The Supreme Court on Thursday handed down its decision in The American Legion v. American Humanist Association. In a 7-2 decision, the Court reversed the 4th Circuit’s ruling and held that the ‘Peace Cross’ Word War I memorial in Maryland was not an unconstitutional government endorsement of religion.

The opinion makes clear from the start that its holding is a narrow one, which helps explain why an Establishment Clause case came down 7-2. Justice Alito begins:

“At least four considerations show that retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones.”

And so this opinion is about ‘old monuments’ – it purports to do nothing to shed light on the general case of religious displays on public land.

Of Justice Alito’s four enumerated reasons, the first three are innocuous:

  1. these cases often concern monuments, symbols, or practices that were first established long ago, and thus, identifying their original purpose or purposes may be especially difficult.
  2. as time goes by, the purposes associated with an established monument, symbol, or practice often multiply
  3. the message of a monument, symbol, or practice may evolve

Expanding Religious Freedom

The opinion’s fourth reason, however, is likely to be cited by religious freedom advocates in court cases for years to come:

4. when time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance, removing it may no longer appear neutral, especially to the local community

As a factual matter, this observation seems to track reality quite well. Facebook threads and comment sections across the internet are filled with religious Americans expressing concern with what it would mean if the state started to pull down historic memorials that contained Christian iconography.

The public’s subjective belief that a government action constitutes disapproval of a particular religion violates the Establishment Clause. Or it doesn’t. It depends on who you ask, what judge you stand before, and what legal framework is applied.

Government action perceived as disapproval of a religion would be unconstitutional under the endorsement test, a test established by retired Supreme Court Justice Sandra Day O’Connor (through a tour de force of political savvy, persistence, and a flurry of concurring opinions) and one of several co-relevant tests sometimes applied in the mess of case law that governs these issues.

The lack of clarity in establishment clause law is key here. In the absence of a clear, bright-line rule, creative advocacy and strategic emphasis on favorable language in prior decisions become more outcome-determinant.

“Time’s passage” is decidedly fuzzy language. From the opinion, it’s not clear how much time would render a religiously expressive monument “familiar and historically significant.” Further, it is unclear whether the language is bound to a particular, tangible monument, or encompasses symbols abstractly. Namely, does the passage of time make this Latin cross a historic symbol of World War I or does it make Latin crosses generally a symbol of World War I?

Religious displays on public grounds are actually quite common First Amendment issues. Yet, the boundaries of what is and is not permissible are still being drawn. The next time the government is defending a nativity display or Latin cross at city hall during the holidays, expect to see language arguing something to the effect that “time’s passage [has] imbue[d] [this] religiously expressive monument . . . with [a] kind of familiarity and historical significance.”

Concerns of Religious Establishment

In a concurring opinion, Justice Breyer sought to preemptively reject such arguments, emphasizing:

“I see no reason to order this cross torn down simply because other crosses would raise constitutional concerns.”

Justice Breyer made clear that, in his view, “a newer memorial, erected under different circumstances, would not necessarily be permissible under this approach.”

Dissenting Justices Ginsburg and Sotomayor went further. Justice Ginsburg opined in her dissent that permitting this display “erodes” the First Amendment’s demand of neutrality, “diminishing precedent designed to preserve individual liberty and civic harmony in favor of a ‘presumption of constitutionality for longstanding monuments, symbols, and practices.'”

Seven Different Opinions

In all, seven of the nine Supreme Court justices wrote their own opinions to try and carve out their understanding of what this case means for establishment clause law. In doing so, the Court only preserved the status quo of messy, disparate treatment of establishment clause issues.

Advocates hoping the Court would throw out the Lemon test were disappointed by the decision. Established in the 1971 case Lemon v. Kurtzman, the Lemon test evaluates government action on three prongs:

  1. The statute must have a secular legislative purpose,
  2. The principal or primary effect of the statute must neither advance nor inhibit religion; and
  3. The statute must not result in an “excessive government entanglement” with religion.

Justice O’Connor’s endorsement test was intended to supplant the Lemon test, which many jurists criticized as too malleable and unclear. Instead, clarity and malleability were worsened. Lemon is still the law of the land, and the endorsement test is now just another part of the equation. This causes headaches for lower courts, who sometimes interpret the endorsement test as an additional test government action must pass, sometimes as an alternative test, and sometimes as a re-interpretation of one prong of the Lemon test.

Ultimately, The American Legion v. American Humanist Association is not a monumental change to First Amendment law, nor does it take any steps to clarify the messy state the law is in. It’s simply yet another case reinforcing what has been solidified as the most consistent precedent in establishment clause cases: there is no clear rule.


Russell Busch is an attorney with experience in First Amendment establishment clause litigation.