In American Legion v. American Humanist Association, the Supreme Court of the United States reversed the 4th Circuit’s decision that the Bladensburg Peace Cross, a 40-foot-high granite cross in the median of a divided highway in Prince George’s County, violated the First Amendment’s Establishment of Religion Clause. The Supreme Court’s June 20, 2019, decision reaches a practical result but fails in several respects.
American Legion effectively replaced the Supreme Court’s 1971 Lemon v. Kurtzman Establishment Clause jurisprudence with a historical test. The court’s application of Lemon has been inconsistent over the years and few tears will be shed if Lemon eventually is explicitly overridden by the court, something that did not happen in American Legion. Justice Samuel Alito’s opinion of the court in American Legion very much reads as if he decided that the cross should stay and then tried to come up with a rationalization for the decision. The fuzziness of the court’s reasoning in the case is exemplified by the fact that in addition to Justice Alito’s opinion, five of the justices who agreed with the result of the case also felt compelled to write separate concurring opinions.
The court’s decision feels correct at first blush. The Peace Cross was dedicated in 1925. Taking down the Peace Cross after it has stood for almost 100 years likely would cause more religious angst than letting it stand. The court’s decision is eminently practical. When it comes to religious displays in the public square, the court is not going to rewrite history, but it also is not going to allow new displays. Now, where the line between 1925 and 2019 will be drawn is for another case.
But the court’s decision not only fails because it leaves imprecise the Establishment Clause test to be applied in future cases; it fails because it does not take into account that the United States of 2019 is very different from the United States of 1925 – or even the United States of a generation ago.
As Justice Ruth Bader Ginsburg noted in her dissent, Jews composed only 3% of the United States population in 1917. Other non-Christians were an even smaller percentage of the U.S. population at the time the Bladensburg Cross was planned and erected. Christianity may not have been the officially established religion of the United States in 1925, but it was the de facto established religion of the day. Today “nones” – persons with no religious affiliation – are approximately 23% of the United States population. Jews and members of other non-Christian religions constitute an additional 6% of the U.S. population. Allowing a 40-foot cross, and potentially other religious displays with historical provenance, to stand on public property perpetuates the de facto establishment of Christianity, something that is not only counter to the plain language of the First Amendment but also counter to the actual religious beliefs of a significant number of people.
The Bladensburg Cross is in no danger of being taken down pursuant to the First Amendment in light of the Supreme Court’s decision. But we would suggest that the public consider whether the time has come to reassess the propriety of Christian symbols such as the Bladensburg Cross on public property as matter of public policy.
Editorial Advisory Board members Nancy Forster and Debra G. Schubert did not take part in this editorial.
EDITORIAL ADVISORY BOARD MEMBERS
James B. Astrachan, Chair
James K. Archibald
Martha Ertman (on sabbatical)
Arthur F. Fergenson
Angela W. Russell
Debra G. Schubert
The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.