If you’ve been following the case of the Bladensburg Cross, or religious freedom in general, you may have rejoiced when this opinion was released by the supreme Court. However, while the ends were correct, the logic behind the opinion was extremely flawed for all but one justice.

The Opinion

As a brief review, the Bladensburg Cross was erected by citizens of Prince George’s county and the American Legion, as a memorial to the residents who had died in WWI. In 1961, the Maryland-National Capital Park and Planning Commission took over the memorial, including its maintenance. (See The American Legion v. American Humanist Association.) In 2014 the American Humanist Society and others filed suit claiming that the memorial, being on public land and maintained with public funds, was a violation of the First Amendment’s Establishment Clause.

In a split decision by the supreme Court, the lower court order to remove the memorial was overturned. While there were some interesting reasons given, only Justice Thomas actually made the most basic constitutional point: the First Amendment doesn’t apply to the states.

Justice Alito, delivering the main opinion of the court, listed history and tradition as reasons the cross should be left alone. He was joined by Chief Justice Roberts, Justice Breyer, and Justice Kavanaugh in finding that the Lemon test, by which courts have determined Establishment Clause issues, was unworkable and should no longer be used. The Lemon test basically said anything a “reasonable observer” would think is an establishment of religion was sufficient for someone to sue.

On a more interesting note, Justice Gorsuch, joined by Justice Thomas, noted that cases like this lack standing. The idea that seeing something you think offensive is justification to sue is not supported by law. So since the court now thinks that the Lemon test is, pardon the pun, a lemon, simply seeing something you disagree with does not give you standing to sue. While this seems quite obvious based on the Free Speech clause, it has taken the court almost 50 years to figure that out.

Only Justice Thomas recognized the obvious:

The text and history of the Clause—which reads “Congress shall make no law respecting an establishment of religion”—suggest that it should not be incorporated against the States. When the Court incorporated the Clause in Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15, it apparently did not consider that an incorporated Establishment Clause would prohibit exactly what the text of the Clause seeks to protect: state establishments of religion. … Further confounding the incorporation question is the fact that the First Amendment by its terms applies only to “law[s]” enacted by “Congress.”

Thomas Concurrence, American Legion v. American Humanist Society

As Justice Thomas pointed out, by applying the Fist Amendment to the states, the court had prohibited exactly what the Establishment Clause seeks to protect: The state’s determination of public religion expression. By taking onto themselves the power to determine what religious expression would be allowed on public land, the court was establishing what religions would have exclusive access to that public square. Furthermore, it’s obvious to anyone who can read, that the entire First Amendment applies only to laws enacted by Congress. Since the First Amendment specifically limits Congress, it does not apply to the states, therefore leaving the question of public religious displays to the state’s constitution.

The Dissent

Justice Ginsburg was joined by Justice Sotomayor in her dissent. As the justice noted:

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.

Ginsburg Dissent, American Legion v. American Humanist Society

There’s just one problem with that, since that’s not what the Constitution says. It says Congress shall make no law establishing a religion. Not only does that not require government neutrality, it requires the federal government stay out of the way of anyone who wishes to express their religion in public, as long as such expression does not infringe on the legitimate rights of another. Justice Ginsburg completely ignores the fact that the cross pre-dates both the highway and the public organization that now maintains it. While concerned about the “anguish, hardship and bitter strife” Engel v. Vitale, 370 U. S. 421, 429 (1962) says allowing such a display could lead to, she completely ignores the anguish, hardship, and strife tearing it down would cause. (And yes, the irony that the case that so restricts free expression happens to have my name on it is not lost on me.)

Conclusion

So the good news is that the cross gets to stay. The bad news is eight out of nine justices still can’t read basic English. So rejoice that freedom of religion was protected in America while you weep at the state of the judicial system. Whether done in ignorance or arrogance, until we hire representatives who will appoint and confirm judges who can actually read and apply the law rather than twist it to meet their agenda, our rights will be subject to the whim of nine high priests in black robes that we call the supreme Court.