The large cross that was on public land in a busy intersection in Bladensburg, Maryland and is maintained at taxpayer expense has been the target of litigation for some time. Its continued presence had been challenged by the American Humanist Association, the Freedom From Religion Foundation, and the Center for Inquiry. A US District Court judge had initially ruled that the cross did not violate the Establishment Clause but the First Circuit Court of Appeals in a 2-1 ruling overturned that ruling and said it had to come down.
But today the US Supreme Court reversed that decision yet again so the cross can stay. You can read the 7-2 majority opinion by justice Samuel Alito and the dissent by Justices Ruth Bader Ginsburg and Sonia Sotomayor here.
I am disappointed but not really surprised by this decision. Even before the Greece v. Galloway case that upheld opening prayers at government meetings, it has been clear that the Supreme Court is very reluctant to inflame religious opinions by demanding the elimination of symbolic expressions of religion. In his opinion, justice Samuel Alito invoked the same argument that the court uses when it does not want to eliminate some religious symbol that has been around for some time, by saying that over time it had essentially become secular and drained of any religious significance. This is the same thing said in retention of “In God We Trust” on the currency.
Such assertions of secularity can be interpreted as the court agreeing, in a backhanded way, that this is a secular nation. Of course, religious people do not see it in the same light. They see these allegedly secular symbols as actually a statement about the Christian nature of this country and view the rulings as endorsement of that view.
There is also a distinction between removinglongstanding symbols of religiosity and placing new ones. We have seen for example that putting new Ten Commandments monuments in public spaces now has met with greater resistance from the courts than removing old ones. As Alito wrote, there is a “presumption of constitutionality for longstanding monuments, symbols, and practices” and went on:
For nearly a century, the Bladensburg Cross has expressed the community’s grief at the loss of the young men who perished, its thanks for their sacrifice, and its dedication to the ideals for which they fought. It has become a prominent community landmark, and its removal or radical alteration at this date would be seen by many not as a neutral act but as the manifestation of “a hostility toward religion that has no place in our Establishment Clause traditions.” [My emphasis-MS]
Changing the status quo is harder and causes much more controversy than maintaining it and the court strives to find reasons to not do so. This results in the court tying itself up in knots to justify the status quo and explain why some religious symbols are allowed and others not, leaving confusion in its wake, when drawing a clean line between religion and state (as justice William Brennan advocated) would simplify things considerably.
It will be interesting to see how the court would rule if some group wanted to put up a new cross on public land. I would not be surprised to see some religious group in a conservative community try to do just that.