Bench Memos

Law & the Courts

Ruling in Bladensburg Cross Case

By a vote of 7 to 2, the Supreme Court ruled today in American Legion v. American Humanist Ass’n that the state of Maryland does not violate the Establishment Clause by having the Bladensburg Peace Cross on public land and by expending public funds to maintain it. The 32-foot-tall monument, in the form of a Latin cross, was erected in 1925 as a tribute to 49 area soldiers who lost their lives in World War I.

Here is a quick summary, with some commentary:

1. Justice Alito’s lead opinion garnered a five-justice majority for most of its parts. That majority included Chief Justice Roberts, Justice Breyer, Justice Kagan, and Justice Kavanaugh. (As discussed in point 3, Kagan peeled off on two subparts.)

Two other justices, Justice Gorsuch and Justice Thomas, concurred in the judgment. In his opinion (joined by Thomas), Gorsuch rejects the “offended observer” theory of standing and therefore would order the case dismissed for lack of standing.

In dissent, Justice Ginsburg, joined by Justice Sotomayor, would rule that the maintenance of the Peace Cross violates the Establishment Clause.

2. Alito’s majority opinion offers four considerations why there should be a “strong presumption of constitutionality” in favor of “retaining established, religiously expressive monuments, symbols and practices.” (Slip op. at 16-21.)

First, it may be “especially difficult” to identify the “original purpose or purposes” of monuments, symbols, or practices that “were first established long ago.”

Second, “as time goes by, the purposes associated with an established monument, symbol, or practice often multiply”: a community may preserve such monuments, symbols, and practices “for the sake of their historical significance or their place in a common cultural heritage.”

Third, the message they convey might also change over time. Consider, for example, the messages now conveyed by the Statue of Liberty, Notre Dame Cathedral, or the many cities that bear religious names.

Fourth, “when time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance, removing it may no longer appear neutral” but might instead “strike many as aggressively hostile to religion.”

Alito then explains how these four considerations apply to the “role of the cross in World War I memorials.” (Slip op. at 21-24.) Of particular note is his account of how the cross became a “symbol closely linked to the war”—in part because of the “solemn image of endless rows of white crosses” at “the fallen soldiers’ final resting places abroad” and the enormous popularity of the poem “In Flanders Fields.” (See also slip op. at 4-6.) He then applies the same considerations directly to the Bladensburg Cross. (Slip op. at 28-31.)

(These are all from parts of the opinion that garnered a majority.)

3. The seven justices who rejected the Establishment Clause challenge differed somewhat in their assessments of the so-called Lemon test (from the Court’s 1971 ruling in Lemon v. Kurtzman).

In Part II-A of his opinion, Alito documents the shortcomings of the Lemon test and says that the test “presents particularly daunting problems in cases … that involve the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations.” But Kagan declined to join this subpart (as well as, “out of perhaps an excess of caution,” the discussion in Part II-D of the guidance that history provides). In her own brief, she states that she agrees that “rigid application of the Lemon test does not solve every Establishment Clause problem” but that she finds its “focus on purposes and effects” in cases like this one to be “crucial.” (I might be wrong, but I don’t think that her use of crucial is playing on that word’s original meaning of cross-shaped.)

Thomas and Gorsuch would reject the Lemon test altogether. So would Kavanaugh, if I’m reading his concurring opinion correctly: he states with approval that “this Court no longer applies” the Lemon test, and he explains how that test “is not good law” in any of the five broad categories of Establishment Clause cases that Alito identifies. So these three justices would join the four in the Alito plurality in supporting Alito’s conclusion that the Lemon test does not apply to the ceremonial, celebratory, or commemorative use of words or symbols with religious associations.

More broadly, while the Court didn’t declare the Lemon ghoul to be dead, there is little if any reason for any lower-court judge to assume that it continues to operate in any realm. (Ginsburg and Sotomayor did not offer a word of support for the Lemon test.)

4. There is an interesting back and forth among some of the justices over how new monuments would fare under the Establishment Clause.

In a concurring opinion, Breyer states that a “newer memorial, erected under different circumstances, would not necessarily be permissible under Alito’s “history and tradition” test.

Kavanaugh, by contrast, concludes that the “practice of displaying religious memorials, particularly religious memorials, on public land, is not coercive and is rooted in history and tradition.” That would seem to create a presumption in favor of the constitutionality of a new memorial. And Gorsuch, joined by Thomas, affirmatively states that “what matters when it comes to assessing a monument, symbol, or practice isn’t its age but its compliance with ageless principles.”

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