SCOTUS Says Yes to the Cross, No to Public Access

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By William Vogeler, Esq. on June 24, 2019 9:00 AM

In a pair of First Amendment cases, the U.S. Supreme Court drew surprising new lines on religious monuments and public access channels.

In The American Legion v. American Humanist Association, the Supreme Court held that the Bladensburg Cross monument does not violate the establishment clause of the First Amendment. In Manhattan Community Access Corp. v. Halleck, the justices said a nonprofit corporation running a city's public access channel is not subject to the First Amendment.

The cross case naturally got a lot of attention, but the justices largely came together for the decision. The public access case, however, showed the real division in the court's voting block.

The Cross

Better known as the "Peace Cross," the World War I memorial stands 40 feet tall -- on public land -- in Bladensburg, Maryland. Court-watchers and monument-protectors have followed the case closely.

The plaintiffs said the Christian symbol violated the Constitution and wanted it removed, but the Supreme Court defended the cross. In a 7-2 decision, the justices said time had imbued the monument with historical significance beyond religion. Justice Samuel Alito Jr. went further.

"A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion," he wrote in an opinion joined by Justices Stephen Breyer and Elena Kagan, who are Jewish.

Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor dissented. Ginsburg, who read her opinion out loud, said "the principal symbol of Christianity around the world should not loom over public thoroughfares, suggesting official recognition of that religion's paramountcy."

Public Access

Writing for the 5-4 majority, Justice Brett Kavanaugh explained that the First Amendment prohibits only government -- not private -- restrictions on speech. He said the Manhattan Community Access Corp., which allegedly suspended producers over a program criticizing the station, is not a public actor.

"A private entity who provides a forum for speech is not transformed by that fact alone into a state actor," Kavanaugh wrote, joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Jr. and Neil Gorsuch.

Justices Sonia Sotomayor, Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan dissented. They said New York City appointed the corporation "to administer a constitutional public forum."

"It is not, as the Court suggests, about a private property owner that simply opened up its property to others," Sotomayor wrote for the dissenters.

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