WASHINGTON — The U.S. Supreme Court served up a major win for religious-freedom advocates, ruling that a cross commemorating fallen World War I soldiers could remain on state land.
Issued June 20, the 7-2 decision in American Legion v. American Humanist Association ruled that a 40-foot “Peace Cross” memorial in Bladensburg, Maryland, did not violate the Establishment Clause and could remain in place, signaling the justices’ growing unease with legal precedent on similar First Amendment disputes.
“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,” stated Justice Samuel Alito, writing for the majority. “For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our nation.”
But whether the memorial’s enduring power was religious or secular, Alito concluded that its removal “would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.”
Alito sought to distinguish between the historic legacy of the large cross, which had been erected on private land that later became state property, and more recent attempts to establish new, distinctively Christian symbols in public spaces.
“The passage of time gives rise to a strong presumption of constitutionality,” he said of the memorial, which was built in 1925 with funds from local families and the American Legion and marked the deaths in World War I of 49 Prince George County soldiers.
He sought to drive this point home by pointing to the striking public reaction to the recent fire that damaged Paris’ Notre Dame Cathedral, a Catholic place of worship whose significance had “broadened” over time.
The ruling drew praise from legal experts seeking a more expansive approach to Establishment Clause cases by the court.
“It was a strong win for religious liberty,” Carrie Severino, the chief counsel and policy director of the Judicial Crisis Network, a conservative legal advocacy group, told the Register.
Severino was particularly gratified that a number of justices took aim at the so-called “Lemon test,” a reference to the 1971 decision that provided a three-part framework for determining when such religious symbols violated the Establishment Clause.
Severino noted that “Justices Kavanaugh, Gorsuch and Thomas wrote separately to say this is bad law, and that reflects real progress.”
Justices Ruth Bader Ginsburg and Sonia Sotomayor both dissented, with the former charging that the majority decision “erodes” legal precedent that “demands governmental neutrality.”
Monica Miller, the lawyer for the American Humanist Association, an atheist group that sued for the removal the cross, downplayed the legal defeat.
The cross’ supporters were “hoping for a complete upheaval of the separation of church and state,” Miller contended in a statement released after the decision was issued, but got a “narrow” ruling instead.
Perhaps, but the Supreme Court communicated on June 28 that the ruling will have an immediate impact on some similar cases, instructing that a lower court must reconsider its decision that ordered the removal of a World War II-era monument in Pensacola known as the Bayview Cross.
“The Supreme Court’s order is an encouraging sign that the Bayview cross can stay in Pensacola just like the Peace Cross can stay in Maryland,” Luke Goodrich, vice president and senior counsel at Becket, which represents the City of Pensacola in the case, said in a press release. “We fully expect the lower court to follow the Supreme Court’s lead.”
On the final day of the term, the court also issued rulings in two closely-watched cases, one challenging the Trump administration’s efforts to insert a citizenship question into the upcoming U.S. Census questionnaire, and the other reviewing the constitutionality of partisan gerrymandering.
In April, the U.S. bishops had registered their concerns about the census case, Department of Commerce v. New York, echoing the position of Democrats and immigrant groups, who had warned that the addition of a citizenship question could discourage households with undocumented people from participating in the census, and thus produce an inaccurate headcount.
“The Catholic Church and other service providers rely on the national census to provide an accurate count in order to effectively serve those in need,” Bishop Frank Dewane of Venice, Florida, chairman of the Committee on Domestic Justice and Human Development, said in a USCCB statement released in April.
The White House had strongly defended the citizenship question, arguing that it would help the administration enforce the Voting Rights Act. But Chief Justice John Roberts, writing for the majority in the 5-4 decision, and joined by the court’s four liberal justices, was clearly skeptical of the White House’s argument, while sending the case back to a lower court for review. Because of the time that will be required to undertake that review, the decision effectively prevents the inclusion of the citizenship question in the 2020 census.
“We do not hold that the agency decision here was substantively invalid,” the chief justice wrote, hinting, that the administration might have wiggle room to provide a stronger defense of the question. “But agencies must pursue their goals reasonably. Reasoned decision-making under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.”
Justices Gorsuch and Kavanaugh joined a partial dissent written by Justice Thomas.
Justice Alito wrote a separate partial dissent that raised questions about the message the court was sending. He argued that “the federal judiciary has no authority to stick its nose into the question whether it is good policy to include a citizenship question on the census or whether the reasons given by [Commerce] Secretary Ross for that decision were his only reasons or his real reasons.”
The court’s ruling in the partisan gerrymander cases, Rucho v. Common Cause and Lamone v. Benisek, was more decisive: the June 27 opinion clearly barred legal challenges to the practice.
“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” stated Chief Justice Roberts writing for the majority, and joined by Justices Alito, Gorsuch, Kavanaugh and Thomas.
“Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution and no legal standards to limit and direct their decisions,”
The practice of state legislatures drawing up voting districts that give one party more power has been adopted by both Republicans and Democrats. But the GOP presently controls the majority of state houses, and thus the tactic has become a critical issue for Democrats, who filed legal challenges in court. “The practices challenged in these cases imperil our system of government,” wrote Justice Kagan in a dissenting opinion. “Part of the court’s role in that system is to defend its foundations. None is more important than free and fair elections.”
On June 24, citing First Amendment grounds, the court also ruled that a federal law prohibiting the registration of “immoral” trademarks should be overturned.
In Iancu v. Brunetti, Justice Kagan acknowledged the offensive nature of the trademark involved (a clothing brand with an obscene sounding name), writing for the majority in the 6-3 ruling. But she still concluded that the First Amendment barred a federal statute that “disfavors certain ideas.”
Justice Alito, in a concurrence, linked the trademark case to other examples of viewpoint discrimination. “Viewpoint discrimination is poison to a free society,” wrote Alito. “But in many countries with constitutions or legal traditions that claim to protect freedom of speech, serious viewpoint discrimination is now tolerated, and such discrimination has become increasingly prevalent in this country.”
The court’s term featured other important decisions dealing with double jeopardy (Gamble v. United States, with the court ruling that the same case could be tried in state and federal court, and racial discrimination, with Flowers v. Mississippi, striking down in the conviction of a black man on four charges of murder because of the exclusion of some African-Americans from the jury that heard his case.
As the term came to a close, the Bladensburg Cross decision remained the most significant opinion this term for Americans concerned about life and religious-freedom issues, despite hopes that a new conservative majority might have a more substantial impact this term, following Justice Brett Kavanaugh’s arrival on the court after a tumultuous Senate confirmation battle in September.
“Conservative hopes and liberal fears were both unrealized this term, as the anticipated effects of adding Brett Kavanaugh to a court recently joined by Neil Gorsuch were simply less than what many thought they would be,” Gerard Bradley, a constitutional scholar at the University of Notre Dame law school, told the Register.
“The court took no significant action on ‘transgender’ issues, turning down review of the Boyertown case, where the question of public high-school students’ access to bathrooms was squarely presented and well-litigated,” he said.
The justices also declined an appeal to reinstate an Indiana law that barred abortions for the express purpose of selecting the sex of the child or preventing the birth of a child with a disability. But the court did allow part of the Indiana statute, which directed abortion businesses to bury or cremate fetal remains, to stay on the books.
The court’s unsigned three-page ruling in the case, Box v. Planned Parenthood of Indiana and Kentucky, noted that the directive on fetal remains should not be framed as a ruling on the constitutionality of legal abortion.
Responding to the frustration of pro-life Americans who had hoped the court would issue a ruling that would uphold restrictions on legal abortion, Bradley suggested that the “conservative” justices were “independent-minded” and would not “act like a ‘bloc,’” signing on to opinions in lockstep. To bolster this point, he cited the outcome of several criminal-procedure cases that he viewed as generally “sound” but that did not “split along strict liberal/conservative lines.”
Still, Bradley said it was reasonable to “expect the court to open up the way for more restrictive state abortion laws, given its present composition.”
Looking ahead, he will be carefully watching “the justices’ decisions about which cases to hear in the next term and then the term after that, before the possibility of renewed Democratic appointments to the court changes the court yet again.”
Joan Frawley Desmond is a Register senior editor.