Opinion analysis: Justices allow “peace cross” to stand (Updated)

Opinion analysis: Justices allow “peace cross” to stand (Updated)

This is clearly the correct decision in this matter. The cross in question had been in place in a cemetery outside of Washington D. C. since 1925.  The mere fact that some crabby group with its own goals would come around now and challenge that is frankly an insult to their service. 

The surprising thing, however, is the two dissents. Justice Ginsberg read hers from the bench, something that's usually reserved for the strongest dissents.   And it seems as if the very nature of the cross being religious in nature is what offended her.  Reading her dissent is interesting in that she very clearly recognizes the "Latin Cross" as a religious symbol.  Ginsberg of course is not a Christian, so ironically she got the symbology better than perhaps those in the majority did.

Which still begs the question.  Putting up a cross a  memorial, even if it was done in an avowedly Christian manner, is not the establishment of a state religion.  Like a lot of Constitutional provisions that were highly modified over the years, the real question here is things have just gone too far.  When the establishment clause was put in the Constitution in the first place, the goal was to preclude the United States from making some separated church in the Church of England the Church of the United States, which was a laudable goal including for religious regions.  But Christianity as a whole is a wider definition encompassing a large number of diverse groups.  Those of us in the Catholic Church are well aware that the country is, and always has been, a Protestant country, but that doesn't make any one of the many Protestant churches a state religion.  Even if the placement of a cross "elevates" one faith over another, as Justice Ginsberg claims, that doesn't "establish" it.

Justice Sotomayor silently joined the dissent, making this a seven to two decision.  I have to admit that next to former Justice Kennedy, Justice Sotomayor is my least favorite justice of the Supreme Court.  Sotomayor drew some back channel criticism from some of her former clerks at the time she was appointed, who were liberal and who wanted a liberal justice, on the grounds that she wasn't a first rate judge and not really of a first rank intellectual caliber.  Maybe that's nothing at all, she's certainly well educated and that speaks for itself.  She did get a rebuke, I'd note, form Kennedy during an oral argument on a case involving an abortion clinic for referencing in oral argument having looked at the party's website, which deserved a rebuke. A justice isn't supposed to be doing that.

Anyhow, Ginsberg, while I think she is flat out wrong, is a first rank intellect.  Indeed, I'd put all of the justices on the bench in that category except perhaps for Sotomayor.  She just doesn't strike me that way and her silent dissent, which is certainly nothing unual in terms of Supeme Court decisiosn, does leave me wondering.

But I haven't read all of her opinions by any means either.