“The cross came into widespread use as a symbol of Christianity by the fourth century, and it retains that meaning today. But there are many contexts in which the symbol has also taken on a secular meaning. Indeed, there are instances in which its message is now almost entirely secular,” US Supreme Court justice Samuel Alito writes in American Legion v. American Humanist Association (pdf), decided today.
Alito’s assertion in a case challenging the 32-foot Bladensburg Peace Cross—mounted on an 8-foot tall pedestal on public land in Maryland as a tribute to World War I veterans in 1925—will no doubt come as a surprise to many. But according to the Catholic justice, everyone knows that the cross isn’t just a religious symbol, as evidenced by the fact that brands like Blue Cross Blue Shield use it in their trademarks and that people of all faiths the world over mourned when Notre Dame Cathedral burned. He writes:
Although the French Republic rigorously enforces a secular public square, the cathedral remains a symbol of national importance to the religious and nonreligious alike. Notre Dame is fundamentally a place of worship and retains great religious importance, but its meaning has broadened. For many, it is inextricably linked with the very idea of Paris and France. Speaking to the nation shortly after the fire, President Macron said that Notre Dame “is our history, our literature, our imagination. The place where we survived epidemics, wars, liberation. It has been the epicenter of our lives.”
The slew of concurrences supporting Alito shows just how tricky the issue was, however, and indicates that it’s not so obvious the cross isn’t just a Christian symbol. Seven justices agreed the monument should stand, but each wanted to say their piece about the Peace Cross and why it did not violate the First Amendment’s mandate to separate church and state. And they didn’t align on the issues according to their personal faiths.
Justice Stephen Breyer, who is Jewish, noted that there was no evidence to suggest that the creators of the war memorial “sought to disparage or exclude any religious group.” He too argued that the cross stands for secular values, like patriotism and commemoration.
However, Brett Kavanaugh, an avowed Catholic, wasn’t quite buying that claim. He too supported Alito’s decision but wrote a concurrence. “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,” he writes. “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.”
Meanwhile, Neil Gorsuch—who is possibly Episcopalian—also wrote a concurrence, agreeing with Alito’s conclusion but questioning the case’s existence. He wasn’t sure that “offended observers” even had a right to challenge the monument’s presence to begin with.
Elena Kagan’s concurrence seemed to want to smooth any ruffled feathers. The Jewish justice noted that the Court’s decision reflects “sensitivity to and respect for this Nation’s pluralism, and the values of neutrality and inclusion that the First Amendment demands.”
Clarence Thomas, a devoted Catholic, also concurred. In his opinion, the Establishment Clause shouldn’t even be applied to states. He wasn’t certain that the cross in question could be challenged constitutionally, but agreed that if so, this monument passes constitutional muster. Still, Thomas was disappointed that his colleagues didn’t adequately clarify what standard should be used in future cases like this one, snubbing Alito’s opinion even while supporting his decision.
Only Ruth Bader Ginsburg and Sonia Sotomayor would have resolved the case differently. Ginsburg, who is Jewish, dissented, joined by Sotomayor, who is Catholic. The Jewish justice schooled her colleagues in basic Christian theology, explaining, “The Latin Cross is the foremost symbol of the Christian faith embodying the central theological claim of Christianity: that the son of God died on the cross, that he rose from the dead, and that his death and resurrection offer the possibility of eternal life.”
She accused her colleagues of sending “a starkly sectarian message” with their decision. Ginsburg writes, “[M]aintaining the Peace Cross on a public highway…elevates Christianity over other faiths, and religion over nonreligion.” This monument on Maryland public land is, in her view, clearly a Christian symbol maintained by the state and in violation of the Establishment Clause.