Even in refined legal circles, nothing arouses strong opinion and emotions quite like church-state separation conflicts. We learned that again today when the Supreme Court ruled a particular religious expression on public land as acceptable, but exposed deep rifts in its ranks on the underlying issues, as Harry Litman explained at the Washington Post:
The Supreme Court was able to find a small patch of common ground sufficient to resolve the Bladensburg Peace Cross case, but the various opinions in the decision announced on Thursday reveal the deepest fissures among the justices on the most fundamental questions concerning the Constitution’s establishment clause.
First the common ground: The court’s judgment, announced by Justice Samuel A. Alito Jr., permits the 40-foot cross — “undoubtedly a Christian symbol,” as Alito conceded — to stand on public land in Prince George’s County, despite the First Amendment’s protection against the establishment of religion. The basis for Thursday’s decision was a grandfathering principle: The cross was erected nearly 100 years ago and stood without controversy for 89 years. Even if it originally had a religious purpose, the court explained, the passage of time can imbue a monument with historical significance or a common cultural heritage. So, with the Bladensburg cross, which over time became integrated into the community as a solemnization of the World War I dead.
But even though seven Justices signed onto that result, they were all over the place in addressing the underlying issues, betraying significant heat beneath the dry discussion of a traditional test for weighing church-state separation disputes. Justice Thomas reiterated his eccentric belief that the Establishment Clause of the First Amendment doesn’t apply to the states at all. Justice Kavanaugh made the case that a broad array of government accommodations of religious belief have been accepted by the Court over the years. Justice Gorsuch spat contempt at the secularist challengers of the Peace Cross, arguing they had no standing to sue. As Litman notes, Justices Breyer and Kagan “view the clause as serving a religious liberty and tolerance purpose, and maintaining a separation of church and state to allow each institution to flourish.”
But the most striking and intellectually compelling argument — at least to my ears, as an observant Christian who fears the friendship of government more than its persecution — was in Justice Ginsburg’s dissent, which was joined by Justice Sotomayor. She offered a plain-spoken defense of the “wall of separation” doctrine that rejected efforts by the Court majority to treat this giant cross as somehow secular in nature:
“For nearly two millennia,” the Latin cross has been the “defining symbol” of Christianity, R. Jensen, The Cross: History, Art, and Controversy ix (2017), evoking the foundational claims of that faith. Christianity teaches that Jesus Christ was “a divine Savior” who “illuminate[d] a path toward salvation and redemption.” Lynch, 465 U. S., at 708 (Brennan, J., dissenting). Central to the religion are the beliefs that “the son of God,” Jesus Christ, “died on the cross,” that “he rose from the dead,” and that “his death and resurrection offer the possibility of eternal life.” Brief for Amici Christian and Jewish Organizations 7.6 “From its earliest times,” Christianity was known as “religio crucis—the religion of the cross.” R. Viladesau, The Beauty of the Cross: The Passion of Christ in Theology and the Arts, From the Catacombs to the Eve of the Renaissance 7 (2006). Christians wear crosses, not as an ecumenical symbol, but to proclaim their adherence to Christianity. An exclusively Christian symbol, the Latin cross is not emblematic of any other faith. Buono, 559 U. S., at 747 (Stevens, J., dissenting); Viladesau, supra, at 7 (“[T]he cross and its meaning … set Christianity apart from other world religions.”). The principal symbol of Christianity around the world should not loom over public thoroughfares, suggesting official recognition of that religion’s paramountcy.
Ginsburg sharply distinguishes this cross from the individual symbols of faith (or the lack thereof) on tombstones that memorialize the fallen, reflecting their own and their loved ones’ particular belief-systems. She is, of course, Jewish, and reached back for support to this country’s first president in a communications to the non-Christians of his own era:
In 1790, President Washington visited Newport, Rhode Island, “a longtime bastion of religious liberty and the home of one of the first communities of American Jews.” Town of Greece v. Galloway, 572 U. S. 565, 636 (2014) (KAGAN, J., dissenting). In a letter thanking the congregation for its warm welcome, Washington praised “[t]he citizens of the United States of America” for “giv[ing] to mankind … a policy worthy of imitation”: “All possess alike liberty of conscience and immunities of citizenship.” Letter to Newport Hebrew Congregation (Aug. 18, 1790), in 6 Papers of George Washington 284, 285 (D. Twohig ed. 1996). As Washington and his contemporaries were aware, “some of them from bitter personal experience,” Engel, 370 U. S., at 429, religion is “too personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by a civil magistrate,” id., at 432 (quoting Memorial and Remonstrance).
Though accommodation of religious belief is an important U.S. constitutional and civil tradition, religious folk should be the first to warn against its “unhallowed perversion,” which has been a hallmark of authoritarian and even totalitarian regimes over the centuries. Maintaining the integrity of faith alongside the rights of those with a different or with no religion is worth all the government altars to this or that tradition ever built.