Kathy Schiffer is a Catholic blogger. In addition to her blog Seasons of Grace, her articles have appeared in the National Catholic Register, Aleteia, Zenit, the Michigan Catholic, Legatus Magazine, and other Catholic publications. She’s worked for Catholic and other Christian ministries since 1988, as radio producer, director of special events and media relations coordinator. Kathy and her husband, Deacon Jerry Schiffer, have three adult children.
On June 20, the U.S. Supreme Court ruled that the historic Bladensburg Memorial Cross – also known as the Peace Cross – could remain on public property in Bladensburg, Maryland. The Court voted 7-2 in the case, American Legion v. American Humanist Association, ruling that the cross could remain standing without violating the Establishment Clause of the Constitution.
In reaching their decision, the Justices considered the “Lemon Test,” the three-pronged guide first delineated in the Supreme Court's 1971 case of Lemon v. Kurtzman. In that controversial ruling, the Court listed three considerations which must be applied when evaluating whether a government action violates the Establishment Clause of the First Amendment: (1) there must be a secular legislative purpose; (2) the action must neither advance nor inhibit religion; and (3) it must not create an excessive entanglement with religion.
What Is the Bladensburg Cross, and Why Is It on Public Land?
The 40-foot cross was designed as a tribute to American war heroes. It was designed in 1919 by a group of Gold Star Mothers to honor their sons, 49 Bladensburg-area servicemen who gave their lives in World War I while serving in the U.S. armed forces. At the base of the cross are carved the words “valor,” “endurance,” “courage,” and “devotion.” The names of Bladensburg’s fallen heroes are engraved on a large bronze plaque on the base of the memorial. Inscribed on the plaque, above the soldiers' names, is a tribute:
This Memorial Cross Dedicated To The heroes Of Prince George County
Who Gave Their Lives In The Great World War For The Liberty Of The World
Completing the engraved message is a quote from President Woodrow Wilson:
The right is more precious than peace. We shall fight for the things we have always carried nearest our hearts. To such a task we dedicate our lives."
Six years after the bereaved mothers planned the tribute to their sons lost in battle, the cross-shaped memorial was completed with sponsorship of a local chapter of the American Legion. It was originally built on private lands; but in 1961, the land on which the cross stands was turned over to the state's Maryland-National Capital Park and Planning Commission. Since that time, the Commission has maintained the memorial. As traffic increased, a divided highway was constructed around the cross; and the Commission installed nighttime lighting to ensure that the monument didn't become a safety hazard. Other war memorial structures have since been erected in the same area, creating the Veterans Memorial Park.
Another Cross, This One in Florida
Meanwhile in Florida, another historic cross has come under attack in the courts. The Bayview Cross in Pensacola, Florida, is a World War II-era cross erected by the Pensacola Jaycees in 1941. Court documents show that the 34-foot cross, located in the eastern corner of Pensacola's Bay View Park, was to be dedicated on Easter Sunday of that year. In 1969, the Jaycees replaced the aging wooden cross with a concrete version. Since then, the cross has been maintained by the city, which has spent an average of $233 per year out of the city's maintenance budget to keep it clean, painted and illuminated at night.
But the American Humanist Association and the Freedom From Religion Foundation, secularist organizations with the common mission of bleaching any mention of religion from the American landscape, took offense at the cross and filed suit, demanding its removal. The complaint contended that the cross maintained and displayed by the City of Pensacola solely for annual Easter Sunrise Services represents a clear preference for the Christian faith over other beliefs and non-belief. The U.S. District Court for the Northern District of Florida sided with the AHA and the FFRF, and 78 years after the Cross's installation in Pensacola's Bayview Park, ordered its removal from government property. The City of Pensacola appealed, but a three-judge panel of the 11th Circuit Court of Appeals rejected the appeal and ruled for removal of the cross, declaring that its placement violated the Constitution's ban on establishment of religion. The appeals court ruling required that the cross be moved to a private location and funded without taxpayer money. Two of the three appeals court justices who heard the case acknowledged that the outcome was “wrong”; but they claimed that their “hands were tied” because of the notorious Lemon Test.
But on June 28, the Supreme Court reversed the appeals court's decision against the Bayview Cross, remanding the case back to the appeals court and asking that they again review the case in light of the Supreme Court's decision in the Bladensburg case.
Why the Lemon Test Doesn't Work
Since the Supreme Court's 1971 ruling in Lemon v. Kurtzman, the court has often referred to the three-part Lemon Test to determine the legality of a religious symbol in the public square. Application of the principles delineated in the Lemon Test, however, has been inconsistent – sending a mixed message to local and state governments and to the public regarding whether religious displays such as a cross or a Nativity scene violate the Constitution's Establishment Clause. The Lemon Test's three prongs – a significant secular purpose, neither advancing nor inhibiting religion, and not creating an excessive entanglement with religion – are difficult to evaluate and even more difficult to apply evenly. Supreme Court Justice Clarence Thomas acknowledged the problem, complaining that “under the Court's decisions, the constitutionality of displays of religious imagery on government property is anyone's guess.”
Joshua Dunn, professor of political science at the University of Colorado–Colorado Springs, explains how the problem affects educational institutions in the EducationNext Journal:
The first prong is vague, easy to avoid or just wrong. You can divine a secular purpose for almost any law, and legislators who are religiously motivated can simply dissemble. It’s also not clear why or even how government officials should shed their deepest beliefs when making policy. For instance, if a Catholic legislator voted to increase welfare benefits because of her faith, that would in theory violate the secular-purpose prong. But it’s the second and third prongs that truly make the test incoherent. The only way to tell if a government program’s primary effect is to advance religion is to closely monitor participating groups, thereby creating an excessive entanglement. The court has further said that a program can violate the effects prong if a “reasonable observer” believes that the program endorses religion—a standard legal scholars have ridiculed as the “two Rudolphs and a Frosty rule.” Essentially, to avoid being successfully sued, public officials such as school superintendents and principals must make sure that any religious display is surrounded by a sufficient number of secular symbols and symbols from other faiths.
The Lemon Test’s manifold infirmities have led the court to ignore it when it is inconvenient but then invoke it when it suits their purposes. This led Justice Scalia to mock the test as a “ghoul from a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” The test is particularly frightening, Scalia noted, for school officials, who can never be certain if they have violated such an ambiguous and malleable standard. To take one obvious and vexing example, school officials can never be sure if their celebration of the winter solstice is sufficiently diverse to avoid litigation.
Because the Supreme Court has been forced to evaluate the legality of religious images on a case-by-case basis, the results have been confusing. The Pew Forum reports on two cases which were decided on the same day, with differing results:
In 2005, the court ruled divergently in two cases involving permanent displays of the Ten Commandments. In one instance, the court decided that the relatively recent placement of the Ten Commandments in courthouses in two Kentucky counties violated the Establishment Clause because a “reasonable observer” would conclude that the counties intended to highlight the religious nature of the document. In the other case, however, the court ruled that a display of the Ten Commandments that had stood for more than 40 years on the grounds of the Texas state Capitol did not violate the Establishment Clause because a reasonable observer would not see the display as predominantly religious.
In 1989, the Supreme Court held that the County of Allegheny, Pennsylvania could display a menorah and Christmas tree on county property, but not a Nativity scene. But just five years before that, the Court had ruled that the city of Pawtucket, Rhode Island could erect its own Nativity scene.
The case-by-case application of principles from the Lemon Test make the law unpredictable, and can lead to a lot of litigation over practices. The result is that local governments, states, and even the federal government choose to disallow or discontinue practices that might be constitutional, simply to avoid the threat of expensive litigation.
“Endorsement” and “Coercion”: Improved Standards for Evaluating Legality of Religious Imagery
Legal scholars agree that the Lemon Test has failed to bring clarity to the law, resulting in confusion and myriad lawsuits. Courts sometimes add to the Lemon Test a tighter standard, the Endorsement Test. Supreme Court justice Sandra Day O’Connor proposed the endorsement test in her concurring opinion in the crèche display case, Lynch v. Donnelly (1984), as a “clarification of our Establishment Clause doctrine.” Courts use the endorsement test to determine whether the government impermissibly endorses or disapproves of religion in violation of the establishment clause of the First Amendment. The Endorsement Test asks the Court to stand in the shoes of a reasonable observer who supposedly knows all the facts about the context and the history of the government action at issue, and from the perspective of that reasonable observer, to decide whether the government action appears to have a purpose or effect of endorsing religion.
But the American Legion, in its defense of the Bladensburg Cross, cited yet another, even clearer standard by which courts may determine the legality or illegality of a religious display or image: namely, the Coercion Test. The coercion test is usually associated with Justice M. Kennedy's opinion in the 1992 case of Lee v. Weisman, which invalidating the practice of public schools of inviting members of the clergy to deliver invocations and benedictions. Justice Kennedy felt that a graduation is a pivotal occasion in the life of a student, and inclusion of a prayer in a public high school graduation could, therefore, constitute coercion on the part of the school system. He explained:
The undeniable fact is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the invocation and benediction. This pressure, though subtle and indirect, can be as real as any over compulsion. Of course, in our culture standing or remaining silent can signify adherence to a view or simple respect for the views of others. And no doubt some persons who have no desire to join a prayer have little objection to standing as a sign of respect for those who do. But for the dissenter of high school age, who has a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow, the injury is no less real. There can be no doubt that for many, if not most, of the students at the graduation, the act of standing or remaining silent was an expression of participation in the rabbi’s prayer.
In the case of the Bladensburg Cross, the American Legion argued successfully that the Peace Cross is constitutional because it does not coerce the acceptance of any creed or the practice of any form of worship. In their amicus curiae brief, the Legion argued that coercion rather than endorsement is the touchstone of the Establishment Clause as it was originally understood.
If the Coercion Test becomes the standard for evaluating whether a religious display violates constitutional principles, Americans of faith need not worry that their beloved symbols will be confined to the inside of the church. Cities could erect Nativity scenes at the town hall or crosses in the park, without fear of recrimination by secularist or atheist organizations. In a nation in which 75% of citizens self-report that they adhere to the Christian faith, Catholics and other Christians need not fear that their story will be airbrushed from the landscape.