Supreme Court Justice Ruth Bader Ginsburg on Thursday wrote the lone dissenting opinion in a divisive case on whether a 40-foot cross honoring World War I veterans in a suburb of Washington, D.C., was unconstitutional.
In a narrow and unusually fragmented ruling, seven of the nine justices agreed that the monument, which sits on public land, does not violate the First Amendment’s establishment clause, which bars the government from unduly favoring one religion over another.
However, they disagreed over the clause’s implementations and applications, with several justices only signing on to parts of Justice Samuel Alito’s majority opinion or writing their own concurring opinions.
Ginsburg and Justice Sonia Sotomayor were the only two justices who dissented, with Ginsburg — who is Jewish and whose late husband Marty was an Army veteran — writing the dissenting opinion, arguing that the cross could not be considered a secular symbol on public land.
According to reporters at the court on Thursday, Ginsburg read her dissent from the bench, a move that usually demonstrates that the justice strongly disagreed with the ruling.
“As I see it, when a cross is displayed on public property, the government may be presumed to endorse its religious content,” she wrote. “The venue is surely associated with the State; the symbol and its meaning are just as surely associated exclusively with Christianity.”
“The cross was never perceived as an appropriate headstone or memorial for Jewish soldiers and others who did not adhere to Christianity,” she added later, before giving a history lesson on the development of American cemeteries overseas during World War I.
Citing historical texts, Ginsburg noted that as a temporary measure, “Christian soldiers were buried beneath the cross; the graves of Jewish soldiers were marked by the Star of David,” she wrote.
When it came time to establish permanent headstones, there was considerable debate over whether to continue using religious symbols. Government officials had recommended “plain marble slabs” instead, Ginsburg wrote.
“Everyone involved in the dispute, however, saw the Latin cross as a Christian symbol, not as a universal or secular one,” she wrote. “Throughout the headstone debate, no one doubted that the Latin cross and the Star of David were sectarian grave markers, and therefore appropriate only for soldiers who adhered to those faiths.”