I’m surprised that this post didn’t evoke some responses before now. I agree with Prof. Blackman that Establishment Clause jurisprudence is generally a mess, especially in regards to the narrow issue of monuments on government property, such as in American Legion. There are a lot of difficult questions, and On a teaching note, I do like the way that Prof. Blackman handles the questioning of his students. I teach physics, not something that can involve so many subjective arguments or where you need to try and infer what motivates different parties to the case like law. I think he does a great job of getting his students to express their understanding rather than regurgitate facts or simply say what they think the teacher wants to hear. Whether the subject is science, law, or literature, getting students to express what they are thinking in their own words is essential teaching strategy.
As for the cases themselves, the war memorial cross is a tough one, even for me as a non-believer that would otherwise want to side with the American Humanist Association on issues like this. Part of me agrees with the Breyer’s position that Blackman kind of summarizes as, “It’s been there for a long time and essentially no one complained, get over it.”
On the other hand, this is part of the problem when it comes to religious symbols and messages supported or endorsed by government. People in the minority often face a lot of backlash if they do complain, so the fact that few, if any, people complain about it over its long history does not support keeping it. If there is a lawsuit over it now, then there were likely quite a few people that were put off by it in the past that just didn’t want to face the backlash of saying something.
I also noted the example of a group that wanted a monument with their beliefs installed near a Ten Commandments monument. (I looked it up, the case, Pleasant Grove City v. Summum (2009), was about Seven Aphorisms, rather than ten.) The case was actually a Free Speech case, not an Establishment Clause case. The Summum group was arguing that they were being denied their Free Speech rights because the city was creating a public forum in their park by accepting the Ten Commandments monument and yet denying them the right to donate and display their monument. The 9-0 SCOTUS ruling, written by Justice Alito, stated that the Ten Commandments monument was government speech, once it was accepted, since it was then owned and maintained by the city.