Symposium: A splintered court leaves the Bladensburg Cross intact

Ira Lupu is F. Elwood & Eleanor Davis Professor of Law Emeritus at The George Washington University Law School. Robert Tuttle is the David R. and Sherry Kirschner Berz Research Professor of Law and Religion, also at the GW Law School.

In The American Legion vs. American Humanist Association, the Supreme Court considered whether the establishment clause barred a government-sponsored display of a 40-foot cross, known as the Bladensburg Cross, on public land, as a memorial to men of Prince George’s County, Maryland,  who had died in World War I. The U.S. Court of Appeals for the 4^th Circuit, applying the well-known and long-derided three-part test from Lemon v. Kurtzman, had held in 2017 that the display unconstitutionally endorsed Christianity and ordered its removal from public land. Seven justices voted to reverse, so the Bladensburg Cross will remain in place. But the case produced six separate opinions, and it reveals that the court remains starkly divided on fundamental questions about the meaning of the establishment clause. Lower courts will quickly note that governing standards in cases involving religious displays have changed, but what will emerge remains far from obvious.

Justice Samuel Alito wrote for the court. Chief Justice John Roberts and Justices Stephen Breyer, Elena Kagan and Brett Kavanaugh joined the parts of that opinion that focused on the facts and circumstances surrounding the Bladensburg Cross.  They argued that the cross has taken on for many a secular meaning because of its age, its continuity, and the historical context of World War I. This meaning includes the sense that the cross had become “a symbolic resting place for ancestors who never returned home . . .  a place for the community to gather and honor all veterans and their sacrifices for this Nation, . . .  and a historical landmark.”   Removing it (or forcing its transfer to private hands) would seem hostile to religion. Under these circumstances, the court wrote, continued display of the cross did not violate the First Amendment.

In parts of the opinion joined by only four justices (Alito, Roberts, Kavanaugh and Breyer), a plurality addressed a set of general questions about the standards to be applied in the future.  Section II-A argued that the test of Lemon v. Kurtzman – inquiring into secular purpose, secular effect and entanglement between the state and religion as a way of measuring establishment clause violations – had been systematically ignored by the Supreme Court and should no longer guide the lower courts in evaluating religious displays. Section II-D – relying on decisions, including Town of Greece v. Galloway, about public prayer at government meetings — argued that the appropriate tests involved the history and tradition of religious messages in public life. (Kagan, who had prominently dissented in Town of Greece, did not join sections II-A or II-D.)

These prayer practices, the plurality concluded, “stand[] out as an example of 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. Where categories of monuments, symbols, and practices with a longstanding history follow in that tradition, they are likewise constitutional.” The Bladensburg Cross display, five justices (including Kagan) seemed to believe, satisfied these principles.

Kavanaugh wrote separately to emphasize his agreement that the court had effectively discarded Lemon in all establishment clause disputes, about displays or otherwise. Breyer, joined by Kagan, concurred to emphasize the vintage (90-plus years) of the Bladensburg Cross; the divisiveness that would follow from a court ordered removal; and their agreement that the cross manifested no “deliberate disrespect of non-Christians.” Kagan, writing only for herself, emphasized her unwillingness to abandon the inquiry into secular purpose and secular effects.

Justices Neil Gorsuch and Clarence Thomas concurred only in the judgment. Thomas repeated his frequently expressed views that the establishment clause applies only to the federal government, and that only coercion to engage in religious experience violates the clause. Gorsuch (joined by Thomas) argued that observers of religious messages and symbols, including the Bladensburg Cross, lack standing to challenge these displays. Gorsuch added that he had trouble seeing why new religious displays should be evaluated any differently than old ones. In the Gorsuch-Thomas constitutional world, politics rather than law would be the only measure of the permissibility of religious displays by government.

Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, dissented. They reaffirmed their commitment to establishment clause norms that preclude government sponsorship of a particular faith. And they insisted that the display of a cross as a war memorial cannot be re-rationalized as a secular, generic or universal symbol of sacrifice in wartime. The cross belongs to Christians as a symbol, and excludes others.

A result-oriented failure of reasoning

We find it hard to read the five justices’ opinion for the court as anything other than sheer rationalization, in the worst meaning of that word. Those justices quite transparently looked for a way not to affirm the 4^th Circuit’s judgment. They might have relied narrowly on Breyer’s concurring opinion in Van Orden v. Perry, arguing that removal of an old religious monument would cause intolerable strife.  Such reasoning would have been understandable, even if it exposed its own purely political character.

Instead, the court opinion engages in exactly the type of lawyers’ history and social psychology that four justices find objectionable in the Lemon test. Somehow, the court determines that, over time, a predominant Christian meaning of the Bladensburg Cross has been replaced by one that focuses on the “sacrifice” of American soldiers in World War I. The court’s presumption of constitutionality for old monuments also shelters all “cross shaped memorials” related to that war.

The court’s own historical citations betray the weakness of this reasoning. Immediately after World War I, commentators regularly claimed that the United States was a “Christian nation.” In that cultural and political milieu, what commemorative symbol would one choose other than a cross? As the court recites, the dedication ceremony’s keynote speaker proclaimed the cross as “symbolic of Calvary” and fitting tribute to those who gave their lives in a “righteous cause.” The Latin Cross is not a randomly chosen symbol. For those who believe, it represents – both then and now – the unique event of Jesus’ crucifixion, and God’s subsequent resurrection of the Son in triumph over death.

The court’s opinion suggests that some new public meaning, its derivation undeclared,  has sufficiently muted the uniquely Christian character of the Latin Cross. By the magic of history and tradition, that sacrifice has transcended Christianity. Some Christians may celebrate this decision, but it should instead be mourned as a political misappropriation of a powerful symbol of Jesus’ redemptive death.

Going forward, the effort in the Bladensburg Cross case to renovate establishment clause standards will cause a new round of uncertainty in the lower courts. As the 4^th Circuit understood, the “endorsement” test was a gloss on a Lemon-based inquiry into the purpose and effect of a religious display. The repudiation of Lemon by at least six justices will make it highly unlikely that the “endorsement” test as a measure of constitutionality will reappear.

What will take its place? The emphasis in the Bladensburg Cross case on the age of the display and its World War I vintage suggest strongly that the contextual analysis associated with the endorsement test has not been abandoned. Moreover, the court’s apparent emphasis on inclusivity, mutual respect and nondiscrimination in government religious messages – however hollow that emphasis may seem in connection with the display of a 40-foot-tall Latin Cross as a memorial to war dead – may lead lower courts to continue to struggle with seasonal holiday displays, and with more permanent displays that sharply favor Christianity or any other faith. A presumption of constitutionality for longstanding displays does not tell judges how to evaluate new ones, nor explain what evidence is sufficient to overcome that presumption for old ones. The only predictable change is the candid substitution of the judge’s own perspective about history, tradition and inclusivity in place of the always imaginary perspective of the “reasonable observer.”

More broadly, it has been obvious for years that different establishment clause contexts – including religion in public schools, government funding of religious experience, permissive accommodation of religion and concerns about government interference in ecclesiastical matters — are each governed by their own discrete line of cases. The lower courts perceived this; only in cases about religious displays had the scent of Lemon strongly lingered. The Bladensburg Cross case will change the nomenclature of standards, but will not eliminate case-by-case consideration of the context of displays. Despite the sadly predictable result in the Bladensburg Cross case, at least seven justices continue to pay tribute to themes of religious egalitarianism and pluralism. With or without three-part tests, those basic establishment clause concerns will inevitably play a role in the controversies to follow.