Between winning and losing, winning is usually preferable. But that’s about as much as you can say right now for the Supreme Court’s Peace Cross decision and its impact on religion. The 7-2 ruling leaves the memorial cross standing, but church-state jurisprudence is no clearer than it was before the June 20 decision and could even be a tad more obscure.
To be sure, that isn’t the universally held assessment of what the Supreme Court did. The contrary view is that in saying the cross can stand where it has stood for 94 years, the court laid the groundwork for eventual repudiation of a widely scorned rationale that has guided — or, as many would say, confused — its reasoning on relations between church and state since 1971.
One can only hope that’s so. Meantime the court’s position on the Establishment Clause remains, as Justice Neil Gorsuch eloquently put it in his concurring opinion, “a mess.”
Here a little background may help.
The Supreme Court’s new decision, in a case called American Legion v. American Humanist Association, concerned a 40-foot granite and cement Latin cross that since 1925 has stood on the median of a busy highway in the Washington, D.C., suburb of Bladensburg, Maryland. The cross was placed there as a private initiative and paid for with private funds as a war memorial honoring 49 local men who died in World War I.
The local park and planning commission, largely for traffic safety reasons, took ownership of the cross and the land it stands on in 1961. Since then, it has spent $117,000 in public money on upkeep, with another $100,000 in reserve for what is said to be badly needed restoration work.