"ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B , II–C , III, and IV, in which ROBERTS, C. J., and BREYER, KAGAN, and KAVANAUGH, JJ., joined, and an opinion with respect to Parts II–A and II–D, in which ROBERTS, C. J., and BREYER and KAVANAUGH, JJ., joined. BREYER, J., filed a concurring opinion, in which KAGAN, J., joined. KAVANAUGH, J., filed a concurring opinion. KAGAN, J., filed an opinion concurring in part. THOMAS, J., filed an opinion concurring in the judgment. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined."

That's the line up in American Legion v. American Humanist Association, the case about the 32-foot cross on public land that honors soldiers who died in WWI. The American Legion won — the case is reversed and remanded. It will take me a little time to find my way through those opinions. The precedents in this area of the Establishment Clause have been very confused, and (as someone who taught those cases for many years) I want to know how the Court puzzled through them this time.

I hope to have something more soon or eventually. It's interesting that only Sotomayor and Ginsburg dissent. Breyer was the key vote in the 10 Commandments cases 14 years ago, so what he has to say is important. Maybe I'll start there.

ADDED: Breyer's concurring opinion is short, and it is joined only by Justice Kagan. The vote was 7-2, so there's a majority without including Breyer and Kagan. I'm reading this opinion first simply because Breyer was the decisive vote in the 2 10 Commandments cases in 2005, where he voted against the display in one and for it in the other. I blogged that here, with the conclusion:

So multifactored, contextualized judgment continues to be the rule about government displays with some religious content, and there will be borderline cases where the outcome is uncertain and reasonable judges will disagree.

Maybe the best advice is for the strict separationists to choose their battles well. And certainly, one thing is clear: leave the old monuments and courthouse friezes alone.

Now, onto Justice Breyer's new effort (which relies heavily on his concurring opinion in the 10 Commandments case (Van Orden)):

I have long maintained that there is no single formula for resolving Establishment Clause challenges. See Van Orden v. Perry, 545 U. S. 677, 698 (2005) (opinion concurring in judgment). The Court must instead consider each case in light of the basic purposes that the Religion Clauses were meant to serve: assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its“separate spher[e].”
I agree with the Court that allowing the State of Maryland to display and maintain the Peace Cross poses no threat to those ends. The Court’s opinion eloquently explains why that is so: The Latin cross is uniquely associated with the fallen soldiers of World War I; the organizers of the Peace Cross acted with the undeniably secular motive of commemorating local soldiers; no evidence suggests that they sought to disparage or exclude any religious group; the secular values inscribed on the Cross and its place among other memorials strengthen its message of patriotism and commemoration; and, finally, the Cross has stood on the same land for 94 years, generating no controversy in the community until this lawsuit was filed. Nothing in the record suggests that the lack of public outcry “was due to a climate of intimidation.” Van Orden, 545 U. S., at 702 (BREYER, J., concurring in judgment). In light of all these circumstances, the Peace Cross cannot reasonably be understood as “a government effort to favor a particular religious sect” or to “promote religion over nonreligion.” Ibid. And, as the Court explains, ordering its removal or alteration at this late date would signal “a hostility toward religion that has no place in our Establishment Clause traditions.” Id., at 704.

The case would be different, in my view, if there were evidence that the organizers had “deliberately disrespected” members of minority faiths or if the Cross had been erected only recently, rather than in the aftermath of World War I. See ante, at 29; see also Van Orden, 545 U. S., at 703 (opinion of BREYER, J.) (explaining that, in light of the greater religious diversity today, “a more contemporary state effort” to put up a religious display is “likely to prove divisive in a way that [a] longstanding, pre-existing monument [would] not”). But those are not the circumstances presented to us here, and I see no rea- son to order this cross torn down simply because other crosses would raise constitutional concerns.

Nor do I understand the Court’s opinion today to adopt a “history and tradition test” that would permit any newly constructed religious memorial on public land. See post, at 1, 4 (KAVANAUGH, J., concurring); cf. post, at 8−9 (GORSUCH, J., concurring in judgment). The Court appropriately “looks to history for guidance,” ante, at 25 (plurality opinion), but it upholds the constitutionality of the Peace Cross only after considering its particular historical context and its long-held place in the community, see ante, at 28−30 (majority opinion). A newer memorial, erected under different circumstances, would not necessarily be permissible under this approach. Cf. ante, at 21.

As I have previously explained, “where the Establishment Clause is at issue,” the Court must “‘distinguish between real threat and mere shadow.’ ” Van Orden, 545 U. S., at 704 (opinion concurring in judgment) (quoting School Dist. of Abington Township v. Schempp, 374 U. S. 203, 308 (1963) (Goldberg, J., concurring)). In light of all the circumstances here, I agree with the Court that the Peace Cross poses no real threat to the values that the Establishment Clause serves.

Next, I want to look at how the 2 new Justices handled the old question.

MORE: Gorsuch writes — with Thomas joining — to say the decision should be based on standing. Article III requires federal courts to hear only cases that where the plaintiff has a "concrete and particularized" injury, and here, the plaintiff is merely an "offended observer."

In a large and diverse country, offense can be easily found. Really, most every governmental action probably offends somebody. No doubt, too, that offense can be sincere, sometimes well taken, even wise. But recourse for disagreement and offense does not lie in federal litigation. Instead, in a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an “offended viewer” may “avert his eyes,” Erznoznik v. Jacksonville, 422 U. S. 205, 212 (1975), or pursue a political solution.

ALSO: The Alito opinion, which is mostly a majority opinion — read the post title for the gory details — concludes:

The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent. For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark. For many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment. For all these reasons, the Cross does not offend the Constitution.

AND: Justice Kavanaugh writes alone and separately to say the Lemon test deserved worse treatment than the majority gives it:

As this case again demonstrates, this Court no longer applies the old test articulated in Lemon v. Kurtzman, 403 U. S. 602 (1971)... Today, the Court declines to apply Lemon in a case in the religious symbols and religious speech category, just as the Court declined to apply Lemon in Town of Greece v. Galloway, Van Orden v. Perry, and Marsh v. Chambers. The Court’s decision in this case again makes clear that the Lemon test does not apply to Establishment Clause cases in that category. And the Court’s decisions over the span of several decades demonstrate that the Lemon test is not good law and does not apply to Establishment Clause cases in any of the five categories.

Justice Kagan, on the other hand, writes alone and separately to take a friendlier view toward the Lemon test:

Although I agree that rigid application of the Lemon test does not solve every Establishment Clause problem, I think that test’s focus on purposes and effects is crucial in evaluating government action in this sphere—as this very suit shows.

Thomas writes alone and separately to say something he's said before: The Establishment Clause does not limit state and local government but is a restriction solely on the federal government. And, even if it did, it should only be interpreted to prohibit government coercion of religion. And he wants to do away with Lemon entirely:

As to the long-discredited test set forth in Lemon v. Kurtzman, 403 U. S. 602, 612–613 (1971), and reiterated in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 592–594 (1989), the plurality rightly rejects its relevance to claims, like this one, involving “religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.” Ante, at 15–16, and n. 16. I agree with that aspect of its opinion. I would take the logical next step and overrule the Lemon test in all contexts. First, that test has no basis in the original meaning of the Constitution. Second, “since its inception,” it has “been manipulated to fit whatever result the Court aimed to achieve.” McCreary County v. American Civil Liberties Union of Ky., 545 U.S. 844, 900 (2005) (Scalia, J., dissenting); see Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 398–399 (1993) (Scalia, J., concurring in judgment). Third, it continues to cause enormous confusion in the States and the lower courts. See generally Utah Highway Patrol Assn. v. American Atheists, Inc., 565 U. S. 994 (2011) (THOMAS, J., dissenting from denial of certiorari). In recent decades, the Court has tellingly refused to apply Lemon in the very cases where it purports to be most useful. See Utah Highway, supra, at 997–998 (collecting cases); ante, at 13 (plurality opinion) (same). The obvious explanation is that Lemon does not provide a sound basis for judging Establishment Clause claims.

PLUS: I wonder if any ordinary citizens spend any time at all wondering just how dead Lemon is or should be. I'm thinking no. To me, Lemon is just an outline form to be used in constructing lower court opinions.

AND NOW: I'm looking at the Ginsburg dissent (joined by Sotomayor). It begins:

An immense Latin cross stands on a traffic island at the center of a busy three-way intersection in Bladensburg, Maryland.

We're advised in a footnote to look at a photograph it:

That goes a long way toward making the argument.

Ginsburg goes on to stress just how religious and specific to Christianity the cross is:

“For nearly two millennia,” the Latin cross has been the “defining symbol” of Christianity, R. Jensen, The Cross: History, Art, and Controversy ix (2017), evoking the foun- dational claims of that faith. Christianity teaches that Jesus Christ was “a divine Savior” who “illuminate[d] a path toward salvation and redemption.” Lynch, 465U.S., at 708 (Brennan, J., dissenting). Central to the religion are the beliefs that “the son of God,” Jesus Christ, “died on the cross,” that “he rose from the dead,” and that “his death and resurrection offer the possibility of eternal life.” Brief for Amici Christian and Jewish Organizations 7.6 “From its earliest times,” Christianity was known as “religio crucis—the religion of the cross.” R. Viladesau, The Beauty of the Cross: The Passion of Christ in Theology and the Arts, From the Catacombs to the Eve of the Renaissance 7 (2006). Christians wear crosses, not as an ecumenical symbol, but to proclaim their adherence to Christianity.

It just doesn't belong on that traffic circle, she writes, but that doesn't mean it needs to be destroyed. It could be moved to private land. Ginsburg notes that the majority says the lower court "entertained" the idea of "amputating the arms of the cross" to turn it into "a non-religious slab or obelisk," but really, the court only "entertained" it in the sense of observing that it was one of the plaintiff's ideas. Nevertheless, the thought of doing something so disrespectful and destructive will point many of us back to Justice Breyer's makeshift solution: Old things carved in stone should be left alone. (That's my paraphrase, written in 2005, when the Court decided Van Orden.)