On Feb. 27, the Supreme Court will hear arguments about the constitutionality of the 40-foot Peace Cross on government property in Bladensburg, Md., a memorial for local fallen World War I soldiers. Many Americans might see a case like this and assume that keeping the cross means solidifying Christianity’s dominance in American society. To the contrary, protecting these symbols helps religious diversity, because getting rid of the cross also means getting rid of the government accommodations and acknowledgments that religious minorities need in order to thrive.
The reason minorities would be so affected is because the existing legal tools leave the court no choice. The Peace Cross is being challenged under the Establishment Clause of the First Amendment which judges of all ideological stripes have called “formless, unanchored, subjective” and unfit to “provide … guidance.” The problem is that there are a variety of competing rules that the Supreme Court has announced over the years but failed to reconcile.
One rule is the “Lemon test” (named after the 1971 case Lemon v. Kurtzman), which says the government cannot have the purpose or effect of “advancing” religion or become “excessively entangled” with religion. A second rule is the “endorsement test” (announced in 1984), which asks whether a hypothetical “reasonable observer” thinks the government is either endorsing or disapproving of religion. However, since then, the court has combined the original Lemon rule with the no-endorsement rule. A third rule from 2005 says that monuments that have been around long enough don’t violate the Constitution (the Van Orden rule).
Finally, there’s a fourth rule: the historical approach embraced by the court in the 1940s and again in 2014, when the court said “historical practices and understandings” are key. If a particular government practice has long endured, it can stay, as long as it’s not being “exploited to proselytize or advance any one, or to disparage any other, faith or belief.” Under those principles, the Town of Greece, N.Y., was allowed to keep its legislative prayers (“a practice that has long endured” and is “part of our heritage and tradition”) until and unless those prayers are used to “denigrate, proselytize,” or coerce religious belief or practice.
The key question in the Peace Cross case is thus which rule the Supreme Court will use to decide the case. Under the historical approach, the Peace Cross is likely to prevail. It’s been around for 93 years and hasn’t ever been used to denigrate, proselytize, or coerce anyone. And under Van Orden, the monument has been around long enough not to raise constitutional concern.
By contrast, if the court strikes down the Peace Cross, the Lemon test is probably how it’ll do it. And indeed, the group opposing the cross, the American Humanist Association (AHA), is pushing the court to use the Lemon test, while one of the cross’s defenders, former Obama Administration Solicitor General Neal Katyal, prefers the historical approach (the other defender, the American Legion, argues that as long as the government isn’t coercing anyone into religious belief or practice, it’s not violating the Constitution).
What does this mean for religious minorities? One of AHA’s key arguments in favor of the Lemon test is that it best captures the purpose and principles of the Establishment Clause. In particular, AHA argues that the government could not have had a “secular purpose” in erecting a cross because the cross is unequivocally a Christian religious symbol and that the primary effect of erecting a cross as a war memorial is to advance Christianity to the detriment of non-Christian veterans. The cross “excludes and disrespects” minorities and signifies that the sacrifices of non-Christians are “unworthy even of mention.” The problem with this argument is that it pushes the court to uphold a legal test that has an especially exclusionary effect on minority religious believers.
Lemon’s effect is to exclude religious displays from the public square — but in a society that is saturated with Christian symbols, the exclusion disproportionately affects minorities whose symbols, traditions and practices are not part of America’s entrenched “civil religion.” As the Jewish Coalition for Religious Liberty explained in its amicus brief, Lemon disregards minority believers who want to see their religious traditions included in America’s “shared expressions of public meaning.”
When the government acknowledges the religious symbols and practices of minority religious believers, such as the Hanukkah, Eid, Ramadan and Diwali celebrations at the White House, it helps them feel more welcome in broader American society. During these celebrations, the President discusses the holiday’s religious origins and relevant beliefs and customs. The federal government has also since 1979 permitted the Chabad group American Friends of Lubavitch to erect a 30-foot-tall National Menorah on government property in Washington, D.C. Government-sponsored Holocaust remembrance memorials are also replete with Jewish symbols like the menorah, Torah scroll or Star of David. The New England Holocaust Memorial in Boston, for example, includes six illuminated 54-foot-high glass towers that both evoke the candles of the menorah and symbolize the six million Jews killed in the Holocaust.
The Lemon test has been used to sue a school district for offering yoga classes, which opponents called an establishment of Hinduism. Last year, Lemon was used to challenge a school program countering anti-Muslim bullying. Two weeks ago, a federal appellate court ruled in a case where parents of a student had used Lemon to challenge history lessons on “The Muslim World” — they said the lessons forced their daughter “to embrace Islam in conflict with her Christian faith.” Currently, the endorsement part of Lemon is being invoked to challenge meditation practices in public classrooms that are based on Buddhist principles. And the test has been used multiple times to challenge the Jewish practice of eruv, a religious zone marked off by Orthodox Jews to delineate where they can perform tasks not otherwise permitted on the Sabbath. The lawsuits contested the government’s decision to allow the Jewish community to mark the space with, for example, strips of black pipe tied to utility poles.
As the prominent church-state scholar, Michael McConnell has explained, the Lemon test poses serious obstacles to religious pluralism because it “does not distinguish between advancing religion and advancing religious freedom” for minority groups who need government support to carve out their own space in the public sphere. In this way, the Lemon test contradicts the Establishment Clause’s special solicitude for minority and dissenting beliefs. Whatever the court decides about the Peace Cross, it would do well to bolster, not hinder, the Establishment Clause function of protecting religious minorities.
Asma T. Uddin is senior scholar at the Religious Freedom Center of the Freedom Forum Institute. Her email address is: [email protected].