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…
– Justice Samuel Alito

Yesterday the US Supreme Court issued a 7-2 decision that the Bladensburg Peace Cross could continue to stand and be maintained by the state — even though it was “undoubtedly a Christian symbol.” (Of note, the case was reversed and remanded “for further proceedings,” not simply dismissed.)

Some reports focused on the multiple opinions published by the justices, though these reports largely seemed to come from critics who believed that emphasizing the “splintered” nature of the ruling would undermine its impact on precedent. While the decision itself was not just along “liberal/conservative” lines, there was nuance to the justices’ rulings. Of the seven, there are probably two that are most relevant.

First, the two more “liberal” justices who sided with the “conservatives,” Stephen Breyer and Elena Kagan: In a separate concurring opinion, they emphasized that the unique circumstances of this case justified the cross being allowed to stand, essentially qualifying their judgment as not universally applicable to crosses on public lands. That hedging has led some reputable religious liberty advocates to note it may be a challenge to understand the ruling as precedent.

(For example, what of Pensacola’s Bayview Cross? It will likely be remanded “in light of” the Bladensburg ruling. Even if it goes before the Supreme Court, however, it seems the worst it would do would be a 5-4 in support — which makes the focus on the multiple opinions overblown.)

Then, the dissent of Ruth Bader Ginsburg, joined by Sonia Sotomayor:

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… [and seeks] either to adopt the religious message or to urge its acceptance by others…

That seems extreme on its face, and would demand extreme government action to mitigate the public displays of religion throughout the country.

Ginsburg specifically addressed (in a footnote) the issue of memorials like the Argonne Cross in Arlington National Cemetery. Supporters of the cross have accurately noted that any ruling against the Bladensburg cross or other similar memorials would undermine those crosses, as well.  (Some militant atheists, like Jason Torpy, have supported that argument, saying they do want those crosses to come down — even those in Arlington.)

She said, quoting the Jewish War Veterans brief, “visitors to the cemetery “expec[t] to view religious symbols,” apparently saying those public crosses — otherwise similar to Bladensburg — are permissible.

The problem for Ginsburg is expectations change, both for the better or worse — while the law does not do so on its own. Why, for example, in a tolerant, pluralistic United States, does Ginsburg assume Americans do not “expect” to see religious symbols in its public spaces? Is it because some would prefer — contrary to the US Constitution — that public spaces be forcibly devoid of religious symbolism? Perhaps absent hostility toward religion, the public’s expectations would be different than what she assumes.

Some of that hostility comes from people like Michael “Mikey” Weinstein, who filed a brief in support of tearing the cross down. He reacted to the SCOTUS ruling by saying

The dystopian horrors of “The Handmaid’s Tale” seem closer today than ever.

Yes, he actually said that.

This has never been an issue of Christians trying to take over the world; it’s simply a matter of not searching out reasons over which to be offended, and not presuming, as Ginsburg did, that just because a religious symbol exists the government advocates that religion.  Note, for example, that Christians did not line up to demand the Buddhist shrine be removed from public land in 2012.  In fact, it should have stood just as these others have.

For now, the cross is permitted to stand in the public sphere, even as an “undoubtedly Christian symbol.” It is tragic that it took a divided ruling by the US Supreme Court to end that fight…for now.

With reference to SCOTUS Blog.  Also at Military.com, Religion News Service, Stars and Stripes, and the Religion Clause.

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