The Establishment Clause

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.

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 evaluated 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, argued 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 sued to get the cross moved from government property. They argued 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 Ten Commandments 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.

Ruling in this case: the memorial is constitutional

Seven of the Justices agreed that the cross-shaped memorial in Bladensburg does not violate the Establishment Clause. Justice Alito wrote for the Court. He outlined the history of the memorial as being one that represented community grief at the loss of soldiers from horrible conflict and that the memorial has been a prominent landmark for over 100 years. He wrote that a symbol like the cross isn’t always a religious symbol. It can have — and has had — much more meaning than that throughout history. The cross was a well-recognized symbol of World War I, and there’s no evidence that this memorial in particular was meant to be discriminatory of any religion.

Regarding memorials generally, Alito said they can adopt new purposes over time; their messages may change. Furthermore, removing a symbol that has such a longstanding history may cause more conflict than it was meant to resolve. It may not be seen as a neutral action but as an action against religion generally, something the Establishment Clause wasn’t meant to do.

Alito wrote that the Lemon Test is unable to capture the complexities of symbols and religious practices. He went on to outline a standard presumption of constitutionality that courts should apply in cases of challenges to memorials on public property or to government-sponsored religious practices. That’s where he lost three Justices, who agreed generally but wanted to make clarifications.

The Establishment Clause standard for memorial cases

Justice Alito’s opinion became a plurality opinion (going from 7 to 4 Justices) for his wording of a proposed standard for memorial cases like this one. Alito said that for Establishment Clause cases in which courts are deciding the validity of memorials, symbols and religious practices with longstanding histories, there should be a presumption of Constitutionality. Kagan, Thomas and Gorsuch generally agreed, but they wanted to clarify slight distinctions to that standard.

Kagan was willing to agree generally that memorials with longstanding histories are probably Constitutional, and she signed onto a concurring opinion that Breyer wrote. Breyer had signed onto Alito’s version but stated one clarification: that a monument still must be evaluated in terms of “its particular historical context and its long-held place in the community.” As Kagan emphasized when she wrote in her own concurrence, she believes it’s still important for courts to consider the unique purposes and effects of a monument in evaluating the history of the monument — before granting the presumption of Constitutionality. In Breyer and Kagan’s view, “A newer memorial . . . would not necessarily be permissible.”

Thomas and Gorsuch also generally agreed with the Court’s presumption of validity for monument cases, but they would be even more lenient and allow monuments that are newer to qualify for the same presumption. So a monument erected in 2014 could still have a “longstanding history” because of what it represents and be presumptively Constitutionally valid.

Overruling Lemon for Establishment Clause cases generally

Two of the Justices said they would overrule Lemon outright. It’s clear the majority doesn’t actually support the Lemon Test, but neither the majority opinion nor the plurality outright overruled it. Kavanah and Thomas would have. They wrote separately. Thomas proposed a different rule for Establishment Clauses cases, and Kavanaugh outlined a set of principles that tended to be the illustrative factors for Establishment Clause cases.

Standing for memorial cases

Gorsuch wrote an opinion arguing that in memorial cases, the “offended observer” shouldn’t even have standing to sue. Thomas signed on (agreed).

Establishment clause claims against states

Thomas had a somewhat radical view that the Establishment Clause doesn’t entitle people to sue state governments for monuments on public property and religious practices performed by government officials. While the Constitution permits that type of case against the federal government, he believes the text of the Clause does as it applies to states only allows challenges to state laws that violate the separation between church and state.

The dissent

Justice Ginsburg wrote the dissent for herself and Justice Sotomayor. Ginsburg argues that the cross is clearly a symbol of the Christian faith and not of other faiths, and she disagrees with the majority’s conclusion that the cross can be a secular symbol in certain contexts.

Just as a Star of David is not suitable to honor Christians who died serving their country, so a cross is not suitable to honor those of other faiths who died defending their nation.

Ginsburg quotes Thomas Jefferson that the Establishment Clause is meant to “buil[d] a wall of separation between church and state.” The relevant inquiry to Ginsburg is to determine whether the memorial has “the effect of endorsing religion.” She asks if the display “convey[s] a message that religion or a particular religious belief is favored or preferred.” And she answers in this case, yes.

By maintaining the Peace Cross on a public highway, the Commission elevates Christianity over other faiths, and religion over nonreligion. Memorializing the service of American soldiers is an “admirable and unquestionably secular” objective. But the Commission does not serve that objective by displaying a symbol that bears “a starkly sectarian message.”

Ginsburg gives a historical account of the Latin cross and includes a discussion of the controversy of religions symbols on graves of fallen World War I soldiers. It’s clear based on this history, she argues, that the cross to represent sacrifice is not a secular symbol. It’s a Christian one, and when it’s on public property, it sends a message to people who do not associate with that faith that they are outsiders.

More on the Establishment Clause:

• Religious Holiday Displays on Public Property: Are they Constitutional? (Subscript Law)

• Introduction to the Establishment Clause (University of Missouri, Kansas City)