Some activists make a mission out of uprooting memorials on public land that in part or in whole contain Christian imagery.
Think Nativity scenes in town squares, or memorial crosses.
In a 7-2 decision this morning, the United States Supreme Court has ruled that one such memorial, the so-called Peace Cross in Maryland, may remain on public land.
The majority offered a number of different reasons for allowing the cross to remain.
Justice Samuel Alito wrote for the court today, in an opinion that once again eschewed the use of the Lemon test. Alito began by explaining that although the cross “came into widespread use as a symbol of Christianity” and continues to have that meaning today, it “has also taken on a secular meaning” in other contexts. In particular, Alito noted, the cross became a “central symbol” of World War I – which likely explains the choice to use a massive cross as the memorial for the Prince George’s County soldiers.
Alito then reasoned that in cases involving longstanding religious memorials or symbols, the Lemon test should not apply. At least when the question is whether to keep them in place, rather than to put up new ones, Alito emphasized, there should be a presumption that they are constitutional.
That presumption, Alito continued, applies here: Not only did the cross start off with the “added secular meaning” associated with World War I, but it took on “historical importance”: It reminds local residents of the conflict and the sacrifices that area soldiers made. On the other hand, there is no evidence that Jewish soldiers were either “deliberately left off the list on the memorial” or “included on the Cross against the wishes of their families.”
“The cross is a Christian symbol,” Alito concluded, “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,” while for others “it is a place for the community to gather and honor all veterans and their sacrifices for our Nation.” “For many of these people,” Alito stressed, “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.”
The concurring opinion by Justice Clarence Thomas reflects his sustained belief in the primacy of the original meaning of the text of the Constitution.
Justice Clarence Thomas also would have allowed the cross to stand, but for a different reason: He believes that the Constitution’s establishment clause does not apply to the states at all. Even if it did apply to the states, he added, there would still not be any constitutional violation – either because the establishment clause only applies to laws passed by a legislature or because the clause requires actual coercion by the government.
The only dissenters were Justices Ruth Bader Ginsburg and Sonia Sotomayor.
(The Lemon test is named after the case that established it: ‘In 1971, the Supreme Court outlined a test – known as the “Lemon test,” after the case in which it was established, for courts to use to determine whether a law or practice violates the establishment clause: The law or practice is constitutional if it has a secular purpose, its principal effect does not advance or inhibit religion, and it does not create an “excessive entanglement with religion.” ’)