On Thursday, the Supreme Court held in American Legion v. American Humanist Ass’n, that Prince George County, Md., could leave standing a 32-foot-tall Latin cross that had been erected in 1925 to memorialize the sacrifice of local soldiers killed in World War I. Nearly 90 years after a Catholic priest and a Baptist pastor offered prayers during the dedication ceremony for this cross (known popularly as the Bladensburg Cross), the American Humanist Association sued in an attempt to force its removal. The display of the cross on public lands, and the use of government funds to maintain the monument, the humanists claimed, violated the federal constitution’s Establishment Clause.
In a 7-2 decision, the Supreme Court rejected the Establishment Clause challenge. In doing so, a majority of the justices also clarified that the much-maligned Lemon test no longer governs cases involving religiously expressive monuments, symbols, or displays.
The Lemon test, named after the 1971 landmark case Lemon v. Kurtzman, invented a three-prong test to determine whether a challenged government action violated the Establishment Clause. Under Lemon, to withstand a constitutional challenge, the court required the government action to serve a secular purpose, to have a “principal or primary effect” that “neither advances nor inhibits religion,” and to not foster “an excessive government entanglement with religion.”
The Supreme Court’s abandonment of the Lemon test in American Legion was much overdue: The three-prong standard has no rooting in the language or original understanding of the Establishment Clause. The text of the Establishment Clause merely reaches federal legislative action, providing “Congress shall make no law respecting an Establishment of religion.” And the Founding generation understood this clause to prohibit only federally established churches, as the intent was to protect the right of states to establish a state religion, if they so wished, although several states instead adopted constitutional provisions prohibiting state-established churches.
A county committee’s efforts to fashion a war memorial shaped as a cross in the early 20th century is far removed from the controlling constitutional language and historic understanding of the Establishment Clause. But an honest application of Lemon would have required the court to force the removal of the Bladensburg Cross. While the court’s two most liberal justices (Justices Ruth Bader Ginsburg and Sonia Sotomayor) believed the cross must go, the remainder of the court rightly recognized the folly of such an extreme view of the Establishment Clause and so sidestepped Lemon.
However, there is little to celebrate in the court’s reasoning, which saved the cross only by rendering it religiously meaningless. Much like claims that “In God We Trust” and “God save this honorable Court” pass constitutional muster because they represent not a call to a true deity but ceremonial deism (a dismissive reference to an imaginary deity meant merely to formalize an event), the court painted the cross as an evolving symbol now devoid of its Christian roots. “The cross is a symbol closely linked to World War I,” the court claimed, unconvincingly, before ruling the monument could remain based on its history and tradition.
But the “history and tradition” standard proves no more workable than the Lemon test — and no more constitutionally sound. Yet for all the supposed originalists on the Supreme Court, only Justice Clarence Thomas sought to return to a proper understanding of the Establishment Clause. “The text and history of this Clause suggest,” Thomas wrote in a concurrence, that it should only apply to the federal government. Or, “if the Clause expresses an individual right enforceable against the States, it is limited by its text to ‘law[s] enacted by a legislature.’” And even then, Thomas explained, the Bladensburg Cross “does not involve the type of actual legal coercion that was a hallmark of historical establishments of religion,” such as controlling religious doctrine or personnel, compelling religious observance or punishing dissenting worship, or subsidizing favored religions.
Thomas’ concurrence carried not a single vote. While the Bladensburg Cross may have survived, the same cannot be said for conservatives’ hopes for an originalist majority.
Margot Cleveland (@ProfMJCleveland) is a contributor to the Washington Examiner’s Beltway Confidential blog. She served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and current adjunct professor for the college of business at the University of Notre Dame.
