On June 20, 2019, in a 7 -2 ruling, the Supreme Court said that the 40-foot, 16-ton Peace Cross, a Latin cross, standing in a Bladensburg, Maryland public park could continue to be displayed and without alterations.
The Latin cross “expressed the community’s grief at the loss of the young men who perished” in World War I, wrote Justice Samuel Alito Jr. “Its removal or radical alteration at this date would be seen by many not as a natural act but a manifestation of a hostility towards religion that has no place in our Establishment Clause traditions.”
It is important to note that Justice Ruth Bader Ginsburg and Sonia Sotomayor dissented in the case. Liberal Justice Elaine Kagan and Steven Breyer ruled with the conservative majority.
This is an important case that reversed a lower court ruling that the display of the Latin cross on public land was unconstitutional.
The original suit was filed by the American Humanist Association against the American Legion claims that “there is no meaning to the Latin cross, other than Christianity.”
This is a major blow to the doctrine of Separation of Church and State. Though no precedent was established for future deliberations in the Court’s decision, this ruling has given power to the religious conservative groups seeking to establish their version of Christianity as the national religion.
This may seem confusing to many since the lower court stated in its ruling against the American Legion that “Establishment Clause cases in response to Lemon v. Kurtzman, 403 U. S. 602, reasoning that if the Establishment Clause forbids anything that a reasonable observer would view as an endorsement of religion…”
Alito wrote in the majority opinion that “Lemon, however, was a misadventure, and the Court today relies on a more modest, historically sensitive approach, interpreting the Establishment Clause with reference to historical practices and understandings.”
SCOTUS used the 2014 Town of Greece versus Calloway as its justification for its position.
In that case:
“The town’s (Greece, NY) practice of opening its town board meetings with a prayer offered by members of the clergy does not violate the Establishment Clause when the practice is consistent with the tradition long followed by Congress and state legislatures, the town does not discriminate against minority faiths in determining who may offer a prayer, and the prayer does not coerce participation with non-adherents.”
Now, this should not come as a shock to many. The Court’s conservative majority is also the Court’s religious majority.
The shocker is that “tradition” was used as opposed to the rule of law and the First Amendment’s Establishment Clause:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”
The Latin cross is clearly a religious symbol, even as recognized by Alito in his ruling. He wrote:
“The plurality rightly rejects the relevance of the test set forth in Lemon v. Kurtzman, 403 U. S. 602, 612–613, to claims like this one, which involve religiously expressive monuments, symbols, displays, and similar practices…”
Though the more recent Town of Greece test took precedent in this case, it too, in my opinion, was incorrectly determined by the court. Though Greece and Bladensburg were based on “tradition,” there is a more pressing argument.
Just because it has occurred in the past, because it is a long-standing tradition, does not mean it is right. The prime example here is that of slavery. Though a long-standing tradition, from biblical times forward, did not mean it is right.
If “tradition” is being used as the qualifier for a ruling, we could very well see SCOTUS ruling in favor of prayer in public school, the placement of the Ten Commandments on public property and in public schools and other religious ideology in the public realm.
I believe that the Constitution is a living document and must be interpreted with the times. However, there is enough evidence here that the Christian conservatives have influenced the Court’s positions concerning the Establishment Clause.
The Court needs to recognize that more Americans are declaring themselves as “Nones,” atheists and agnostics, and Evangelical Christianity seems to have taken the second seat.
As the religiosity of the country changes, so too must the interpretation of the Constitution and, in this case, the First Amendment.
Tradition is good in religion, but not in the rule of law.