Blockbuster Review No. 5: American Legion v. American Humanist Association

Only a few blocks from downtown Bladensburg, Maryland, towers a 32-foot-tall Latin cross. The “Peace Cross,” as it is called, has stood there since 1918, when residents of Prince George’s County sought to build a memorial commemorating the soldiers from that area who died in World War I. From 1925–1961, the local American Legion owned the cross, emblazoning its emblem on the cross’ center and placing a plaque at its base with the words “Valor,” “Endurance,” “Courage,” and “Devotion,” as well as the names of 49 fallen soldiers and a quote from President Woodrow Wilson. Since 1961, the Peace Cross has been under the ownership of the State of Maryland, who has used public funds for maintenance and upkeep when necessary. But in 2014, the American Humanist Association (among others) challenged the constitutionality of the Peace Cross, arguing it violates the Establishment Clause of the First Amendment. The question must then be asked: Are they right?


Justice Alito’s Majority Opinion

Justice Samuel Alito—writing for a 7:2 majority—answered that the Bladensburg Peace Cross (“the Cross”) did not violate the First Amendment’s protection against a government establishment of religion. Chief Justice Roberts and Justices Breyer, Kagan, and Kavanaugh joined Alito in the majority, and Justices Thomas and Gorsuch filed opinions concurring in the judgment.

Alito begins his opinion by surveying the symbolic history behind the image of a cross. Certainly, the cross innately reflects the image of Christianity, having been a Christian symbol since the fourth century. “But there are many other contexts in which the symbol has also taken on a secular meaning,” Alito writes. These other contexts include health care, like the Blue Cross Blue Shield, the Bayer Group, and Johnson & Johnson. One can also think of the Swiss Flag and the International Committee of the Red Cross. In addition, the plain Latin cross like the Bladensburg Cross similarly “took on new meaning after World War I.” The plain white cross became a symbol of the fallen soldier, as rows of crosses stood watch over the graves of tens of thousands of American servicemen and -women. “[W]hen Americans saw photographs of these cemeteries,” Alito explains, “what struck them were the rows and rows of plain white crosses.” Thus, “the image of a simple white cross” morphed from just an emblem of Christianity into the icon of the American soldier who gave his life for his country.

Alito then turns to the Lemon test—a three-pronged checklist from Lemon v. Kurtzman (1971) that the Court has used to adjudge Establishment Clause cases. The First Amendment’s Establishment Clause declares simply that “Congress shall make no law respecting an establishment of religion.” The Lemon test is meant to “bring order and predictability to Establishment Clause decisionmaking,” Alito writes, and it has three parts regarding a law or government action that interacts with religion: One, does the law or action have a secular purpose; two, is its “principal or primary effect” one that “neither advances nor inhibits religion”; and three, does it avoid fostering “an excessive government entanglement with religion”? To be constitutional, a law or government action challenged under the Establishment Clause must pass all three prongs; if it fails just one, it fails the Lemon test and fails constitutional muster.

But Alito is quick to note his hesitancy toward the Lemon test, a hesitancy the Court has felt in a number of cases since the test’s inception in 1971. “If the Lemon Court thought that its test would provide a framework for all future Establishment Clause decisions,” Alito remarks, “its expectation has not been met.” “In many cases,” he continues, “this Court has either expressly declined to apply the test or has simply ignored it,” citing ten cases between 1993 and 2018. Indeed, 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,” Alito argues (internal citations omitted).

There are “at least four reasons,” Alito says, that “counsel against efforts to evaluate [this] case[] under Lemon and toward application of a presumption of constitutionality for longstanding monuments, symbols, and practices.” For starters, this case and others like it often involve monuments or symbols that were erected long ago, and “identifying their original purpose or purposes may be especially difficult.” Second, what was once only a religious symbol can often take on a non-religious purpose, just as with the cross marking the graves of dead soldiers. “Even if the original purpose of a monument was infused with religion,” Alito states, “the passage of time may obscure that sentiment.”

Third, “just as the purpose for maintaining a monument, symbol, or practice may evolve, the message conveyed . . . may change over time” (emphasis added). “With sufficient time,” Alito argues, religious monuments and symbols “can become embedded features of a community’s landscape and identity.” He continues: “The community may come to value them without necessarily embracing their religious roots.” For instance, Alito points to Paris’ Notre Dame Cathedral, which was ravaged by a devastating fire in April. On this point, he explains:

Although the French Republic rigorously enforces a secular public square, the cathedral remains a symbol of national importance to the religious and nonreligious alike. Notre Dame is fundamentally a place of worship and retains great religious importance, but its meaning has broadened. For many, it is inextricably linked with the very idea of Paris and France (internal citation omitted).

In addition, what about religiously-named places, like Bethlehem, Pennsylvania; Las Cruces, New Mexico; Corpus Christi, Texas; among others? Or mottoes, like the United States’ “In God We Trust,” or Arizona’s “Ditat Deus” (“God enriches”); or state flags, like Maryland’s with two crosses? Though religion inherently played a role in the formulation of all these places and symbols, does “that history require[] that these names [and symbols] be erased from the map?” Alito thinks not.

For Alito’s final point about why Lemon is hardly useful here, he directs us to use our imaginations: Suppose he ordered Maryland take the cross down, and for places with other religious symbols and monuments to take them down. What kind of message does that send? In Alito’s words, “[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.” Such a position, of course, violates the Establishment Clause, for the Clause prohibits governmental favoritism of nonreligion over religion and vice versa, not just one particular religion over another.

Alito next applies these four factors to war-memorial crosses like the Bladensburg Cross. Such crosses were erected nearly a century ago, and the “motivation”—whether religious or secular—of those who built the crosses “is generally unavailable” and “invites rampant speculation,” Alito submits. Next, the purpose of such crosses is not to show that the town or city in which a cross is located supports only Christianity, but to honor those who gave their lives in service of their country. In the same vein, the message of the crosses is to commemorate the fallen and to mimic the thousands of other similar crosses with the same message, not to advance Christian dogma. And finally, removing such crosses “may evidence hostility to religion even if [its] religious associations are no longer in the forefront.” For instance, Alito writes, you cannot simply “amputat[e] the arms of the Cross,” as the Fourth Circuit Court of Appeals considered; doing so “would be seen by many as profoundly disrespectful,” and it would obliterate the cross’ message—not simply whatever religious message that may be tied to it, but its solemn eulogy for all the fallen men and women, spoken by the thousands of similar crosses in Arlington Cemetary, elsewhere in the United States, and throughout the world.

For these reasons, Alito concludes, the Bladensburg Peace Cross does not violate the Establishment Clause of the First Amendment. It “carries special significance in commemorating World War I.” It “has acquired historical importance,” in that it “reminds the people of Bladensburg and surrounding areas of the deeds of their predecessors and of the sacrifices they made in a war fought in the name of democracy.” It “represents what the relatives, friends, and neighbors of the fallen soldiers felt at the time [they built it] and how they chose to express their sentiments.” It “stands among memorials to veterans of later wars” and “has become part of the community.” And on a closing note, Alito writes that “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.”

Justice Breyer’s Concurrence

Justice Stephen Breyer, joined by Justice Elena Kagan, penned a short concurrence. In like fashion to Alito, he begins by stating that “there is no single formula for resolving Establishment Clause challenges.” Instead, such cases must be adjudged under the basic tenets protected by the First Amendment: “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 sphere” (internal citation omitted).

Under this line of reasoning, Breyer agrees with Alito that the Peace Cross should not be taken down as a violation of the Establishment Clause. As he puts it, citing the majority’s “eloquent[]” opinion:

The Latin cross is uniquely associated with the fallen soldiers of World War I; the organizers of the Peace Cross acted with the undeniably secular motive of commemorating local soldiers; no evidence suggests that they sought to disparage or exclude any religious group; the secular values inscribed on the Cross and its place among other memorials strengthen its message of patriotism and commemoration; and, finally, the Cross has stood on the same land for 94 years, generating no controversy in the community until this lawsuit was filed.

Breyer points out, however, that this case would have been different in his mind had there been “evidence that the organizers [of the Cross’ construction] had deliberately disrespected members of minority faiths or if the Cross had been erected only recently, rather than in the aftermath of World War I.” In addition, he shies away from the prospect that Alito has constructed a new Establishment Clause test in place of Lemon. Distinguishing between Justices Kavanaugh and Gorsuch’s subsequent concurrences (more on those infra), Breyer does not “understand the Court’s opinion today to adopt a ‘history and tradition test’ that would permit any newly constructed religious memorial on public land.”

Justice Kavanaugh’s Concurrence

Justice Brett Kavanaugh first makes clear that he “join[s] the Court’s eloquent and persuasive opinion in full.” He uses his own ink simply “to emphasize two points.”

First, Alito’s majority opinion lists five different types of Establishment Clause cases, as Kavanaugh writes:

  • “Religious symbols on government property and religious speech at government events;
  • Religious accommodations and exemptions from generally applicable laws;
  • Government benefits and tax exemptions for religious organizations;
  • Religious expression in public schools;
  • And regulation of private religious speech in public forums.”

But the Lemon test “does not explain the Court’s decisions in any of those five categories.”   Thus, as Kavanaugh sees it, the “Court’s decisions over the span of several decades demonstrate that the Lemon test is not good law and does not apply to Establishment Clause cases in any of the five categories.”

Second, Kavanaugh points out that the Court’s ruling in this case merely “allows the State to maintain the cross on public land;” it “does not require the State to maintain the cross on public land.” There are a number of “alternative avenues” available to the State of Maryland for legally taking the cross off public land, such as enacting new state laws transferring the land to private ownership, promulgating executive action, and the like.

Justice Kagan’s Concurrence

Justice Elena Kagan entered a very brief concurring opinion, in which she explains why she did not join fully the majority’s opinion with respect to Parts II–A and II–D. Recall that Part II–A speaks about the Lemon test’s “shortcomings” and the four reasons why Justice Alito declines to use it in this case. While Kagan “agree[s] that rigid application of the Lemon test does not solve every Establishment Clause problem,” she does not seem willing to toss it out the window just yet, writing that its “focus on purposes and effects is crucial in evaluating government action in this sphere—as this very suit shows.”

In Part II–D, Alito adduces and explains a duo of Establishment Clause cases in which the Court upheld a religious practice without using the Lemon test, instead “tak[ing] a more modest approach that focuses on the particular issue at hand and looks to history for guidance.” In Kagan’s view, history certainly plays a “guid[ing]” role in adjudging Establishment Clause cases. However, Kagan would prefer to look at the history of a symbol or practice on a “case-by-case” basis, “rather than to sign on to any broader statements about history’s role in Establishment Clause analysis.” Nonetheless, she says there is “much to admire” in Part II–D and certainly throughout the rest of Alito’s opinion, and so she concurs.

Justice Thomas’ Concurrence

Justice Clarence Thomas is the first to take a significantly different approach to resolving Establishment Clause cases such as this one. In his seven-page opinion concurring in the Court’s judgment, Thomas agrees that the Bladensburg Cross is “clearly constitutional.” However, Thomas would not reach this conclusion via the same route Alito takes. In fact, Thomas would not even seek to adjudge the cross under the First Amendment, writing that the “text and history” of the Establishment Clause “suggest that it should not be incorporated against [that is, “applicable to”] the States.”

To Thomas, the First Amendment (“Congress shall make no law . . . .”) “by its terms applies only to laws enacted by Congress” and should not apply to the states if not for the Court’s contrary conclusions in Everson v. Board of Ed. of Ewing (1947) and others. In Thomas’ mind, then, the challengers of the Bladensburg Cross can prevail on their claim only if they demonstrate that the Establishment Clause “was understood to be an individual right of citizenship that applied to more than just laws made by Congress” (internal quotation marks and citation omitted).

One way to do this is to show that the Cross fails the coercion test, that is, that those bringing the establishment challenge were forced to participate in religious expression that violates their own deeply-held religious or nonreligious convictions. “The sine qua non of an establishment of religion is ‘actual legal coercion,'” Thomas writes, quoting his opinion in Van Orden v. Perry (2005). But the “mere presence of the monument along respondents’ path involves no coercion,” Thomas opines, again citing his opinion in Van Orden. And the Maryland-National Capital Park and Planning Commission (“the Commission”), who is responsible for maintaining the cross, “has not attempted to control religious doctrine or personnel, compel religious observance, single out a particular religious denomination for exclusive state subsidization, or punish dissenting worship.”

Thomas devotes the final two pages of his opinion to discussing the “long-discredited” Lemon test. But while a plurality of the Court (per Justice Alito) “reject[s] its relevance” only to cases like this, Thomas “would take the logical next step and overrule the Lemon test in all contexts” (emphasis added). He arrives at this determination based on four factors. First, the Lemon test “has no basis in the original meaning of the Constitution.” Second, “‘since its inception,’ it has ‘been manipulated to fit whatever result the Court aimed to achieve,'” citing the late Justice Antonin Scalia’s dissent in McCreary County v. American Civil Liberties Union of Kentucky (2005). Third, “it continues to cause enormous confusion in the States and the lower courts,” pointing to his dissent from denial of certiorari in Utah Highway Patrol Ass’n. v. American Atheists, Inc. (2011). And fourth, the Court “[i]n recent decades . . . has tellingly refused to apply Lemon in the very cases where it purports to be most useful.” To Thomas, all these points make clear that “Lemon does not provide a sound basis for judging Establishment Clause claims.” And if the Court’s “job [is] to say what the law is, and because the Lemon test is not good law, we ought to say so.”

Justice Gorsuch’s Concurrence

Justice Neil Gorsuch, joined by Justice Thomas, authored an eleven-page opinion similarly concurring in the judgment. Gorsuch likewise would approach this case in a much different fashion. But while for Thomas that is incorporation, for Gorsuch that is standing—that is, that Respondents cannot bring a suit seeking to demolish the Bladensburg Cross simply because they felt offended by it.

Gorsuch gets straight to the point: “This ‘offended observer’ theory of standing has no basis in law.” To obtain standing to sue under the Constitution, he continues, a party must show three things: “(1) injury-in-fact, (2) causation, and (3) redressability.” The problem with cases like these, in Gorsuch’s mind, has to do with the “injury-in-fact” test. It “requires a plaintiff to prove an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical” (internal quotation marks and citation omitted). But the Court “has already rejected the notion that offense alone qualifies as a ‘concrete and particularized’ injury sufficient to confer standing,” Gorsuch is quick to note. “If individuals and groups could invoke the authority of a federal court to forbid what they dislike for no more reason that they dislike it,” would that not “risk exceeding” the limited constitutional power of the Judiciary and “infring[e]” the powers of the Executive and Legislature? Besides, the Court “has already expressly rejected ‘offended observer’ standing under the Establishment Clause itself,” says Gorsuch as he cites Valley Forge Christian College v. Americans United for Separation of Church & State, Inc. (1982).

Gorsuch then joins the procession attacking the Lemon test. He first agrees with Alito’s Part II–A, arguing that Lemon—which “sought a ‘grand unified theory’ of the Establishment Clause but left us only a mess” (quoting Alito’s majority opinion)—”was a misadventure.” He continues, saying “[s]cores of judges have pleaded with us to retire Lemon, scholars of all stripes have criticized the doctrine, and a majority of this Court has long done the same.” It ought to be noted that “not a single Member of the Court even tries to defend Lemon against [its] criticisms—and they don’t because they can’t.” Thus, as he remarked at oral argument, it seems “time . . . to thank Lemon for its services and send it on its way” (see pp. 25–26).

But it gives Gorsuch pause when Alito writes in Part II–D that “longstanding monuments, symbols, and practices” are “presumpt[ively] constitutional.” “How old must a monument, symbol, or practice be to qualify for this new presumption,” Gorsuch asks? And “where exactly in the Constitution does this ‘presumption’ come from” (quotation marks added)?

Nonetheless, Gorsuch ends his opinion by returning to his original point of view—that Respondents do not have standing to bring this suit. On this point, Gorsuch would have the Court dismiss the case in its entirety “rather than enmeshing themselves for years in intractable disputes sure to generate more heat than light.”

Justice Ginsburg’s Dissent

Seven Justices, at this case’s base level, feel the Cross does not violate the Establishment Clause and can remain standing. But Justice Ruth Bader Ginsburg, with whom Justice Sonia Sotomayor agrees, does not. In her twenty-one page dissent—capped by six pictures of the Cross and the surrounding park—Ginsburg would hold that the Cross is “a symbol that bears ‘a starkly sectarian message'” (quoting now-retired Justice John Paul Stevens’ dissent in Van Orden); and “[b]y maintaining the . . . Cross on a public highway, the Commission elevates Christianity over other faiths, and religion over nonreligion,” in violation of the Establishment Clause.

Ginsburg would adjudge this case under the “endorsement test” set out by Justices Harry Blackmun and Sandra Day O’Connor in Allegheny County v. Greater Pittsburgh ACLU (1989). A religious display fails the endorsement test if it “objectively ‘conveys a message that religion or a particular religious belief is favored or preferred'” (quoting County of Allegheny). In other words, if it appears the government is “endorsing”, “favoring”, or “preferring” one religion over another, or religion over nonreligion, the law or display is unconstitutional. Applying the endorsement test to cases like the one here, “when a cross is displayed on public property”—that is, land owned by the State—”the government may be presumed to endorse its religious content” (emphasis added). Ginsburg acknowledges there are some instances in which that conclusion does not hold true, such as a religious display in a museum, or a public history teacher educating his/her students on the development of a world religion. But “[t]he Peace Cross . . . is not of that genre,” Ginsburg argues.

She canvasses the history behind the symbol of the Latin cross, stressing that it has been the “defining symbol of Christianity” for “nearly two millennia” (internal quotation marks and citation omitted). She pounces on the Commission’s offered defenses of the Peace Cross, asserting that its “‘[a]ttempts to secularize what is unquestionably a sacred [symbol] defy credibility and disserve people of faith'” (quoting Justice Stevens’ dissent in Van Orden). And she questions whether a cross marking the grave of a fallen soldier really takes on a new, nonsectarian meaning. Quoting Justice Stevens’ dissent in Salazar v. Buono (2010), she agrees with a number of lower court conclusions that “[m]aking a . . . Latin cross a war memorial does not make the cross secular”; it “makes the war memorial sectarian.” And the Peace Cross, specifically, “is no exception.”

Ginsburg next takes issue with one of the Commission’s principal arguments: that the Latin Cross “is a ‘well-established’ secular symbol commemorating . . . ‘military valor and sacrifice [in] World War I.” Ginsburg replies that the Latin cross “was never perceived as an appropriate headstone or memorial for Jewish soldiers and others who did not adhere to Christianity.” Moreover, Latin crosses are not a “universal symbol” of fallen World War I soldiers, as the Commission posits; they are “outliers,” composing “less than 1% of the total number of monuments to World War I in the United States,” according to Ginsburg.

Next, she addresses the majority’s fear that declaring the Peace Cross unconstitutional would “inevitably require the destruction of other cross-shaped memorials throughout the country” (i.e., Arlington National Cemetery). To Ginsburg, there is a difference between a religious symbol “appear[ing] in a public cemetery—on a headstone[] or as the headstone itself”—and a religious symbol like the towering Peace Cross, which abuts major highways in a busy part of a city or town. The “[cemetery] setting counters the inference that the government seeks either to adopt the religious message or to urge its acceptance by others,” Ginsburg argues (internal quotation marks and citation omitted). Put differently, the “privately selected religious symbols on individual graves [in a cemetery] are best understood as the private speech of each veteran,” not the public speech of the government (emphasis added) (internal quotation marks and citation omitted).

In any case, Ginsburg reverts back to what she sees as the true meaning of the Establishment Clause: It “preserves the integrity of both church and state, guarantee[ing] that ‘however . . . individuals worship, they will count as full and equal American citizens” (quoting Justice Kagan’s dissent in Town of Greece v. Galloway (2014)). And, as she wrote in her dissent in Capitol Square Review & Advisory Bd. v. Pinette (1995), if its “genuine[]” aim is to “uncouple government from church,” the Establishment Clause does “not permit . . . a display of th[e] character” of the Bladensburg Peace Cross.

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