Supreme Court May Reconsider Establishment Clause Jurisprudence in Challenge to Cross Display: Part One
Legal Sidebari
Supreme Court May Reconsider
Establishment Clause Jurisprudence in
Challenge to Cross Display: Part One
Updated February 12, 2019
On February 27, in American Legion v. American Humanist Association, the Supreme Court is scheduled
to hear oral argument on the constitutionality of a large cross that was erected as a war memorial in Prince
George’s County, Maryland. Last year, the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit)
held that the cross display violated the First Amendment’s Establishment Clause. The Supreme Court
agreed to review this decision, considering not only whether the memorial is unconstitutional, but also
what test should govern this inquiry. The case thus presents the Court with the opportunity to clarify its
Establishment Clause jurisprudence—an area of the law that scholars and judges alike routinely deride for
lacking clear legal rules. It also offers the first significant opportunity for the newest members of the
Court, Justices Gorsuch and Kavanaugh, to weigh in on this area of the law.
This is a two-part Legal Sidebar. This first part briefly reviews existing jurisprudence, explaining the
various tests that the Court has used to analyze Establishment Clause claims and ending with a focus on
recent decisions considering the constitutionality of public monuments that contain religious symbols.
Part Two focuses on American Legion, reviewing the lower court decision and the parties’ arguments
before the Supreme Court. It then discusses ways the Court might resolve the case, as well as the
significant implications the Court’s decision could have for Congress.
Various Approaches to the Establishment Clause
The Establishment Clause provides that the government “shall make no law respecting an establishment
of religion.” This language most obviously prohibits the government from establishing an official national
religion, and the Court has also long understood the Clause to prevent other government aid directed
toward religion, as well. However, judges—and even the Framers of the Constitution—have debated the
precise scope of this prohibition. While the Supreme Court has often referred to government “neutrality”
toward religion as the guiding principle, this neutrality standard has itself been subject to divergent
interpretations. Broadly speaking, scholars have identified two diametric views of the Establishment
Clause: a separationist view and an accommodationist view. The Court has embraced both views, at
various times.
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The separationist view stems from the idea that the Establishment Clause creates “a wall of separation
between church and State.” This characterization of the Clause comes from Thomas Jefferson, whose
work served as the basis for the First Amendment’s Religion Clauses. One example of this approach came
in Everson v. Board of Education, decided in 1946, where the Court said that the government cannot “aid
one religion, aid all religions, or prefer one religion over another.” However, a number of Justices have
argued against strict separationism, instead embracing a more accommodationist approach. As Justice
Kennedy said in a 1989 dissent, “[r]ather than requiring government to avoid any action that
acknowledges or aids religion, the Establishment Clause permits government some latitude in recognizing
and accommodating the central role religion plays in our society.” Thus, the Court has recognized that the
Constitution does not “require complete separation of church and state; it affirmatively mandates
accommodation, not merely tolerance, of all religions, and forbids hostility toward any.”
The Supreme Court has adopted both separationist and accommodationist positions in its opinions on the
Establishment Clause. For decades, the Court has applied what has become known as the Lemon test—a
test that can be described as separationist. In Lemon v. Kurtzman, decided in 1971, the Supreme Court
outlined a three-part test: to be constitutional, (1) a government action “must have a secular legislative
purpose;” (2) “its principal or primary effect must be one that neither advances nor inhibits religion;” and
(3) it “must not foster an excessive government entanglement with religion.” In Lynch v. Donnelly, in a
concurring opinion the Court later adopted, Justice O’Connor argued that the first and second prongs of
the Lemon test are focused on government “endorsement” of religion: “The purpose prong of
the Lemon test asks whether government’s actual purpose is to endorse or disapprove of religion. The
effect prong asks whether, irrespective of government’s actual purpose, the practice under review in fact
conveys a message of endorsement or disapproval.” In later opinions, Justice O’Connor clarified that
courts should ask whether a “reasonable observer would view a government practice as endorsing
religion.” Scholars have said that this nonendorsement principle represents a more accommodationist test
than the original articulation of Lemon, even if it is ultimately a relatively separationist position.
But the Court has not always used the Lemon test, or the nonendorsement version of that test, to analyze
disputed government actions. In particular, judges arguing for a more accommodationist view of the
Establishment Clause have said that government support for religion should be considered constitutional
if that government support is grounded in historical tradition. Thus, for example, when it considers the
constitutionality of government-sponsored prayer at certain public events, the Court has primarily
assessed such practices by reference to historical context, rather than the Lemon test, upholding prayers
that fit within longstanding “tradition” and are “part of the fabric of our society” so long as the
government is not coercing participation in religion or proselytizing. While he was a lower court judge,
Justice Kavanaugh authored a concurring opinion in which he analyzed an Establishment Clause claim
involving “government-sponsored religious speech at” a “public event[]” by reference to “the Nation’s
history and tradition.” Other Justices have embraced this historical view in broader contexts. For example,
in a recent opinion dissenting from a denial of certiorari, Justice Thomas, joined by Justice Gorsuch,
argued that the proper approach to evaluating Establishment Clause claims was to “focus on whether a
government practice is supported by this country’s history and tradition.”
In the past, Justices Thomas and Scalia took what may be an even more accommodationist view: looking
to historical understandings of the Establishment Clause, they have argued that the government violates
that Clause only if it coerces “religious orthodoxy” or “financial support by force of law and threat of
penalty.” Thus, Justice Thomas has argued that “the Framers” understood “establishment” to refer only to
legal coercion—which is distinct, in the views of Justices Scalia and Thomas, from the “psychological
coercion” that they say the Court has sometimes found to violate the Establishment Clause.
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Establishment Clause Evaluation of Religious Displays
The Court’s divisions on the Establishment Clause have been especially apparent in cases evaluating the
constitutionality of government monuments that contain religious symbols. Perhaps most notably, in
2005, a majority of the Court in Van Orden v. Perry could not agree on a single rationale for rejecting a
challenge to a Ten Commandments display on the grounds of the Texas State Capitol. The State Capitol
grounds included other historical monuments, and the Ten Commandments display itself contained
imagery besides the text of the commandments. In an opinion joined by three other Justices, Chief Justice
Rehnquist concluded that the Lemon test was “not useful in dealing with the sort of passive monument
that Texas has erected on its Capitol grounds.” “Instead,” the plurality said, its decision to approve the
display was “driven both by the nature of the monument and by our Nation’s history.” Justice Breyer
provided the fifth vote to uphold the monument. In his concurrence, he expressed his belief that in the
“fact-intensive” application of the Establishment Clause, there could be “no test-related substitute for the
exercise of legal judgment.” In his view, the facts “surrounding the display’s placement on the capitol
grounds and its physical setting,” along with the history of the public’s reception of that monument,
suggested that the purpose and effect of the display were secular rather than religious. Justice Breyer also
expressed concern that a “contrary conclusion” in that case would “exhibit a hostility toward religion”
that could “create the very kind of religiously based divisiveness that the Establishment Clause seeks to
avoid.”
But in McCreary County v. ACLU, issued the same day as Van Orden, a majority of the Court (the Van
Orden dissenters, joined by Justice Breyer) did apply Lemon to hold that a different Ten Commandments
display—in which two counties posted stand-alone displays of the Ten Commandments on the walls of
their courthouses—violated the Establishment Clause. In striking down the McCreary County displays,
the Court emphasized that the “clearly religious” text of the Commandments “stood alone,” not as part of
any secular display or “traditionally symbolic representation.” In addition, the Court believed that the
circumstances surrounding the posting of the commandments and subsequent iterations of the displays
emphasized the religious character of the display.
Perhaps in light of the “mixed messages” the Supreme Court has sent, lower courts have resolved
Establishment Clause challenges by attempting to draw factual analogies to previously decided cases
rather than engaging in the more theoretical debate described above. Looking to prior cases in which the
Supreme Court has reviewed public monuments, lower courts have applied the Lemon test while also
following Justice Breyer’s opinion in Van Orden, viewing religious display inquiries as “context-specific
and fact-intensive.”
Roberts Court Era
As described above, Justice O’Connor played a significant role in the modern debate over the meaning of
the Establishment Clause. The Roberts Court has decided relatively few cases concerning the scope of the
Establishment Clause since the retirement of Justice O’Connor in 2005, giving little insight into how the
new Justices who have joined the Court since then view these issues. In one case interpreting the First
Amendment’s Free Exercise Clause, Trinity Lutheran Church of Columbia, Inc., v. Comer, Chief Justice
Roberts wrote an opinion for the Court holding that a state policy excluding churches from a grant
program impermissibly discriminated “against religious exercise.” Justice Sotomayor dissented from this
opinion, joined by Justice Ginsburg, saying that in her view, it would violate the Establishment Clause for
a state to “directly fund religious exercise.” Trinity Lutheran thus suggests that the Roberts Court may
hold a more accommodationist view of the Religion Clauses as a whole.
Likely the most significant Establishment Clause case decided in recent years was Town of Greece v.
Galloway, in which the Court held that a town did not violate the Establishment Clause by opening its
board meetings with a prayer. Justice Kennedy wrote the opinion of the Court, assessing the practice’s
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constitutionality by referring to the “tradition” of prayers that the Court had previously upheld and by
looking to historical practice. In a portion of his opinion that was joined only by Chief Justice Roberts and
Justice Alito, Justice Kennedy also ruled that the prayers were not impermissibly coercive, again by
looking to historical practice, saying that a “reasonable observer” would be “acquainted with this
tradition” of legislative prayer and would understand that the purpose of the prayers was to acknowledge
religion, not to proselytize.
American Legion will present the Court with the opportunity to clarify whether the Lemon test
remains good law, or whether instead lower courts should be analyzing more Establishment
Clause claims under the “history and tradition” analysis followed in cases like Town of Greece.
Part Two of this Sidebar discusses American Legion in more detail.
Author Information
Valerie C. Brannon
Legislative Attorney
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