I hereby resign my membership in the Supreme Court Bar.
This was not an easy decision. I have been a member of the Supreme Court Bar since 1972, far longer than you have, and appeared before the Court, both in person and on briefs, on several occasions as Deputy and First Deputy Attorney General of Hawaii before being appointed as a Hawaii District Court judge in 1986. I have a high regard for the work of the Federal Judiciary and taught the Federal Courts course at the University of Hawaii Richardson School of Law for a decade in the 1980s and 1990s. This due regard spanned the tenures of Chief Justices Warren, Burger, and Rehnquist before your appointment and confirmation in 2005. I have not always agreed with the Court’s decisions, but until recently I have generally seen them as products of mainstream legal reasoning, whether liberal or conservative. The legal conservatism I have respected– that of, for example, Justice Lewis Powell, Alexander Bickel or Paul Bator– at a minimum enshrined the idea of stare decisis and eschewed the idea of radical change in legal doctrine for political ends.
I can no longer say that with any confidence. You are doing far more— and far worse– than “calling balls and strikes.” You are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law.
The Court, under your leadership and with your votes, has wantonly flouted established precedent. Your “conservative” majority has cynically undermined basic freedoms by hypocritically weaponizing others. The ideas of free speech and religious liberty have been transmogrified to allow officially sanctioned bigotry and discrimination, as well as to elevate the grossest forms of political bribery beyond the ability of the federal government or states to rationally regulate it. More than a score of decisions during your tenure have overturned established precedents—some more than forty years old– and you voted with the majority in most. There is nothing “conservative” about this trend. This is radical “legal activism” at its worst.
Without trying to write a law review article, I believe that the Court majority, under your leadership, has become little more than a result-oriented extension of the right wing of the Republican Party, as vetted by the Federalist Society. Yes, politics has always been a factor in the Court’s history, but not to today’s extent. Even routine rules of statutory construction get subverted or ignored to achieve transparently political goals. The rationales of “textualism” and “originalism” are mere fig leaves masking right wing political goals; sheer casuistry.
Your public pronouncements suggest that you seem concerned about the legitimacy of the Court in today’s polarized environment. We all should be. Yet your actions, despite a few bromides about objectivity, say otherwise.
It is clear to me that your Court is willfully hurtling back to the cruel days of Lochner and even Plessy. The only constitutional freedoms ultimately recognized may soon be limited to those useful to wealthy, Republican, White, straight, Christian, and armed males— and the corporations they control. This is wrong. Period. This is not America.
I predict that your legacy will ultimately be as diminished as that of Chief Justice Melville Fuller, who presided over both Plessy and Lochner. It still could become that of his revered fellow Justice John Harlan the elder, an honest conservative, but I doubt that it will. Feel free to prove me wrong.
The Supreme Court of the United States is respected when it wields authority and not mere power. As has often been said, you are infallible because you are final, but not the other way around.
I no longer have respect for you or your majority, and I have little hope for change. I can’t vote you out of office because you have life tenure, but I can withdraw whatever insignificant support my Bar membership might seem to provide.
An immense Latin cross stands on a traffic island at the center of a busy three-way intersection in Bladensburg, Md. “Monumental, clear, and bold” by day, the cross looms even larger illuminated against the night-time sky. Known as the Peace Cross, the monument was erected by private citizens in 1925 to honor local soldiers who lost their lives in World War I. “The town’s most prominent symbol” was rededicated in 1985 and is now said to honor “the sacrifices made in all wars,” by “all veterans.” Both the Peace Cross and the traffic island are owned and maintained by the Maryland-National Capital Park and Planning Commission, an agency of the state of Maryland.
Decades ago, this court recognized that the Establishment Clause of the First Amendment to the Constitution demands governmental neutrality among religious faiths, and between religion and nonreligion. Numerous times since, the court has reaffirmed the Constitution’s commitment to neutrality. Today, the court erodes that neutrality commitment, diminishing precedent designed to preserve individual liberty and civic harmony in favor of a “presumption of constitutionality for longstanding monuments, symbols and practices.”
The Latin cross is the foremost symbol of the Christian faith, embodying the “central theological claim of Christianity: that 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.” Precisely because the cross symbolizes these sectarian beliefs, it is a common marker for the graves of Christian soldiers. For the same reason, using the cross as a war memorial does not transform it into a secular symbol, as the courts of appeals have uniformly recognized.
Some of my colleagues suggest that the court’s new presumption extends to all governmental displays and practices, regardless of their age. ‘A more contemporary state effort’ to put up a religious display is ‘likely to prove divisive in a way that a longstanding, pre-existing monument would not.’” I read the court’s opinion to mean what it says: “Retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones,” and, consequently, only “longstanding monuments, symbols, and practices” enjoy “a presumption of constitutionality.”
Cross not suitable for other faiths
Just as a Star of David is not suitable to honor Christians who died serving their country, so a cross is not suitable to honor those of other faiths who died defending their nation. Soldiers of all faiths “are united by their love of country, but they are not united by the cross.” By maintaining the Peace Cross on a public highway, the commission elevates Christianity over other faiths, and religion over nonreligion. Memorializing the service of American soldiers is an “admirable and unquestionably secular” objective.
But the commission does not serve that objective by displaying a symbol that bears “a starkly sectarian message.” The First Amendment commands that the government “shall make no law” either “respecting an establishment of religion” or “prohibiting the free exercise thereof.” Adoption of these complementary provisions followed centuries of “turmoil, civil strife, and persecution, generated in large part by established sects determined to maintain their absolute political and religious supremacy.”
Mindful of that history, the fledgling Republic ratified the Establishment Clause, in the words of Thomas Jefferson, to “build a wall of separation between church and state.”
Government may not favor
The Establishment Clause essentially instructs: “The government may not favor one religion over another, or religion over irreligion.”
In cases challenging the government’s display of a religious symbol, the court has tested fidelity to the principle of neutrality by asking whether the display has the “effect of ‘endorsing’ religion.” The display fails this requirement if it objectively “conveys a message that religion or a particular religious belief is favored or preferred.” To make that determination, a court must consider “the pertinent facts and circumstances surrounding the symbol and its placement.”
As I see it, when a cross is displayed on public property, the government may be presumed to endorse its religious content. The venue is surely associated with the state; the symbol and its meaning are just as surely associated exclusively with Christianity.
To non-Christians, nearly 30 percent of the population of the United States, the state’s choice to display the cross on public buildings or spaces conveys a message of exclusion: It tells them they “are outsiders, not full members of the political community.”
“For nearly two millennia,” the Latin cross has been the “defining symbol” of Christianity, evoking the foundational claims of that faith. Christianity teaches that Jesus Christ was “a divine Savior” who “illuminated a path toward salvation and redemption.” Central to the religion are the beliefs that “the son of God,” Jesus Christ, “died on the cross,” that “he rose from the dead,” and that “his death and resurrection offer the possibility of eternal life.” “From its earliest times,” Christianity was known as “religio crucis — the religion of the cross.”
Christians wear crosses, not as an ecumenical symbol, but to proclaim their adherence to Christianity. An exclusively Christian symbol, the Latin cross is not emblematic of any other faith.
The principal symbol of Christianity around the world should not loom over public thoroughfares, suggesting official recognition of that religion’s paramountcy.
The commission’s “attempts to secularize what is unquestionably a sacred symbol defy credibility and disserve people of faith.” The asserted commemorative meaning of the cross rests on — and is inseparable from — its Christian meaning: “the crucifixion of Jesus Christ and the redeeming benefits of his passion and death,” specifically, “the salvation of man.” Because of its sacred meaning, the Latin cross has been used to mark Christian deaths since at least the fourth century. The cross on a grave “says that a Christian is buried here,” and “commemorates that person’s death by evoking a conception of salvation and eternal life reserved for Christians.”
As a commemorative symbol, the Latin cross simply “makes no sense apart from the crucifixion, the resurrection, and Christianity’s promise of eternal life.” The cross affirms that, thanks to the soldier’s embrace of Christianity, he will be rewarded with eternal life. “To say that the cross honors the Christian war dead does not identify a secular meaning of the cross; it merely identifies a common application of the religious meaning.” Scarcely “a universal symbol of sacrifice,” the cross is “the symbol of one particular sacrifice.”
Every court of appeals to confront the question has held that “making a . . . Latin cross a war memorial does not make the cross secular,” it “makes the war memorial sectarian.” The Peace Cross is no exception. That was evident from the start. At the dedication ceremony, the keynote speaker analogized the sacrifice of the honored soldiers to that of Jesus Christ, calling the Peace Cross “symbolic of Calvary,” where Jesus was crucified. Local reporters variously described the monument as “a mammoth cross, a likeness of the Cross of Calvary, as described in the bible,” “a monster Calvary cross,” and “a huge sacrifice cross.”
The character of the monument has not changed with the passage of time.
Not a universal symbol
Reiterating its argument that the Latin cross is a “universal symbol” of World War I sacrifice, the commission states that “40 World War I monuments . . . built in the United States . . . bear the shape of a cross.” This figure includes memorials that merely “incorporate” a cross. Moreover, the 40 monuments compose only 4 percent of the “948 outdoor sculptures commemorating the First World War.” The court lists just seven freestanding cross memorials, less than 1 percent of the total number of monuments to World War I in the United States. Cross memorials, in short, are outliers. The overwhelming majority of World War I memorials contain no Latin cross. In fact, the “most popular and enduring memorial of the post-World War I decade” was “the mass-produced Spirit of the American Doughboy statue.” That statue, depicting a U.S. infantryman, “met with widespread approval throughout American communities.”
The Peace Cross, as plaintiffs’ expert historian observed, was an “aberration . . . even in the era in which it was built and dedicated.” Like cities and towns across the country, the United States military comprehended the importance of “paying equal respect to all members of the Armed Forces who perished in the service of our country,” and therefore avoided incorporating the Latin cross into memorials. The construction of the Tomb of the Unknown Soldier is illustrative. When a proposal to place a cross on the Tomb was advanced, the Jewish Welfare Board objected; no cross appears on the Tomb. In sum, “there is simply ‘no evidence . . . that the cross has been widely embraced by’ — or even applied to — ‘non-Christians as a secular symbol of death’ or of sacrifice in military service” in World War I or otherwise.
The Establishment Clause, which preserves the integrity of both church and state, guarantees that “however . . . individuals worship, they will count as full and equal American citizens.”
“If the aim of the Establishment Clause is genuinely to uncouple government from church,” the clause does “not permit . . . a display of the character” of Bladensburg’s Peace Cross.
— This is an edited and condensed version of the dissent, written by Supreme Court Justice Ruth Bader Ginsburg and joined by Justice Sonia Sotomayor, in the Bladensburg cross case
Although the result in The American Legion v. American Humanist Association case was entirely predictable, reading it still left me stunned. The case involves a dispute over whether a local government in the state of Maryland can tax its citizenry in order to maintain an overtly Christian World War I memorial.
With an objective Court, a decision recognizing that the state had no such coercive taxation power under the First Amendment would have been readily assured. After all, I am old enough to remember when the United States Supreme Court believed that government financially compelling free and independent individuals to endorse beliefs they find objectionable was always demeaning. When an individual’s objection to such forced extractions was not trivialized as the taking of mere offense, but a sacred objection against tyrannical government power. But, alas, that was the long-forgotten time of ….*checks notes*…. holy shit, just a year ago?
It is undeniably telling about the state of free conscience liberty that when faced with extending the same principles against forced extraction to non-religious or non-Christian citizens, the Court’s views on the issue abruptly changed. Nothing can excuse such blatantly different outcomes to the same objection, and no explanation other than outright religious bigotry against non-believers can explain the outcome in the Bladensburg cross case.
From the beginning of the Court’s plurality opinion, it becomes rather transparent that Justice Samuel Alito is seeking to diminish the objection of the non-believer against being forced to pay for a religious monument. According to Alito, the objection boils down to being merely offended at the sight of the monument. Moreover, in contrast, Justice Alito takes a great deal of time to elevate Christian moral objections regarding the views of the same monument. For example, Alito states that “[a] government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion.”
Using Alito’s own logic here however begs the question: Why is a country that roams the land forcing people to pay for the erection and maintenance of religious monuments not seen as being aggressively hostile to non-religious people? More importantly, as noted by the dissent, tearing down these monuments is not the only solution. All the state of Maryland had to do to conform with First Amendment principles was stop forcing people to pay for the Christian monument and instead let the upkeep be maintained by willing donators. I will never understand why an insistence on willing participants was not enough to settle this case and that the only satisfactory outcome for the cross’s radical theocratic proponents was having the authority to force unwilling others to pay.
In other words, according to the Court, the Latin Cross has transcended religion and become a secular symbol. This is literally the equivalent of saying that Jesus Christ is not a Christian figure, an idea so absurd that it becomes somewhat offensive that the Court would expect people paying attention to take this conclusion seriously.
Unfortunately, such a transparently biased outcome that favors Christianity at the expense of every other belief is becoming an all too familiar outcome, in a particularly dangerous time. As I have repeatedly stressed, we are in a unique moment in our history when a sizable portion of the population with whom religion plays no role lives alongside an equally sizable portion for whom religion plays a vital role. Disturbingly, the growth of a non-religious population that demands the same free conscience protections has come to be seen as a menacing threat to many religious people. It is now to the point that a religious zealot and bigot who just so happens to be the country’s former Attorney General can openly describe irreligious citizens as a dire threat to our country that must be stopped.
In The American Legion vs. American Humanist Association, the Supreme Court considered whether the establishment clause barred a government-sponsored display of a 40-foot cross, known as the Bladensburg Cross, on public land, as a memorial to men of Prince George’s County, Maryland, who had died in World War I. The U.S. Court of Appeals for the 4th Circuit, applying the well-known and long-derided three-part test from Lemon v. Kurtzman, had held in 2017 that the display unconstitutionally endorsed Christianity and ordered its removal from public land. Seven justices voted to reverse, so the Bladensburg Cross will remain in place. But the case produced six separate opinions, and demonstrated that the court remains starkly divided on fundamental questions about the meaning of the establishment clause. Some aspects of the legal discourse of non-establishment will change, but the standards that will emerge to govern particular questions remain up for grabs.
The Bladensburg Cross opinion appears to be sheer rationalization, in the worst meaning of that word. Those five Justices quite transparently looked for a way to reverse the Fourth Circuit, while rejecting the previous “no endorsement” test. Instead, the court opinion engages in its own form of lawyers’ history and social psychology associated with that test. The court determines that, over time, the predominant Christian meaning of the Bladensburg Cross has been replaced by one that focuses on the “sacrifice” of American soldiers in World War I.
This is a narrative purposely divorced from historical awareness. The Court claims ignorance of any religious purpose behind the choice of a cross as the memorial to soldiers who died in World War I. But commentators in the decades before and after 1920 regularly claimed that the United States was a “Christian nation.” In that cultural and political milieu, choosing a cross as a war memorial directly reinforced the concept of religious nationhood. As the court recites, the dedication ceremony’s keynote speaker proclaimed the cross as “symbolic of Calvary” and fitting tribute to those who gave their lives in a “righteous cause.”
When Jewish soldiers died in World War I, their gravestones were marked with Stars of David. But each such gravestone represented only the person buried beneath it. No one would have thought to use a Star of David as a generic memorial for all in a military cemetery. In contrast, the use of a Cross as a memorial seemed a natural default option.
The Court’s opinion admits to the Christian origin of the Bladensburg Cross, but asserts that some new public meaning has sufficiently muted the uniquely Christian character of the Latin Cross. By some magic of history and tradition, the sacrifice symbolized by the Cross has ceased to be specifically Christian and become far more inclusive. The Court never provides any evidence to support the judgment that the cross is now an historical monument with indefinite religious properties. We strongly suspect that majority preferences and ethno-centrism, not an objective social psychology of symbols, drive such choices.
For years, critics lambasted Justice O’Connor’s invocation of the “reasonable observer” as a way of measuring government endorsement of religious symbols. But the Court’s approach differs only in that it has adopted unreflectively the perspective of Christians in a political majority, without regard to the perspective of others.
The Bladensburg Cross opinion is even worse as a matter of theology. The Court invokes the image of fields of crosses for soldiers who died in the war. For Christians, a cross marking a grave signifies the unique event of Jesus’ death on Calvary and subsequent resurrection by the Father, with a promise of eternal life. The Court declares, however, that the Bladensburg Cross is fundamentally the same as the individual grave markers.
In doing so, the opinion attempts to transform the cross into a more generalized symbol of sacrifice in pursuit of noble causes. The Latin Cross, as a war memorial, symbolizes those lives given in service of our national ideals. This is heresy for Christians, because it suggests that the cross symbolizes all lives given to achieve the goals of a particular nation-state, rather than a unique, redemptive intervention by God in human history.
The Bladensburg Cross opinion thus manages to offend thoughtful Christians without ameliorating the offense to non-Christians, whose memory is supposedly included in any general war memorial. Some Christians may celebrate this decision, but it should instead be mourned as a political misappropriation of the faith’s central symbol.