Today, the United States Supreme Court ruled that the Bladenburg “Peace Cross” does not violate the Constitution. Seven Justices agreed with that result and only two – Ginsburg and Sotomayor – disagreed. That is encouraging.
Seven of the justices wrote to share their thoughts; only Chief Justice Roberts and Justice Sotomayor declined to write.
In my view, the best opinion was that of Justice Thomas, followed closely by Justice Gorsuch.
Thomas – true to the text of the Constitution – makes two main points: (1) that the Establishment Clause was never incorporated against the states and that to do so would destroy the meaning of the Establishment Clause, and (2) that the horrible Lemon test should be expressly overruled.
Gorsuch points out that – not only does the cross not violate the Constitution – but there should not even be a lawsuit because the so-called “plaintiffs” do not have standing to sue. They were merely “offended observers.” If all “offended observers” who are not legally injured were allowed to sue, then every political disagreement would enable the losing side to claim “offense” and file a lawsuit.
Alito’s majority/plurality opinion was, I suspect, not as strong as Alito would write if he were not gathering a seven-justice consensus on the result – which was not an easy feat (his opinion won the votes of the normally liberal justices: Breyer and Kagan). Under the circumstances, Alito does well in navigating the case, making good points while attempting to minimize concessions.
I would have preferred that Alito write a stronger “plurality” opinion without the votes of Breyer and Kagan. Thomas and Gorsuch concurred in the judgment so he would have still had five votes to keep the cross – but there is still much good in Alito’s consensus opinion.
Justice Kavanaugh’s opinion is mixed; it is excellent when he states that the Lemon test is “not good law and does not apply to Establishment Clauses cases,” but disappointing when he departs from the judicial role and explains how the political branches may remove the cross or transfer ownership through executive or legislative action.
Roberts did not write but concurred in Alito’s entire writing.
Justice Kagan concurs in most of Alito’s opinion but not in the portions that were strongly critical of Lemon. She writes separately to state that she wants to keep the Lemon test for other cases.
Justice Breyer concurs in all parts of Alito’s opinion but wrote separately. He seems to want to limit the damage to the left by indicating that – while this cross was constitutional – newer or other cross memorials might not be permissible.
Justice Ginsburg writes a dissent focused heavily on the fact that the cross is the foremost symbol of Christianity proclaiming that Jesus “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 believes that fact makes the cross constitutionally impermissible. Sotomayor joins Ginsburg’s opinion – but thankfully Kagan, Breyer, Kavanaugh, Roberts, Alito, Gorsuch and Thomas do not. That is good news indeed.
Overall, I see this case as a massive step toward the manifest restoration of our National Relationship with God. There is yet progress to be made and the future addition of another constitutionalist judge in the mold of Thomas or Gorsuch will make a massive, massive impact.