The Bladensburg Cross Ruling: Just the Facts, Ma’am.

The Bladensburg Cross Ruling: Just the Facts, Ma’am. June 21, 2019

The Supreme Court yesterday ruled in American Legion v. American Humanist Assn., a legal challenge to a century-old Latin cross as a war memorial in Maryland. By a 7-2 majority, the court said that this cross, despite being maintained by public money and sitting on public land, did not violate the Establishment Clause. This will be the first of probably 2 or 3 posts on the ruling and it will just lay out the basic facts of the case and the ruling. Then I’ll follow up with a deeper analysis of various aspects of this very complex ruling with five separate opinions by different justices.

First, the facts of the situation. For nearly a century, there has been a 40-foot Latin cross displayed in what is now a traffic median, on public property and maintained with taxpayer money, to honor 49 soldiers from the area killed in World War I. In 2012, a group of local residents filed a lawsuit claiming that this was essentially an endorsement of Christianity and thus a violation of the Establishment Clause. It worked its way slowly up to the Supreme Court, where that position was represented at oral argument by my friend Monica Miller from the AHA’s Appignani Humanist Legal Center. The outcome was entirely unsurprising, even though I think our side has the better arguments.

The majority opinion was written by Justice Alito and joined by Justices Thomas, Roberts, Gorsuch, Kavanaugh, Breyer and Kagan. Ginsburg and Sotomayor dissented. But among the 7 minority justices, there were multiple opinions agreeing with the outcome but disagreeing on various aspects of the reasoning. Breyer wrote a concurrence that was joined by Kagan, then Kagan also filed her own concurrence as well that no other justice joined. Kavanaugh and Thomas also filed their own separate concurrences that no other justice joined. And Gorsuch filed his own concurrence, joined by Thomas. Good luck keeping that all straight. I’ll try over the next few posts to put all of this into language that those who aren’t con law geeks like me can understand.

One of the key disagreements among the concurring opinions is what standard should apply to determine when the EC has been violated. No fewer than four separate standards are offered by different justices — the Lemon test, the endorsement test (which is kind of a spinoff from the Lemon test, first offered by former Justice Sandra Day O’Connor), the coercion test and the history test. And then there’s Thomas, who doesn’t think that the EC applies to the states at all, a very radical position that has never been taken by any other justice in our history since such challenges first began being filed.

My friend and podcast co-host Dan Ray, a con law professor emeritus, once wrote this to me:

“This really is a mess of the Court’s own making, resulting as it has from the Court’s thinly-veiled desire to force the round peg of religion into the public square. For their part, the Justices need not concern themselves with it too much. But for the rest of us – who are forced to try and make some sense of it to run schools, businesses, governments, and our daily lives – it is like a never-ending game of constitutional Whack-A-Mole.”

This case makes that mess even worse. I’ll explain more in separate posts. If you’re not feeling annoyed enough yet, you can read this full ruling here.

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