Supreme Court May Reconsider Establishment Clause Jurisprudence in Challenge to Cross Display: Part Two

Supreme Court May Reconsider Establishment Clause Jurisprudence in Challenge to Cross Display: Part Two

Legal Sidebari

Supreme Court May Reconsider
Establishment Clause Jurisprudence in
Challenge to Cross Display: Part Two
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. Part One briefly reviewed existing Establishment Clause jurisprudence.
Part Two, below, focuses on American Legion, reviewing the lower court decision and the parties’
arguments before the Supreme Court. It discusses ways the Court might resolve the case, as well as the
significant implications the Court’s decision could have for Congress.
Fourth Circuit Decision
The Peace Cross display that the Supreme Court is considering in American Legion was held
unconstitutional by a divided panel of the Fourth Circuit last year. The challenged monument is a 40-foot-
tall Latin cross that the American Legion erected in 1925. During fundraising efforts and at the
monument’s dedication, the private organizers emphasized the religious nature of the cross. The cross’s
base contains a plaque with the names of the Prince George’s County soldiers who died in World War I. A
Maryland state agency, the Maryland-National Capital Park and Planning Commission (Commission),
acquired the cross in 1961 and has maintained the monument since. The cross, which stands “in the center
of one of the busiest intersections in Prince George’s County, Maryland,” is now “part of a memorial park
honoring veterans in Bladensburg” that includes smaller war memorials located in the vicinity.
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The American Humanist Association (AHA), along with a number of individual plaintiffs, sued the
Commission and the American Legion, arguing that the state’s “display and maintenance of the Cross
violates the Establishment Clause.” The Fourth Circuit agreed, applying Lemon—but with “due
consideration given to” the “factors” articulated in Justice Breyer’s Van Orden concurrence. The appellate
court first held that the state had “satisf[ied] the first prong of Lemon” by stating “legitimate secular
purposes for displaying and maintaining the cross”: maintaining highway safety and honoring soldiers.
However, the panel opinion concluded that the Peace Cross failed the second Lemon prong. The court said
that the Latin cross has “inherent religious meaning,” stating that even its secular symbolism of World
War I and of death is reliant on “its affiliation with the crucifixion of Jesus Christ.” The Fourth Circuit
noted that the cross “contains a few secular elements,” including the plaque at the base of the cross, but
ultimately said that “the sectarian elements [of the display] easily overwhelm the secular ones.” The
majority opinion emphasized “the immense size and prominence of the [Peace] Cross” as compared to the
cross’s secular elements and to the other war monuments, especially in light of the fact that the cross was
largely viewed by motorists who could not see these secular displays. In light of these factors, the Fourth
Circuit held that “a reasonable observer would fairly understand the Cross to have the primary effect of
endorsing religion.”
Finally, the majority opinion held in the alternative that the Peace Cross violated the Establishment Clause
under the third prong of Lemon, by creating an excessive government entanglement with religion. The
court noted that the state had spent “at least $117,000 to maintain the Cross and has set aside an additional
$100,000 for restoration.” The majority also concluded that the display itself “amount[ed] to excessive
entanglement,” by “displaying the hallmark symbol of Christianity . . . . in a manner that says to any
reasonable observer that the Commission either places Christianity above other faiths, views being
American and Christian as one in the same, or both.”
Chief Judge Gregory dissented, concluding that the Peace Cross did not violate the Establishment Clause.
The dissent also applied the Lemon test, but with respect to the second prong, would have held that a
reasonable observer understands the cross to be a secular war memorial rather than an endorsement of
Christianity. With respect to the third prong, the dissenting judge believed that the state’s maintenance of
the memorial did not constitute excessive entanglement, saying that, by spending money on “lighting and
upkeep,” the state is not “involved in any church-related activities” or “promot[ing] any religious
doctrine.”
Supreme Court Consideration of the Peace Cross
The Commission and the American Legion appealed the Fourth Circuit’s decision to the Supreme Court,
and in November 2018 the Court granted the petitions for certiorari. The Court agreed to consider what
test should apply when considering Establishment Clause challenges to public monuments. Thus,
American Legion offers the Court the opportunity to clarify its understanding of the Establishment Clause
and to state definitely how courts should analyze the constitutionality of religious displays. The
petitioners, arguing in support of the Peace Cross, urge the Court to embrace a more accommodationist
approach, while AHA, claiming that the state’s display of the Peace Cross violates the Establishment
Clause, takes a more separationist view. Interestingly, no party primarily argues that the Court should
retain Lemon, although AHA does argue in the alternative that if the Court does wish to reconsider the
proper analysis for Establishment Clause inquiries, it should reaffirm the Lemon test.
One option is for the Court to abandon Lemon altogether and broadly adopt the “history and tradition”
approach it took in Town of Greece v. Galloway. The United States, arguing as an amicus in support of the
petitioners, takes this position, saying that the Court should evaluate the constitutionality of “passive
displays” by reference to historical practice. The Solicitor General contends that the Peace Cross, viewed
in light of practices that it says the Founders embraced, “does not raise any of the concerns against which

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the Establishment Clause protects.” By contrast, AHA argues that historical practice does not support the
government’s display of the Peace Cross because there is no history supporting “government displays that
align the government with one particular religion,” and because the Founders never approved of the
prominent, permanent display of solitary Latin crosses. Further, AHA claims that the Court has never
held—and should not now rule—that historical pedigree alone can validate a government practice with
the purpose and effect of favoring a particular religion. Taking a slightly different position from the
United States, and perhaps echoing AHA’s concerns, the Commission says that while historical practice
may often suffice to validate a display, it will not always be dispositive, saying that even longstanding
practices may be suspect if they have “often been employed to proselytize or denigrate non-adherents” or
if “a specific practice var[ies] from tradition in a way that removes it from that tradition’s protective
ambit.”
American Legion argues for an even more accommodationist test, asking the Supreme Court to hold that
“symbolic display[s]” violate the Establishment Clause only if they are “coercive,” in the sense that they
“coerce belief in, observance of, or financial support for religion.” Although the United States argues for
a slightly different test, the Solicitor General agrees with the American Legion that “the founding
generation understood the Establishment Clause as prohibiting governmental coercion of religious belief
or adherence, but as permitting governmental acknowledgement of religion in public life.” While the
United States says that history defines “what types of actions are (or are not) coercive,” the American
Legion says that its coercion inquiry “is broader than merely asking whether the specific practice
challenged was accepted by the Framers.” Nonetheless, American Legion claims that its coercion
standard is grounded in original understandings of religious “establishment.” The American Legion also
maintains that this test “provides a workable approach” that is more consistent with “longstanding
national traditions.” According to that group, the display of the Peace Cross is constitutional because
there is no evidence that it “compels anyone to make a religious profession, has been exploited to
excessively proselytize, mandates any form of religious exercise, or involves any other historically
grounded form of coercion.”
AHA opposes the adoption of the coercion test, asserting that this “categorical rule” would “give[] the
greenlight to virtually all religious displays, regardless how sectarian, conspicuous, contemporary, or
religiously motivated.” The group also says that the coercion test would be contrary to the Court’s
existing Establishment Clause case law and argues that it “would yield harrowing, unprincipled, and
inconsistent results.”
While the Supreme Court signaled its willingness to revisit and possibly revise its Establishment Clause
jurisprudence in its order granting the petition for certiorari, at least two of the briefs have suggested that
the Court might be able to resolve the case before it under existing case law, without more broadly
reconsidering Establishment Clause jurisprudence. First, the Commission states that “nearly every
Member of the Court has agreed on at least this much: A passive monument that uses religious symbolism
does not violate the Establishment Clause if either (1) the purpose and the objective meaning of the
display are predominantly secular, or (2) the monument fits into a national history and tradition of similar
displays.” Relying largely on the longstanding and widespread “tradition of using crosses as symbols of
commemoration,” the Commission contends that the Peace Cross meets both of these criteria.
Like the Commission, the AHA argues that the case can be resolved under existing precedent—but the
AHA claims a different principle settles the dispute. The group says that the Establishment Clause
prohibits sectarian endorsement of religion, in the sense that “government may not demonstrate a
preference for one religion over other religions.” Noting that the Peace Cross is a “permanent sectarian
monument,” the AHA claims that the display “clearly aligns the government with Christianity”—and
discriminates against non-Christian soldiers, at least some of whom, says the AHA, do not view the cross
as “a benign secular symbol that honors their sacrifices.” AHA points to the context of the monument,
citing factors noted in Van Orden and other Supreme Court cases to argue that the Peace Cross would

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communicate “to any reasonable observer that the Commission either places Christianity above other
faiths, views being American and Christian as one in the same, or both.”
Implications for Congress
Although this case involves the constitutionality of a particular monument located on state property,
American Legion may ultimately have broader implications for the federal government, given that the
case provides the Court the opportunity to revisit its Establishment Clause jurisprudence. If the Court
abandons Lemon and adopts a new, more accommodationist test, whether for all Establishment Clause
inquiries or merely for challenges involving passive religious displays, that new inquiry may govern
future inquiries into the constitutionality of a host of federal actions. And even if the Court holds only that
Lemon does not govern this particular inquiry, this may still signal a further narrowing of Lemon and a
move by the Roberts Court toward a more accommodationist view of the Establishment Clause.
The Court’s opinion in American Legion may offer hints as to how the Court would analyze a variety of
other actions. The Establishment Clause controls the federal government’s ability to fund religious
institutions, host religious activities, and otherwise support religion. For example, litigants have (with
varying levels of success) challenged under the Establishment Clause:
 a presidential proclamation restricting certain foreign nationals from entering the country;
 the “Hyde Amendment,” a federal appropriations provision that “den[ied] public funding
for certain medically necessary abortions”;
 the use of federal funds to organize conferences at which the President “praised the
efficacy of faith-based programs in delivering social services”;
 the use of federal funds to purchase educational materials in religious schools;
 a federal agency’s sale of land to a religious college;
 the use of prayers at the presidential inaugural ceremony; and
 the inclusion of the words “so help me God” in the naturalization oath.
More immediately, there are a number of crosses erected as monuments on public ground, including in
Arlington National Cemetery. (Notably, the majority opinion below offered possible ways to distinguish
the crosses displayed in Arlington, although some commentators arguing in defense of the Peace Cross
have claimed that the Fourth Circuit decision “threatens” Arlington’s memorials.) The Court’s resolution
of this case may have significant implications for these federal displays. Particularly if the Court’s
decision adopts a more separationist view and suggests that these religious displays are now
unconstitutional, federal action may be needed to bring the government in compliance with the
Establishment Clause. In the opinion below, the majority clarified in a footnote that it was not requiring
Maryland to “remov[e] the arms or raz[e] the [Peace] Cross entirely,” saying that on remand, the parties
would be “free to explore alternative arrangements that would not offend the Constitution.” Alternatives
might include alterations to emphasize the secular aspects of any public memorials or transferring
ownership of memorials to private hands—although any future actions would have to be evaluated in
light of governing precedent. In one divided 2010 decision, the Supreme Court approved of a federal
statute that transferred control of federal land containing a Latin cross that was erected as a World War I
memorial to a private party.
Oral argument in this case is scheduled for February 27, 2019. The Justices’ questions at oral
argument may signal whether they are seeking to clarify and further refine the Court’s
Establishment Clause jurisprudence and what they think of the various tests that the parties have
proposed.

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Author Information

Valerie C. Brannon

Legislative Attorney

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