American Legion v. American Humanist Assn.
139 S. Ct. 2067, 588 U.S. 29, 2019 U.S. LEXIS 4182 (2019)
Rule of Law:
Longstanding religiously expressive monuments, symbols, and practices on public land are presumed constitutional under the Establishment Clause if they have acquired historical importance and secular meaning over time, and their removal would be perceived as hostile to religion.
Facts:
- In 1918, residents of Prince George’s County, Maryland, formed a committee to erect a memorial for local soldiers who died in World War I.
- The committee decided the memorial should be a cross, a symbol that had become closely linked with fallen World War I soldiers due to the imagery of graves overseas.
- After the committee ran out of funds, the local American Legion post took over the project and completed the 32-foot tall Latin cross memorial, known as the Bladensburg Peace Cross, in 1925.
- The Bladensburg Cross sits on a large pedestal displaying the American Legion’s emblem, inscriptions of “Valor,” “Endurance,” “Courage,” and “Devotion,” and a bronze plaque listing the names of 49 fallen Prince George's County soldiers.
- At the dedication ceremony, a Catholic priest offered an invocation and a Baptist pastor offered a benediction, with the memorial including names of both Black and White soldiers.
- Since its dedication, the Cross has served as the site of patriotic events honoring veterans on days like Veterans Day and Memorial Day, with other war memorials later added to the surrounding area.
- In 1961, the Maryland-National Capital Park and Planning Commission (Commission) acquired the Cross and the land it sits on to preserve the monument and address traffic-safety concerns.
- The Commission has used public funds to maintain and preserve the monument since 1961.
Procedural Posture:
- In 2014, the American Humanist Association (AHA) and others filed suit in the District Court for the District of Maryland, alleging that the Bladensburg Cross's presence on public land and its maintenance by the Commission violated the First Amendment’s Establishment Clause.
- The American Legion intervened to defend the Cross.
- The District Court granted summary judgment for the Commission and the American Legion, concluding that the Cross satisfied both the Lemon v. Kurtzman test and Justice Breyer’s analysis in Van Orden v. Perry.
- A divided panel of the United States Court of Appeals for the Fourth Circuit reversed the District Court's judgment, holding that the Bladensburg Cross failed the Lemon test's 'effects' prong, as a reasonable observer would view the Commission’s ownership and maintenance as an endorsement of Christianity, and created excessive entanglement with religion.
- The Fourth Circuit denied rehearing en banc.
- The Commission (petitioner in No. 18–18) and the American Legion (petitioner in No. 17–1717) each petitioned for certiorari to the Supreme Court of the United States, which granted the petitions and consolidated the cases for argument.
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Issue:
Does the presence of a 32-foot Latin cross war memorial on public land, and its maintenance with public funds, violate the Establishment Clause of the First Amendment, given its longstanding existence and evolving community significance?
Opinions:
Majority - Justice Alito
No, the Bladensburg Cross does not violate the Establishment Clause. The Court holds that established, religiously expressive monuments, symbols, and practices differ significantly from newly erected ones, giving rise to a strong presumption of constitutionality for the former. The cross, while originating as a Christian symbol, took on an added secular meaning as a symbol of sacrifice for World War I soldiers. Over time, the Bladensburg Cross has acquired historical importance as a community landmark, honoring the sacrifices of predecessors and becoming part of the community’s identity. Removing or radically altering it now would be seen as hostile to religion and would create divisiveness. The Court criticizes the Lemon test as an ambitious but ultimately unworkable framework for Establishment Clause cases, preferring a more modest, historically sensitive approach that looks to practices and understandings, as seen in cases like Marsh v. Chambers and Town of Greece v. Galloway. The Bladensburg Cross aligns with this tradition of respecting and tolerating different views, promoting inclusivity, and recognizing religion’s role in American life, with no evidence of discriminatory intent in its design or maintenance.
Concurring - Justice Breyer
No, allowing Maryland to display and maintain the Peace Cross poses no threat to the fundamental purposes of the Religion Clauses, which are to ensure religious liberty and tolerance, prevent religiously based social conflict, and maintain church-state separation. The Latin cross has a unique association with World War I fallen soldiers, the memorial’s organizers had a secular motive to commemorate local soldiers without disparaging others, and it has stood for 94 years without significant controversy. Removing it now would signal hostility toward religion. This concurrence emphasizes a case-by-case approach rather than a broad 'history and tradition test' that would permit any new religious memorial.
Concurring - Justice Kavanaugh
No, the Bladensburg Cross is constitutional because the Court consistently applies a history and tradition test in Establishment Clause cases, which the Lemon test does not explain. If a government practice is not coercive and is rooted in history and tradition, treats religious and secular entities equally, or represents a permissible accommodation, it typically does not violate the Establishment Clause. The Bladensburg Cross meets this standard. While acknowledging the sincere objections and deeply religious nature of the cross, the ruling only permits, but does not require, the State to maintain the cross, and other avenues for redress may exist at the state level.
Concurring in judgment - Justice Thomas
No, the Bladensburg Cross is clearly constitutional. The Establishment Clause should not be incorporated against the States, and even if it were, a memorial is not a 'law.' Furthermore, the presence of the monument involves no actual legal coercion, which is the necessary condition for an establishment of religion as understood at the founding. Displaying a religious symbol on public property was common at the founding. Religious displays need not be nonsectarian, and the Lemon test should be overruled in all contexts due to its lack of original meaning, manipulability, and confusion.
Concurring in judgment - Justice Gorsuch
No, the Bladensburg Cross is constitutional, but the suit should have been dismissed for lack of standing. The 'offended observer' theory of standing, which posits that offense alone constitutes a sufficient injury, has no basis in Article III or this Court's precedents. This theory emerged from the flawed Lemon test, which should be recognized as defunct. With Lemon shelved, federal courts should return to the traditional Article III requirements of a concrete injury, ending the 'sordid business' of aesthetic judgment on public displays. The Bladensburg Cross is constitutional under a history and tradition analysis, irrespective of its age.
Dissenting - Justice Ginsburg
Yes, the Bladensburg Cross violates the Establishment Clause. The Establishment Clause demands governmental neutrality among religious faiths and between religion and nonreligion. The Latin cross is the preeminent symbol of the Christian faith, not a universal symbol, and its display on public property conveys a message of exclusion to non-Christians, elevating Christianity. Attempts to secularize the cross defy credibility. Historical evidence from World War I demonstrates that crosses and Stars of David were understood as distinct, sectarian grave markers. The Peace Cross was an 'aberration' even when built, as the vast majority of World War I memorials did not incorporate the Latin cross. This decision erodes the commitment to neutrality and diminishes precedent in favor of a new 'presumption of constitutionality for longstanding monuments.'
Analysis:
This case significantly alters the landscape of Establishment Clause jurisprudence by continuing the Court’s retreat from, and for a plurality, outright rejecting, the Lemon test. By introducing a 'strong presumption of constitutionality' for longstanding religiously expressive monuments and emphasizing a 'history and tradition' approach, the Court provides a new framework for lower courts to evaluate such challenges. This shift will likely make it more difficult to successfully challenge older religious displays and practices, as courts will consider their evolving meanings and the potential divisiveness of their removal. The various concurring opinions highlight the ongoing disagreement over the appropriate Establishment Clause framework, indicating future litigation will continue to define its boundaries, particularly concerning what constitutes 'coercion' or 'standing' in these cases.
