Giant Cross on Public Land Declared Constitutional (SCOTUS)

On 20 June 2019, the US Supreme Court ruled 7-2, in the case of American Legion v. American Humanist Association, No. 17-1717, 588 U.S. (2019), that a 40 feet (12m) Cross monument erected in 1925 as a World War I memorial did not violate the Establishment Clause of the First Amendment. In its reasoning, the Court took a step away from the Establishment Clause test set out in Lemon v. Kurtzman, 403 U.S. 602 (1971).

The monument was erected by the residents of Prince George’s County, Maryland, with the help of a local American Legion, as a memorial for the county’s soldiers who fell in World War I. The cross had been built on private land which was later acquired in 1961 by the Maryland-National Capital Park and Planning Commission. However, at that point, the American Legion reserved the right to continue using the site for memorial-related ceremonies. Since the acquisition in 1961, public funds have been used to maintain the monument. In 2014, the American Humanist Association sued in a District Court alleging that the Cross violated the Establishment Clause of the First Amendment because it was located on public land and public funds had been used for its maintenance.

Justice Alito, writing for the Majority, held that keeping existing religious monuments must be distinguished from erecting new ones He gave four reasons for that. Firstly, it is often difficult to identify the exact purpose of monuments erected decades earlier (per Salazar v. Buono, 559 U. S. 700). Secondly, long-standing monuments might take on non-religious purposes such as historical significance or cultural heritage (per Van Orden and McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844). Thirdly, the message of an old monument might evolve over time (as per Pleasant Grove City v. Summum, 555 U. S. 460, 477). Fourthly, removing long-standing religious monuments which take on historical significance or cultural heritage is no longer being ‘neutral’ in relation to religion. Therefore, according to the Majority, the passage of time creates a strong presumption of constitutionality (pp16–21). Furthermore, Justice Alito pointed to the relationship between the cross and World War I. For example, the US adopted cross as part of its military honors, such as Distinguished Service Cross in 1918 and the Navy Cross in 1919. On top of that, the fallen soldiers’ final resting places abroad were marked by white crosses (or Stars of David) (pp21-24). Based on those criteria, the Majority held that the Cross in this case did not violate the Establishment Clause of the First Amendment. The Cross was almost 100 years old, giving it historical significance and it had a secular meaning (in addition to a religious one) as a war memorial (pp28-31).

The case of American Legion v. American Humanist Association, No. 17-1717, 588 U.S. (2019) is especially important in the context of the Establishment Clause test which is to be applied in cases of publicly displayed religious symbols or publicly held religious ceremonies. Under the Lemon test set out in Lemon v. Kurtzman, 403 U.S. 602 (1971), such a symbol or ceremony must satisfy a threefold test in order to be deemed constitutional under the Establishment Clause of the First Amendment:

  • the statute must have a secular legislative purpose
  • the principal or primary effect of the statute must neither advance nor inhibit religion
  • the statute must not result in an “excessive government entanglement” with religion, considering:
    – character and purpose of institution benefited

    – nature of aid the state provides
    – resulting relationship between government and religious authority

For almost 50 years, federal Courts have been applying the Lemon test, yet no consistency in jurisprudence has been achieved. This leads many to argue that the Lemon test is a failure and the Supreme Court should move towards some other way of adjudicating the constitutionality of publicly displayed religious symbols and publicly held religious ceremonies. In American Legion v. American Humanist Association, No. 17-1717, 588 U.S. (2019), the Court appears to be doing just that.

The Majority held that “Lemon ambitiously attempted to distill from the Court’s existing case law a test that would bring order and predictability to Establishment Clause decisionmaking“; however, “if the Lemon Court thought that its test would provide a framework for all future Establishment Clause decisions, its expectation has not been met. In many cases, this Court has either expressly declined to apply the test or has simply ignored it” (e.g. Zobrest v. Catalina Foothills Sch. Dist., 509 U. S. 1). In fact, “the [Lemon] test has been harshly criticized by Members of this Court, lamented by lower court judges, and questioned by a diverse roster of
scholars.” Consequently, the Court is moving from “evaluate […] cases under Lemon and toward application of a presumption of constitutionality for longstanding monuments, symbols, and practices” (pp12-16).

In terms of concurrence, Justice Breyer, joined by Justice Kegan, agreed that “there is no single formula for resolving Establishment Clause challenges. The Court must instead consider each case in light of the basic purposes that the Religion Clauses were meant to serve: assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its ‘separate spher[e]’” He also agreed that “ordering its removal or alteration at this late date would signal ‘a hostility toward religion that has no place in our Establishment Clause traditions’.” And, “the case would be different […] if the Cross had been erected only recently, rather than in the aftermath of World War I” (p1-3). On the other hand, Justice Kegan, in her separate Concurring opinion, attempted to save at least parts of the Lemon test arguing that although “rigid application of the Lemon test does not solve every
Establishment Clause problem, […] that test’s focus on purposes and effects is crucial in evaluating government action in this sphere” (p1).

Interestingly, Justice Thomas, in his separate Concurring opinion, argued that, based on its text and history, the Establishment Clause did not apply to States at all. He had been holding this opinion at least since the 2002 case of Zelman v. Simmons-Harris, 536 U. S. 639, 677–680. He argued that the 1947 case of Everson v. Board of Ed. of Ewing, 330 U. S. 1, which incorporated the Establishment Clause against States on the grounds that the Free Exercise Clause had already been incorporated, was wrongly decided. According to Justice Thomas and his originalist approach, the Establishment Clause was supposed to protect the States’ right to establish a State-wide religion. Furthermore, based on a literal approach, the Establishment Clause applied only to ‘laws’, not monuments or ceremonies (pp1-3). Nevertheless, Justice Thomas argued that even if the Establishment Clause were to be applied against States, the 40 feet Cross monument would not offend it because of the lack of any coercion on the part of the State (pp3-4). Finally, Justice Thomas also agreed that the Lemon test was not adequate for its purpose and even called it ‘long-discredited’ saying that he would “take the logical next step and overrule the Lemon test in all contexts” as the “test has no basis in the original meaning of the Constitution” and “has ‘been manipulated to fit whatever result the Court aimed to achieve‘” (per McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844, 900 (2005) (Scalia, J., dissenting)) (p5).

Justices Ginsburg and Sotomayor dissented. They argued that the cross was an inherently Christian symbol and using it “as a war memorial does not transform it into a secular symbol” (p2). However, not all crosses violated the Establishment Clause. “When a religious symbol appears in a public cemetery—on a headstone, or as the headstone itself, or perhaps integrated into a larger memorial—the setting counters the inference that the government seeks “either to adopt the religious message or to urge its acceptance by others” (per Van Orden v. Perry, 545 U.S. 677 (2005), at 737 (Souter, J., dissenting)) (p16).

The case of American Legion v. American Humanist Association, No. 17-1717, 588 U.S. (2019) is yet another example of litigation concerning publicly-displayed religious symbols. However, unlike its predecessors, it seems to establish crystal-clear criteria, at least in relation to long-standing monuments. In doing so, it confirms that the Supreme Court is moving away from the test laid down in Lemon v. Kurtzman, 403 U.S. 602 (1971). This is no surprise given how much criticism the Lemon test has attracted over the years. But it also illustrates the Court’s willingness to do away with long-established precedents, something that has been more and more prevailing lately.