Bladensburg Cross

Chad Pecknold writes on the U.S. Supreme Court’s Bladensburg Cross ruling:

The question of why the Bladensburg Cross should stand is inseparable from the question of whether it violates the Establishment Clause which prohibits the Federal government from establishing an official religion, or from favoring one religion over others. …

Justice Alito remarked in the first section that a Christian symbol can accrue additional symbolic meanings which are not in themselves religious. Alito writes:

“The fact that the cross is undoubtedly a Christian symbol should not blind one to everything else that the Bladensburg Cross has come to represent: a symbolic resting place for ancestors who never returned home, a place for the community to gather and honor all veterans and their sacrifices for this Nation, and a historical landmark. For many, destroying or defacing the Cross would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.” …

Justice Gorsuch takes the judgment further, joined by Justice Thomas, in a concurring opinion. He writes that the “offended observer” theory, which the American Humanist Association based their case on in part — so deeply does the cross offend them as they drive by — “has no basis in law.” It’s not enough to be offended. There has to be injury that is “concrete and particularized,” and no one is injured by seeing a cross. …

“Although the plurality does not say it in as many words, the message of today’s decision for the lower courts must be this: whether a monument, symbol, or practice is old or new, apply Town of Greece v. Galloway, 572 U. S. 565, not Lemon, because what matters when it comes to assessing a monument, symbol, or practice is not its age but its compliance with ageless principles. Pp. 6–9.” [Emphasis not in original]

Now ageless principles can well be philosophical or theological, and they can be arrived at by reason unaided by the act of faith, or by divine revelation. But what Gorsuch does here strikes me as important because he recognizes a non-positivist standard. I don’t know exactly how Gorsuch would develop this standard, but he is right that law must not become relativistic. The Establishment Clause was made to protect religion — indeed, Christian religion — from excessive government interference. It recognized the substantive good of religion as something which is more than just “history and tradition” but as something which orients us to what is permanently true. In this sense, Gorsuch recognizes that the more modest test should not privilege “secular purpose” but respect transcendent principles.

An important case for religious liberty, and interesting to see both the “history and tradition” and “ageless principles” standards being articulated as a means for restraining the government from destroying public religious symbols.