The Supreme Court's rejection on Thursday of a First Amendment challenge to a 40-foot-tall cross on public property that has served as a World War I monument for 90 years came as a surprise to exactly nobody. The court hasn't struck down any form of government support for Christianity in the public square since 2005.
Being somewhat of a masochist, I had attended the oral argument in the case back in February, watching in open-mouthed wonder as the justices spent 70 minutes debating whether a cross the size of King Kong towering over a Maryland traffic intersection is or is not a religious symbol.
As an atheist who grew up as a Jew, the answer seemed obvious to me. It was clear back then, though, that most of the justices didn't see it my way. The only thing we didn't know at the time was how the court was going to justify its decision.
Now we know. And the disappointing reasoning not only defies the Constitution but removes harmed minorities from the legal equation entirely.
In some ways, it could have been worse. The court did not go so far as to hold that all crosses carry a symbolic significance honoring the dead, which would have basically allowed the government to put up crosses willy-nilly across the land in the name of remembrance.
In a fairly careful majority opinion, Justice Samuel Alito seemed to limit his legal analysis to crosses that have been around a while. "[R]etaining established, religiously expressive monuments, symbols, and practices," Alito wrote, "is quite different from erecting or adopting new ones." Alito also stressed that the challenged monument "commemorates the death of particular individuals." This suggests that even an ancient cross that simply honors the war dead, rather than honoring specific people who perished, might not similarly survive review.
But while Alito is seemingly concerned with preserving and honoring history, he didn't rely on the method the court has historically used to decide such cases.
In previous cases involving challenges to religious displays on government property, the court has applied what's known as the "endorsement test," which asks whether a reasonable nonbeliever would feel that the display made them feel excluded, like a lesser member of the political community. The test has its problems, but at least it is focused on the right thing—the effects of government-sponsored majoritarian religious symbols on non-Christians.
Not a single word of Alito's majority opinion evidences any understanding of how harmful the government support of Christianity can be to those who are not members of the faith.
Alito relied instead on an ill-defined "history and tradition" analysis. This approach potentially opens up the door to any government support of religion with even the slightest connection to historical practice (and Justice Neil Gorsuch's concurrence suggested that logically even a new cross might survive under Alito's analysis).
The concurring opinions of other justices were equally distressing and dismissive.
Justice Elena Kagan, usually a stalwart supporter of the rights of religious minorities, signed on to most of Alito's opinion, claiming that it "shows sensitivity to and respect for this Nation's pluralism."
Justice Stephen Breyer continued whistling the tune he started blowing in a 2005 case involving the Ten Commandments—according to Breyer, if a monument has been around long enough without being challenged, it must be OK, a view that takes no account whatsoever of the fact that challenging Christian hegemony in the courts opens plaintiffs up to societal derision and even death threats.
For his part, Gorsuch made it clear that he believes plaintiffs may not even challenge these kinds of displays in court, snidely arguing that those who are merely "offended" have no constitutional authority to invoke the jurisdiction of the federal courts.
The most infuriating part of the majority opinion, however, might be its concern for how Christians would feel if the court had ordered the cross moved or altered. Requiring the removal of World War I monuments, Alito argued, "would not be viewed by many as a neutral act."
Since when does the Constitution protect the interests of entrenched majorities against powerless minorities? (Wait, don't answer that.)
Not only does this argument turn our founding document on its head, but it also assumes that the only remedy for an unconstitutional monument is to destroy or move it. In fact, the court could have required a much simpler cure.
The government need only designate the area around an existing cross as a public forum for private speech, thus inviting minority religious groups and atheists to contribute their own monuments to the space.
Imagine if the Veterans Memorial Park surrounding the cross also had World War I monuments donated by Jewish groups, Humanists and the Satanic Temple? That would certainly be messy—a religious cacophony, if you will—but it would be constitutional, and it would represent the true religious pluralism that is such a central feature of our national identity.
Jay Wexler is a professor of law at Boston University and the author of six books, most recently Our Non-Christian Nation: How Atheists, Satanists, Pagans, and Others are Demanding Their Rightful Place in Public Life.
The views expressed in this article are the writer's own.
