On June 20, 2018, the United States Supreme Court issued its decision in American Legion v. American Humanist Assn., concerning a large cross on public lands, erected as a war memorial. The nine justices produced eight different opinions (a majority decision, a plurality decision, five concurring opinions, and a dissent). In so doing, the Court substantially changed the constitutional tests for defining the “establishment of religion” and continued the Roberts’ Court advancement of religious freedom.
The First Amendment of the Constitution forbids the Federal Government from making any law “respecting an establishment of religion.” Everyone understands that the government cannot formally establish a recognized church or compel a chosen religious orthodoxy. Two centuries of jurisprudence has developed the constitutional principle that the government cannot favor or disfavor one religious belief relative to another; nor can it favor or disfavor religious faith relative to non-belief.
The Bladensburg Peace Cross was erected in 1925 as a memorial to Maryland soldiers who died in World War I. It is a 32-foot tall Latin cross that sits on a large pedestal. In 1961, the Maryland National Park and Planning Commission acquired the Cross and the land on which it sits. The Cross is maintained, preserved, and repaired with public funds. Over the years, the area in which it sits has become a traffic island at the center of a busy intersection. The Cross bears the emblem of the American Legion and the inscription “Valor”, “Endurance”, “Courage”, and “Devotion” on its four sides.
The American Humanist Association (AHA) filed suit in 2012, complaining that the Cross’s presence on public lands and sustaining it by public funds is the favoring of religion, and thereby a violation of the Establishment Clause. The United States Court of Appeals for the Fourth Circuit agreed (in a divided panel), emphasizing that the cross has “inherent religious meaning” as the “preeminent symbol of Christianity.” The Fourth Circuit ordered that the Cross be removed, or alternatively the arms broken off.
The Supreme Court agreed to hear the case, and reversed the Fourth Circuit decision, allowing the Cross to stand. The vote was 7 – 2, consistent with the now established seven justice majority consistently voting in favor of religious freedom.
Since 1971, the Court has held to a test announced in Lemon v. Kurtzman that government action or expenditure is the establishment of religion if (i) it does not have a secular purpose, or (ii) that its principle or primary effect either advances or inhibits religion, or (iii) it fosters “an excessive government entanglement with religion.” Over the years, the test has caused more confusion than it has given clarity, and now the Supreme Court has decided to change it.
But change it to what? How should be the courts determine if any action is “the establishment of religion”?
Constitutional law develops case by case. The Supreme Court cannot just declare and explain a new standard if the justices think it is a good idea, the way Congress can make a new law. The Court can only respond to the particulars of the case before it, not going beyond the facts of that case. As such, constitutional law develops slowly and case-by-case.
Seven justices voted that the Peace Cross is not a violation of the constitution, although they disagreed as to the exact reason in this case. Four justices (Justice Alito who wrote the majority and plurality decision, joined by Chief Justice Robert, and Justices Breyer and Kavanaugh) agreed that the symbol of the cross has taken on secular meanings, and in this case the meaning of a memorial to the soldiers of World War I. That the cross “originated as a Christian symbol and retains that meaning in many contexts does not change the fact that the symbol took on an added secular meaning when used in World War I memorials” – the symbol of the Valor, Endurance, Courage, and Devotion of the soldiers. Further, the memorial “has become part of the community.” For the first time, the Supreme Court stated expressly that it will look primarily to the “history and tradition” of symbols and monuments to decide if they are essentially religious or essentially secular.
The majority was also very concerned that the proposed remedy – to take down the Cross or to deface it by removing its arms – would send a clear message that the government was opposed to religion, and not merely neutral. Justice Alito wrote: “A government that roams the land, tearing down monuments with religious symbols and scrubbing away any reference to the divine will strike many as aggressively hostile to religion. Militantly secular regimes have carried out such projects in the past, and for those with a knowledge of history, the image of monuments being taken down will be evocative, disturbing, and divisive.”
Justices Breyer and Kagan joined the majority opinion, but added more cautious concurring opinions that there is no one test for the “establishment of religion” but that each case must be considered separately, in light of the “basic purposes” of the religion clauses in the First Amendment: “assuring religious liberty and tolerance for all.” They agreed that “the Peace Cross poses no threat to those ends” – noting that the “Cross has stood on the same land for 94 years, generating no controversy in the community until this lawsuit was filed.”
Justices Thomas and Gorsuch would go much further, and require that any plaintiff who bringing a suit such as this must show genuine and personal harm, and not just that he or she is offended by the monument. They would hold that the “offended observer” has no standing to bring this suit, and that their remedy is to petition their legislature to remove the monument rather than seek a ruling from a court: “In a large and diverse country, offense can be easily found. Really, most every governmental action probably offends somebody. … In a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, and ‘offended viewer’ may ‘avert his eyes.’”
Only Justices Ginsburg and Sotomayor would require the Cross to be removed or defaced, consistent with their past opinions contrary to the religious freedom majority on the Roberts’ Court. Their argument is either simple or simplistic (depending on your point of view): “When a cross is displayed on public property, the government may be presumed to endorse its religious content. … Making a Latin cross a war memorial does not make the cross secular, it makes the war memorial sectarian.”
Constitutional jurisprudence develops slowly, on a case-by-case basis. This case continues the strong direction of the Roberts’ Court favoring freedom of religion, and applying history, tradition, and common sense to its decisions. It is an important step in the right direction concerning the role of religion in public matters.