SCOTUS approves of Christian cross on public land.

Our Constitution requires that governments allow the free exercise of religion, while not endorsing religion.  The government is not supposed to promote religion. But it’s not supposed to be hostile to it either.  Neutrality is the watchword, and that requires some difficult decisions.  Such is the case of American Legion v. American Humanist Association. 

The case involved a 95 foot Latin cross, which sits on a traffic island at the center of a busy three-way intersection in Bladensburg, Maryland.  It’s been there since 1925. It was originally constructed and maintained with private funding, but eventually its maintenance was taken over by agencies of the State of Maryland.  So public funds are being used to maintain an immense symbol of the Christian faith in a prominent position on public lands.  Is that constitutional?

Two members of the Supreme Court said no: Justices Ginsburg and Sotomayor.   Justice Gorsuch would have tossed the case out due to the lack of “standing” by the plaintiffs. His view is that being an “offended observer” does not give you enough skin in the game to maintain a federal lawsuit.  Justice Thomas believes that the federal constitution does not even apply to situations like this, where only state and local governments are involved.   Justices Gorsuch and Thomas both “concurred in the judgment” of the court, so we have seven of our nine justices who held that this Christian symbol on public land, supported by public funds does not violate the Constitution. 

Five justices joined in most of the majority opinion, written by Justice Alito.  His opinion reveals an effort to draw that line of neutrality, taking into account all of the factors in each specific case.  The most important factor seemed to be the age of the structure and the public perception of it.  Key Quote:

It has become a prominent community landmark, and its removal or radical alteration at this date would be seen by many not as a neutral act but as the manifestation of a “hostility toward religion that has no place in our Establishment Clause traditions.”    

That quote about “hostility” comes from the 2005 case in which SCOTUS OK’d the Ten Commandments display on the grounds of the Texas Capitol, Van Orden v. Perry.

Justice Alito cites four factors that justify a “presumption of constitutionality” for symbols or monuments that are longstanding.  First, it’s difficult to pin down the motivation of those who erected the monument.   Motivation matters. If a religious symbol is maintained by a government agency with the intent to convey an endorsement of that religion, it will not have that “presumption of constitutionality.

Second, when a monument or symbol has been in place for a long time, the purposes associated with it “often multiply.”  This symbol was Christian, but it was also seen as a tribute to soldiers who died in World War I. It morphed, over time, into a representation of “a common cultural heritage.”

Third, over time, the message that a religious symbol conveys may change. Here, Justice Alito cited the recent fire at Notre Dame Cathedral in Paris.  He quoted French President Macron, saying that Notre Dame “is our history, our literature, our imagination. The place where we survived epidemics, wars, liberation.  It has been the epicenter of our lives.” 

Fourth, public perception. Key Quote:

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.

This leads to the part of this decision that I think is most important for Texas school board members:

These four considerations show that retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones. 

There is nothing in this opinion that suggests that SCOTUS would approve of the installation of a symbol of a particular religion in a public school building in 2019.

The case is American Legion v. American Humanist Association, decided by the Supreme Court on June 20, 2019.


Barking again next week, Readers!