The American Legion v. American Humanist Association

First Amendment
Court below: 4th Circuit Court of Appeals

Court below: 4th Circuit Court of Appeals

Will the Supreme Court make a new Establishment Clause test?

The Establishment Clause of the First Amendment prohibits the government from establishing an official religion. The government cannot favor a single religion nor use government funds to support religion. Early lawmakers included the Clause in the Bill of Rights based on concerns from Christian minorities fearing they would face persecution if the government sided with one sect in particular.

American Legion V American Humanist

Since then, the Supreme Court has encountered many cases asking whether the Establishment Clause applies to prohibit a particular government action or an apparent government endorsement of religion. Some people want to view the Clause narrowly, claiming the government can support religion in general, just not one particular religion. In fact, on the day the Clause was proposed, Congress opened with a prayer. Supporters of a broader view of the Establishment Clause believe there should be a strict “wall of separation” between church and government.

The case

In this case, the Supreme Court is asked to evaluate the constitutionality of a cross-shaped war memorial. The memorial honors soldiers who died in World War I. The cross was finalized in 1925 and has been supported through religious fundraising efforts. It sits at a highly trafficked intersection in Bladensburg, Maryland. The state of Maryland acquired the land in 1961 as it became concerned with traffic at the intersection.

The American Legion is a veterans’ group that helps to sustain the memorial. The group, along with the Maryland park planning commission, argues the existence of a cross on public property is not an inherent Establishment Clause violation. The cross is a war memorial, not a government endorsement of religion.

But the American Humanist Association disagrees. The humanists have sued to get the cross moved from government property. They argue the cross is clearly a symbol for Christianity; it sits on government property at a busy intersection; and it sends a message to the public that the government endorses Christianity.

Supreme Court precedent

The last time the Supreme Court set out a specific analytical framework for dealing with Establishment Clause cases was in 1971. In Lemon v. Kurtzman, the Court was asked to rule if the government could financially support religious schools. In a unanimous ruling, the Court said no and declared a three-part analysis on how to analyze Establishment Clause cases.

Under the “Lemon Test,”

  • The law must have a secular legislative purpose;

  • The law’s principal effect must neither promote nor inhibit religion; and

  • The law must not foster “excessive government entanglement with religion."

However, the Court has not consistently followed the Lemon Test since then. In several cases, the Justices have found the test too rigid. For example, in 2005, the Court declined to use the Lemon Test when evaluating a memorial with the text of the Ten Commandments on Texas Capitol grounds.

In Van Orden v. Perry, five of the Justices agreed the memorial was fine (not a government endorsement of religion). The Justices did not use the Lemon Test but they also couldn’t agree on another “test” to evaluate Establishment Clause cases. The five Justices who came to the same result (the memorial is constitutional) all agreed that the government is not expected to completely ignore religion. A religious symbol might actually represent a secular message. Some of the Justices argued that as long as the government display of a religious symbol or message isn’t coercive or imposing, it doesn’t violate the Establishment Clause. Justice Breyer was the moderate one of the five in the majority ruling. In his concurrence, Breyer said courts should evaluate the message as a whole and consider its history to determine whether the monument has a secular and not just a religious message.

A new test?

What will the Court have to say about the cross-shaped war memorial in Bladensburg?

Will the Supreme Court finally formally reject The Lemon Test? Will it go with a flexible approach, perhaps limited to public memorial cases? Or will it declare a new precise standard to analyze Establishment Clause cases?

Arguments will be heard on February 27, 2019.

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