February 22, 2019

Does a 40-Foot-High Latin Cross Erected to Honor WW I Veterans Violate the Establishment Clause?

CASE AT A GLANCE 

The Establishment Clause of the First Amendment, “Congress shall make no law respecting an establishment of religion,” prohibits the creation of a national church and the government favoring certain religious sects over others. But that is where general agreement of these ten words ends. In this case, the Court has an opportunity to clarify the meaning of the Establishment Clause in the context of a 40-foot cross erected as a memorial to fallen World War I soldiers. Is the monument a permissible civic recognition of fallen war veterans or an impermissible advancement and promotion of Christianity? 

American Legion v. American Humanist Association
Maryland-National Capital Park and Planning Commission v. American Humanist Association

Docket Nos. 17-1717 and 18-18

Argument Date: February 27, 2019 From: The Fourth Circuit

ISSUE

by David Hudson Jr.
Belmont Law School, Nashville, TN

Does the Establishment Clause require the removal or destruction of a 93-year-old memorial to American servicemen who died in World War I solely because the memorial bears the shape of a cross?

FACTS

In 1918, citizens from Prince George’s County, Maryland, organized efforts to erect a memorial in Blandensburg, Maryland, for the
49 World War I soldiers from the county who fought in the global conflict. The monument was a 40-foot Latin cross akin to the Cross at Calvary.

In 1922, the private citizens ran out of money and a local chapter of the American Legion took over the fundraising efforts to complete the memorial. The monument was completed in 1925. In 1961, the Maryland-National Capital Park and Planning Commission (the Commission) obtained title to the cross-monument.

Today, the cross sits at a busy intersection between Maryland Route 450 and U.S. Route 1 as part of Veterans Memorial Park. Other monuments in the park honor veterans from the War of 1812, World War II, the Korean War, and the Vietnam War. There also is a 9/11 memorial.

In 2014, the American Humanist Association and three individuals challenged the monument on Establishment Clause grounds.

A federal district court granted summary judgment to the government, applying the familiar Lemon test from Lemon v. Kurtzman, 403 U.S. 602 (1971). The district court determined that the monument served a secular purpose, the honoring of veterans, rather than the purpose of advancing or promoting Christianity. The district court noted that crosses are often used as commemorative pieces for fallen World War I soldiers.

On appeal, a divided three-judge panel of the Fourth Circuit reversed. The majority reasoned that the cross advanced Christianity, as the Latin cross is the “preeminent symbol of Christianity.” The appeals court majority noted: “Even in the memorial context, a Latin cross serves not simply as a generic symbol of death, but rather a Christian symbol of the death of Jesus Christ.”

The majority also reasoned that the monument violated the last part of the three-part Lemon test, the so-called entanglement prong, which prohibits excessive entanglement between church and state. The majority reasoned there was excessive entanglement for two reasons: (1) the Commission has spent a
significant amount of money on maintaining the cross; and (2) the monument “aggrandizes the Latin cross,” elevating it above all the other monuments in the park.

Judge Roger Gregory dissented, writing that the Establishment Clause does not require the government to remove all religious references from the public sphere. He “conclude[d] that a reasonable observer would understand that the Memorial, while displaying a religious symbol, is a war memorial built to celebrate the forty-nine Prince George’s County residents who gave their lives in battle.”

The American Legion, an intervenor in the case, successfully petitioned for Supreme Court review.

CASE ANALYSIS

The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion…” The meaning of these ten words, what author Steven Mansfield has called “Ten Tortured Words”—continue to divide members of society and Supreme Court jurists. Just last year, Justice Clarence Thomas wrote that the Court’s Establishment Clause jurisprudence was “in shambles.”

For many years, the dominant test for Establishment Clause cases has been the Lemon test from Lemon v. Kurtzman. In its original iteration, it had three parts: (1) the purpose prong, (2) the effects prong, and (3) the entanglement prong. Under the Lemon test, the government’s religious display must have a secular purpose, not primarily advance or inhibit religion, and not excessively entangle church and state. If a religious display or policy violates any one of the three prongs of the Lemon test, the display violates the Establishment Clause.

The Supreme Court used the Lemon test in Establishment Clause cases until the legislative prayer decision, Marsh v. Chambers, 463 U.S. 783 (1983). In that decision, the Court ruled that Establishment Clause claims must be evaluated with
acknowledgment toward the history and tradition of the allegedly overtly religious practice. The Court ruled that the long, unbroken history of chaplain-led prayer before legislative services justified the practice.

Since then, the justices have introduced still other tests for Establishment Clause cases. In a concurring opinion in Lynch
v. Donnelly, 465 U.S. 668 (1984), Justice Sandra Day O’Connor introduced what she termed a “refinement” of the Lemon test: the “endorsement” test. The endorsement test asks whether a reasonable observer, familiar with the history and context of the religious display, would believe that the government is endorsing religion with the display. Many lower courts use the endorsement test as a key part of the effects prong of a Lemon analysis.
Five years later, in a concurring opinion in County of Allegheny v. ACLU, 492 U.S. 573 (1989), Justice Anthony Kennedy introduced what became known as “the coercion test.” Under this test, a governmental display does not violate the Establishment Clause unless it coerces an individual to subscribe to the majoritarian religion. This test, most often used in school prayer cases, includes indirect coercive pressures placed on religious minorities.

In Van Orden v. Perry, 545 U.S. 677 (2005), a sharply divided Court upheld a Ten Commandments monument in a Texas public park. In the main plurality opinion, Chief Justice William Rehnquist reasoned that the Lemon test did not work well for evaluating the constitutionality of “passive monuments.” Justice Stephen Breyer introduced yet another test, what he termed the “legal judgment” test. Justice Breyer wrote that he saw “no test-related substitute for the exercise of legal judgment,” which must take into account the contexts, history, and facts in these difficult, borderline cases. In a companion case, McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005), the Court, by a single vote, invalidated Ten Commandment displays at two Kentucky county courthouses.

Petitioners argue that this case should be evaluated under a coercion analysis, rather than Lemon or endorsement tests. They contend that a passive religious monument does not coerce anyone to subscribe or join the Christian religion. “Coercion, not endorsement, is the standard for an Establishment Clause claim,” asserts petitioner American Legion.

Similarly, petitioner Maryland-National Capital Park and Planning Commission points out that the Supreme Court already has stated that the Establishment Clause does not require the removal of
all religious displays in the United States. Petitioner argues that this is even more true for memorials that have been in place for decades. Petitioners both analogize to the Court’s decision in Van Orden, upholding the constitutionality of a Ten Commandments monument in a Texas public park that had been there for approximately 40 years. If a Ten Commandments monument in a public park is constitutional, petitioners claim it is hard to see how a Latin cross war memorial is not, particularly one that has been in place for decades longer; in this case, about 90 years.

However, respondents argue that petitioners’ coercion analysis is unworkable. According to respondents, the petitioners’ analysis will fail to protect religious minorities. Respondents argue that the Court should not overrule the Lemon test. In fact, respondents argue that the test works well to evaluate the constitutionality of religious displays. According to respondents, the large Latin cross runs afoul of the Lemon test because it endorses Christianity over all other religions and advances religion over nonreligion.

Respondents further emphasize that the lodestar principle for the Court in Establishment Clause cases should be neutrality, not coercion. They argue that the government’s use of religious imagery and symbolism should be inclusive and nonsectarian, rather than the aggrandizement of Christianity. For example, the Military Religious Freedom Foundation, as amicus, points out that the peace cross in this case included Christian World War I veterans from the county but did not include Jewish World War I veterans from the county.

SIGNIFICANCE

The case affords the Court an opportunity to expound on the meaning of the Establishment Clause and perhaps bring clarity to an area of First Amendment jurisprudence that has been referred to as a muddled mess. The Court perhaps could settle on a single test for Establishment Clause cases, or at least religious display cases.

The case is significant because a majority of the Court may be prepared to inter the much-maligned Lemon test—a test from the Burger Court that has survived despite significant criticism. See David L. Hudson Jr. and Emily H. Harvey, First Amendment Tests from the Burger Court: Will They Be Flipped? Mitchell Hamline L. Rev, May 21, 2018. The Lemon test has remained the dominant test in the lower courts. Many of the amicus briefs filed in support of petitioners call on the Court to cast Lemon aside. For example, the American Center for Law and Justice asserts that the Lemon test “continues to cause confusion and conflict.”

The justices could explain the importance of history and tradition in Establishment Clause cases, a factor that has not been applied consistently or coherently through the years. The Thomas More Law Center, as amicus in support of petitioners, asserts that destroying the memorial “will deprive future generations of a cherished piece of history.” Similarly, the Foundation for Moral Law contends that because there is an “uninterrupted tradition of cross displays” that predate the First Amendment, the cross in this case cannot violate the Establishment Clause.

The decision also has practical significance for many other communities that have memorials imbued with religious messages or imagery on them. For example, the Town of Taos, New Mexico, filed an amicus brief to point out that it has a war memorial on display that honors its town’s World War II veterans. The Veterans of Foreign Wars of the United States argues that the decision “threatens memorials across the country.”

David L. Hudson Jr. is a visiting associate professor of legal practice at Belmont Law School in Nashville, Tennessee.
He is also the author, coauthor, or coeditor of more than 40 books, including a coeditor of The Encyclopedia of the Fourth Amendment (2013). He can be reached at davidlhudsonjr@ gmail.com.

PREVIEW of United States Supreme Court Cases 46, no. 5 (February 19, 2019): 24–27. © 2019 American Bar Association

ATTORNEYS FOR THE PARTIES

For Petitioner the American Legion et al. (Michael A. Carvin, 202.879.3939)

For Petitioner Maryland-National Capital Park and Planning Commission (Neal K. Katyal, 202.637.5600)

For Respondent American Humanist Association et al. (Monica Miller, 202.238.9088)

AMICUS BRIEFS

In Support of Petitioners American Legion and Maryland-National Capital Park and Planning Commission 
American Association of Christian Schools et al. (William Wagner, 517.322.3207)

American Center for Law and Justice (Jay Alan Sekulow, 202.546.8890)

American Civil Rights Union (John J. Park Jr., 678.347.2208)

Becket Fund for Religious Liberty (Michael W. McConnell, 202.879.5000)

CatholicVote.org Education Fund (Scott W. Gaylord, 336.279.9331)

Cato Institute (Ilya Shapiro, 202.842.0200)

Center for Constitutional Jurisprudence (Anthony T. Caso, 877.855.3330)

Citizens United and Citizens United Foundation (Matthew D. McGill, 202.955.8500)

84 United States Senators and Members of the U.S. House of Representatives (Charles J. Cooper, 202.220.9600)

Family Members of Soldiers Named on the Peace Cross (Zachary G. Parks, 202.662.6000)

Family Research Council (Travis Weber, 202.637.4617) Foundation for Moral Law (John Eidsmore, 334.262.1245) 
Islam and Religious Freedom Action Team of the Religious Freedom Institute (Miles E. Coleman, 803.799.2000)

Jewish Coalition for Religious Liberty (Daniel P. Kearney Jr., 202.663.6000)

Judicial Watch, Inc. (James F. Peterson, 202.642.5172) Justice and Freedom Fund (James L. Hirsen, 714.283.8880) Kamal S. Kalsi (Tejinder Singh, 202.362.0636) 
Liberty Counsel (Mathew D. Staver, 407.875.1776)

Major General Patrick Brady and Veterans Groups Erecting and Maintaining War Memorials (David A. Cortman, 202.393.8690)

Maryland Elected Officials and Prince George’s County (Thomas R. McCarthy, 703.243.9423)

Medal of Honor Recipients (Brian H. Pandya, 202.719.7000)

Military Order of the Purple Heart (Matthew J. Dowd, 202.559.9175)

National Association of Counties et al. (Paul J. Zidlicky, 202.736.8000)

National Jewish Commission on Law and Public Affairs (Nathan Lewin, 202.828.1000)

Public Advocate of the United States et al. (Herbert W. Titus, 703.356.5070)

Religious Denominations and Other Religious Institutions (Gene C. Schaerr, 202.787.1060)

Retired Generals and Flag Officers (Aaron M. Streett, 713.229.1855)

The Rutherford Institute (Michael J. Lockerby, 202.945.6079) State of Maryland (John R. Grimm, 410.576.6339) 
Thomas More Law Center (Erin J. Kuenzig, 734.827.2001) Town of Taos, New Mexico (R. Timothy McCrum, 202.624.2752)

United States (Jeffrey B. Wall, Acting Solicitor General, 202.514.2217)

Utah Highway Patrol Association (Allyson N. Ho, 214.698.3100) Various Professors (Stephen C. Piepgrass, 804.697.1320) 
Veterans in Defense of Liberty et al. (Frederick W. Claybrook Jr., 202.250.3883)

Veterans of Foreign Wars of the United States et al. (Paul D. Clement, 202.879.5000)

West Virginia and 29 Other States (Lindsay S. See, 304.558.2021)

Wisconsin Institute for Law and Liberty (Richard M. Esenberg, 414.727.9455)

In Support of Respondents American Humanist Association Baptist Joint Committee for Religious Liberty et al. (Douglas Laycock, 512.232.1224)

Freedom From Religion Foundation et al. (Robert M. Loeb, 202.339.8400)

Historians and Legal Scholars (Charles A. Rothfeld, 202.263.3000)

Jewish War Veterans of the United States (Caroline C. Cease, 202.265.6280)

Law Professors (Christopher C. Lund, 313.577.4046)

Military Religious Freedom Foundation (Sarah M. Shalf, 404.712.4652)

Muslim Advocates (R. Stanton Jones, 202.942.5000)

Religious and Civil-Rights Organizations (Richard B. Katskee, 202.466.3234)

In Support of Neither Party 
Professors Walter Dellinger and Martin S. Lederman (Martin S. Lederman, 202.662.9937)