A ‘More Modest’ Approach: Making Lemonade Without Lemon

By Jacob David Glenn

Peace Cross

Roy Speckhardt, executive director of the American Humanist Association, looks up from the base of the 40′ Maryland Peace Cross dedicated to World War I soldiers on Wednesday, Feb. 13, 2019 in Bladensburg, Md. (AP Photo/Kevin Wolf)

In an Establishment Clause case with seven separate opinions, the most succinct summary of the controversy can be found at the beginning of U.S. Supreme Court Justice Neil Gorsuch’s concurrence in the judgment: “The American Humanist Association want[ed] a federal court to order the destruction of a 94-year-old war memorial because they [were] offended.”[1] This pithy statement forecasts the ruling the court administered in American Legion v. American Humanist Association, 588 U.S. ___ (2019).

The Cross in Question

The memorial in question is the so-called “Peace Cross” or “Bladensburg Cross,” a 32-foot-tall Latin cross located at what is now a well-trafficked intersection in the town of Bladensburg in Prince George’s County, Maryland.[2] Citizens conceived the idea of the monument as a means of honoring local soldiers who perished during World War I and they formed a committee for that purpose in 1918.[3] Local residents and businesses funded the development until the committee ran out of money in 1922.[4] The local post of the American Legion then took over, completing the project in 1925.[5] The cross honors 49 fallen soldiers by name (both black and white), features the dates of American involvement in the fight and bears the words spoken by President Woodrow Wilson in his declaration of war.[6]

Through the years, the memorial served as the location for various local gatherings, including patriotic events.[7] In 1961, as the surrounding area developed, the Maryland-National Capital Park and Planning Commission acquired ownership of the Peace Cross and the land upon which it sits.[8] The commission maintains the memorial and monitors traffic and safety concerns.[9]

 In the Lower Courts

The American Humanist Association brought suit to “[ask] a federal court to order the relocation or demolition of the cross or at least the removal of its arms.”[10] The group sued the commission, but — as Justice Samuel Alito wrote with (perhaps happenstantial) dramatic flair — “The American Legion intervened to defend the cross.”[11]

The U.S. District Court for the District of Maryland granted summary judgment for the commission and the legion.[12] The district court found that the Peace Cross satisfied the Lemon test.[13] The Lemon test “requires government action (1) has a secular purpose; (2) has a ‘principal or primary effect’ that ‘neither advances nor inhibits religion’; and (3) does not foster ‘an excessive government entanglement with religion.’”[14] The court reasoned the secular purpose to be that of memorializing fallen soldiers; the court determined the primary effect was not the advancement of religion, but the aforementioned memorialization and the court did not deem the cross to foster excessive government entanglement.[15] The court explained that the cross (generally) has become a commonplace symbol to the extent that its value is not exclusively religious — particularly when honoring the departed. The court noted “there are many contexts in which the symbol has also taken on a secular meaning” (i.e., trademarks for companies such as Blue Cross Blue Shield and The Red Cross and the cross’s widespread identification with sacrifice in war).[16]

Upon appeal by the American Humanist Association, the U.S. Court of Appeals for the Fourth Circuit found the cross actually failed the second prong of the Lemon test — the “effects” prong.[17] The Fourth Circuit concluded that the cross’s intrinsic religious significance and meaning combined with its large size and location did, in fact, have an impermissible effect upon passers-by.[18] (The Fourth Circuit’s Chief Judge Roger Gregory dissented, arguing that the Lemon effects prong was misapplied by not taking into account the cross’s location, history and use.)[19]

At the Supreme Court

The U.S. Supreme Court reversed the Fourth Circuit by a 7-2 vote, ultimately ruling in favor of the commission, the legion and the Peace Cross. After reflecting upon the lower courts’ applications of Lemon, the Supreme Court decided the test was not the best rubric by which to assess the instant case.[20] Justice Alito listed four problematic difficulties in applying Lemon to cases “involv[ing] the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations.”[21] First, such cases often involve aged monuments, symbols, or practices whose original purposes can be difficult to discern.[22] Second, the original purposes are often co-opted or joined by multiple new purposes as time passes.[23] Third, associated messages also change and evolve over time.[24] And fourth, sometimes removal may be just as or even more hostile than allowing a subject to remain; therefore, there are factors outside the Lemon purview which might demand consideration (i.e. historical significance, importance to the local community, etc.).[25] To this end, Justice Stephen Breyer proffered, “I have long maintained that there is no single formula for resolving Establishment Clause challenges.”[26]

Instead, the court opted for what it considered a “more modest approach that focuses on the particular issue at hand and looks to history for guidance.” In the spirit of the “practice begun by the first Congress,” factors in this more modest approach include “respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination and a recognition of the important role that religion plays in the lives of many Americans,” as well as longstanding history and tradition.[27] “The Peace Cross or Bladensburg Cross carries special significance in commemorating World War I,” reasoned the court and, “with the passage of time, it has acquired historical importance.”[28] The monument now stands among a procession of memorials to other wars and war heroes and has become an indelible feature of the community’s identity.[29]

Indeed, one of the foremost reasons for the court’s ruling was that this was one such case wherein allowing the cross to stand is a significantly less hostile measure than would be the act of tearing it down. The opinion recalled the French Revolution — an affair of brutal divisiveness — wherein the French “sought to ‘dechristianize’ [France] and thus removed ‘plates, statues and other fittings from places of worship.’”[30] Justice Clarence Thomas expounded upon the paramount weight of historical conscientiousness, contending that “ahistorical generalization is no substitute for careful constitutional analysis.”[31] Thomas called into question some of the association’s more cynical arguments, such as its “inaccurate” categorization of Christianity as a “sect” and its contention that the Peace Cross rises to the level of coercion.[32] With tantamount reverence for the wisdom to be gleaned from the past, Alito admonished:

“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. Militantly secular regimes have carried out such projects in the past and for those with a knowledge of history, the image of monuments being taken down will be evocative, disturbing and divisive.” [33]

[1] American Legion v. American Humanist Ass’n, 588 U.S., at ___ (opinion of Gorsuch, J.) (slip op., at 1).

[2] American Legion v. American Humanist Ass’n, 588 U.S., at ___ (opinion of Alito, J.) (slip op., at 7).

[3] Id., at ___ (slip op., at 6).

[4] Id., at ___ (slip op., at 7).

[5] Id.

[6] Id., at ___-___ (slip op., at 7-8).

[7] Id., at ___ (slip op., at 8).

[8] Id.

[9] Id., at ___ (slip op., at 9).

[10] Id., at ___ (slip op., at 1).

[11] Id., at ___ (slip op., at 10).

[12] Id.

[13] Id.

[14] Id. (citing Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)).

[15] Id.

[16] Id., at ___-___ (slip op., at 3-5).

[17] Id., at ___ (slip op., at 11).

[18] Id.

[19] Id.

[20] Id., at ___-___ (slip op., at 12-21).

[21] Id., at ___ (slip op., at 15).

[22] Id., at ___ (slip op., at 16).

[23] Id., at ___ (slip op., at 17).

[24] Id., at ___ (slip op., at 19).

[25] Id., at ___ (slip op., at 20).

[26] American Legion, 588 U.S., at ___ (opinion of Breyer, J.) (slip op., at 1).

[27] American Legion, 588 U.S., at ___ (opinion of Alito, J.) (slip op., at 28).

[28] Id.

[29] Id.

[30] Id., at ___-___ (slip op., at 20-21 n. 24).

[31] American Legion, 588 U.S., at ___ (opinion of Thomas, J.) (slip op., at 2).

[32] Id., at ___ (slip op., at 4).

[33] American Legion, 588 U.S., at ___-___ (opinion of Alito, J.) (slip op., at 20-21).

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