The Maryland Bladensburg Cross was allowed to stand. That’s the easy part. The hard part is what precisely prevented the Court–for the second time in as many Establishment Clause cases involving these kinds of issues (see also Town of Greece)–from cobbling together a majority opinion repudiating Lemon/endorsement and offering a new approach, even one limited to religious displays. Instead, we got:
- a plurality opinion (joined by Justice Breyer) with lots of extremely critical commentary about Lemon/endorsement, but that does not overrule Lemon/endorsement even in this narrow area;
- one concurrence that would have overruled Lemon/endorsement;
- one concurrence that preserves Lemon/endorsement;
- 4-6 votes for a history and tradition approach whose contours vary significantly depending on the justice;
- two opinions concurring in the judgment that would have overruled Lemon/endorsement;
- a dissent by Justice Ginsburg joined by Justice Sotomayor.
The puzzle: what prevented a majority from overruling Lemon/endorsement even in this specific area? Does Lemon/endorsement continue to apply in this area where the display is new and/or there is (lots of?) evidence of discriminatory motive? I find it difficult to understand how the extremely critical comments about Lemon/endorsement that four justices put their name to in the plurality, plus the views of another two justices that were ready to overrule Lemon/endorsement altogether, do not add up to some kind of actual overruling. Justice Kagan could certainly have written a concurrence in the judgment. Not to be, I’m afraid. Still, I’ll have more to say about the 4-6 votes for some variety or other of a history/tradition approach soon.
Here is a new book from the University of North Carolina Press that tells a hopeful story about the effect of Christianity on one border area during the Civil War–a surprising one, too. The author, Bridget Ford (California State University), argues that religion provided a common identity that eased the transition to emancipation in the Ohio River Valley. The book is Bonds of Union: Religion, Race, and Politics in a Civil War Borderland. The publisher’s description follows:
This vivid history of the Civil War era reveals how unexpected bonds of union forged among diverse peoples in the Ohio-Kentucky borderlands furthered emancipation through a period of spiraling chaos between 1830 and 1865. Moving beyond familiar arguments about Lincoln’s deft politics or regional commercial ties, Bridget Ford recovers the potent religious, racial, and political attachments holding the country together at one of its most likely breaking points, the Ohio River.
Living in a bitterly contested region, the Americans examined here–Protestant and Catholic, black and white, northerner and southerner–made zealous efforts to understand the daily lives and struggles of those on the opposite side of vexing human and ideological divides. In their common pursuits of religious devotionalism, universal public education regardless of race, and relief from suffering during wartime, Ford discovers a surprisingly capacious and inclusive sense of political union in the Civil War era. While accounting for the era’s many disintegrative forces, Ford reveals the imaginative work that went into bridging stark differences in lived experience, and she posits that work as a precondition for slavery’s end and the Union’s persistence.