Andrée Sophia Blumstein is the solicitor general of Tennessee, which joined 29 other states in an amicus brief in support of the constitutionality of the cross in The American Legion v. American Humanist Association.
States have long been in an unenviable position when it comes to deciding (1) whether to erect or maintain monuments with religious imagery on public property and (2) whether and how to defend establishment clause challenges to such monuments. The stakes are high; decisions like these can, of course, be politically costly, and a legally questionable decision will almost always result in expensive and exhausting litigation.
The difficulty comes from a Supreme Court establishment clause jurisprudence that has offered very little dependable guidance for the states. To one judge, it has been just “a hot mess,” and to another, in the same case, “a wilderness with misdirecting sign posts and tortuous paths.”
Much of the blame for this disarray in the law is now heaped on the establishment clause test articulated in Lemon v. Kurtzman in 1971. Indeed, Lemon has been accused of “stalking” the court’s establishment clause jurisprudence “like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” The Lemon test asks (1) whether the challenged display or action has a secular purpose; (2) whether the principal or primary effect is one that neither advances nor inhibits religion; and (3) whether the display or action fosters an excessive entanglement with religion. That test has been the very opposite of the panacea it was intended to be. And because Lemon turned out to be unworkable in many cases, motley other tests have been rolled out in addition to, or instead of Lemon — with remarkable inconsistency in application and result.
In yesterday’s “Peace Cross” decision, the Supreme Court grappled yet again with the bedeviling questions provoked by public monuments with religious associations. There was some hope that the decision might deliver us from the wilderness — or at least usher Lemon to its final resting place.
The Peace Cross is a 40-foot tall monument erected on private land 94 years ago by the Bladensburg community in Maryland to honor 49 local soldiers who died in World War I in the cause of “liberty for the world.” The land on which the cross stands became publicly owned in 1961. The monument is, to be sure, in the form of a very large Latin cross, but it does not otherwise bear any religious message. Its adornments are a plaque dedicating the cross specifically to the fallen local veterans, the American Legion symbol, and the inscription “Valor, Endurance, Courage, and Devotion.” It stands in proximity to other, secular war memorials.
The American Humanist Association found the giant cross offensive and challenged it as a violation of the establishment clause of the First Amendment. The U.S. Court of Appeals for the 4th Circuit agreed that the monument failed the Lemon test; because it is in the form of a cross, is on public land and is maintained with public funds, it has “the primary effect” of endorsing Christianity and “excessively entangles” the government in religion. It had to go or be de-cruciformed.
The Supreme Court, in a 7-2 decision, reversed. The Peace Cross “does not violate the Establishment Clause.” It need not be removed or undergo amputation of its arms.
The plurality did not apply the Lemon test to reach this result and rejected the usefulness of that test for a particular category of establishment clause cases, i.e., challenges to established monuments, symbols and practices. But it did not abandon Lemon entirely. What remains of Lemon is not immediately clear, not even to members of the court. Justice Brett Kavanaugh is of the view that that “the Lemon test is not good law” and that the “Court no longer applies the old test articulated in Lemon.” Justice Neil Gorsuch, who would have dismissed for lack of standing, declares that Lemon was a “misadventure” and is now “shelved.” Justice Clarence Thomas, who would have overruled Lemon, believes that the plurality has only rejected Lemon’s relevance to claims like this one — although he did also join Gorsuch in his concurring opinion declaring the test to have been shelved. Thomas views coercion as the true touchstone of establishment clause inquiry. Justice Elena Kagan writes that the Lemon test is still viable and useful in some cases and that its focus on “purposes and effects is crucial in evaluating government action” with regard to monuments.
What the state and The American Legion were looking for from the Supreme Court was this “rule of decision”: “A government’s use of religious imagery in a way consistent with the Nation’s historical traditions will not run afoul of the Establishment Clause absent a showing that the government was exploiting the tradition to coerce religious belief or observance by nonadherents.”
What they got is much more nuanced, although history and tradition feature prominently. The plurality does not expressly formulate any rule, but here is what may be gleaned from the plurality opinion:
- There is now a “strong presumption of constitutionality” for long-standing monuments, symbols, and practices with religious associations;
- When challenged under the establishment clause, such venerable monuments, symbols and practices must be viewed and evaluated in historical context, giving consideration to factors such as (a) whether the monument or practice has taken on a secular meaning or carries a special significance aside from its religious association, (It “is surely relevant” if a monument commemorates particular individuals or has become a “symbol closely linked” to a secular event.), (b) whether the monument has become a prominent community landmark, (c) whether it has taken on historical significance, (d) whether there was discriminatory intent in its design or in the government’s decision to maintain it, and, (e) at bottom, whether the monument, symbol or practice reflects “respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans”;
- Retaining established, religiously expressive monuments, symbols and practices is “quite different from erecting new ones,” making it clear that the holding is limited to long-standing monuments, symbols and practices and that the presumption of constitutionality does not necessarily attach to new monuments; and, significantly
- Destroying or defacing a monument with religious imagery that has long stood undisturbed would itself be an act of government hostility towards religion — an act inconsistent with the First Amendment ideals of neutrality, tolerance and respect.
This is a lot. But it will not deliver us from the wilderness.
State and local governments will not have it any easier in deciding whether to erect new monuments or allow new practices, since the court expressly distinguished those issues from the one it had before it. Nor will it be easier to decide whether to maintain existing monuments or practices and whether and how to defend them against establishment clause challenges. Even with the court’s “look-to-history-and-tradition” guiding principles and its deeply-considered analysis, states are left to deal with old uncertainties — and new questions. Who knows, for example, how much time is required to imbue a given monument or particular practice with historical meaning? What does it take to be able to say that a religious symbol has become “closely linked” to a secular event or that a religious practice “reflects” respect and tolerance for differing views?
Then too, Kavanaugh has given the respondents and other objectors rather detailed directions to a different playing field — the political arena — where the states may be faced with another set of uncertainties. He wrote separately, especially to “emphasize” that, despite the court’s Peace Cross ruling, the respondents and others objecting to monuments with religious association are not without recourse. Because, according to Kavanaugh, the court’s ruling allows the state to maintain such monuments on public land, but does not require the state to do so, Kavanaugh advises that the respondents could ask the state legislature to pass a law requiring the removal of the Peace Cross or the transfer of the land to private parties. Or they may ask the state executive branch to exercise its authority, if any, to remove an offending monument. Or they may petition the state court to construe the state’s constitution to require removal of the monument. And if that petition is unsuccessful, Kavanaugh points out, the people of the state can always amend the state constitution.
But it does seem that at least one concrete message has been delivered. “A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine” may be deemed to be “aggressively hostile to religion” — which the establishment clause forbids, just as it forbids favoring religion. And “a campaign to obliterate items with religious association may evidence hostility to religion, even if those religious associations are no longer in the forefront.” Thus, states and their attorneys are now on notice to think long and hard before they remove a long-standing monument or symbol or put an end to a long-standing practice, because, “[a]s our society becomes more and more religiously diverse, a community may preserve such monuments, symbols and practices for the sake of their historical significance or their place in a common cultural heritage.”