WASHINGTON (CN) – Sparing a 90-year-old cross that rises above an intersection just across the Maryland border with Washington, D.C., the Supreme Court rejected claims Thursday that the war memorial violates the establishment clause.
The Bladensburg Peace Cross was dedicated in 1925, a project of the American Legion to commemorate local soldiers who died in World War I. Originally in a park with other monuments, the cross now stands in the middle of a three-way interchange under the care of the Maryland-National Capital Park and Planning Commission.
In 2014 the American Humanist Association filed a federal lawsuit claiming the cross was an unconstitutional government endorsement of religion, a position that the Fourth Circuit supported but the Supreme Court today threw out.
Hailing what he termed to be a “landmark decision,” a lawyer for the American Legion said in a phone interview the court cleared the way for a new method of analyzing establishment clause cases.
“This is definitely a significant change, and I think it’s a really good change,” said Kelly Shackelford, president and chief counsel of the First Liberty Institute.
Courts have long reconciled establishment-clause challenges using what is known as the Lemon test, a three-part inquiry that looks at whether a government action has a clear secular purpose, what the effects of that action are, and whether it would improperly entangle government in religion.
Taking the lead this morning for the plurality, Justice Samuel Alito cautioned courts against using the Lemon test when evaluating monuments or other ceremonial symbols that carry religious connotations.
Instead, Alito said courts should presume “constitutionality for longstanding monuments, symbols and practices.”
Alito noted that crosses have taken on more secular significance in several prominent symbols, including Maryland’s state flag and the logo for the Red Cross. Considering as well the various American towns with religious references in their names, Alito said the government could not expect to rename those cities, or tear down every monument with a religious symbol, at the risk of making religion a divisive subject — exactly the opposite of what the First Amendment was meant to do.
“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,” Alito wrote.
Jones Day attorney Michael Carvin represented the American Legion as well and called the decision a “historic victory for the First Amendment.”
“This decision simply affirms the historical understanding of the First Amendment that allows government to acknowledge the value and importance of religion,” Carvin said in a statement.
The American Humanist Association, which challenged the cross, meanwhile said it will work to limit the effects of the decision going forward.
“In the face of today’s decision, we must all pursue new avenues to bolster the First Amendment,” American Humanist Association Executive Director Roy Speckhardt said in a statement. “Our legislative efforts will be redoubled as the American Humanist Association works to strengthen the wall of separation between church and state, brick by brick. And in the interim, our legal team [will] do what it can … to narrow the breadth of this decision in courtrooms across the country.”
Today’s highly fractured decision includes a judgment, one dissent and five concurrences, but Dowd Scheffel attorney Matthew Dowd said in a phone interview that he saw as a common thread in the superficially fractured result.
“When you look at those opinions, when you put them together, and when you just get a sense of the writing here, you get a sense that there’s a majority of justices on the court right now that are much more interested in a historical context or historical-based analysis rather than the rote application of the three prongs of the Lemon test,” said Dowd, who filed a friend-of-the-court brief in the case on behalf of the Military Order of the Purple Heart.
Dowd interpreted the ruling as showing a shift by the court to focus more on the history of a monument or practice.
“It will be very interesting to see how the lower courts apply this and how different parties apply it in terms of defending or attacking different government action,” he added.
With each of the concurring justices offering additional perspective on how courts should evaluate establishment clause disputes going forward, Justice Brett Kavanaugh said the decision makes clear that the Lemon test is “not good law” and does not apply to the major types of establishment clause cases.
Kavanaugh instead proposed a case-specific test that would uphold monuments or practices as long as they do not force people to participate in religion and meet other conditions.
“And the cases together lead to an overarching set of principles: If the challenged government practice is not coercive and if it (i) is rooted in history and tradition; or (ii) treats religious people, organizations, speech or activity equally to comparable secular people, organizations, speech or activity; or (iii) represents a permissible legislative accommodation or exemption from a generally applicable law, then there ordinarily is no establishment clause violation,” Kavanaugh wrote.
In a separate, single-paragraph concurrence, Justice Elena Kagan said she would not abandon the Lemon test and would prefer to use historical perspectives in establishment clause cases on a case-by-case basis “rather than to sign on to any broader statements about history’s role in establishment clause analysis.”
“Although I agree that rigid application of the Lemon test does not solve every establishment clause problem, I think that test’s focus on the purposes and effects is crucial in evaluating government action in this sphere – as this very suit shows,” Kagan wrote.
Justice Neil Gorsuch, joined by Justice Clarence Thomas, said he found much of Alito’s opinion “compelling,” particularly the portion criticizing the Lemon test. To Gorsuch, Alito’s opinion is a call for lower courts to consider history when judging establishment clause cases.
He did express skepticism, however, on Alito’s statement that older monuments or practices should carry a presumption of constitutionality, wondering how old something must be to earn this protection.
“The Constitution’s meaning is fixed, not some good-for-this-day-only coupon, and a practice consistent with our nation’s traditions is just as permissible whether undertaken today or 94 years ago,” Gorsuch wrote.
Gorsuch also said he would have told the lower court to dismiss the challenge to the cross for lack of standing. He said people cannot have a court take a step like forcing the removal of a monument simply because they are offended by the display.
Adrian Gardner, general counsel for the Maryland-National Capital Park and Planning Commission, welcomed the court’s input.
“In particular, I have been very hopeful that the court could achieve some consensus on an issue with a potential to become very polarizing and that hope has been largely realized,” Gardner said in a statement. “So while some of the members arrived at the same crossroad using different paths, seven of the justices prolifically announced that the Bladensburg Peace Cross does not violate the establishment clause. That’s a big win for our community and this nation.”
The dissent comes from Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor. Because the cross is “the foremost symbol of the Christian faith,” Ginsburg wrote, the Bladensburg monument therefore does not carry a neutral message.
Detailing the history of other war monuments, Ginsburg said the cross’s use as a symbol for those who have died in wars does not wash the symbol of its religious meaning.
“By maintaining the Peace Cross on a public highway, the commission elevates Christianity over other faiths and religion over nonreligion,” Ginsburg wrote.
Joe Davis, counsel at the Becket Fund for Religious Liberty, predicted the ruling will lead to fewer challenges to older monuments and practices involving religious symbols, given Alito’s suggestion that such displays should have a presumption of constitutionality.
“I think this opinion could go a long way towards reducing those lawsuits,” Davis said in an interview.