"The End of a Walking Dead Doctrine?"

Here is my contribution to a symposium sponsored by the good folks at SCOTUSblog on the upcoming memorial-cross case.  Here are the opening grafs:

About four and a half years ago, here at SCOTUSblog, commenting on the Supreme Court’s then-recent decision in Town of Greece v. Galloway, I noted that it had been a while since the justices “had shared with us their intuitions, impressions, aruspicies, and auguries – that is, what Justice Breyer calls their ‘legal judgment’ – in a clean-and-straightforward Establishment Clause case involving ‘religion in the public square.’” Well, they have been asked to do it again.

One of the questions presented in The American Legion v. American Humanist Association is “whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross.” That the question is posed this way says a lot, but not much that is complimentary or edifying, about the state of First Amendment doctrine. After all, and obviously, the monument at issue in Bladensburg, Maryland’s Veterans Memorial Park does not just happen to be “shaped like” a cross any more than the name of California’s largest city just happens to “sound like” one of the titles of the Blessed Virgin Mary. It is, in fact, a cross – a 40-feet-tall Latin cross that, for nearly a century, has recalled and honored 49 local soldiers who, as its original donors put it, “have not died in vain.” The memorial is constitutional not because its troubling resemblance may be excused but because – the lower court’s speculations about the semiotics of shrubbery-placement notwithstanding – it is not an “establishment of religion.” A judicial doctrine, precedent or “test” that says otherwise is, for that reason, unsound. . . . 

Comments and criticism welcome!