Caution. Justice Kennedy's opinion in the Buono case is a plurality opinion, meaning that it did not command a majority of the Justices. . . and the issue was not whether the cross could stand on government land, but whether Congress' enactment of a statute transferring to a private party the land on which the cross stood was an adequate response to a lower court injunction ordering the cross to be removed.

View with caution anyone who claims certainty as to a likely Supreme Court outcome in this case . . .which would not reach them in any event for several years.

Brassband,

I understand that how any future court will rule on a given case cannot be predicted, but Kennedy's opinion goes much further than just OK'ing the transfer of the land that the cross is on to a private owner. He also tells the lower courts that they botched the application of the Establishment Clause the first time around, and they need to get it right when they reconsider, 1) by not neglecting the legitimate secular purpose of a war memorial (after he's spelled out that purpose, and why it's an important one, in great detail) and 2) by considering if a cross on a war memorial constitutes excessive government entanglement with religion (in the same opinion where he states "the goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm").

It goes without saying that there's lots of uncertainty in the court system's church-state jurisprudence, but in a specific challenge to a nearly 100-year old war memorial, the whole string of precedents from Lemon to Salazar will have to be ignored to reach the conclusion that displaying a cross on public land is unconstitutional.

I am wondering if we are entering another period similar to the end of the Middle Ages and the "Enlightenment". This gave rise to the "Reformation" and the end of Catholic oligarchy. Defense of the established order gave us the Albergensian Crusade and the Inquisition. I wonder if this was not in the minds of the Founders. They certainly knew their Greek and Roman history.

I wonder if the advances of science have not severely shaken the public belief in a supreme being. Publication of the Gospels in the vernacular has also raised questions among many (which is why the Catholics attempted to execute Luther), such as, if Christ was the son of God, why did he require John to baptize him? Why do the Synoptic Gospels differ so in describing the resurrection? I suspect that many regard themselves as of a particular religious persuasion because they were inducted as children. They have never practiced the faith and simply retain the label, their concern for the symbols of that religion are slight.

OK, the fact of this challenge does not surprise me, atheists enjoy it so. But the fact that objection is so minimal is cause for surprise. There will be much "public uproar" but little action, in the end the atheists will succeed. So much for "multi culturalism". Imagine if the KKK wished to remove the figure of a black man from the monument. The latter is offered only for the difference in public response, not as an excellent analogy.

Although it is considered by some that we are on the tail of the Fourth Great Awakening. It was the Second Great Awakening that established "religiousity" in America, requiring Negro emancipation and public affirmation of God. Consider the lyrics of the "Battle Hymn of the Republic" (the author died in Rhode Island) and "Onward Christian Soldiers" (the authors grandson was a biographer of Sherlock Holmes). This lasted until about 1920, somewhat longer in missionary outposts (some describe the latter period as the "Third Great Awakening"). Does anyone have a handle on the number of cases under the "Establishment Clause" prior to 1920. I suspect they were few. So, as a people, we are moving away from religion and this is where it starts. We prefer to regard our martial action in the Middle East not as a "religious war", but rather a "clash of cultures". Why is "nation building" not a "crusade" to alleviate the religious persecution of women?

My parents compromised and raised me as an agnostic, so I try to cover all bets. The Founders recognized "Divine Providence" and insurance companies exempt "Acts of God". I am not distressed by the odd bit of Christian symbolism. The odd Star of David, here or there, is not of much concern. The "Ten Commandments" seem like pretty good rules. At the moment, I am not sure how I feel about a Star and Crescent.

Should I sign this: K. Templar?

Andrew --

Justice Kennedy's opinion in Bruno is, I believe, supported by only two other Justices. It's not the Court's opinion, and is not binding precedent.

And Justice Kennedy's suggestion in the opinion that the First Amendment would not prohibit roadside crosses commemorating fallen state troopers? The 10th Circuit ruled the other way in American Atheists v. Utah Highway Patrol Assoc. in 2010, and the Supreme Court refused to hear the case in 2011, leaving the 10th Circuit's shameful decision standing. Justice Thomas issued a rare dissenting opinion from the denial of certiorari, criticizing his colleagues for refusing to provide some guidance to the lower courts:

"Because our jurisprudence has confounded the lower courts and rendered the constitutionality of displays
of religious imagery on government property anyone’s guess, I would grant certiorari."

The problem for a cash-strapped municipality is that it can't afford to take "anyone's guess" with regard to a possible outcome.

The solution, in my view, would be (1) for Congress to limit or eliminate the availability of attorney fee awards in these cases where there is no plaintiff who has suffered actual damages, or (2) for courts to impose ordinary standing requirements upon plaintiffs.

Either or both of those remedies would eliminate a lot of these contrived cases.

Maybe now that the General is on the war path he can start a campaign to raise the money and spare Woonsocket this headache. I would think the VFW would have as much standing as the city.

Brassband,

Whatever the rules are supposed to be for the number of Justices necessary that make precedent binding, as Justice Thomas has pointed out, there are no binding precedents to speak of in Establishment clause cases. It's all persuasive precedent at most, e.g. wasn't Justice O'Connor's opinion which is the basis of movement from the Lemon test to the "endorsement" test a solo concurrence?

What's more important is that 1) the underlying facts in Woonsocket and Salazar are so similar, for a lower court Judge to ignore Salazar means sticking a thumb directly into Justice Kennedy's and two other Justices eyes, after they've told the lower courts "this is the standard you will use for reviewing a long-standing war memorial that includes a cross" 2) even Justice Breyer has agreesd before that if a religious display is around for several decades before someone complains, it gravely weakens the case that one religion has been favored by the government and 3) Justices Thomas and Scalia didn't join Kennedy's Salazar opinion because they believe the Lemon and endorsement tests are too namby-pamby and support moving to a more concrete standard, like was there legal coercion.

I will concede that if "constitutional" is defined as meaning a specific activity has been affirmatively ruled constitutional by the courts, then the memorial is not strictly-speaking constitutional, but then the opposite is also true; it's not strictly-speaking unconstitutional (sorry, FFRF). Without opening up the whole debate of whether "constitutionality" has any meaning beyond its operational one, at bare minimum it can be said that, under any reasonable definition of constitutionality, the Woonsocket war memorial is not presumptively unconstitutional given the facts of the case.

Andrew --

"under any reasonable definition of constitutionality, the Woonsocket war memorial is not presumptively unconstitutional given the facts of the case."

I certainly concur with that statement.

Would 'twere we lived in a regime where application of the Establishment Clause flowed from a "reasonable definition of constitutionality . . ."!

(By the way, it takes 5 Justices to join for an opinion to be the opinion of the Court, with stare decisis effect.)

Really enjoying the give and take between Andrew and brassband on this very interesting topic. My hope is there will be a legal challenge pursued here. What's most bothersome is the incrementalism we're seeing....a slow creep towards America losing its' own identity.

Warrington ponders
"I wonder if the advances of science have not severely shaken the public belief in a supreme being."

If anything Warrington I believe the opposite is true. People around this world feel a palpable negative vibe throughout this globe right now. Our amazing technology does not unite us, it isolates us. All the technological advances in the world don't solve the most human of conditions, i.e. emptiness, loneliness, fear, anxiety et al
It's an epidemic around this country and around this world in 2012.
In my opinion people are searching like never before to find a connection inward, a connection to their soul.
Soul = Divine spirit = God

First, let me say that I am not anti religious. I am just commenting on what I think I observe.

In response to Tim, I think he is correct that church attendance is up in the U.S. On the other hand, I understand it is down in the "established" churches.

I don't think that these "new" protestant denominations feel the need to protect their turf in the same way that the older denominations did. In this part of the country "the church" has been the Catholic church. I think that their moral power has been seriously eroded over the past few years. As religious growth seems to be in the protestant denominations, there may be another difference. Protestant faiths emphasize an individual communion with God, perhaps they do not feel the need to be supreme in defense of their faith in the same way the Catholic faith has expressed itself. I notice that when the media seeks a religious opinion they tend to seek out a Catholic Bishop, not a Lutheran of the Missouri Synod. On the other hand, it was the protestant faiths, not the Catholic Church, which brought us Prohibition. It was also the Protestant faiths which gave us the stern morality for which the U.S. is famous.

I assume that in the long pull, our laws and interpretations of the constitution would reflect the will of the people. In so far as religion is concerned, I think that will is lacking. I think that removal of Christian symbols is opposed as a changing of the old order, it is not that people are truly offended. Many, like me, probably think that the atheist positions are a tempest in a tea pot and wonder what motivates them. I think the constitutional arguments are cover for some deeper unrequited motivation for change.

Warrington I didn't and don't find your commentary to be anti-religious at all.

In fact I agree with much of what you say. You are spot on in your analysis of the growth of these new Protestant denominations. Their appeal is very much tied to people seeking an individual relationship with their God and the application of ones faith in the day to day struggles of life. The growth of these denominations is very much tied to my view that people are searching like never before for a connection to inner peace and quiet, to their soul, to their God.

This is where the Catholic church falls down. It's a denomination where the hierarcy of the church and the man made laws of the church are front and center, not God.

Don't agree with your observation that the protest over the removal of Christian symbols is about protecting the old order. What fuels the reaction to the removal of Christian symbols is that it's always the Christian symbols. Only Christian symbols. Never Jewish symbols or Muslim symbols or name any other religion you'd like. It's never about them. The target is always and only Christian symbols. Think many people are rightfully quite suspicious of an underlying political agenda at work here.

Although I do not believe that any fair reading of the Establishment Clause would prohibit memorials such the one at Place Jolicoeur, I wonder sometimes whether some of us elevate the importance of the symbol itself over what it symbolizes.

I heard a priest observe over the weekend that even if the courts can force removal of the cross from a public display, it's far more important for a Christian to keep the cross in his or her heart than in any public display.

Something to ponder on a Sunday.

Posted by Tim
"What fuels the reaction to the removal of Christian symbols is that it's always the Christian symbols. Only Christian symbols. Never Jewish symbols or Muslim symbols or name any other religion you'd like. It's never about them. The target is always and only Christian symbols. Think many people are rightfully quite suspicious of an underlying political agenda at work here."

I seem to recall having seen an occasional Star of David on a monument, I cannot recall a Star and Crescent. That may explain a part. Although GOd knows the Jews have suffered enough overthe centuries, I suspect that they are now a "protected minority", along with Muslims. Given the temper of times, I suspect that if the "Estab lishment clause" were to clash with "minority rights",the later would triumph.

As to an "underlying agenda" I suspect it pure agnst, it is done because it can be done. As I mentioned before, if we go back 60 years, I suspect the number of cases under the Establishment Clause could be counted on both hands. Since then, "Minority Rights" have come to the fore. Athiests doubtless see themselves as a minority. So,armed with "rights" they seek to assert them. Next it will be the Rosecrucians, perhaps it already is if you call it "New Age Humanism".

Perhaps if the religions could unite. I recall a madefor TV movies where parents seek out a Catholic Bishop in hopes of an exorcism for their daughter. They are told "We don't do that anymore, go see the Episcopals". Why does Hollywood always pose the Catholics against the Devil? Why not the Lutherans? Martin Luther claimed several hand to hand encounters with the Devil. They even fell to throwing "scheiss" at each other. The "Official story", as opposed to Luther's manuscripts, have them throwing "ink" at each other.