The National Constitutional Center has announced that it would award its 2019 Liberty Medal to former Justice Anthony Kennedy “for his efforts to preserve, protect, and defend liberty by inspiring Americans of all ages to learn about the Constitution through civic education and civil dialogue.” The ceremony will take place on 27 October 2019. The National Constitutional Center is a private, nonprofit organization serving as a leading platform for constitutional education and debate, bringing together people from across America to learn about, debate and celebrate the US Constitution. The Liberty Medal was established in 1988 to commemorate the bicentennial of the US Constitution in order to recognise individuals working to secure the blessings of liberty to people worldwide. To date, recipients have included President George W. Bush, Nelson Mandela, Sandra Day O’Connor, Kofi Annan, Malala Yousafzai and Colin Powell (NCC).
Justice Kennedy sat on the US Supreme Court for 30 years between 1988 and 2018. He was considered a Swing Vote casting the deciding vote in many 5-4 cases, including on affirmative action (Fisher v. University of Texas, 579 U.S. (2016)), gay marriage (Obergefell v. Hodges, 576 U.S. (2015)), gun rights (District of Columbia v. Heller, 554 U.S. 570 (2008)), death penalty (Kennedy v. Louisiana, 554 U.S. 407 (2008)) and abortion (Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)). He was replaced by Justice Kavanaugh nominated by President Trump.
On 2 November 2018, the US Supreme Court issued a writ of certiorari to the Court of Appeals for the 4th Circuit in the case of American Humanist Association v Maryland-National Capital Park and Planning Commission No. 15-2597 2017, thereby agreeing to hear the case of a 93-year-old war memorial in the shape of a cross (SCOTUS Blog). The memorial was completed in 1925 to commemorate 49 local residents who had died in World War I. In 2014, the American Humanist Association sued Maryland public bodies responsible for the upkeep of the monument alleging that it “discriminates against patriotic soldiers who are not Christian, sending a callous message to non-Christians that Christians are worthy of veneration while they may as well be forgotten” (Fox News). In 2017, the Court of Appeals for the 4th Circuit ruled 2-1 in the case of American Humanist Association v Maryland-National Capital Park and Planning Commission No. 15-2597 2017 that even assuming that the monument had some nonreligious function, “the sectarian elements easily overwhelm the secular ones” and that “the cross is by far the most prominent monument in the area, conspicuously displayed at a busy intersection” [p22] and as such its presence on a public land violated the Establishment Clause of the First Amendment. In March 2018 the Court sitting en benc refused to reconsider the case and Maryland petitioned the Supreme Court for a permission to appeal (The Washington Post).
The jurisprudence of the US Supreme Court in cases concerning the Establishment Clause is far from being clear. The Court has struggled over the years to agree on a set of precise directions as to when a religious symbol on a public land would violate the First Amendment. This has led to confusing rulings whereby some symbols have been upheld and others not. For instance, in 2005, in the case of Van Orden v. Perry, 545 U.S. 677, the Court ruled 5-4 that a Ten Commandments monolith on the Texas State Capitol grounds did not violate the Constitution. On the other hand, on the same day in 2005, in the case of McCreary County v. ACLU of Kentucky, 545 U.S. 844, the Court also ruled 5-4 that a Ten Commandments display at the McCreary County courthouse in Kentucky did violate the First Amendment. The two cases were extremely similar yet the Court reached the opposite conclusions. In both cases it was Justice Breyer who acted as the Swing Vote. With those two cases, the US Supreme Court has sent mixed signals to lower courts on the subject of the Establishment Clause. Nevertheless, the Court is now almost 15 years older and its composition has also changed, presumably became more conservative in nature. As a result, the majority of the bench might now have enough votes to articulate some clear guiding principles as to how lower courts should deal with similar cases in the future.