By a resounding vote of 7 to 2, the Supreme Court ruled Thursday that the 40-foot-tall Bladensburg Peace Cross may continue to stand on a patch of public property in Prince George’s County, Md. The decision was a victory for constitutional common sense. Rejecting the purist brand of secularism advanced by the cross’s opponents, led by the American Humanist Association, the majority — which included conservative Republican appointees, as well as two Democratic appointees, Stephen Breyer and Elena Kagan — interpreted the First Amendment prohibition on religious establishment flexibly.
To them, it requires not the purging of religious symbolism from the American landscape but careful, contextual consideration of the many such installations that are already in place.
Written by Justice Samuel Alito, the majority opinion acknowledged that the Latin cross, of which the Peace Cross is an example, undeniably symbolizes the Christian faith. Still, at the time it was erected — in the aftermath of World War I — that symbol also had acquired an arguably more universal and secular meaning, derived from the ubiquitous crosses that marked temporary U.S. soldiers’ graves in Europe. This history, coupled with the fact that the Peace Cross has stood so long — long enough, in fact, for its original meaning to become subject to modern reinterpretation — created a strong presumption against viewing it as a strictly religious installation, much less an unconstitutionally religious one.
This important ruling did not quite overturn the court’s modern doctrine on the establishment clause, created in 1971, which has — unsuccessfully, for the most part — attempted to evaluate public policies based on their secular purpose, or lack thereof; whether they advanced or inhibited religion; and whether they created an “excessive government entanglement with religion.” The ruling did, however, reshape the law, advancing an approach similar to the one Breyer has long advocated, that the court should evaluate challenged policies based on whether they fit “the basic purposes” of the First Amendment.
Those purposes, as Breyer, joined by Kagan, also noted, are: to reduce religious-based conflict; to assure liberty and tolerance for believers and nonbelievers alike; and to avoid corrupting either government or religion by inappropriate overlap between the two. It’s a rough-and-ready doctrine, to be sure. Purists may not be satisfied with what the court has just done. Pragmatists — which is to say, most Americans — probably will be.
FROM AN EDITORIAL IN THE WASHINGTON POST