BREAKING NEWS – In a decision issued this morning in American Legion v. American Humanist Assn. (U.S. Jun. 20, 2019), the United States Supreme Court ruled (7–2) that a large 94-year-old WWI cross on public land in Maryland is not prohibited by the Establishment Clause. The Court found that, even if the cross was originally a religious symbol, over time, it became more of a secular monument because of its “historical significance” its “place in a common cultural heritage.” Drafted by Justice Alito, the decision states that “the passage of time gives rise to a strong presumption of constitutionality.”
The cross, which was built by the American Legion using private donations, stands on public land at a busy intersection and is maintained with government funds. It has the names of 49 soldiers who died in World War I. The Maryland-National Capital Park and Planning Commission obtained ownership of the property in 1961.
There’s an old adage that bad facts make bad law; in this case, given political exigencies, there was little to no chance that the Court would have found that the cross must be removed from public property. While we had previously anticipated that denying the case based on standing would have been the “easy answer,” the Court issued a ruling based on the merits. Now our attention turns to whether there is collateral damage to the substance of the Establishment Clause.
That a religious symbol or symbolic act is part of the “fabric of society” and therefore can remain undisturbed had been established in Marsh v. Chambers and other cases. It was untenable that the Court would ever find that a cross on public land would be more offensive than tearing down a memorial to those who died in a war a century ago.
The decision downplays the Lemon test, which has been the primary method of addressing whether a government action violates the Establishment Clause in favor of “a more modest approach that focuses on the particular issue at hand and looks to history for guidance.” The Court uses the legislative prayer cases, including Marsh v. Chambers and Town of Greece, to show that the Court has “conspicuously ignored” Lemon. Under the Lemon test, described in the 1971 case of Lemon v. Kurtzman, there are three tests for any law that potentially infringes on the Establishment Clause. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.
In this case, the Court examined several examples where government actions might otherwise appear to encroach upon an establishment of religion but are permitted and flatly concludes that “Where categories of monuments, symbols, and practices with a longstanding history follow in that tradition, they are likewise constitutional.”
“The cross,” writes Justice Alito, “is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent…. [D]estroying 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.”
In a concurring opinion, Justice Breyer and Justice Kagan agree that there is “no single formula” for resolving Establishment Clauses and cite the 2005 decisions involving Ten Commandment monuments in which the Court found that one monument had historical value and was permissible and the other was a newer religious symbol and impermissible. The concurrence says that those who had established the cross had not “deliberately disrespected” minority faith members and that it had been erected near the end of World War I. The concurrence concludes that, in the current case, the “Peace Cross poses no real threat to the values that the Establishment Clause serves.”
Justice Kavanaugh and Justice Thomas also write concurring opinions with states’ rights ramifications. Justice Kavanaugh writes that the cross is not simply a dull religious symbol but has a “deeply religious nature.” To say it lacked religious meaning, says Kavanaugh, would be deeply offensive to both believers and nonbelievers. But, he writes, if the state of Maryland wishes to remove the cross, it could do so, as the Supreme Court can simply permit it to stand, but the state has the ability to remove it.
Justice Thomas’ concurrence dovetails with Justice Kavanaugh’s in supporting the conclusion but argues that the Court has applied the wrong Establishment Clause. Thomas argues that the Establishment Clause should not apply to actions by state governments and that Lemon v. Kurtzman is “long-discredited.” Justice Thomas’ rationale is that, because the First Amendment says, “Congress shall make no law…” it means that the framers intended to “protect” the states from federal laws preventing them from establishing a religion. This rationale could easily be extended to any of the other provisions in the First Amendment upon which “Congress shall make no law” that infringements on free exercise of religion, free speech, freedom of the press, freedom to assemble, or other enumerated rights. Thomas also argues that, because the cross monument is “not a law,” it escapes First Amendment scrutiny completely.
Justice Thomas’ approach of taking away the protections against the Establishment Clause at the national level and returning them to the states is a call back to pre-Civil War arguments that permitted slavery at the state level even while supporting the “Bill of Rights” at the federal level. It was not until after the Civil War that Congress required formerly Confederate states as a condition of rejoining the United States to agree to incorporate the Bill of Rights via the 14th Amendment that slavery was outlawed and the Bill of Rights extended to all citizens. Even today, while some states remain strictly secular, others consistently challenge the boundaries of the establishment of religion and seek to promote the rights of those with majority religious beliefs over others with minority beliefs or nonbeliefs.
Justice Gorsuch argues, in a separate opinion, that members of the American Humanist Association never had standing as “offended observers” to bring the case in the first place.
Justice Ginsburg and Justice Sotomayor provided the sole dissent from the opinion, arguing that the cross on public land is an impermissible religious symbol and that age does not secularize it. Writes Justice Ginsburg, “As I see it, when a cross is displayed on public property, the government may be presumed to endorse its religious content. The venue is surely associated with the state; the symbol and its meaning are just as surely associated exclusively with Christianity.” The use of such a symbol, she continues, communicates to non-Christians that they “are outsiders, not full members of the political community” (Citing County of Allegheny, 492 U.S., at 625). She also differentiates between general public religious symbols and individually chosen markers such as gravestones.
It is difficult to determine what guidance this decision will provide for future Establishment Clause cases involving religious symbols. Certainly, the issue of the age of the monument will be considered, but at which point does a symbol become old enough? What if it is 15–20 years old? How would this apply to an identical monument to commemorate those who died on September 11, 2001?
This case redraws the lines of Establishment Clause jurisprudence and appears to jettison the Endorsement test and the Lemon test without providing a new test to replace it. It may be limited to religious symbols or it may reach to areas of government funding, religion in public schools, or other areas outside of mere symbols or public ritual where the Lemon test had significance until now.