The Supreme Court seems to be developing a new test that respects transcendent principles.
“The cross is undoubtedly a Christian symbol,” Justice Alito remarked in his lead opinion defending the 32-foot-tall Latin Cross, erected in 1925 in Bladensburg, Maryland in memory of 49 area soldiers.
Just imagine their world, only a hundred years ago. Americans sacrificed their lives for the common good of their country, and so their friends and fellow citizens erected a Cross, the highest monument of sacrifice in history. They gave those 49 men, black and white, none of them segregated in sacrifice, service, or honor, the most elevated meaning they knew. The cross is at the very heart of Christianity. The cross is a monument to how Christians face suffering — we pray that in uniting our suffering to His, we too may join Him in glory. So it must have been one hundred years ago, “undoubtedly a Christian symbol.” Today it is a stumbling block, once again. But by a 7-2 vote, the Supreme Court of the United States has ruled that it is constitutional that it should stand.
The question of why the Bladensburg Cross should stand is inseparable from the question of whether it violates the Establishment Clause which prohibits the Federal government from establishing an official religion, or from favoring one religion over others. So the Justices had to wrestle with the question of whether the Cross privileges Christianity — and they found a number of ways to do this without denying the very obvious fact that it does.
Justice Alito remarked in the first section that a Christian symbol can accrue additional symbolic meanings which are not in themselves religious. Alito writes:
“The fact that the cross is undoubtedly a Christian symbol should not blind one to everything else that the Bladensburg Cross has come to represent: a symbolic resting place for ancestors who never returned home, a place for the community to gather and honor all veterans and their sacrifices for this Nation, and a historical landmark. For many, destroying or defacing the Cross would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.”
Cities which were named by Catholic missionaries, such as San Diego, San Francisco, Sacramento, or Los Angeles are very clearly names which are derived from Catholic piety, but so many new associations have been added to these names over the course of time, and human memory, that no one would ever suggest that the names of these cities privilege Christianity despite being rooted in it. We might call Alito’s standard the “history and tradition” test.
Alito seems interested here in developing a new standard to replace the three-part Lemon v. Kurtzman Test, which “ambitiously attempted to fashion a test for all Establishment Clause cases,” by proving “secular purpose,” neither advancing or inhibiting religion, and not resulting in any excessive entanglement of government in religion. In places, he appeals to aspects of the Lemon test, suggesting at one point that removing the cross would be “aggressively hostile” to Christianity, and so removing it would count as “inhibiting” religion, but generally Alito gives the strong impression that the 1971 Lemon test is no longer valid. So why doesn’t the Court actually overrule Lemon?
Justice Gorsuch takes the judgment further, joined by Justice Thomas, in a concurring opinion. He writes that the “offended observer” theory, which the American Humanist Association based their case on in part — so deeply does the cross offend them as they drive by — “has no basis in law.” It’s not enough to be offended. There has to be injury that is “concrete and particularized,” and no one is injured by seeing a cross.
Gorsuch finally argues that “Lemon…was a misadventure” that the Court no longer follows. Now that sounds very much like “overruled” but, as Gorsuch admits, the plurality doesn’t come out and say Lemon has been overruled. Gorsuch writes that instead of following Lemon, “the Court today relies on a more modest, historically sensitive approach, interpreting the Establishment Clause with reference to historical practices and understandings. The monument here is clearly constitutional in light of the nation’s traditions.” This backs away from “the secular purpose” test of Lemon, and concurs with Alito’s history and tradition standard. But then Gorsuch adds to this historicist standard what we might call the “ageless principles” standard.
“Although the plurality does not say it in as many words, the message of today’s decision for the lower courts must be this: whether a monument, symbol, or practice is old or new, apply Town of Greece v. Galloway, 572 U. S. 565, not Lemon, because what matters when it comes to assessing a monument, symbol, or practice is not its age but its compliance with ageless principles. Pp. 6–9.” [Emphasis not in original]
Now ageless principles can well be philosophical or theological, and they can be arrived at by reason unaided by the act of faith, or by divine revelation. But what Gorsuch does here strikes me as important because he recognizes a non-positivist standard. I don’t know exactly how Gorsuch would develop this standard, but he is right that law must not become relativistic. The Establishment Clause was made to protect religion — indeed, Christian religion — from excessive government interference. It recognized the substantive good of religion as something which is more than just “history and tradition” but as something which orients us to what is permanently true. In this sense, Gorsuch recognizes that the more modest test should not privilege “secular purpose” but respect transcendent principles.
I don’t know why the Court didn’t just overrule Lemon. It does seem that they have, in the words of the syllabus, “shelved” it. What they seem to be developing in American Legion is a new test which gives greater deference to our first and highest freedom.