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 this rationale, to which seven justices signed on, merely papered over for now remarkably fundamental differences about how the court should approach such establishment-clause cases — and even about the basic purposes of the clause, which cryptically provides that “Congress shall make no law respecting an establishment of religion.”
Establishment-clause cases typically arise in one of five or so discrete factual settings, such as monuments on public property, tax exemptions for religious organization, or prayer in schools. In the 1971 case of Lemon v. Kurtzman, the court attempted to promulgate an all-encompassing test to cover the various scenarios. The Lemon test asks whether government conduct has the purpose and effect of promoting religion or fosters excessive entanglement with religion.
For many years, though, Lemon has been pilloried by conservative scholars and judges, in particular, who see it as amorphous and overly hostile toward religion. And, in the Peace Cross case, the four most conservative justices — Alito, Clarence Thomas, Neil M. Gorsuch and Brett M. Kavanaugh — pulled no punches in dismissing Lemon’s continuing viability and calling for it to be finally kicked to the curb. Gorsuch went so far as to say that the test had been “shelved.”
So, lesson No. 1 of the opinion is that Lemon survives, if at all, on the barest of life support and litigants in the court and the lower courts should invoke it at their peril.
Nobody on the court has suggested a replacement for Lemon’s umbrella test, however. So lesson No. 2 of the opinion is that establishment-clause jurisprudence remains balkanized, a collection of individual silos for different fact patterns that don’t communicate with one another. That is a viable state of affairs, but a very odd one for the first clause of the First Amendment of the Bill of Rights.
It’s not as though the justices don’t have ideas about the underlying meaning and purpose of the establishment clause. Rather, they do, but they are at near-violent opposition. So, at this otherwise mature point in constitutional understanding, we have the striking feature that the justices come from different planets concerning their views of the provision.
Thus, the underlying principle in Thomas’s concurring opinion is that the clause prevents only coercion of worship of a specific religion and doesn’t even apply to state governments. This appears to be Gorsuch’s view, as well. Justice Ruth Bader Ginsburg understands the clause as incorporating a neutrality principle among religions, and between religion and nonreligion. Justices Elena Kagan and Stephen G. Breyer 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.
Perhaps the court can continue to treat the establishment clause as a silo farm, but it’s equally likely that cases in future terms will push on the fissures in the justices’ views and force some resolution — likely a bitter and narrowly divided one — over the basic question of the purpose of the establishment clause. And judging by the overall trends on the court, the likely result will be to permit significantly more government support for religion in American public life.