Mojave Cross

I wanted to say something about the legal case of the Mojave Cross , which has now been decided by the Supreme Court as not a violation of the establishment clause.

But I couldn’t, for the life of me, draw any conclusion from the incredible mishmash of the opinions. This particular cross is not a violation. Are others? Who can say?

Eugene Volokh had the same reaction , more learnedly:

The opinions (six of them) are heavily influenced by the peculiar procedural posture of this case; there’s a lot of talk about standing and about interpretation of an earlier injunction in the case, and the validity of that earlier injunction isn’t squarely before the Court in this particular phase of the litigation.

So the Court doesn’t really resolve the enduring uncertainty about the “endorsement test” for the validity of government speech under the Establishment Clause. Justice Breyer doesn’t even clarify his understanding of the proper test, which proved pivotal in the Van Orden v. Perry Texas Ten Commandments case. And Chief Justice Roberts and Justice Alito don’t squarely signal their view on the endorsement test (though their position confirms that they are probably relatively friendly to at least certain kinds of religious speech by the government). The law is still the same mess that it was before.

If I had to label one opinion as most persuasive on the broader questions, I think it’s Justice Alito’s (though I disagree with his reliance on the lopsidedness of the Congressional votes in this case) . . . . But the case as a whole unfortunately tells us little about the law on those broader questions.