The Supreme Court handed down two very surprising opinions on Thursday — and they are surprising for diametrically opposite reasons.
The first was Gundy v. United States, a case involving a wholesale attack on the constitutional order that’s prevailed in the United States since the New Deal. You can read ThinkProgress’ full report on Gundy here. The short version is that, while the constitutional order will live for another day, the court strongly suggested that its days are numbered. Today is a great day for anti-government radicals who hope to see much of the federal government burn.
The second decision is American Legion v. American Humanist Association, and the best reading of that decision is far more nuanced. One the one hand, the decision is a clear victory for Christian conservatives — it permits a massive, cross-shaped monument to remain standing on government-owned land in Maryland.
Yet Justice Samuel Alito’s opinion for the Supreme Court also does something that Alito rarely has done in the past. His opinion is reasonable, sometimes persuasive, and shows respect for the fact that the United States is a pluralistic nation where Christians should not be able to bulldoze other faiths. I personally do not find his opinion convincing. But it is one of the first major religion cases handed down by a Supreme Court that now has five hardline conservatives.
Alito could have used American Legion as a vehicle to declare total victory in a longstanding battle over whether the government can erect monuments to a particular faith. Instead, he stayed his hand at crucial junctures, and produced an opinion that is moderate enough that liberal Justices Stephen Breyer and Elena Kagan joined most of it.
American Legion also comes in the same week that the Supreme Court punted in a case seeking to give religious conservatives the right to violate civil rights laws. And it comes less than a month after the court refused to reinstate a trollish anti-abortion law signed by then-Indiana Gov. Mike Pence (R).
Something strange is going on here. As Gundy shows, the Supreme Court’s Republican bloc is neither cautious nor unafraid to threaten foundational assumptions that prop up much of American law. Yet a Supreme Court majority that probably owes its very existence to religious conservatives who will vote for any presidential candidate who will transform culture warriors into Supreme Court justices — no matter how incompetent or odious that candidate may be — is not giving its benefactors what they most desire.
I want to be careful not to exaggerate this point. Justices typically sit for decades. Absent the death of a conservative justice during a period when Democrats control both the White House and the Senate, the court’s Republican majority is likely to stick around for a while. They’re likely to get around to overruling Roe v. Wade and giving Christian conservatives a right to discriminate eventually.
There are also entirely plausible explanations for why the court’s majority is staying its hand. As Linda Greenhouse writes in an insightful column, the Supreme Court is about to come “under a bright election-year spotlight.” Chief Justice John Roberts is smart enough not to spend 2020 reminding Democrats of just how much they hate his new colleagues by picking fights over the most contentious cultural issues that come before his court. He’s got time.
Nevertheless, the fact remains that the court appears to be treating matters of interest to business conservatives and anti-government activists — groups that tend to be disproportionately wealthy — as high priorities. Meanwhile, the Republican Party’s more populist voters are being told to wait in line.
American Legion itself rests on the principle that the courts should be reluctant to dismantle longstanding monuments — even monuments shaped like a religious symbol — if those monuments have been around a long time and have taken on a secular meaning. The particular cross at issue in this case was erected in 1925, as a memorial to local soldiers who died in World War I.
Much of Alito’s opinion is dubious. Sure, he admits, the cross is “a symbol of Christianity,” but it also sometimes takes on a “secular meaning.” He then lists several corporations that use the cross in their marketing, such as “Blue Cross Blue Shield, the Bayer Group, and some Johnson & Johnson products.”
That may very well be true, but this particular case involves a giant stone cross in the middle of a busy intersection. If you were driving down the street and saw the image at the top of this column, would you believe you were looking at a symbol of Christianity or a symbol of aspirin?
Indeed, the biggest victory for religious conservatives in Alito’s opinion is that it quietly scraps the “endorsement test,” which “prohibits government from appearing to take a position on questions of religious belief or from ‘making adherence to a religion relevant in any way to a person’s standing in the political community.’” It’s hard to square that test with a decision allowing this particular cross to remain on public land. (Parts of the opinion also are highly critical of the “Lemon test,” another method the Supreme Court has used to judge government monuments, although those parts are not joined by a majority of the court.)
And yet, much of Alito’s opinion is persuasive. He devotes a great deal of it to noting just how deeply religious symbols are woven into our language and culture, and how daunting it would be for courts to extract all of them. To give just one example, “Religion undoubtedly motivated those who named Bethlehem, Pennsylvania; Las Cruces, New Mexico; Providence, Rhode Island; Corpus Christi, Texas; Nephi, Utah, and the countless other places in our country with names that are rooted in religion. Yet few would argue that this history requires that these names be erased from the map.”
The crux of his opinion, however, is that this particular cross has a secular meaning because it was erected as a war memorial at a time when images of crosses were commonly used to symbolize those killed in a world war. That would not be enough to overcome the endorsement test, but it does limit the scope of Alito’s opinion.
Even more significantly, Alito strongly suggests that newly erected monuments should be treated differently than longstanding ones. “Retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones,” he writes. “The passage of time gives rise to a strong presumption of constitutionality.”
This line will undoubtedly be cited by future lawyers who want to prevent Christian nationalist lawmakers from spending tax dollars to erect similar monuments in their cities and states.
Alito also suggests at one point that, when the government engages with religion, it must make “an honest endeavor to achieve inclusivity and nondiscrimination.” Taken seriously, this line could prevent laws that prefer one faith over another — though its worth noting that this Supreme Court hasn’t exactly done a great job of maintaining religious neutrality in other cases.
American Legion, in other words, is an incremental victory for a religious right that has received a lot of incremental victories from this Supreme Court — but that has yet to achieve the crushing wins they expected when they voted for President Donald Trump. Those victories are likely coming, but they do not appear imminent. And they may only be doled out a piece at a time.
If this slow march to Christian nationalism were happening in isolation, it would be easy to read it as a sign that at least some Republican members of the Supreme Court prefer to move cautiously. But they showed no caution whatsoever in Gundy, and they appear much more eager to move quickly when wealthy interests have a stake in the game.