Monday, June 24, 2019

Your Rights, Part III, Establishment Clause Edition-On 3Q

It is a big cross. A really big cross. Forty feet in height, made of granite and concrete, The Bladensburg Peace Cross stands tall and straight for all to see.
The Peace Cross, sponsored by the American Legion, was built in 1925 in the aftermath of World War I to memorialize the sacrifice of 49 Prince George’s County servicemen. It was paid for by the Legion, and by subscription of local residents and businesses. In 1961, maintenance of it was passed to the Maryland-National Capital Park and Planning Commission, and the land it currently stands on is State land, in a traffic median, the cost of maintenance paid for by the taxpayers of Maryland.
If you are just a little bit attuned to the First Amendment (religion portion), you might be interested in how that last part meshes with “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
It is a perceptive question, one that the Supreme Court grappled with and decided this last Thursday in American Legion v. American Humanist Association. The Peace Cross, they ruled in a 7-2 decision, may continue to stand on public land and be paid for with public funds.

This is the kind of wonky, incredibly subjective ruling that makes my heart go pitter-patter. I’m not sure I agree (or disagree) with the result, but I love the tortured efforts of most of the Justices to do the best they could under difficult circumstances. This is not an easy one.

How much government is too much government when it comes to religion? For most of us, the best we can do is apply a test analogous to the famous Justice Potter Stewart test for obscenity: “I know it when I see it.” Of course, the relevant word in there seems to be “I,” but, as a matter of law, there must be some standards.
In Lemon v. Kurtzman (1973), the Supreme Court made a credible effort to provide guidelines. A law or practice is constitutional if it has a secular purpose, its principal effect does not advance or inhibit religion, and it does not create an “excessive entanglement with religion.”

Conservatives hate the Lemon test (and several, in their Opinions in American Legion, express that dislike pungently). It puts them at the disadvantage of constantly have to explain why what’s obviously religious somehow doesn’t violate the Lemon rules. Judges, even Supreme Court Justices, like to appear thoughtful, tempered, with their rulings springing from eternal, incontrovertible laws, and not just clever advocates who managed to “win” a case.

American Legion exposes this problem, in part because the Cross is so obtrusively and permanently visual. This is not some charming Christmas montage mounted for a couple of weeks outside a Currier and Ives Town Hall, and it’s not even comparable to the religious prayers offered in public meetings in the Court’s nose-blind decision in 2014’s Town of Greece vs. Galloway. It’s a big, permanent, highly visible, primary symbol of a religion. You just cannot miss it.

The ruling was 7-2 in favor of permitting the Peace Cross to remain undisturbed, with 2 of the “Liberal” justices, Breyer and Kagan, joining the conservative majority, and Justices Ginsburg and Sotomayor in dissent. But read the opinions and dissents, and what you really see is a battle of rationalizations in the face of two incontrovertible (to my mind) facts: The monument has been there for 94 years (58 on public land), and IT’S A REALLY BIG CROSS. 

Justice Alito, in his Opinion, took the 94 years as his central organizing point: “The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent.” To Alito’s way of thinking, the symbol of the cross in general has taken on an additional secular meaning, particularly in the design of memorials and monuments, where religious symbols to honor the dead would be expected and considered appropriate. As to the Lemon Test, Alito thought it was both inapplicable and of no value in this context, since it failed to take into account the age of those symbols and monuments, making it harder to discern the original motivations of those who built them. If Alito’s Opinion is actually new law, then it abolishes the test’s application to “established, religiously expressive monuments, symbols, and practices.” Put another way, if it’s old enough, “what’s there is there.”

There is a logic to Alito’s position when he reaches this point (Justice Breyer has also been respectful of old monuments and Justice Kagan joined Alito’s Opinion, in part), but it’s not unreasonable to assume—even though he professed to leave other church-state cases untouched for now—that his intent is to have a no-restrictions future. Alito maintained that, when the Peace Cross was built, crosses were a symbol of World War I (I suspect he got this idea from images of thousands of crosses dotting European military cemeteries), which effectively transmuted the cross from a religious to a secular totem. He then went further to say that, even when the original purpose of a monument was clearly religious, it could, over the passage of time, also take on secular or at least dual status. He cited Notre Dame as such an example.

Because of that, Alito articulated what he clearly intends to be a new standard—Lemon is dead with the dead, and old monuments, regardless of their religious content, should be given a fresh new presumption of Constitutionality. Alito did not place a time frame on how old a monument needed to be, a point on which Justice Kagan, in her concurrence, drew a distinction. “Although I too look to history for guidance, I prefer at least for now to do so case-by-case, rather than to sign on to any broader statements about history’s role in Establishment Clause analysis.” Justice Breyer, in his concurrence, also signaled that his support for Alito’s opinion was reliant on the narrowness of its application; Breyer was accepting of this particular Peace Cross, under these particular set of facts, and his support could not presumed in other instances.

To my way of thinking, the “Notre Dame as National Symbol” analogy is actually a fascinating one, and arguably completely at odds with any type of Original Intent analysis. An elegant and persuasive amicus brief filed on behalf of some of the challengers of the Cross demolishes the idea:
"By ordaining that governmental and religious authorities operate in separate spheres, the Framers sought to safeguard religion from governmental influence and interference, so that all may worship and pray, or not, according to the dictates of individual conscience. And they undertook to quell the ‘hatred, disrespect, and even contempt’ that historically has resulted ‘whenever government ha[s] allied itself with one particular form of religion.’ Engel v.Vitale, 370 U.S. 421, 431 (1962)."—Brief of Religious and Civil-Rights Organizations as Amici Curiae in Support of Respondents.
Even if you discard the thoughts of people like Jefferson, Madison, and Franklin, the fact was that many early settlers were religious refugees from Europe. Maryland itself was organized as a haven for persecuted Roman Catholics. The descendants of these early settlers were the ones who rejected the idea of a single religion—and demanded that rejection be incorporated into a Constitutional Amendment.

So, what makes a religious symbol morph into a sufficiently secular one so as to justify public support? Alito seems to imply that it’s a bit like making Madeira—you take religious monument, pour it into an ostensibly secular cask, and send it around the Horn for a few years and suddenly the grapes have become wine.

All snark aside, there are several serious issues with Alito’s formation beyond its possible breadth, not the least of which is that it implies that any old religious monument, even the most clearly sectarian, may be transferred to public ownership (and be entitled to public support) by the action of a secular government dominated by co-religionists. That’s not necessarily a theoretical problem.

But these considerations were irrelevant to the remainder of the conservative wing. Justice Kavanaugh also joined all of Alito’s opinion and added a concurrence, even more forcefully rejecting Lemon. Kavanaugh’s language is careful to be respectful of other faiths, but he also suggested an entirely new test, which, in its application, would set a very low bar: is the practice at issue coercive, and is it rooted in history and tradition? Not to make an obvious point, but it’s clear that government doesn’t need to be coercive with regard to one faith to give preferential treatment to another. The Kavanaugh Test seems to have been derived from only one portion of the Establishment Clause.

Justice Thomas reiterated not just his opposition to Lemon, but, more importantly and controversially, his position in Town of Greece regarding the scope of the Establishment Clause. In Thomas’ view, the Establishment Clause applies only to the Federal Government and not the States, and even if it does apply to the States, there would be no violation here because the Clause only applies to laws passed by a legislature, and there was no actual coercion by government in this instance. I will leave you to contemplate on your own time Justice Thomas’ personal vision that Alabama, Maryland, Texas, or California could adopt a state religion.

Justice Gorsuch joined in Alito’s Opinion, and also explicitly rejected Lemon, but added a twist: He would have rejected the Plaintiff’s claims out of hand for lack of standing, and, in one of his more colorful lines (which underlies a real future strategy of attack for potential litigants), labels and then dismisses them as “offended observers.” Gorsuch also added something a little Sphinx-like: “[W]hat matters when it comes to assessing a monument, symbol, or practice isn’t its age but its compliance with ageless principles. The Constitution’s meaning is fixed, not some good-for-this-day-only coupon, and a practice consistent with our nation’s traditions is just as permissible whether undertaken today or 94 years ago.”

I don’t know what Gorsuch’s intent was, but since he found the Peace Cross acceptable, presumably it was “a practice consistent with our nation’s traditions.”
There is an emergent theme here. Look more closely at the stated reasoning of Alito, Gorsuch, Kavanaugh, and Thomas, and you can see a consistent deference, verging on favoritism, when it comes to religion.

It appears that this is the drift that Justice Ginsburg was calling out in her Dissent (joined by Justice Sotomayor). A giant “Latin” Cross doesn’t become a secular totem because it is used to commemorate a secular event, or, for that matter, because it was ubiquitous in either the majority’s, or the majority of the Court’s, upbringing. The Cross is a primary representation of Christianity, as it is Christ on the cross—Ginsburg calls it “the foremost symbol of the Christian faith.” The idea that all American soldiers of other faiths who were fatalities in World War I were buried in Europe under that cross, with the consent of their families, is ludicrous. One cross cannot possibly represent all faiths. Accordingly, Ginsberg writes, having Maryland maintain and support this particular Peace Cross on a public highway, “elevates Christianity over other faiths, and religion over nonreligion.”

What Ginsburg is saying seems to me to be obvious (although she clearly doesn’t have a winning hand). But it also seems she’s braying at an ascendant conservative moon. As Alito obliquely acknowledges with his assertion that this cross now has now “taken on a secular meaning,” conservatives increasingly see their religious beliefs as having been integrated into part of the secular world, and, as a result, those beliefs can be institutionalized without offending the First Amendment. If anything, Alito says, “destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.”
With that, Alito gives it even more special status—not only must the public, including those of other faiths, or no faith, passively support the Cross, but the First Amendment demands they ensure it is affirmatively defended.

I said above that I wasn’t sure whether or not I agreed with the result that the Cross could stay. Personally, I wouldn’t move it, out of respect for the families. But what I do worry about is that American Legion isn’t just about a cross, as Town of Greece wasn’t just about a few prayers at a public meeting. It’s a peek into an emerging world where the First Amendment is both sword and shield for a potent, determined group that wants to advance its religious agenda at the expense of those who don’t share its faith or its views. That inversion is being enabled and quite literally encouraged by a Supreme Court that is sending signals that anything goes.

It is a very good time to be a religious conservative. For the rest of us, our rights are a little less certain.

Or, to put it more simply (quoting from that amicus brief), “‘Religion & Govt. will both exist in greater purity, the less they are mixed together.’ Letter from James Madison to Edward Livingston (July 10, 1822).”

For more material, including access to the opinions, briefs, and scholarly commentary, consult SCOTUSBLOG at

And, to read about how the changing composition of the Court potentially impacts their rulings, see Your Rights, Part I, and Your Rights, Part II
The original of Your Rights, Part III, Establishment Clause Edition, was first published in on on June 24, 2019

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Michael Liss