The separation of church and state survived a close brush with death on Thursday, emerging scathed but alive thanks to a compromise decision that may not hold for long. Seven justices voted to allow a 94-year-old, 40-foot cross to remain on public land and those managing the cross to continue receiving state funding. But that lopsided vote conceals deep fractures among the justices over the government’s authority to honor and promote religion. The majority opinion portends more radical decisions to come while doing real damage to the establishment clause today, diminishing the state’s obligation to respect all faiths by endorsing none.
Thursday’s ruling in American Legion v. American Humanist Association rests on a magic trick: The majority transmogrified the cross, a “preeminent Christian symbol,” into a monument with a “secular meaning.” This is no mean feat. The cross in question rests at the center of a busy intersection in Bladensburg, Maryland. It towers over everything around it. Completed in 1925, the “Bladensburg Peace Cross” was designed as a tribute to 49 area soldiers who died in World War I. At its dedication ceremony, a Catholic priest gave an invocation; state representatives encouraged the community to view the monument as “symbolic of Calvary”; and the ceremony ended with a benediction provided by a Baptist pastor. The Bladensburg cross is, indisputably, a symbol of Christianity.
That fact creates a problem under the First Amendment, which prohibits any law “respecting an establishment of religion.” The American Humanist Association filed a lawsuit against the state commission that owns the cross, demanding that it transfer the monument to private lands, convert it to an obelisk, or demolish it. According to the AHA, the cross violates the Lemon test, a standard sometimes used by SCOTUS to assess establishment clause disputes. Under that test, a government action must have a secular purpose; it must not advance or inhibit religion; and it must not foster excessive entanglement between religion and government. The 4th U.S. Circuit Court of Appeals found that the cross runs afoul of the Lemon test because a reasonable observer would view the cross as an endorsement of Christianity, thereby impermissibly advancing a certain religious belief.
Spoiler alert: The Supreme Court’s conservative majority was never going to uphold the 4th Circuit’s decision. Right-leaning justices loathe the Lemon test because it is both stringent and malleable, giving courts too much power (in their minds) to enforce government secularism. The big question in American Legion, then, was how severely SCOTUS would hobble the Lemon test and, by extension, the establishment clause. And the answer is … complicated. Justice Samuel Alito’s majority opinion abolishes the test’s application to “established, religiously expressive monuments, symbols, and practices.” But it leaves Lemon applicable, for now, to other church-state cases.
Why are “monuments, symbols, and practices” different? Alito, joined by Chief Justice John Roberts, as well as Justices Brett Kavanaugh, Stephen Breyer, and Elena Kagan, gave four reasons. First, “identifying their original purpose or purposes may be especially difficult.” Second, their “purposes … often multiply” with the passage of time. Third, and relatedly, their “message” may “evolve” over time—shifting from sectarian to secular. Fourth, removing them once they’ve gained “familiarity and historical significance” may “strike many as aggressively hostile to religion.” (Note the contradiction here: A long-standing cross no longer conveys a purely Christian message, but removing it may convey an anti-Christian message. Go figure.)
In light of these concerns, Alito wrote, the Lemon test is ill-suited to “monuments, symbols, and practices” that have been around for a while. Instead, the “passage of time” gives them “a strong presumption of constitutionality.” And there is nothing to rebut that presumption here, since “a World War I cross remains a memorial to the fallen” and a “symbol of their sacrifice,” whatever its other implications. Even if it began as a Christian monument, it has “acquired additional layers of historical meaning in subsequent years.” Those layers mean that, today, the cross “does not offend the Constitution.”
What, exactly, is the rule laid down here? Alito wrote that religious monuments “to soldiers who sacrificed their lives for this country more than a century ago” are constitutional. What about a monument to soldiers who died a half-century ago? How about in the past decade? Or yesterday? Alito doesn’t say—presumably to hang onto Breyer and Kagan’s votes. Both liberal justices wrote separately to limit the majority opinion. Breyer noted that a cross “erected only recently” would not pass constitutional muster. Kagan declined to join a portion of the opinion bashing Lemon but agreed that it wasn’t necessary to apply it here.
By contrast, Kavanaugh wrote separately to insist that “this Court no longer applies the old test articulated in Lemon.” In other words, Kavanaugh suggested, SCOTUS doesn’t have to kill Lemon because Lemon is already dead. Instead, the court ostensibly applies a rather convoluted standard: If a “challenged government practice is not coercive” and it is rooted in history or tradition, or treats religion and secularism equally, or constitutes an accommodation or exemption for the faithful, then it’s constitutional. I’m not sure Kavanaugh’s effort to retcon a new establishment clause rule into “the last 48 years” of Supreme Court jurisprudence will be successful, but it’s a valiant effort.
Justice Clarence Thomas wrote a separate opinion to reiterate his belief that the establishment clause does not apply to the states, meaning a state legislature could literally establish an official religion without infringing upon the Constitution. Justice Neil Gorsuch, joined by Thomas, wrote to insist that individuals offended by a religious symbol shouldn’t have standing to sue in the first place. For good measure, Gorsuch also disparaged the Lemon test and declared that the court had “shelved” it. And, weirdly, he interpreted the court’s decision as one allowing the government to build a public cross any time it wants, ignoring its many qualifications about the importance of a monument’s age in assessing its constitutionality.
Only Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, dissented. After all the hedging and sniping between the majority and the concurrences, Ginsburg’s opinion is refreshingly straightforward. She reminds us of a simple truth: No matter how many secular meanings we might ascribe to it, the cross represents the “central theological claim of Christianity: that the son of God died on the cross, that he rose from the dead, and that his death and resurrection offer the possibility of eternal life.”
“As I see it,” Ginsburg wrote, “when a cross is displayed on public property, the government may be presumed to endorse its religious content.” The cross “elevates Christianity over other faiths, and religion over nonreligion”; it “affirms that, thanks to the soldier’s embrace of Christianity, he will be rewarded with eternal life.” Shortly after World War I, the government recognized the cross to be an inappropriate tribute to non-Christian soldiers, and the “overwhelming majority of World War I memorials contain no Latin cross.” (Ironically, while Alito’s majority opinion roots its analysis in “history and tradition,” Ginsburg’s dissent is far more attuned to the history of the Bladensburg cross and its place in World War I commemoration.) The cross, Ginsburg concluded, actively implies “official recognition of [Christianity] paramountcy and thus contravenes the Establishment Clause.”
Ginsburg and Sotomayor, however, are never going to persuade a majority of their colleagues to enforce bona fide separation of church and state. The real fight in American Legion is between Kavanaugh and Gorsuch on one side and Kagan and Breyer on the other. Kavanaugh and Gorsuch think the Lemon test is already slain and that the government is free to build more crosses today. Kagan and Breyer think the Lemon test remains good law outside of the memorial context and that only newer religious monuments may be unconstitutional.
Who’s right? For now, Kagan and Breyer—Alito’s majority opinion is narrowly confined to “longstanding monuments, symbols, and practices.” But Kavanaugh and Gorsuch are wishcasting, eager for the next case, and eventually Roberts and Alito may lose their patience for compromise. American Legion preserves important precedents, including those barring government-sponsored school prayer. But it also shows how easily those precedents could be overturned with a gesture toward “history and tradition.” (School prayer was pervasive for a long time; does that make it OK?) Kagan and Breyer limited the damage this time around, but the conservative justices may be poised to steamroll over the establishment clause in the years ahead.
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