Last week, the Supreme Court decided the much-awaited Bladensburg Cross case, American Legion v. American Humanist Association.
The case presented a constitutional challenge to a war memorial on public property in Bladensburg, Maryland—a 32-foot-high Latin cross erected 90 years ago to commemorate county residents who had died in World War I. In 2017, a federal appeals court ruled that the cross violated the First Amendment’s Establishment Clause under the so-called “endorsement test.” A reasonable observer, the appeals court held, would view the cross as an impermissible state endorsement of Christianity.
By a vote of 7-2, the Supreme Court reversed the appeals court and upheld the constitutionality of the cross. The lopsided vote conceals serious disagreement on the Court. Along with the majority opinion, which Justice Alito wrote for himself and four other justices, the members of the Court issued a bewildering seven additional opinions—inviting confusion in the lower courts. And Justice Alito’s majority opinion is quite narrow. The Bladensburg Cross and similar longstanding “monuments, symbols, and practices” will survive. But whether state and local governments can sponsor new monuments, symbols, and practices with religious elements, and what test the Court will use to evaluate them, remain uncertain.
Justice Alito wrote the majority opinion in American Legion for himself, Chief Justice Roberts, and Justices Breyer, Kagan, and Kavanaugh. Longstanding religious displays, he wrote, come with “a strong presumption of constitutionality,” informed by history and tradition. Although the Latin cross obviously carries a Christian meaning, during World War I it acquired “an added, secular meaning” as a commemoration of servicemen who had died in the conflict. Ninety years later, one could not know for certain which meaning the cross’s designers had intended to convey. But the history of the Latin cross as a war memorial bore on the monument’s meaning for constitutional purposes.
Moreover, “the passage of time” had given the Bladensburg Cross new meaning. For many, the cross symbolized the local community and its past—the Prince George’s County men who had died in World War I; their “relatives, friends, and neighbors” who had erected the monument to honor them; and the descendants of both groups who had maintained the monument ever since. No evidence existed that the community had erected the cross, or maintained it for almost a century, to convey disrespect for non-Christian residents of the county who had died in the war. The monument represented a tribute to them as well.
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