Last week, the Supreme Court decided the much-awaited Bladensburg Cross case, American Legion v. American Humanist Association.
The case presented a constitutional challenge to a war memorial on public property in Bladensburg, Maryland—a 32-foot-high Latin cross erected 90 years ago to commemorate county residents who had died in World War I. In 2017, a federal appeals court ruled that the cross violated the First Amendment’s Establishment Clause under the so-called “endorsement test.” A reasonable observer, the appeals court held, would view the cross as an impermissible state endorsement of Christianity.
By a vote of 7-2, the Supreme Court reversed the appeals court and upheld the constitutionality of the cross. The lopsided vote conceals serious disagreement on the Court. Along with the majority opinion, which Justice Alito wrote for himself and four other justices, the members of the Court issued a bewildering seven additional opinions—inviting confusion in the lower courts. And Justice Alito’s majority opinion is quite narrow. The Bladensburg Cross and similar longstanding “monuments, symbols, and practices” will survive. But whether state and local governments can sponsor new monuments, symbols, and practices with religious elements, and what test the Court will use to evaluate them, remain uncertain.
Justice Alito wrote the majority opinion in American Legion for himself, Chief Justice Roberts, and Justices Breyer, Kagan, and Kavanaugh. Longstanding religious displays, he wrote, come with “a strong presumption of constitutionality,” informed by history and tradition. Although the Latin cross obviously carries a Christian meaning, during World War I it acquired “an added, secular meaning” as a commemoration of servicemen who had died in the conflict. Ninety years later, one could not know for certain which meaning the cross’s designers had intended to convey. But the history of the Latin cross as a war memorial bore on the monument’s meaning for constitutional purposes.
Moreover, “the passage of time” had given the Bladensburg Cross new meaning. For many, the cross symbolized the local community and its past—the Prince George’s County men who had died in World War I; their “relatives, friends, and neighbors” who had erected the monument to honor them; and the descendants of both groups who had maintained the monument ever since. No evidence existed that the community had erected the cross, or maintained it for almost a century, to convey disrespect for non-Christian residents of the county who had died in the war. The monument represented a tribute to them as well.
Finally, Justice Alito emphasized, many would see removing or defacing the monument at this late date—the appeals court had actually suggested chopping off the cross’s arms as a potential remedy—as an insult reflecting antipathy to religion, not neutrality. “A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion,” he wrote. Such hostility would not be consistent with the goal of the Establishment Clause: “a society in which people of all beliefs can live together harmoniously.”
In short, the Bladensburg Cross and similar longstanding monuments do not violate the Constitution. But two other issues remain unresolved. First, what if state or local governments were to erect such monuments today? Does the reasoning of American Legion cover new “monuments, symbols, and practices,” or only those that have existed for decades?
One could read the majority opinion as covering new monuments and practices as well as old ones, though it doesn’t come right out and say so. But two members of the majority, Breyer and Kagan, wrote separately to emphasize that they believed the Court’s ruling applies only to existing monuments and that newer displays might well be unconstitutional. On the other hand, Gorsuch and Thomas, who voted to uphold the cross but did not join Alito’s majority opinion, wrote separately to say that they thought the Court’s reasoning also applies to new monuments and practices.
The latter position seems correct, at least for a traditionalist. As Gorsuch wrote, “what matters when it comes to assessing a monument, symbol or practice isn’t its age but its compliance with ageless principles. A practice consistent with our nation’s traditions is just as permissible whether undertaken today or 94 years ago.” Put differently, if public religious displays are constitutional only when they are old, that doesn’t reflect tradition, but antiquarianism. For the moment, though, this question remains unsettled.
Second, when it agreed to hear American Legion last year, some of us hoped the Court would use the case to clarify the test to be applied in such situations—and, even more, to jettison the endorsement test once and for all. The endorsement test, which derives (more or less) from a 1971 decision called Lemon v. Kurtzman, has confused lower courts for decades and drawn much criticism from conservatives, since the test is so manipulable and obviously departs from American constitutional tradition. If government could not endorse religion in any way, many traditional American practices, such as the national motto, would have been unconstitutional all along.
Unfortunately, American Legion does not clearly resolve this issue, either. Justice Alito’s majority opinion speaks eloquently of America’s history and traditions and does not rely on Lemon at all. In a plurality opinion he wrote for himself, Roberts, Breyer, and Kavanaugh, he criticizes the Lemon endorsement test at length and indicates that it should not apply in the context of religious symbols and displays. Kavanaugh wrote that he understood the majority opinion to mean that Lemon no longer applied in religious symbols cases and that a new “history and tradition test” had taken its place.
But the majority opinion does not actually overrule Lemon. Breyer and Kagan specifically stated that they thought the majority opinion does not announce a new test. Kagan wrote that Lemon remains “crucial in evaluating government action in this sphere.” And Justices Gorsuch and Thomas declined to join the majority opinion because, at least in part, the opinion failed expressly to jettison Lemon. In short, Lemon looks to be on the ropes, at least in the context of public religious displays, but there is no opinion for the Court that says so. The fate of Lemon is thus not entirely clear after American Legion—and people have been fooled about Lemon before.
In a pluralistic society, reaching a consensus on what the Establishment Clause means proves quite difficult. Perhaps the best we can hope for, realistically, are narrow decisions like American Legion. At least the Bladensburg Cross can stay.