If you need quickie background on this dispute, I’ve got you covered. I wrote about oral arguments in this case in February, noting how surprisingly skeptical even Breyer and Kagan sounded about the position of the cross’s opponents.
Now here we are four months later and Breyer and Kagan have sided with the Court’s conservatives in leaving the cross in place. Whaddaya know — sometimes you can read the tea leaves in oral arguments.
There are 87 pages of opinions here and, as tends to happen in Establishment Clause cases, even the majority has splintered among a variety of fine legal distinctions. The syllabus, the summary of the Court’s holdings that appears before the opinion in tiny print, is seven pages long, for fark’s sake. But it’s clear enough what the two major takeaways are from today’s ruling. One: The Court doesn’t want to be bothered anymore with questions about longstanding religious monuments on public land. If the state puts up a *new* religious symbol in 2019 on public property, that’s one thing. But the symbols that have been there for awhile? They’re all “strongly presumed” to be constitutional now. Leave SCOTUS alone with these headache-inducing Establishment Clause quandaries from now on.
There follows a long explanation about how the giant Peace Cross, although a religious symbol, has also taken on “added secular meaning” over time thanks to its associations with war, with the various commemorations held there, and so on. That is, says the Court, older religious monuments can acquire certain broader cultural connotations that muddy the ol’ theological waters for Establishment Clause purposes. The Court is fashioning a compromise here by focusing on the cross’s age, siding with those who support having religious symbols on public land by grandfathering in all existing ones as constitutional while siding with those who oppose such monuments by nudging state governments not to get any funny ideas from this case about erecting a bunch new crosses in the belief that SCOTUS will look the other way at that.
The other major holding: The Court’s “Lemon test” for Establishment Clause cases is finally — mostly — dead. The Lemon test, as I explained in the February post, asked lower courts presented with cases like this one to look at the purpose of the monument, the effect on the viewer, and whether the monument “entangles” the state with religion excessively in judging whether it violates the First Amendment. SCOTUS itself hasn’t always applied that test consistently in Establishment Clause cases, though, with various justices grumbling over the years that they should just abandon the damned thing already and come up with a new test for such cases. They’ve now done that, sort of. Although six justices agreed today that Lemon should be scrapped, only four were able to agree on what to do going forward in cases involving religious monuments on public land. Alito, Roberts, Kavanaugh, and Breyer went this route:
No more Lemon test for “monuments” cases, say those four … but it’s unclear, from what I can tell, if they’d keep Lemon around for other sorts of Establishment Clause cases, like when a state legislature opens with a religious prayer. In his concurrence, Clarence Thomas encouraged the Court to just scrap Lemon entirely. It’s too confusing and has no basis in the original understanding of the Constitution. Neil Gorsuch also agreed that Lemon is no way to go in Court, but his reasoning (joined by Thomas) is more basic. Lemon should be scrapped not because it’s confusing, he argued, but because it implicitly endorses the idea that someone should have standing in court to sue over a religious symbol on public land just because they’re personally offended by it. What kind of goofy “injury” is that? People are offended by everything!
Gorsuch didn’t endorse the new Alito/Roberts/Kavanaugh/Breyer test for religious monuments because he’s worried that it’s still too vague. If “old” monuments are constitutional, what qualifies as not old enough? A monument from 2018? From 2000? He’d rather be done with this entire area of jurisprudence. Big finish:
Righties will love him for that, but only he and Clarence Thomas formally endorsed that view today. The Court will continue to pass judgment on the constitutionality of religious symbols on public land. Just with a much stronger presumption that there’s no Establishment Clause problem than they did before.