In a 7-2 ruling issued Thursday morning, the Supreme Court ruled that a war memorial in the form of a 40-foot cross on public land does not violate the Establishment Clause of the First Amendment.
“The Religion Clauses of the Constitution aim to foster a society in which people of all beliefs can live together harmoniously,” the court ruled, “and the presence of the Bladensburg Cross on the land where it has stood for so many years is fully consistent with that aim.”
Justice Samuel Alito wrote the opinion for the court majority, which based the constitutionality of the Maryland cross on the fact that the monument itself has been around for a while. “The passage of time gives rise to a strong presumption of constitutionality,” he wrote — and that the cross is not just a Christian symbol in this context.
“The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent,” the ruling says, citing a list of examples. “For all these reasons, the Cross does not offend the Constitution.”
One of the major questions for religious liberty advocates in this case was whether or not the Supreme Court would overrule the infamous “Lemon test,” which has been used as a standard in these cases for decades. Instead of eliminating the test, however, the opinion merely limited its use.
Justices Neil Gorsuch and Clarence Thomas, however, wrote a concurring opinion that said that the case shouldn’t even have gotten to the Supreme Court in the first place, writing that “it follows from the Court’s analysis that suits like this one should be dismissed for lack of standing.”
The pair of Republican appointees contended that merely being offended by a public monument shouldn’t give someone legal standing to sue over it.
“In a large and diverse country, offense can be easily found,” the two conclude. “Really, most every governmental action probably offends somebody. … But recourse for disagreement and offense does not lie in federal litigation.”
Justices Ruth Bader Ginsburg and Sonya Sotomayor dissented.
“This is a landmark victory for religious freedom,” said First Liberty chief Kelly Shackelford, whose organization defended the cross in the case, in a statement emailed to CR. “The attempted perversion of our Constitution is now over, and every American now has more freedom than they have had in decades, with a government no longer hostile to people or expressions of faith.”
This ruling is the second major SCOTUS victory this week for religious liberty, following the remanding order which threw out a six-figure fine against a family of Christian bakers from Oregon on Monday.