As between winning and losing, winning is usually preferable. But
that’s about as much as you can say right now for the Supreme Court’s recent
Peace Cross decision and its impact on religion. The 7-2 ruling leaves the
memorial cross standing, but church-state jurisprudence is no clearer than it
was before the decision and could even be a tad more obscure.
To be sure, that isn’t the universally held assessment of what
the Supreme Court did. The contrary view is that in saying the cross can stand
where it has stood for 94 years, the court laid the groundwork for eventual
repudiation of a widely scorned rationale that has guided — or, as many would
say, confused — its reasoning on relations between church and state since 1971.
One can only hope that’s so. Meantime, the court’s position on
the establishment clause remains, as Justice Neil Gorsuch eloquently put it in
his concurring opinion — “a mess.”
Here a little background may help.
The Supreme Court’s new decision, in a case called American
Legion v. American Humanist Association, concerned a 40-foot granite and cement
Latin cross that since 1925 has stood on the median of a busy highway in the
Washington suburb of Bladensburg, Md. The cross was placed there as a private
initiative and paid for with private funds as a way of honoring 49 local men
who died in World War I.
The local park and planning commission, largely for traffic
safety reasons, took ownership of the cross and the land it stands on in 1961.
Since then, it has spent $117,000 in public money on upkeep, with another
$100,000 in reserve for what is said to be badly needed restoration work.
Prior to 2014, there was no indication that the cross bothered
anyone. Then, however, the Humanist Association and three individuals declaring
themselves offended by “unwelcome contact” with a religious symbol sued the
park and planning body. The American Legion entered the case to defend the
cross.
A federal district court ruled for the Peace Cross in 2015, but a
divided three-judge panel of the Fourth Circuit U.S. Court of Appeals ruled
against, and the full appeals court last year voted 8-6 to uphold that
decision.
The three-judge panel’s ruling was based the doctrine set out by
the Supreme Court in 1971 in a case called Lemon v. Kurtzman.
The court at that time was on something of a no-establishment
roll, handing down a string of decisions overturning various forms of largely
unremarkable interaction between church and state. In Lemon it overturned a
Pennsylvania program providing modest salary supplements for teachers of
secular subjects in church-related schools. It also provided a three-part test
that any church-state interaction henceforth would be required to pass: secular
purpose, no endorsement of religion, and no “excessive entanglement” of the
two.
Nearly half a century later, the Lemon test is widely regarded as
unworkable. Thus, there was hope that in ruling on the Peace Cross — an easy
candidate to pass constitutional muster — the court would come up with
something better. But even though a comfortable majority found no reason to
object to the cross, the justices were all over the lot, serving up a judicial
stew of concurrences, dissents, and concurring-in-part, dissenting-in-part
opinions. Only Justices Ginsburg and Sotomayor dissented in full.
Two facts nevertheless did stand out. First, the Peace Cross can
stay where it is. Second, most of the court’s present members have no interest
in the Lemon test. That’s progress, I guess.
Shaw writes from Washington.