In The American Legion v. American Humanist Association, 588 U. S. ____ (2019), the U.S. Supreme Court held that the Bladensburg Cross does not run afoul of the First Amendment’s Establishment Clause. While the Court’s plurality decision does not establish a bright-line test, it does provide guidance for local governments faced with questions over whether to maintain monuments with religious imagery on public property.
Notably, the Court did not apply the testset forth in Lemon v. Kurtzman, 403 U.S. 602 (1971), declaring that it was not useful in deciding challenges to established monuments, symbols and practices. Several justices argued that the test should be abandoned altogether, with Justice Neil Gorsuch declaring the LemonTest is now “shelved.”
The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion.” As the Supreme Court acknowledged, “While the concept of a formally established church is straightforward, pinning down the meaning of a ‘law respecting an establishment of religion’ has proved to be a vexing problem.”
In Lemon, the Supreme Court sought to create a test for all Establishment Clause cases. It directs courts to consider the following (1) whether the challenged display or action has a secular purpose; (2) whether the principal or primary effect is one that neither advances nor inhibits religion; and (3) whether the display or action fosters an excessive entanglement with religion. The Court clarified in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter,492 U.S. 573, 592 (1989) that the “effect[s]” of a challenged action should be assessed by asking whether a “reasonable observer” would conclude that the action constituted an “endorsement” of religion.
Since Lemon, the Court has struggled to apply its test universally to all Establishment Clause cases. Although it has ignored the test altogether in some cases, the justices have never expressly overruled it.
Facts of the Case
In 1918, several Prince George’s County citizens started raising money to construct a giant cross, in addition to a previously established plaque, to honor 49 World War I soldiers from the county. In 1922, the private organizers ran out of money and could not finish the project. So, the Snyder–Farmer Post of the American Legion (the “Post”) assumed responsibility. The Post ultimately completed the monument in 1925 and had Christian prayer services at the dedication ceremony, during which only Christian chaplains took part. Upon completion, the monument at issue stood four stories tall in the shape of a Latin cross located in the median of a three-way highway intersection in Bladensburg, Maryland (the “Cross”).
Today, the 40–foot tall Cross is situated on a traffic island taking up one-third of an acre at the busy intersection of Maryland Route 450 and U.S. Route 1 in Bladensburg. On March 1, 1961, the Maryland–National Capital Park and Planning Commission (the “Commission”), a state entity, obtained title to the Cross and the land on which it sits. According to the Commission, it acquired the Cross and land in part because of safety concerns arising from the placement of the Cross in the middle of a busy traffic median. Therefore, the Commission claims that it assumed responsibility to “maintain[ ], repair[ ], and otherwise car[e] for” the Cross. The Commission has since spent approximately $117,000 to maintain and repair the Cross, and in 2008, it set aside an additional $100,000 for renovations.
Several non-Christian residents of Prince George County filed a civil rights lawsuit against the Commission under 42 U.S.C. § 1983, alleging the Commission’s display and maintenance of the Cross violates the Establishment Clause. The district court determined that the memorial does not run afoul of the Establishment Clause because the Cross has a secular purpose, it neither advances nor inhibits religion, and it does not have the primary effect of endorsing religion.
The Fourth Circuit reversed, holding that war memorial breaches the “wall of separation between Church and State.” As the appeals court explained, “The monument here has the primary effect of endorsing religion and excessively entangles the government in religion. The Latin cross is the core symbol of Christianity. And here, it is 40 feet tall; prominently displayed in the center of one of the busiest intersections in Prince George’s County, Maryland; and maintained with thousands of dollars in government funds.”
Supreme Court’s Plurality Decision
The Supreme Court reversed by a vote of 7-2, finding no violation of the Establishment Clause.Justice Samuel Alito wrote on behalf of the Court in a plurality opinion joined by Chief Justice John Roberts, Justice Stephen Breyer, and Justice Brett Kavanaugh. Justice Elena Kagan joined the majority opinion in part. Justice Clarence Thomas and Justice Neil Gorsuch concurred in the judgement, each writing separately.
In reaching its conclusion, the plurality made a distinction between retaining established, religiously expressive monuments, symbols, and practices and erecting or adopting new ones. According to the Court, “The passage of time gives rise to a strong presumption of constitutionality.” With regard to the Bladensburg Cross, Justice Alito wrote:
The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent. For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark. For many of these people, destroying 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. For all these reasons, the Cross does not offend the Constitution.
Notably, the Court notably did not apply the test set forth in Lemonin reaching its decision. “If the Lemon Court thought that its test would provide a framework for all future Establishment Clause decisions, its expectation has not been met,” Justice Alito wrote. “In many cases, this Court has either expressly declined to apply the test or has simply ignored it.”
“For at least four reasons, the Lemon test presents particularly daunting problems in cases, including the one now before us, that involve the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations,” Justice Alito further wrote. “Together, these considerations counsel against efforts to evaluate such cases under Lemon and toward application of a presumption of constitutionality for longstanding monuments, symbols, and practices.”
In place of Lemon, Justice Alito articulated a historical test that should be used to determine whether the Establishment Clause is violated in these types of cases. “Where categories of monuments, symbols, and practices with a longstanding history follow in that tradition [of the recognition of the important role of religion in the lives of Americans] they are likewise constitutional,” he explained.
Justice Alito also emphasized that manifestations of religion in the community do not automatically offend the Establishment Clause and destroying such manifestations may do more harm than good. “A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion,” he wrote.
According to Alito, practices that provide “respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans … they are … constitutional.”
Key Takeaways for NJ Municipalities
The Court’s decision does not declare a formal rule for Establishment Clause cases, but provides useful guidance. Under the Court’s decision, retaining established, religiously expressive monuments, symbols and practices is “quite different from erecting new ones.” Moreover, the Court’s decision establishes that there is also a “strong presumption of constitutionality” for long-standing monuments, symbols, and practices with religious associations.
For more information about the Court’s decision in The American Legion v. American Humanist Associationor the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.