A significant new Supreme Court decision on religious liberty

We often hear about court cases involving challenges to displays of religious symbols on public property, whether it be displays of the Ten Commandments or a cross or some other item of religious significance. The United States Supreme Court recently issued a decision in such a case involving a cross on public property as part of a war memorial, The American Legion v. American Humanist Association.1 This decision is significant, not for its subject matter, but for the legal analysis used by the Court in reaching its decision. Although the news media widely reported simply that the Court had allowed a display including a cross to remain on public property, the case actually merits a closer look for its potential impact on religious liberty cases in the future, as it departed from previous Supreme Court jurisprudence.

The factual background of the case begins shortly after the first World War. After World War I, residents of Prince George’s County Maryland decided to erect a war memorial in Bladensburg to remember those from the county who died in the first World War. The proj­ect was started by a private committee and finished by the American Legion. The memorial is a forty-foot tall Latin cross, and is known as the “Peace Cross.” It is not clear why a Latin cross was chosen, but as the Su­preme Court noted, it is not surprising as it had become a symbol of the war, and brought to mind the rows of plain white crosses marking the graves of the soldiers buried overseas. The cross was originally on private land, but as the area around the cross developed, it eventually stood in the middle of a busy intersection, and the Maryland-National Capital Park and Planning Commission acquired the cross and the land on which it was situated.

The cross stood for nearly 90 years when an action was filed by the American Humanist Association requesting a court order requiring the Commission to remove the cross or modify it by removing the cross-arms to make an obelisk or some other secular symbol. The American Humanist Association is a non-profit organi­zation with the self-proclaimed mission of advocating “progressive values and equality for humanists, athe­ists, freethinkers, and the non-religious across the coun­try.”2 The group alleged that the use of public funds to maintain the cross, and its presence on public property, was unconstitutional. The American Legion intervened in the court action on behalf of the Commission to de­fend the cross.

This case involved questions of First Amendment jurisprudence, as the challengers alleged that the maintenance of the cross on public property at public expense violated the Establishment Clause of the First Amend­ment to the United States Constitution. The Establish­ment Clause provides that “Congress shall make no law respecting an establishment of religion.” The District Court granted summary judgment for the American Le­gion and the Commission. This means that the court found that there were no relevant factual disputes and that the law in the case required a ruling in favor of the American Legion and the Commission. In doing so, the District Court looked at previous Supreme Court prec­edents, including a case involving a display of the Ten Commandments3 and the test established in the case of Lemon v. Kurtzman,4 which has been used to determine Establishment Clause cases since it was decided in 1971.

The challengers appealed the decision of the District Court to the Fourth Circuit Court of Appeals, where a divided panel reversed the District Court and ruled against the American Legion and the Commission, largely based on its application of the test from the Lemon case. The Lemon test consists of three parts: whether a challenged government action 1) has a secu­lar purpose; 2) has a “principal or primary effect” that “neither advances nor inhibits religion,”; and 3) does not foster an excessive government entanglement with religion.”5 The Fourth Circuit determined that the cross failed the second part of the test, the “effects” prong, because a reasonable observer would view the Commis­sion’s ownership and maintenance of the monument as an endorsement of Christianity.

The American Legion and the Commission appealed the ruling of the Fourth Circuit Court of Appeals, and the Supreme Court reversed the decision, finding that the Bladensburg cross is constitutional. As mentioned previously, this decision is noteworthy for several rea­sons. First, the vote was 7 to 2 in favor of maintain­ing the cross. In recent years, the court has often been divided 5 to 4 on such decisions, with 4 conservative justices, 4 liberal justices, and Justice Anthony Kenne­dy being the deciding vote. Justice Kennedy recently retired and was replaced by Justice Brett Kavanaugh. The four other conservative justices are Chief Justice Roberts and Justices Thomas, Gorsuch, and Alito. The liberal justices are Ginsburg, Breyer, Sotomayor, and Kagan. However, in this case Justice Stephen Breyer, a member of the liberal wing of the Court, also joined with the majority. Justice Kagan also concurred in the outcome.

It should also be noted that Supreme Court justices do not simply concur (agree) or dissent (disagree) with a majority opinion. A justice may agree or disagree with the outcome of the case but for a different legal reason than that stated in the majority opinion. That justice will then file a separate concurring or dissenting opin­ion, which other justices may then join in. In this case, Justice Alito filed the majority opinion, which was only joined in its entirety by three other justices, including Justice Breyer. The other justices filed concurring opin­ions to reach the 7 to 2 majority, with Justices Ginsburg and Sotomayor dissenting. The point is that, while a majority of the justices supported the outcome in this case, it is difficult to gage exactly where the sentiments of the Court are on this issue, since the justices reached the majority conclusion by different means.

Nevertheless, there are some significant changes to the law that we can glean from this case. First, the Court abolished the Lemon test, at least with regard to cases such as this involving the Establishment Clause and historical religious monuments. Instead, the Court considered four factors to be considered in such cases, all of which tend to focus on the length of time that something has existed. First, the Court noted that ascertaining the original purpose of something that has been around for a time may be difficult, so it is difficult to determine if that purpose was improper. Second, the Court stated that some monuments or institutions may lose religious significance and gain historical sig­nificance, such as the war memorial in this case. Third, the Court also noted that with the passage of time some religious symbols or practices may be retained for the sake of familiarity, such as state flags with a cross or a city with a biblical name. Sadly, this means that the more people forget the proper religious significance of something, the more likely it is to be tolerated in the public realm.

The fourth and most interesting factor stated by the Court is that when a monument, symbol, or practice has been around a substantial amount of time, remov­ing it may not appear to be a neutral government act. In other words, removing something that has existed or that has been done for a significant amount of time would cause a reasonable observer to think the govern­ment was hostile to religion. The Court used the example of the prayer that has been offered at the opening of Congress for 200 years. This factor is interesting in that the courts have not traditionally focused on limiting government hostility towards religion, only on whether the government limited the exercise of reli­gion in a non-neutral way. As we have previously not­ed in this rubric, the Masterpiece Cakeshop decision,6 in which the Court ruled in favor of a bakery charged with discrimination for refusing to create a cake with a pro-homosexual message, was also based on the state’s hostility towards the baker’s religion, not on the inher­ent rights of the baker. It will be interesting to note whether this focus continues in future cases.

At this point, it appears that the Court’s analysis is only limited to longstanding, historic practices or monuments. Some of the justices appear to indicate in the Bladensburg cross case that they would abolish the Lemon test for other cases as well, and Justice Thomas stated as much. This, coupled with the shift in the majority voting on the Court, and the Court’s interest in guarding against hostility towards religion, all demonstrate that there is still some defense for religious insti­tutions, and churches in particular, against the rising tide of intolerance in the world today. Although this case is brought under Establishment Clause jurisprudence rather than the Free Exercise Clause, the same general arguments could be made.

Our churches have maintained the same doc­trines and practices for many years. Under the anal­ysis used by the Court in the Bradenburg cross case, once it is demonstrated that a doctrine or practice has a long-standing history in our churches, the burden should be on someone challenging that practice to show that they are motivated by something other than hostili­ty towards our religion. It may be that the Lord provides a means such as this to allow us freedom to worship for a little while longer in the midst of a world that grows increasingly hostile towards His church.


The American Legion v. American Humanist Association, Docket No. 17-1717, 588 U.S. (2019).

https://americanhumanist.org

Van Orden v. Perry, 545 U.S. 677 (2005).

Lemon v. Kurtzman, 403 U.S. 602 (1971).

5  Id. at 612-13.

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. (2018)