The Bladensburg Cross case is discouraging for liberals, progressives, and church-state separationists on many levels. The most obvious is that the Supreme Court is likely to uphold state displays of symbols that are clearly and irreducibly sectarian. And in doing so, the Court will undermine a fundamental principle of disestablishment, which is that the state may not favor one religion over another.
It seems clear from this week’s oral argument that there are at least four votes on the Court to abandon the Lemon and endorsement tests. Justices Gorsuch, Alito, and Kavanaugh all voiced explicit opposition to the application of Lemon. And Justice Thomas has long favored a radical federalism approach to the Establishment Clause that would allow states to decide for themselves whether to maintain religious establishments. For his part, Chief Justice Roberts seems drawn to Establishment Clause tests that would provide lower courts with more guidance. And although he kept his cards close, there is every reason to expect that he will vote to reject the Establishment Clause challenge in this case. In short, on the conservative side of the Court, there are an easy five votes for upholding state ownership and endorsement of the Latin Cross – the preeminent symbol of Christianity.