MARY LOUISE KELLY, HOST:
It is June, and that means the U.S. Supreme Court is issuing decisions and winding up its term. Today, the nine justices weighed in on the separation of church and state. By a 7-2 margin, the court ruled that a 40-foot cross, a World War I memorial in Maryland, can stay on public property and be maintained with public funds. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: In all, the justices produced 87 pages detailing their views. But when the dust settled, a few things were clear - longstanding cross-shaped war memorials like the one in Bladensburg do not have to be removed to private land and maintained with private funds. But it's unlikely that similar new memorials will be OK'd. David Strauss is co-editor of the University of Chicago's Supreme Court Review.
DAVID STRAUSS: If something has been around for a long time, and especially if it was originally put up for nonreligious reasons, but in this case to commemorate a war, it can stay up.
TOTENBERG: ACLU Legal Director David Cole called the decision deeply disappointing.
DAVID COLE: The establishment clause was designed to ensure that government remain neutral among religions and not favor one religion over another.
TOTENBERG: But University of Virginia law professor Doug Laycock, who filed a brief opposing the cross on behalf of both Christian groups and the Jewish War Veterans, was relieved.
DOUG LAYCOCK: From a church-state separation perspective, this could have been much worse. The government said the cross is a universal symbol of sacrifice, which is just nonsense. And the court didn't go there. So there's some good news here.
TOTENBERG: The principal author of today's decision was Justice Samuel Alito. He acknowledged that the cross is undoubtedly a Christian symbol. But he said that fact should not blind us to everything else that the cross came to represent in the aftermath of World War I.
Recalling the rows and rows of white crosses that marked the graves of the fallen in that war, he said the cross came to represent the sacrifice of loved ones in service to the country. And for many relatives who could not afford to travel to those graves, war memorials like this one became the symbol of a final resting place. For others, it was a place to honor veterans and, for others, a historical landmark. To remove such a memorial now, he said, would not be a neutral act. For many, it would be an act of hostility to religion, and it would not further the ideals of respect and tolerance embodied in the Constitution.
Joining Alito's opinion were the court's four other conservative justices, though two of them - Justices Clarence Thomas and Neil Gorsuch - only signed on to the outcome. Thomas restated his view that the Constitution's clause banning establishment of religion does not apply to the states. And Gorsuch said he would have dismissed the challenge to the cross because, in his view, the objectors didn't have legal standing to sue. Two of the court's liberal justices, Stephen Breyer and Elena Kagan, also joined most of Alito's opinion. They pushed back on Alito's desire to completely abandon prior separation of church and state decisions. History and tradition, in and of themselves, are not enough to justify a clearly religious practice, they said.
In a rare oral dissent from the bench, Justice Ruth Bader Ginsburg firmly rejected the majority view, saying it, quote, "erodes the principle of neutrality towards religion long adhered to by the court." The Latin cross is the foremost symbol of the Christian faith, she observed, embodying the central 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. By maintaining the cross on a public highway, she said, the state places Christianity above all other faiths and conveys a message of exclusion to non-Christians, nearly 30% of the U.S. population, telling them they are outsiders, not full members of American society.
Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.