Kobach: Trump’s Victory May Have Saved the Cross

Maryland Cross
ERIC BARADAT/AFP/Getty Images)

On Thursday, the Supreme Court issued its highly-anticipated decision in the case of American Legion v. American Humanist Association.  The Court rejected a First Amendment challenge brought by the atheist American Humanist Association against the Bladensburg Peace Cross – a 32-foot high granite and cement cross built in 1925 as a tribute to those who died in World War I.

The cross was built with private funds; but it sits on public land in a busy highway median in Prince George’s County, Maryland, just outside of the District of Columbia.  The plaintiffs brought their challenge under the First Amendment’s Establishment Clause, arguing that the cross constitutes an impermissible endorsement of Christianity by the state.  The Court rejected their challenge by a 7-2 majority, with the five conservatives being joined by Justices Breyer and Kagan.

The outcome was clearly correct.  As Justice Alito wrote for the majority, “Even if the original purpose of a monument was infused with religion, the passage of time may obscure that sentiment.”  The original religious and commemorative purposes are now accompanied by historic value and community identity.  The same may be said of the rows of crosses in military cemeteries in the United States and Europe. 

As Justice Alito rightly pointed out, tearing down the cross now (or removing its arms and transforming it into a secular obelisk, an alternative the plaintiffs suggested) would demonstrate government hostility toward religion, more than allowing the cross to remain in place would constitute an endorsement of religion.  In Alito’s words:  “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.”

Justices Gorsuch and Thomas added in their concurring opinion that the members of the American Humanist Association never had standing to bring the suit in the first place.  Standing requires a plaintiff to suffer injury because of the challenged government action.  In this case, the atheists claimed that they were offended every time they drove by the cross.  But in today’s hypersensitive, politically-correct culture, many people with nothing better to do walk around being offended on a daily basis.  That doesn’t amount to the kind of injury necessary to invoke the action of the federal courts.

Those of us who adhere to the original understanding of the Constitution are relieved that the cross is allowed to stand.  But there’s also something troubling here – just how close we came to this case going the other way.

President Trump’s victory in the 2016 election resulted in the appointment of Justices Gorsuch and Kavanaugh to the Supreme Court.  And that was decisive in creating the majority in this case.

Had Hillary Clinton won the election, the dissenting Justices Sotomayor and Ginsburg likely would have been joined by two more left-leaning justices eager to expand the scope of the Establishment Clause.

So where would the fifth vote come from to join those justices against the cross?  Probably from Justice Breyer.  Breyer joined the majority in this case, but only barely.  He indicated that if the same cross were constructed today, it would not pass muster in his mind because of the greater multiculturalism and diversity in today’s politics.  So only some crosses can stand; others must be taken down.

Breyer has a long history of being on both sides of Establishment Clause challenges to religious monuments and drawing very fine distinctions between them.  For example, in 2005, in a perplexing pair of cases, the Supreme Court held that it is unconstitutional to post the Ten Commandments in a Kentucky courthouse (McCreary County v. ACLU); but okay to put the Ten Commandments on a monument on the grounds of the Texas statehouse (Van Orden v. Perry).

What’s the difference? Ask Justice Breyer.  He cast the swing vote in both cases, deeming the Ten Commandments permissible in one context but not in the other.

We’ll never know for certain, but it’s possible that with Hillary Clinton in the White House and two additional left-leaning justices on the bench to persuade him, Justice Breyer might have applied his context-is-everything approach and come out the other way.

Elections have consequences.  Thanks to the 80,000 voters in Pennsylvania, Michigan, and Wisconsin who made up President Trump’s margin of victory in the electoral college, the cross stands.  The election in 2020 will likely have similar constitutional consequences.

Kris W. Kobach was a professor of constitutional law during 1996-2011 at the University of Missouri-KC.  He is currently is the General Counsel of We Build the Wall.  He served as the Secretary of State of Kansas during 2011-2019.  An expert in immigration law and policy, he coauthored the Arizona SB-1070 immigration law and represented in federal court the 10 ICE agents who sued to stop Obama’s 2012 DACA executive amnesty.  He also served as U.S. Attorney General John Ashcroft’s chief adviser on immigration law and border security.

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