law, then there ordinarily is no Establishment Clause violation.*

The asterisk says all cases “must be analyzed under the relevant Establishment Clause principles and precedents.”

Kanavaugh also offers sympathy for the non-Christians who see this as a Giant Christian Cross — not that anyone was crying on his shoulder — and says the Maryland legislature can always enact new laws to remove the cross or transfer it to private land.

Justice Kagan offered support for the Lemon Test in her own separate concurrence. She said her agreement with Alito was limited to the circumstances of this case but not necessarily with his overall views on the Establishment Clause.

Justice Thomas said in his concurrence that there was no coercion involved — the Cross wasn’t meant to turn people into Christians — so everyone should shut the hell up about it. (He agreed with the conclusion Alito came to, but not the arguments he made.)

In an action claiming an unconstitutional establishment of religion, the plaintiff must demonstrate that he was actually coerced by government conduct that shares the characteristics of an establishment as understood at the founding.

By that logic, though, a lot of church/state cases would go away entirely simply because there’s no overt claim of trying to convert people. Which is exactly what he wants.

Thomas also wants to eliminate the Lemon Test entirely because it “has no basis in the original meaning of the Constitution,” is used whenever the Court feels like it, and causes confusion in State and lower courts.

In yet another concurrence, Gorsuch and Thomas wrote that the plaintiffs didn’t have legal standing to bring forth this case. They want all cases like this dismissed from the get-go. Gorsuch says being “offended” isn’t good enough reason to file a lawsuit like this… but then on what basis could anyone file a legal challenge in situations like this? Gorsuch only says you need “a real controversy with real impact on real persons to make a federal case out of it.” If that were actually the law, that would open the door to all sorts of Christian displays on public land. Gorsuch has no solution for how people can fight back against a Christian majority that erects Christian displays without saying their goal is to advance Christianity.

Finally, we get to the dissent from Ginsburg and Sotomayor. They’re the only justices who seem to understand the gravity of the Christian symbol at the center of this case.

By maintaining the Peace Cross on a public highway, the Commission elevates Christianity over other faiths, and religion over nonreligion. … As I see it, when a cross is displayed on public property, the government may be presumed to endorse its religious content. The venue is surely associated with the State; the symbol and its meaning are just as surely associated exclusively with Christianity. … The principal symbol of Christianity around the world should not loom over public thoroughfares, suggesting official recognition of that religion’s paramountcy.

What about the claim that this is just a generic symbol to memorialize World War I vets?

The cross was never perceived as an appropriate headstone or memorial for Jewish soldiers and others who did not adhere to Christianity.

Ginsburg makes clear that the passage of time hasn’t changed the fact that this was always a Christian monument. She also rejects Gorsuch’s theory on standing for exactly the reasons I mentioned earlier.

THE TAKEAWAYS

We don’t know when a religious monument suddenly becomes historical and immune to Establishment Clause challenges.

Gorsuch doesn’t understand it either.

How old must a monument, symbol, or practice be to qualify for this new presumption? It seems 94 years is enough, but what about the Star of David monument erected in South Carolina in 2001 to commemorate victims of the Holocaust, or the cross that marines in California placed in 2004 to honor their comrades who fell during the War on Terror? And where exactly in the Constitution does this presumption come from?

This decision doesn’t give carte blanche for Christian lawmakers to erect their own Christian monuments on public land.

The decision may have exempted older monuments, but it doesn’t carve out new rules for Christians who want to use their power to put other Christian symbols in the public square. In that sense, the ruling was thankfully limited.

We’re still arguing over what test(s) to use when evaluating the constitutionality of Establishment Clause issues.

The Lemon Test is still alive — barely — but it wasn’t used here because Alito said it didn’t apply due to the historicity of the Peace Cross. But the most conservative justices on the court want it eliminated from consideration completely. As it stands, judging whether something impermissibly promotes religion is still a matter of opinion. There’s no set of rules that all judges have to follow.

More reactions to come.

(Portions of this article were published earlier)

