The Bladensburg Cross Decision – A Twisted Cross and the Remaking of Establishment Clause Standards -

July 1, 2019

The American Legion v. American Humanist Association, 588 U.S. ___ (2019) (Alito, J.).
Response by Ira C. Lupu & Robert W. Tuttle
Geo. Wash. L. Rev. On the Docket (Oct. Term 2018)
Slip Opinion | SCOTUSblog

The Bladensburg Cross Decision – A Twisted Cross and the Remaking of Establishment Clause Standards

(On Friday, June 21, we posted a commentary at SCOTUSblog on the Bladensburg Cross case, decided on June 20. The following includes portions of and builds upon that earlier post. This essay is also published on Take Care Blog.)

In American Legion v. American Humanist Ass’n,¹ 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 Fourth Circuit, applying the well-known and long-derided three-part test from Lemon v. Kurtzman,² 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 demonstrated that the court remains starkly divided on fundamental questions about the meaning of the Establishment Clause. Some aspects of the legal discourse of nonestablishment will change, but the standards that will emerge to govern particular questions remain up for grabs.

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—despite its explicit, obvious, and exclusive Christian meaning at the time of its dedication—has taken on for many a secular meaning because of its age, its continuity, and the historical context of World War I.³ Over time, these Justices concluded, 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.”⁴ Removing it (or forcing its transfer to private hands) would seem hostile to religion.⁵ Under these circumstances, the Court majority 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 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.⁶ Section II-D—relying heavily on decisions, including Town of Greece v. Galloway,⁷ about public prayer at government meetings—argued that the appropriate tests for state sponsored religious displays involved the history and tradition of religious messages in public life.⁸ (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.”⁹ The Bladensburg Cross display, five Justices (including Kagan) seemed to believe, satisfied these principles.

The separate opinions from those who concurred with the result reveal a seven-Justice majority with profound disagreements among themselves. Justice Kagan emphasized the continuity between this decision and earlier ones about religious displays. “Although I agree that rigid application of the Lemon test does not solve every Establishment Clause problem,” Kagan wrote, “I think that test’s focus on purposes and effects is crucial in evaluating government action in this sphere—as this very suit shows.”¹⁰ She also lifted up the plurality’s emphasis on “respect and tolerance for differing views [and] an honest endeavor to achieve inclusivity and nondiscrimination.”¹¹

Justice 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.¹² Relying (without saying so) on the distinction he once famously drew between the new display of the Ten Commandments in McCreary County v. ACLU¹³ and the older display in Van Orden v. Perry,¹⁴ Breyer explained that he did not “understand the Court’s opinion today to adopt a ‘history and tradition test’ that would permit any newly constructed religious memorial on public land.”¹⁵

Justice Kavanaugh wrote separately to emphasize that the court had for many years effectively discarded Lemon in all Establishment Clause disputes, about displays or otherwise.¹⁶ Tellingly, his analysis omitted any mention of McCreary County (invalidating Ten Commandments display as being motivated by a purpose to endorse religion) and Allegheny County v. ACLU¹⁷ (invalidating Christmas crèche display because it had the primary effect of endorsing Christianity). Affirmatively, Kavanaugh wrote that “[t]he practice of displaying religious memorials, particularly religious war memorials, on public land is not coercive and is rooted in history and tradition,” and therefore “[t]he Bladensburg Cross does not violate the Establishment Clause.”¹⁸ On this more sweeping view of the plurality opinion, the age of the particular memorial challenged might be irrelevant. What would matter is whether the memorial belonged to a “practice” that had historical roots.

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.¹⁹ The American Legion had urged the Court to limit the prohibition contained in the Establishment Clause to coercive state practices; Thomas is the only Justice who accepted that narrow view.

Justice Gorsuch (joined by Thomas) argued that observers of religious messages and symbols, including the Bladensburg Cross, lack standing to challenge these displays.²⁰ Gorsuch, though he did not join the plurality, approved of its general approach, and added that he had trouble seeing why new religious displays should be evaluated any differently than old ones. “The Constitution’s meaning is fixed,” Gorsuch wrote, “and a practice consistent with our nation’s traditions is just as permissible whether undertaken today or 94 years ago.”²¹

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. As a reminder that the Court’s precedents now tell two radically different and irreconcilable stories, their opinion is full of citations to McCreary County and Allegheny County, and none to Town of Greece.²² 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.²³ The cross belongs to Christians as a symbol, and its display excludes others. Both effects are signs of unconstitutionality.

The Court and the Cross

The Bladensburg Cross opinion appears to be sheer rationalization, in the worst meaning of that word. Those five Justices quite transparently looked for a way to reverse the Fourth Circuit, while rejecting the previous “no endorsement” test. Instead, the Court’s opinion engages in its own form of lawyers’ history and social psychology associated with that test. The Court determines that, over time, the predominant Christian meaning of the Bladensburg Cross has been replaced by one that focuses on the “sacrifice” of American soldiers in World War I.

This is a narrative purposely divorced from historical awareness. The Court claims ignorance of any religious purpose behind the choice of a cross as the memorial to soldiers who died in World War I. But commentators in the decades before and after 1920 regularly claimed that the United States was a “Christian nation.” In that cultural and political milieu, choosing a cross as a war memorial directly reinforced the concept of religious nationhood. 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.”²⁴

When Jewish soldiers died in World War I, their gravestones were marked with Stars of David. But each such gravestone represented only the person buried beneath it. No one would have thought to use a Star of David as a generic memorial for all in a military cemetery. In contrast, the use of a cross as a memorial seemed a natural default option.

The Court’s opinion admits to the Christian origin of the Bladensburg Cross, but asserts that some new public meaning has sufficiently muted the uniquely Christian character of the Latin Cross. By some magic of history and tradition, the sacrifice symbolized by the cross has ceased to be specifically Christian and become far more inclusive. The Court never provides any evidence to support the judgment that the cross is now a historical monument with indefinite religious properties. We strongly suspect that majority preferences and ethnocentrism, not an objective social psychology of symbols, drive such choices.

For years, critics lambasted Justice O’Connor’s invocation of the “reasonable observer” as a way of measuring government endorsement of religious symbols. But the Court’s approach differs only in that it has adopted unreflectively the perspective of Christians in a political majority, without regard to the perspective of others.

The Bladensburg Cross opinion is even worse as a matter of theology. The Court invokes the image of fields of crosses for soldiers who died in the war. For Christians, a cross marking a grave signifies the unique event of Jesus’ death on Calvary and subsequent resurrection by the Father, with a promise of eternal life. The Court declares, however, that the Bladensburg Cross is fundamentally the same as the individual grave markers.

In doing so, the opinion attempts to transform the cross into a more generalized symbol of sacrifice in pursuit of noble causes. The Latin Cross, as a war memorial, symbolizes those lives given in service of our national ideals. This is heresy for Christians, because it suggests that the cross symbolizes all lives given to achieve the goals of a particular nation-state, rather than a unique, redemptive intervention by God in human history.

The Bladensburg Cross opinion thus manages to offend thoughtful Christians without ameliorating the offense to non-Christians, whose memory is supposedly included in any general war memorial. Some Christians may celebrate this decision, but it should instead be mourned as a political misappropriation of the faith’s central symbol.

The Past and Future of Establishment Clause Norms

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, but less than most observers expect. The fight over the status of Lemon is a tired attack on a straw figure. As Justice Kavanaugh wrote, and no Justice disputed, it has been obvious for years that different Establishment Clause contexts—including religion in public schools,²⁵ direct government funding of religious experience,²⁶ permissive accommodation of religion,²⁷ and concerns about government interference in ecclesiastical matters²⁸—are each governed by their own discrete line of cases.²⁹ The general framework of Lemon rarely if ever appears in disputes arising in those contexts, so “erasing” it will make it no difference.

Moreover, the Court does not overrule “tests,” though it may modify or even repudiate their elements. Of Lemon’s three parts—purpose, effect, and entanglement—the first and third remain completely intact. The Bladensburg Cross decision does not eliminate the requirement that a government practice must have some secular purpose—the Court opinion concludes with emphatic references to such purposes. Nor does the opinion even touch upon the longstanding and widely shared concern about state entanglement in ecclesiastical matters.³⁰

For decades, the remnants of Lemon had appeared only in cases involving government-sponsored religious displays, and particularly around the test of “primary effects.” The Bladensburg Cross decision, however, does not eliminate consideration of the display’s effects. Instead, the decision minimizes the alienation and offense the cross causes to some observers, and substitutes solicitude for those who have, over the years, appreciated the display and who would be aggrieved by its removal. This inversion of whose feelings count leads the Court to a presumption of constitutionality for longstanding displays.

This presumption of constitutionality does not tell judges how to evaluate new ones, nor explain what evidence is sufficient to overcome that presumption for old ones. From the opinions in the Bladensburg Cross case, we can confidently predict that several elements will be in play.

First, as noted above, several opinions emphasize the age of the display and its World War I vintage. A portion of the Court opinion joined by five Justices asserts (at the end of Part II-B) that “retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones. The passage of time gives rise to a strong presumption of constitutionality.”³¹ Justice Breyer asserts separately and explicitly that new displays present different considerations.³² Remarkably, neither the Court opinion nor Breyer’s concurrence ever mentions McCreary County vs. ACLU, which held that a newly mounted courthouse display of the Ten Commandments violated the Establishment Clause. The McCreary Court, including Justice Breyer, concluded that the County Commissioners created the display for the purpose of promoting religion. Together with its companion decision Van Orden v. Perry, these Ten Commandments cases rooted the distinction between old and new religious monuments firmly in Establishment Clause precedent.

Imagine a lower court now confronted with the question whether a newly erected Latin Cross, unaccompanied by any other religious symbols, would be a constitutionally appropriate memorial to all Americans who died on September 11, 2001, or who have been lost in military action in the Middle East since that date. The narrative of the cross as a national symbol, so prominent in the Court’s account of World War I and its aftermath, would no longer be available as a basis for upholding the display. The presumption of constitutionality would not apply. Lawyers and lower court judges will be acutely aware of the significance of the McCreary County – Van Orden pair, even though the Supreme Court mysteriously omitted any explicit reference to it.

Moreover, the Supreme Court’s emphasis in the Bladensburg Cross opinion on inclusivity, mutual respect, and nondiscrimination in government religious messages makes the cross implausible as a generic marker that commemorates the death of a religiously diverse group of people. The claim of inclusivity rings hollow in Bladensburg, and is impossible to credit in the case of a more recent display. The Council prayer practice in Town of Greece, which involved inviting clergy from all houses of worship in the town to take a turn at offering the prayer, cannot be analogized to the continuous display of a single monument from a particular faith.

These same considerations of age and inclusivity will also present significant questions for lower courts asked, as they frequently are, to rule on seasonal holiday displays. If such displays lift up nonuniversal theological messages, such as the virgin birth or divinity of Christ, they will be anything but inclusive. And if they are reassembled or created fresh every year, will their vintage be measured by their origins in local history, or will each year represent a new display to evaluate?

These questions suggest strongly that the contextual analysis associated with the endorsement test has not been abandoned, even if the word endorsement will disappear from judicial opinions. The Bladensburg Cross decision will not eliminate case-by-case consideration of the context of displays, though the reasoning substitutes the judge’s own, frequently majoritarian perspective about history, tradition, and inclusivity for the minority-sensitive perspective of the “reasonable observer.” Despite the decision’s sadly predictable result, at least seven justices continue to pay tribute to themes of religious egalitarianism and pluralism. No faith can be legally or politically superior to others. With or without three-part tests, these basic Establishment Clause principles will inevitably play a role in the controversies to follow.

Ira C. Lupu is a nationally recognized scholar in constitutional law, with an emphasis in his writings on the religion clauses of the First Amendment. Together with his colleague Professor Robert Tuttle, Professor Lupu is the co-author of Secular Government, Religious People (Eerdmans 2014).

Robert W. Tuttle is the author or co-author of numerous articles and reports in the fields of church-state law and legal ethics, along with the book Secular Government, Religious People (Eerdmans 2014). With Ira C. Lupu, Professor Tuttle was the co-director of the Legal Tracking Project of the Roundtable on Religion and Social Welfare Policy, which studied government funding of religious social services. Professor Tuttle serves as legal counsel to the Washington, D.C., Synod of the Evangelical Lutheran Church in America, and as a consultant for Lutheran Services in America. He also serves as a Senior Fellow of the Emory University Center for Law and Religion.

No. 17-1717 (U.S. June 20, 2019).
403 U.S. 602 (1971).
American Legion, slip op. at 3–4.
Id. at 31.
See id. at 20–21.
See id. at 12–16.
572 U.S. 565 (2014).
See slip op. at 27–28.
Id. at 28.
Id. at 1 (Kagan, J., concurring).
Id. at 1–2 (quoting American Legion, slip op. at 28 (majority opinion)).
See id. at 2 (Breyer, J., concurring).
545 U.S. 844 (2005).
545 U.S. 677 (2005).
American Legion, slip op. at 2 (Breyer, J., concurring).
See id. at 3 (Kavanaugh, J., concurring).
492 U.S. 573 (1989).
American Legion, slip op. at 4 (Kavanaugh, J., concurring).
See id. at 2–4 (Thomas, J., concurring in judgment).
See id. at 11 (Gorsuch, J., concurring in judgment).
Id. at 9.
See generally id. 4–6 (Ginsburg, J., dissenting).
See id. at 8–11.
Id. at 8 (majority opinion).
Engel v. Vitale, 370 U.S. 421 (1962).
Lemon v. Kurtzman, 403 U.S. 602 (1971).
Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985).
Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012).
See American Legion, slip op. at 2–3 (Kavanaugh, J., concurring).
See Ira C. Lupu & Robert W. Tuttle, The Mystery of Unanimity in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 20 Lewis & Clark L. Rev. 1265 (2017).
American Legion, slip op. at 21.
See id. at 3 (Breyer, J., concurring).

Recommended Citation
Ira C. Lupu & Robert W. Tuttle, Response, The Bladensburg Cross Decision – A Twisted Cross and the Remaking of Establishment Clause Standards, Geo. Wash. L. Rev. On the Docket (July 1, 2019), https://www.gwlr.org/the-bladensburg-cross-decision-a-twisted-cross-and-the-remaking-of-establishment-clause-standards.