Written By Gaity Hashimi
The Supreme Court recently heard arguments regarding the constitutionality of the display and maintenance of a 40-foot tall cross in Bladensburg, Maryland which was erected in 1919 to honor veterans. Maryland-National Capital Park and Planning Commission purchased both the cross and the land in 1961, and has since spent a significant amount of money to maintain and repair the cross. The American Humanist Association, a non-profit organization which advocates for the separation of church and state, brought suit against the Commission, claiming that their activities violate the Establishment Clause of the First Amendment. The American Legion, a U.S. war veterans organization, is also involved in the suit.
History of the Establishment Clause
The First Amendment’s Establishment Clause states that “Congress shall make no law respecting an establishment of religion”. In Lemon v. Kurtzman, the Supreme Court created the Lemon test to decide whether a statute which provided state funding for private, non-secular schools violated the Establishment Clause. The Court articulated that the statute must (1) have a secular legislative purpose, (2) its principal or primary effects must be one that neither promotes nor inhibits religion, and (3) it must not foster “excessive government entanglement with religion.”
Since Lemon, the Supreme Court has resolved Establishment Clause challenges in a variety of ways. For example, in Stone v. Graham, the Supreme Court held that a Kentucky statute requiring posting of a copy of the Ten Commandments on the walls of each public classroom violated the Establishment Clause because the statute had a clear, non-secular purpose. On the other hand, in Van Orden v. Perry, the Supreme Court did not rely on the Lemon test and instead, relying on the nature of the monument and the Nation’s history, held that the display of a monument inscribed with the Ten Commandments on the grounds of Texas State Capitol was constitutional.
District Court Ruling
In American Humanist Association v. Maryland-National Capital Park, the District Court applied the Lemon test and held that the monument had a secular purpose, that “within the context of its long history . . . a reasonable observer would not view the Monument as having the effect of impermissibly endorsing religion, and that the display did not create excessive government entanglement with religion because “the Monument itself [was] not a governmental endorsement of religion.” The Court also held that it was constitutional under the context and history test in Van Orden, since the Monument had been “used almost exclusively as a site to commemorate veterans on secular patriotic holidays for its entire history.”
Fourth Circuit Ruling
The Fourth Circuit reversed the District Court’s decision and held that the display was unconstitutional under the Lemon test. Although the Court found that the Commission’s maintenance of a significant war memorial had a legitimate secular purpose, it found that the meaning and history of the cross had the primary effect of endorsing Christianity to a reasonable observer. Furthermore, the Court found that there was excessive government entanglement because the Commission owns and maintains the cross on government property, set aside a significant amount of money for its restoration and it was “displaying the hallmark symbol of Christianity in a manner that dominates its surroundings and not only overwhelms all other monuments at the park, but also excludes all other religious tenets.” Therefore, the Court held that the display and maintenance of the Cross was an unconstitutional violation of the Establishment Clause.
Supreme Court Grants Certiorari
The Supreme Court granted certiorari and heard arguments on February 27, 2019. The American Humanist Association argued that the public display should be viewed in context, and that the giant Latin cross was clearly Christian. The Commission argued that the cross was constitutional because its purpose was primarily secular and that it was a symbol marking the deceased in World War I, giving the cross a dual meaning.
The other petitioner, The American Legion, argued for the application of the “coercion test,” which would hold a display unconstitutional if a religious minority was “tangibly hurt.” Essentially, it would allow public religious displays, unless they coerce religious minorities into believing something against their principles.
If the Supreme Court agrees with American Legion and adopts the “coercion test,” prior cases adopting the Lemon test would be overruled, and the landscape of the First Amendment Law would change entirely. There potentially would be no limit on the power of the government to erect religious monuments and symbols on government property, since it would likely be hard to prove that a certain religious display proselytized or tangibly hurt a religious minority.
There is a high possibility that this conservative Supreme Court will declare the monument constitutional, as the conservative view generally leans toward accommodating religion. The Court could agree with the District Court and the Commission and rule that under the Lemon test, the monument had a secular purpose, did not primarily endorse religion, and that there was no excessive government entanglement with religion. The Court could also elect to adopt the Van Orden reasoning and rule that the Monument’s rich history warrants a finding that it is constitutional. The effect of this outcome will likely mean that other similar monuments will be allowed to stand. This outcome may be viewed by a part of society as the government aligning itself with a single religion, as the Latin cross is a symbol of Christianity.
If the Supreme Court agrees with the Fourth Circuit, and declare the monument unconstitutional, it could mean that similar monuments of the Peace Cross may have to be taken down. Furthermore, expenditures of tax revenues on government speech that has a religious aspect, such as expenditures for cross-shaped military medals, would potentially be declared unconstitutional.
The Supreme Court is expected to reach a decision by June, 2019.
Am. Humanist Ass’n v. Maryland-Nat’l Capital Park, 147 F. Supp. 3d 373 (D. Md. 2015), rev’d sub nom. Am. Humanist Ass’n v. Maryland-Nat’l Capital Park & Planning Comm’n, 874 F.3d 195 (4th Cir. 2017).
Am. Humanist Ass’n v. Maryland-Nat’l Capital Park & Planning Comm’n, 874 F.3d 195 (4th Cir. 2017), cert. granted sub nom. The Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 451 (2018), and cert. granted, 139 S. Ct. 451 (2018).
Erwin Chemerinsky, Chemerinsky: Do religious symbols on government property infringe on First Amendment?, ABA Journal (Feb. 26, 2019).
Jimmy Hoover, Up Next At High Court: Opinions, Orders And 1st Amendment, Law360 (Feb, 22, 2019).
Lemon v. Kurtzman, 403 U.S. 602 (1971).
Nina Totenburg, Cross Clash Could Change Rules for Separation of Church And State, NPR Law (Feb, 25, 2019).
Nina Totenburg, Supreme Court Appears Ready to Let Cross Stand But Struggles With Church-State Test, NPR Law (Feb, 27, 2019).
Photo courtesy of Snopes.