On Thursday, the Supreme Court in American Legion et. al. v. American Humanist Association, decided that the Bladensburg Peace Cross, which was erected nearly 100 years ago and has stood on public land in Maryland for roughly 50 years, does not violate the Establishment Clause. This decision should be celebrated, but the reasoning that the Court used does not entirely protect religious monuments or other displays in the future.
Seven of the justices decided that the Cross does not violate the Establishment Clause of the First Amendment. However, this was a plurality decision, which means there was not a majority consensus as to why the Justices came to that conclusion. In this case, four — Alito, Breyer, Roberts, and Kavanagh, signed onto the plurality opinion, which is generally the opinion that controls precedent. Justices Thomas, Gorsuch, and Kagan agreed that the cross did not violate the Establishment Clause, but gave differing reasons as to why. Justices Ginsburg and Sotomayor dissented.
For legal analysts, the real question was whether the Court would overturn a case from 1971 called Lemon v. Kurtzman — a ruling that has led to much confusion over the years in law and in practice in regards to religious expression In that case, the Court analyzed whether a state government could pay the salary of some religious school teachers. The Supreme Court created a test, called the Lemon test, to answer this question.
Under Lemon, a government action would not violate the First Amendment if it has a significant secular purpose, does not have the primary effect of advancing religion, and does not foster entanglement between government and religion. The lower court in this cross case had seized upon the last Lemon factor, saying that the government maintaining a cross and hosting it on government property was excessive entanglement.
The problem with the Lemon test is that it is very subjective. It allows for arbitrary balancing of whether something is not secular enough, advances religion too much, or is too excessively entangled. As Justice Thomas points out, the Lemon test only serves to be “manipulated to fit whatever result the Court aimed to achieve.”
The Court’s plurality opinion created categories of Establishment Clause cases, one of which is monuments on public land, and opted not to apply the Lemon test to the monuments category. Instead, the Court reasoned that for these types of cases, you must first look to whether the government practice has existed within this country for a long period of time.
The Court also looks to whether the passage of time has changed the message from religious to secular or has otherwise evolved to a secular meaning. Finally, a court is to look to whether removing the monument would remove the appearance of neutrality toward religion. The Court found that the Bladensburg cross meet these considerations, given that the cross had existed 100 years, it was historically common for public monuments to have crosses or religious symbols, and that the war memorials often used crosses in the World War I period of history.
Going forward, unfortunately this reasoning does not answer the question as to whether a cross erected more recently than the Bladensburg cross would violate the Establishment Clause. Certainly a cross honoring Iraqi war veterans would no more or less establish religion than one honoring World War I veterans. Interestingly, two of the Court’s more liberal Justices, Breyer and Ginsburg, both point this out. And it is here that the two conservative justices who did not join the plurality opinion would have had a more workable solution.
Justice Thomas, in his concurring opinion, advocated for the abandonment of the Lemon test. He wishes to replace it with a “coercion test,” which is more consistent with the original meaning of the Establishment Clause. That test would ask one simple question: does the government action legally coerce citizens into participate in religious activity? If not, the Establishment Clause is not violated.
Justice Gorsuch, without proposing the same test, argues that a test should not factor history, as “the Constitution’s meaning is fixed … and a practice consistent with our nation’s traditions is just as permissible whether undertaken today or 94 years ago.”
Even so, the plurality opinion is positive step forward. With many Establishment Clause issues, the practices questioned today, such as the Ten Commandments being displayed or prayer before government meetings, were common historically.
This Opinion also protects many of our nation’s monuments that have not already been taken down. And, at least for monuments cases, the Lemon test should no longer be used. But it still leaves questions open for debate.
What will happen to newer monuments? Will the Lemon test still be used for other types of Establishment Clause cases? There is still too much room for lower courts to continue to create the result that they may aim to achieve.
Curtis Schube serves as legal counsel for the Independence Law Center. He is a member of the state bars of Pennsylvania and Missouri and those states’ federal courts.