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1/ First thoughts on the Peace Cross decision: It's a very judicious and narrow holding. The most important and welcome thing about the majority opinion ...
2/ ... is that it doesn't embrace the pernicious idea pressed by the Commission and the SG that the Latin Cross has become "a universal symbol of sacrifice." To the contrary, the Alito opinion suggests that it'd be constitutionally problematic ...
3/ ... for a community to erect a cross as a memorial to war dead today ("retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones"). Alito also stresses a point ...
4/ ... that @walterdellinger and I emphasized in our amicus brief--that there's no evidence MD failed to honor Jewish soldiers from PG County (there almost certainly weren't any) or included any non-Christians on the plaque naming those honored.
5/ He also writes: "[I]t is surely relevant that the monument commemorates the death *of particular individuals.* It is natural and appropriate for those seeking to honor the deceased to invoke the symbols that signify what death meant *for those who are memorialized.*"
6/ And he stresses that "longstanding" monuments, symbols, and practices will be constitutional when they "follow in [the] tradition" of being an "honest endeavor to achieve inclusivity and nondiscrimination."
7/ Although RBG is surely correct about the central meaning of the Latin cross, a fair reading of the Alito opinion would forbid a jurisdiction from erecting one today to memorialize a religious heterogenous collection of fallen veterans.
8/ Justice Kagan is therefore right that the Alito opinion "shows sensitivity to and respect for this Nation’s pluralism, and the values of neutrality and inclusion that the First Amendment demands."
9/ Oh, and by the way, seven Justices implicitly rejected Gorsuch's effort to reject Art. III standing for "offended observers."
10/ All and all, then, it's hard to imagine a less problematic outcome from this Court. Kudos to Justices Alito, Roberts, Breyer, Kagan and Kavanaugh.
