A broad majority of the Supreme Court ruled on Thursday that an enormous Christian cross standing on public land, and funded by public money, does not violate the Constitution’s separation of church and state. In their written opinions, both for and against the ruling, most of the justices framed the dispute in relatively neutral terms. Justice Neil Gorsuch did not.
“The American Humanist Association wants a federal court to order the destruction of a 94 year-old war memorial because its members are offended,” Gorsuch wrote in his concurring opinion, referring to the secular group that challenged the cross. From there, he treated their arguments with clear disdain.
“The [AHA] claims that its members ‘regularly’ come into ‘unwelcome direct contact’ with a World War I memorial cross in Bladensburg, Maryland ‘while driving in the area,’” he wrote, quoting from the group’s brief. “And this, the [AHA] suggests, is enough to allow it to insist on a federal judicial decree ordering the memorial’s removal. Maybe, the [AHA] concedes, others who are less offended lack standing to sue. Maybe others still who are equally affected but who come into contact with the memorial too infrequently lack standing as well. But, the [AHA] assures us, its members are offended enough—and with sufficient frequency—that they may sue.”
Gorsuch, whose opinion was joined by Justice Clarence Thomas, sounds almost offended that anyone was offended. But it’s an important question for the court to consider: Who gets to be offended by government-funded displays of religion, and who doesn’t?
The 40-foot-tall concrete cross rises amid a busy roundabout in Bladensburg, Maryland. Local leaders built it in 1925 as a monument to soldiers who died in World War I. A local American Legion chapter owned and maintained the monument until 1961, when it donated the cross and the land underneath it to a local planning commission. Maryland today uses taxpayer dollars to provide for the cross’ upkeep.
In 2012, a group of local residents backed by the American Humanist Associated filed a lawsuit challenging the cross’ placement and funding. Federal courts have often cited the Constitution’s Establishment Clause—“Congress shall make no law respecting an establishment of religion”—to block state and local governments from using taxpayer money for religious monuments. The Fourth Circuit Court of Appeals sided with the residents last October in a 2-1 decision that the cross’ funding violated the separation between church and state.
The Supreme Court overturned that ruling in a 7-2 decision on Thursday. Justice Samuel Alito, writing for the majority, argued that the monument did not run afoul of the Constitution. “That the cross originated as a Christian symbol and retains that meaning in many contexts does not change the fact that the symbol took on an added secular meaning when used in World War I memorials,” he wrote. Alito noted that the passage of time had aided the cross’s case, writing that it had “acquired historical importance” and “become part of the community.”
Justice Ruth Bader Ginsburg read her dissent from the bench, a rare sign of deep disapproval. Only Justice Sonia Sotomayor joined it. “By maintaining the Peace Cross on a public highway, the Commission elevates Christianity over other faiths, and religion over nonreligion,” Ginsburg wrote, quoting from past Supreme Court opinions at times. “Memorializing the service of American soldiers is an ‘admirable and unquestionably secular’ objective. But the Commission does not serve that objective by displaying a symbol that bears ‘a starkly sectarian message.’”
Gorsuch went even further than the majority, disputing that the AHA and the residents it represented had the legal standing to bring the case at all. He took aim at what he calls “offended-observer standing,” whereby a litigant can sue on Establishment Clause grounds when they witness a government display of religion that might violate the Constitution. This theory of standing, Gorsuch argued, runs counter to what courts generally require. “Imagine if a bystander disturbed by a police stop tried to sue under the Fourth Amendment,” he wrote. “Or envision a religious group upset about the application of the death penalty trying to sue to stop it. Does anyone doubt those cases would be rapidly dispatched for lack of standing?”
In a footnote in her own dissent, Ginsburg wrote that Gorsuch’s stance was “startling in view of the many religious-display cases this court has resolved on the merits.” Some legal experts have noted that without this theory of standing, there would be no way for the courts to limit government displays of religion. Gorsuch seems to welcome that outcome. Abandoning the theory, he wrote, would free the Supreme Court “from the sordid business of having to pass aesthetic judgment, one by one, on every public display in this country for its perceived capacity to give offense.”
What’s striking is his repeated description of the cross’ challengers as merely “offended.” Though there’s no reason to believe that the humanists’ belief is insincere, he treats it as pedestrian. “In a large and diverse country, offense can be easily found,” he wrote. “Really, most every governmental action probably offends somebody. No doubt, too, that offense can be sincere, sometimes well taken, even wise. But recourse for disagreement and offense does not lie in federal litigation.”
So who gets to be offended and who doesn’t? In this case, Alito’s opinion for the court gives a clear answer. The cross, he wrote, “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.’” In other words, the monument survives judicial scrutiny in part because ruling otherwise could offend the wider community.
Alito concluded by recounting how the Bladensburg cross can be seen differently by residents: as a war memorial, as a historical landmark, as a symbol of the community. “For many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment,” he wrote.
In theory, the Establishment Clause requires the government to be neutral when it comes to public displays of religious beliefs. But to the majority, the cross’ absence—not its presence—is what crosses the line. Alito’s conclusion leaves out those who look at the cross and see a reminder that they don’t belong, a group that includes not just atheists but anyone who is not Christian. (The Jewish War Veterans of the USA filed an amicus brief in support of the AHA.)
The majority failed to take this into account throughout the decision. At one point, Alito argued that a religious symbol like the Latin cross—a symbol indisputably linked to Christianity and its fundamental beliefs—can be secularized. In one instance, he noted that the International Committee of the Red Cross adopted its iconic symbol in 1863 as a homage to the Swiss flag and its synonymy with neutrality. While the original Swiss flag adopted the cross for religious reasons, Alito explained, “the ICRC selected this symbol for an essentially secular reason, and the current secular message of the symbol is shown by its use today in nations with only tiny Christian populations,” including India and Japan.
It’s true that the Red Cross “shows how the meaning of a symbol that was originally religious can be transformed.” But it’s also not the whole story. The organization’s history also shows how hard it is to detach those symbols from their original connotations, and how efforts to insist otherwise can marginalize and excluded non-adherents.
Red Cross organizations in India and Japan are not run by the ICRC. They, like the American Red Cross, are members of the International Federation of Red Cross and Red Crescent Societies. According to the IFRC, the Ottoman Empire first used a red crescent during a war with Russia in 1876 because bearing a Christian symbol would be offensive to Muslim soldiers. Thirty-two national organizations in Muslim-majority countries now use the symbol in lieu of the cross. What’s more, the ICRC adopted a third symbol—a red diamond—in 2005 to resolve a long-standing dispute with Magen David Adom, its Israeli equivalent. Israel refused to adopt either the red cross or the red crescent, and the ICRC refused to recognize a red star of David as one of its symbols. The compromise allowed both the Israeli and Palestinian organizations to attain full membership.
Would it have been possible to uphold the cross’ constitutionality without undermining American religious pluralism? Maybe.
Justice Brett Kavanaugh reached largely the same conclusions as his colleagues in the majority. “At the same time, I have [a] deep respect for the plaintiffs’ sincere objections to seeing the cross on public land,” he wrote in a concurring opinion. “I have great respect for the Jewish war veterans who in an amicus brief say that the cross on public land sends a message of exclusion. I recognize their sense of distress and alienation. Moreover, I fully understand the deeply religious nature of the cross. It would demean both believers and nonbelievers to say that the cross is not religious, or not all that religious.”
But Kavanaugh did not condescend to the American Humanist Association or its members or derision for their beliefs. “A case like this is difficult because it represents a clash of genuine and important interests,” he continued. “Applying our precedents, we uphold the constitutionality of the cross. In doing so, it is appropriate to also restate this bedrock constitutional principle: All citizens are equally American, no matter what religion they are, or if they have no religion at all.”
What’s more, Kavanaugh offered a roadmap on how the humanists could still prevail. “The Court’s ruling allows the State to maintain the cross on public land,” he wrote. “The Court’s ruling does not require the State to maintain the cross on public land. The Maryland Legislature could enact new laws requiring removal of the cross or transfer of the land. The Maryland Governor or other state or local executive officers may have authority to do so under current Maryland law. And if not, the legislature could enact new laws to authorize such executive action.”
It’s not the same as ruling in their favor, of course. But it’s better than belittling them while they lose.