John C. Eastman's recent praise for his former boss Justice Thomas's discernment in realizing that the cross at issue in Capitol Square Review & Advisory Board v. Pinette "was actually the flaming symbol of the Ku Klux Klan, not a religious symbol at all," strikes me as somewhat misplaced.
First, the cross in the case wasn't "flaming." It was simply an eight-foot tall wooden cross placed in a literal public square in Ohio. It was toppled in protest several times and replaced several times; when the Klan repeated the cross placement at the state capitol, "the Metropolitan Area Church Council, after receiving a permit on Wednesday, placed seven crosses where the wooden Klan cross had stood on the southwest corner of the Statehouse lawn. 'Our secret desire is to make the Klan cross less significant by surrounding it with dozens of identical crosses,' said the council's director, the Rev. Burton Cantrell." In short, nothing visually distinguished the Klan cross from any other cross used as a Christian symbol.
Second, Thomas's analysis of the Klan's intent in putting up the cross is vague. Initially he asserts, "The erection of such a cross is a political act, not a Christian one"; then he concedes, "this message was both political and religious in nature"; and finally concludes, "I think that the Klan had a primarily nonreligious purpose in erecting the cross." Surely a political element to an act cannot render it unprotected by the Establishment Clause, though it may kill the actor's tax exemption. The KKK's cross erected in Ohio, symbolizing their hope for a white, Christian nation, has as much claim to the First Amendment as Antioch Bible Church's cross erected in Redmond, symbolizing their hope for a heterosexual, Christian nation. For each organization, the exclusion of some group of others is fundamental to their conception of Christianity. If we are going to have any religious symbols shoved into taxpayer-owned soil, we cannot restrict them solely to the Happy Ecumenical Loves Lepers church; we have to let the stanky, racist religions have equal rights as the socially acceptable ones. The KKK got its inspiration to put up a cross after a Jewish group put up a menorah in the same square.
Third, Thomas declares that the "Klan simply has appropriated one of the most sacred of religious symbols as a symbol of hate." This goes back to the error identified in the first point: the conflation of the Christian cross -- traditionally wooden, like the cross on which Christ was crucified to redeem us from our sins -- with the Klan cross, which is immediately identifiable as a Klan cross only when it is on fire. By saying that even an unburned cross in the hands of a Klansman cannot be a religious symbol, Thomas effectively strips KKK members of their expressive access to one of the most fundamental symbols of their religion. I agree that a flaming cross is a symbol of hate, though I disagree with Thomas that it can be criminalized under the First Amendment. I also disagree that any cross put up by the Klan is inherently and primarily a symbol of political hate rather than a religious expression. The religious expression itself may be one of hatred; again, we're not only dealing with Sunshine's House of Hugs here. But requiring the government to figure out which are the permissible religious expressions and which are not is precisely the kind of entanglement of state in the affairs of churches that we should avoid.
Pinette makes for an interesting companion with Thomas's concurrence in Virginia v. Black, a case that involved actual cross burning. In Pinette, Thomas says we know that the unburned cross was intended to intimidate because it was put up by the KKK. In Black, he says we know that the cross was intended to intimidate -- without the Commonwealth's having to prove this element of the crime even so far as to giving evidence of the defendants' being white supremacists -- because it was burning.