In 1971, the U.S. Supreme Court issued a decision in the case of Lemon v. Kurtzman that, drawing upon strands from prior decisions, set forth a standard for determining whether a law or government action was considered constitutional under the Establishment Clause, the provision of the First Amendment prohibiting state establishment of religion. Under what was soon to become known as the “Lemon test,” in order to be constitutional a law or government action must have a legitimate secular purpose, not have the primary effect of either advancing or inhibiting religion and not result in an excessive entanglement of government and religion.
Already by 1993, however, the late Justice Antonin Scalia colorfully said of the Lemon test that “[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening … little children and school attorneys.” The thrust of his argument was that the test should be discarded, as in the years since it first emerged it had been used by the Supreme Court only as convenient, while being regularly ignored at other times in favor of alternative analytic approaches.
For decades, the “ghoul” continued to walk, albeit increasingly on life (or at least walking dead) support. With the Supreme Court’s decision in American Humanist Association (AHA) v. American Legion, a stake (or as Scalia had it, a pencil) may finally have been placed through Lemon’s heart (for better or for worse, depending on one’s perspective), albeit without any prospect that in so doing the Court has made the outcome of church-state cases more predictable.
The Court’s 7-2 decision in AHA v. American Legion, issued on June 20, 2019, delivered a resounding vote upholding the continued presence of the Peace Cross, a 40-foot-tall, free-standing Latin cross, in a traffic circle in Bladensburg, Md. The cross was erected in 1925 as a memorial to soldiers from the area lost in World War I. The high court rejected AHA’s claim that, as the preeminent symbol of Christian faith, the cross’ placement on and maintenance on public property by the Maryland-National Capital Park and Planning Commission amounted to an unconstitutional establishment of religion.
But, even though a strong 7-2 majority voted to allow the cross to remain in place, only five justices signed the majority opinion — authored by Justice Samuel Alito, with Chief Justice John Roberts and Justices Stephen Breyer, Elena Kagan and Brett Kavanaugh signing on. Even then, Justice Kagan declined to join some portions of the opinion, leaving those sections endorsed by only a plurality of four justices.
In its majority opinion, the Court acknowledged the Peace Cross’ intrinsically religious nature, as well as the government’s obligation of neutrality with respect to religion. However, the Court said, the cross’ religious nature “should not blind us to everything else that [it] has come to represent,” ranging from a symbolic resting place for the area’s World War I dead, to a site for the community to honor all veterans, to a historical landmark. Further, the Court said, for many 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.” The Court also noted that there was no evidence of deliberate disrespect at the time of the cross’ construction towards members of minority faith groups.
Justice Alito’s most salient point, without which the majority opinion would not have come together, was that the cross embodies characteristics shared by “longstanding monuments, symbols and practices like legislative prayer” — enough time had passed that it was difficult to identify the monument’s original purpose, the purpose and message it conveyed may have changed over time and removing it at this late date might not appear to be neutral. “Retaining established, religiously expressive monuments, symbols and practices,” the Court said, “is quite different from erecting or adopting new ones … The passage of time gives rise to a strong presumption of constitutionality.”
This, then, is the clearest message of the decision — whatever the analysis may be for other, newer (to say nothing of prospective) monuments, symbols and practices, a war memorial from an earlier era that incorporates a religious symbol but that has come to take on other, nonreligious connotations will likely be able to remain on public property.
Justices Clarence Thomas and Neil Gorsuch, while concurring in the judgment (which is to say, agreeing with the bottom line), wrote separate opinions in which they urged approaches that, contrary to the majority opinion, would radically reduce the ability of aggrieved citizens to bring Establishment Clause cases in the future.
At the other end of the spectrum, Justice Ruth Bader Ginsburg authored a strong dissent, with Justice Sonya Sotomayor joining, in which she argued that the continuing presence of the Peace Cross on public property and its maintenance by the commission, constituted a breach of fundamental Establishment Clause values. That the cross had been in place for nearly a century did not mitigate its nature as the “preeminent symbol of Christianity, representing the sacrifice of Jesus Christ and the promise of eternal life for Christians.” The message it conveys of exclusion and endorsement when it stands on public property is simply incompatible, Justice Ginsburg asserted, with the constitutional principle that the state must be neutral as between religions or between religion and nonreligion. Further, she pointed out, there were alternatives to destroying the memorial, such as transferring the land on which it stands to private parties or moving the cross to private land.
Given the plethora of concurring and dissenting opinions and the fact that even the opinion of the Court garnered a majority only as to part, the decision upholding the Bladensburg cross must, for now at least, be read as an unusual case that is applicable only to other, similar memorials.
So, where are the fault lines and the issues the courts will assuredly be addressing in cases to come?
Most crucially, a majority of the justices, to greater or lesser extents, have now indicated their desire to move beyond the effort at a unified theory of Establishment Clause law that Lemon ostensibly represented. With the exception of Justice Kagan’s somewhat tentative defense, Lemon is pretty much mentioned in the various opinions only to point out its deficiencies. Interestingly, Lemon is not even mentioned in Ginsburg and Sotomayor’s dissent; Ginsburg’s opinion points instead to broader Establishment Clause principles — as if to concede that the battle to preserve the Lemon test as such is done.
For Justice Breyer, a more appropriate analysis would, as he says in his concurrence, “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].’” It is also appropriate, he goes on to note, for the courts to “look to history for guidance.” On that basis, he finds it appropriate for the Court to uphold the constitutionality of the Peace Cross “after considering its particular historical context and its long-held place in the community.” In so doing, he rejects a broader “history and tradition test” that would permit the construction of new religious memorials on public land, contrary to the import of Justices Kavanaugh and Gorsuch’s respective concurrences.
In his concurrence, Justice Kavanaugh argues for a more lenient Establishment Clause analysis that, while not as radical an assault on that provision as the approaches taken by Gorsuch and Thomas, would allow the government to go further in the direction of establishing religion than current jurisprudence, as long as no coercion is involved. His approach would seemingly allow the government even today to erect monuments like the Peace Cross on the basis of “history or tradition” — notwithstanding that Kavanaugh signed the majority opinion, which places great weight on the notion that new monuments, symbols and practices would be “quite different” from the Peace Cross and in his concurrence signaled continued adherence to the neutrality principle.
In another concurrence, Justice Kagan notes that she refrained from signing on to portions of Justice Alito’s opinion because of her desire to avoid (at least for now) the project of reimagining Establishment Clause law without Lemon, which she regards as having value even in the face of some clear problems. “Although I agree that rigid application of the Lemon test does not solve every Establishment Clause problem,” she said, “I think that test’s focus on purposes and effects is crucial in evaluating government action in this sphere — as this very suit shows.”
Wherever all of this leaves Lemon, Justice Kagan’s concurrence reads the Alito opinion as leaving in place key elements of Lemon (the aforesaid purposes and effects), once one puts aside whatever weight is to be given to the guidance of history. Thus, even if what is to come in Establishment Clause jurisprudence is no longer recognizable as Lemon, its essential core may yet remain in place. There are at least four justices who are committed to continuing to look to those core aspects — Breyer, Kagan, Ginsburg and Sotomayor; they may yet be joined on that score by Roberts and/or Alito, depending on whether in a later case they refrain from subscribing to Kavanaugh’s approach.
In addition to these questions, AHA v. American Legion leaves other questions unresolved.
However these and other questions arising out of AHA v. American Legion are resolved, this seemed an appropriate case for an Establishment Clause workaround if there ever was one. There is no gainsaying the nature of the cross as an intrinsically religious symbol and the sense of endorsement and exclusion that it would convey if it were erected today – and that even a memorial of the Peace Cross’ vintage still conveys. On the other hand, had the case been decided the other way, we would be on the cusp of a series of challenges to other, similar longstanding structures, an enterprise that would only provide on-going aggravation to an already divisive public discourse. That being the case, if the parameters of this decision are ultimately limited to its special circumstances, the judgment of history should be that the Court exhibited prudence and nuance in drawing the line where it did. And, if that line does not hold, the presence of a large cross on public land as a memorial to war dead will be the least of our problems.
Richard Foltin is senior scholar at the Religious Freedom Center of the Freedom Forum Institute. His email address is: [email protected].