WASHINGTON — The Supreme Court heard oral arguments last month in a case examining whether a war memorial cross in Bladensburg, Maryland, should be permitted to remain on public land due to its religious symbolism.
Several justices indicated during the arguments that the case could be an opportunity to set a clearer legal standard about what religious displays are acceptable on government property.
The 40-foot-tall, 93-year-old peace cross memorial honors soldiers who died in World War I. It was erected by the American Legion in 1925, but has been owned by the Maryland-National Capital Park and Planning Commission as a historic site since 1961.
In 2014, the American Humanist Association sued, arguing that the memorial violated the Establishment Clause of the Constitution, which bars the government from establishing a religion or favoring one religion over another. The state of Maryland argued in response that the historic cross primarily serves a secular purpose as a war memorial.
The Fourth Circuit Court of Appeals ruled that the monument was unconstitutional in 2017, and the case made its way to the Supreme Court.
David Cortman, the senior counsel with Alliance Defending Freedom, which filed a friend-of-the-court brief in support of the cross, told the Register that the legal group is hopeful the court will permit the memorial to stand.
“The offended feelings of someone driving by does not amount to a constitutional crisis,” he said. “A passive monument like the Bladensburg Cross, which celebrates our veterans and acknowledges our nation’s religious heritage, simply does not amount to an establishment of religion.”
The justices appeared largely inclined to allow the cross to remain in oral arguments. The main question seemed to be on what basis the court will allow the memorial to remain, and the answer to that could have far-reaching implications for other religious symbols on public lands.
In a friend-of-the-court brief led by West Virginia, a group of 30 states supported the Peace Cross memorial last year and listed dozens of similar war memorials that could be threatened if the Supreme Court ruled against it, including famous memorial crosses at Arlington National Cemetery and a Star of David memorial in South Carolina dedicated to Holocaust victims and their liberators.
“War memorials have historically co-opted religious imagery for the secular purpose of remembering the men and women who fight and die for our country,” the brief stated. “The time is right to fix the jurisprudential mess surrounding Establishment Clause questions like these, and this is the right case to provide guidance for those to come.”
The Supreme Court could outline that guidance in the case’s decision, which is expected in June.
The Lemon Test
Joe Davis, legal counsel at Becket, which also filed a friend-of-the-court brief in support of the memorial, explained the problem with the current legal standard for judging these cases.
“The test that courts have been applying for the last several decades in cases like this is called the Lemon test,” he said. “It basically tells you to ask whether a reasonable observer looking at this symbol would think that the government is endorsing religion, but that’s a really subjective test.”
The Lemon test comes from the 1971 Supreme Court case of Lemon v. Kurtzman, which established a standard for determining if something is a violation of the Establishment Clause. It asks if a government action has a secular purpose, whether its principal effect neither advances nor inhibits religion, and if it fosters “an excessive government entanglement with religion.”
However, the test has caused confusion as courts struggle to apply it in a consistent manner.
Justice Clarence Thomas bemoaned in a 2011 dissent that the U.S. had an “Establishment Clause jurisprudence in shambles” that “has confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone’s guess.”
Davis said that the Bladensburg memorial case “presents an opportunity for the court to provide a clear standard going forward.” He backed the idea of a historical test for such cases — something that was suggested in the course of oral arguments by acting Solicitor General Jeffrey Wall, who argued on behalf of the memorial as a friend of the court.
That test would ask if a government action or display is like “the religious establishments at the time of the founding,” Davis explained. “If it is, then maybe it’s a constitutional problem; if it’s not, then it’s not a constitutional problem.”
Stanford Law professor Michael McConnell argued in favor of such a historical test following the oral arguments in this case. He outlined six characteristics of the religious establishments at the time of the nation’s founding and pointed out that nine of the 13 colonies had such establishments.
The characteristics were: “1) government control over the doctrine and personnel of the established church; 2) mandatory attendance in the established church; 3) government financial support of the established church; 4) restrictions on worship in dissenting churches; 5) restrictions on political participation by dissenters; and 6) use of the established church to carry out civil functions.”
Davis said that Becket handles many cases on this topic, and “the lower-court judges need to know how they can resolve these lawsuits that are very divisive, where you have atheist people on one side and a religious symbol on the other.”
Davis cited the evident frustration on the part of Justice Neil Gorsuch, who proposed doing away with the Lemon test at one point in the arguments. Gorsuch said that it “has resulted in a welter of confusion” and asked, “Is it time for this court to thank Lemon for its services and send it on its way?”
During the arguments, Davis added, it was evident that even the justices who are more sympathetic to the removal of the cross realized the threat these cases posed to historical sites.
“History counts,” Justice Stephen Breyer emphasized. At one point, he proposed allowing monuments like the Peace Cross to remain but no future ones to be erected.
“What about saying past is past,” he asked, “but no more?”
Davis acknowledged that the Supreme Court could avoid addressing the problems with the Lemon test in their ruling and allow the memorial to remain by viewing the cross simply as a historical symbol of those who died in World War I, rather than as a Christian religious symbol.
“I think the problem with that is that takes you back to the subjectivity,” he pointed out. “Who says which of the two meanings is the main one that should matter for Establishment Clause purposes? I’m hopeful that they come up with a more objective way to resolve cases than to try to figure out which of the meanings of a symbol is the main one.”
Jeremy Dys, the deputy general counsel at First Liberty, which is representing the American Legion in the case, also told the Register that this was an excellent opportunity for the court to clarify the law for religious symbols.
“It’s important for us to remember life before 1971, when the Lemon test was put into place in the first place: We simply had what we used to call the First Amendment,” he said. “We’ve operated most of our republic’s history without the Lemon test, and things were just fine like that.”
Dys praised a proposal for the use of the “coercion test” from the Town of Greece v. Galloway case, which was proposed during the arguments by Jones Day attorney Michael Carvin, who argued on behalf of the American Legion. That test “prohibits tangible interference with religious liberty, as well as proselytizing.”
Carvin defined proselytizing as the government attempting to convert citizens. According to this test, the Peace Cross and symbols like it would be “presumptively constitutional” unless “they’ve been misused to proselytize.”
Dys said that unless this area of the law is clarified, religious symbols will continue to be targeted.
“What was more than a little bit apparent in the arguments from the opposition was that there’s a real desire to knock down every religious symbol within the public square, and I think that is completely opposite of what the First Amendment was written to do,” he said.
“Unless the Lemon test is reversed,” he concluded, “we’re going to continue to have the sort of heckler’s vetoes that come along, with people that are offended by the presence of a religious symbol in public. That level of religious cleansing is just something that the First Amendment does not and should not contemplate.”
Lauretta Brown writes from Washington.