By Mathew Goldstein
It appears that Justice Breyer may want to avoid a decision that the Bladensburg Cross violates the EC. Maybe he thinks that voters will retaliate and vote Republican in future elections. At the same time it appears that he does not want government favoring Christianity over other religions. This could explain why he argued as follows: “What about saying past is past ... but no more?” On the one hand “we’re not going to have people trying to tear down historical monuments,” but on the hand “we are a different country now” that is more pluralistic. The 2015 National Defense Authorization Act established the World War I Centennial Commission, which was given the authority to build a memorial in Pershing Park in Washington, D.C., so it’s not as if absent this particular memorial there would be no WWI memorial in this area. Nor would the expense of maintaining this old memorial likely be much different from the expense of replacing it given it’s decrepit condition.
Justice Sotomayer, to her credit, pointed out that there are few government sponsored large crosses across the nation. “We don’t have a long tradition of that. It’s sectarian.” she said. But the current Supreme Court majority was nominated by Republican presidents. And the Republican party has been ambivalent at best, antagonistic at worst, towards non-establishment of religion for as long as anyone alive today has lived. Non-establishment of religion entails refraining from citing Jesus or a God in the laws and government documents. For people who live and breath Jesus, or a God, non-establishment of their religion can easily be misperceived as being threatening or destructive.
Existing precedent favors a ruling against the Bladensburg Cross. Although the Supreme Court has allowed unequivocally sectarian Ten Commandment displays, with some assistance from Justice Breyer’s search for excuses to allow sectarian displays while denying that the concessions further weaken the already diminished EC, it has been less accommodating of crosses. This distinction between the Ten Commandments and crosses makes little sense, they are both sectarian. Allowing government sponsored Ten Commandment displays is a mistake. Mistake by mistake, the unpopular EC is being eroded by the Supreme Court.
At the same time it is necessary to consider the overall context of the displays as Justice Breyer advocates. So, for example, the frieze on the Supreme Court building that depicts multiple “historical” figures from different times, places, and religions, is about the history of the development of laws and therefore the depictions of Hammurabi, Moses, Muhammad, etc. is not an establishment of religion. There is no Babylonian or Jewish or Islamic religious iconography or any depictions of past law makers from different times and places accompanying the Bladensburg Cross. There was no proper reason for the Supreme Court to take this case.
Maybe we will get a positive ruling in this case. I hope so. The introduction of the EC was one of the big advances in human government. China has an establishment of atheism which is consistent with its authoritarianism. Non-establishment of religion is a democratic limitation on government power. It is tragic to witness the EC being attacked and weakened in its country of origin. This is a symptom of the reality that the future of democratic government has not been secured.
Yet there has been some recent progress in reducing establishments of religion in some European countries. It is encouraging to witness people pursuing this lawsuit and advocating for the EC. Our world can be a better place and the EC has a role in making it so.