By: Nicolas V. Torres
Introduction and Background
Following exile from the Massachusetts Bay Colony, Roger Williams and five followers established North America’s first secular colony, known today as Rhode Island [1]. From this site, Williams ingrained the preliminary notions of separation of church and state in America’s history; in a letter to Reverend John Cotton, he writes, “when they have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath ever broke down the wall itself, removed the candlestick, and made His garden a wilderness” [2]. William’s metaphor supports the idea that erasing the distinction between the church and the material world could compromise the integrity of the church’s purity and therefore advocates the need for a secular state. His contributions resonated with scholars most salient to the United States’ founding, such as Locke, Madison, and Jefferson, culminating in the Establishment Clause of the U.S. Constitution: “Congress shall make no law respecting an establishment of religion” [3, 4]. This clause creates a basis for a secular nation but leaves its ambiguity for the judicial system to interpret.
Past Supreme Court rulings attempted to direct the judicial system’s engagement with the Establishment Clause, but American Legion v. American Humanist Association (2019) exposes cracks in jurisprudence concerning the separation of religion and state. As Justice Gorsuch probed in his concurrence, “what exactly qualifies as impermissible ‘endorsement’ of religion in a country where ‘In God We Trust’ appears in coinage, the eye of God appears in its Great Seal, and we celebrate Thanksgiving as a national holiday?” [5]. Through American Legion, a newly emboldened Supreme Court reconsidered its stance on the Establishment Clause, creating new jurisprudence that favors religious displays rather than scrupulous non-religiousness.
Following the end of the First World War, private residents of Bladensburg, Maryland, proposed to erect a forty-foot memorial commemorating the soldiers from Prince George’s County who lost their lives in war. The residents decided to make this monument in the form of the Latin cross, a central symbol of the war’s overseas graves. The local post of The American Legion, the petitioner in this case, completed the project in 1925. However, almost three decades later, the Maryland National Capital Park and Planning Commission assumed ownership of what had become known as the ‘Bladensburg Cross’ and its surrounding land, including the responsibility to maintain, repair, and care for the cross.
In 2014, the American Humanist Association (AHA) and three residents of Washington, D.C., filed a suit concerning the forty-foot cross standing at the Bladensburg World War I Memorial. The respondent, AHA, alleged in district court that the cross’ “presence on public land and the Commission’s maintenance of the memorial violates the First Amendment’s Establishment Clause” [6]. The U.S. District Court for the District of Maryland granted summary judgment for the Commission and American Legion, deducing that the Cross lay within constitutional bounds [7]. The Fourth Circuit reversed [8]. In American Legion, the Supreme Court had to toe the line between undoing national history and breaking the wall between church and state. Ruling that the Bladensburg Cross violates the Establishment Clause would incite the removal of sectarian or sectarian-passing monuments located on public soil, threatening not only the presence of historical artifacts but also the religious communities associated with them. However, to find that the Cross lies within constitutional bounds would demonstrate judicial tolerance for government property with religious affiliation, pressuring stare decisis and secularity. The true liberty Roger Williams spotted at the mouth of the Mohassuck, religious freedom and government secularism, is at stake—deeming American Legion an emblem for the condition of America’s engagement with religious displays.
Relevant Jurisprudence and Precedents
i. Lemon Test
A major source of contention in American Legion stems from whether or not to use a non-binding judicial precedent called the Lemon test deriving from Lemon v. Kurtzman (1971) [9]. Courts used the Lemon test to assess alleged violations of the Establishment Clause. Its three parts analyze if the responding government entity breached secularity: Laws (1) “must have a secular legislative purpose” [10]; (2) must have a “principal or primary effect . . . that neither advances nor inhibits religion . . .” [11]; (3) and “must not foster ‘an excessive government entanglement with religion’” [12]. The Court employed this test without significant resistance in Establishment Clause cases for thirty-five years until Van Orden v. Perry (2005) led to the observation that the test contains inherent flaws. In 2002, Thomas Van Orden sued Texas Governor Rick Perry and other state officials seeking both an injunction requiring the removal of a Ten Commandments monument on the Texas State Capitol grounds and a declaration that it violates the Establishment Clause [13]. The Ten Commandments monument could have violated the Constitution under the second and third clauses of the Lemon test. However, Justices Thomas and Breyer, adopting a contemporary conservative stance, criticized the test for disregarding accommodations for historicity [14, 15]. Justice Rehnquist reaffirmed the conservative perspective when writing the opinion of the Court, in which he states “whatever may be the fate of the Lemon test in the larger scheme of Establishment Clause jurisprudence, we think it not useful in dealing with the sort of passive monument that Texas has erected on its Capitol grounds. Instead, our analysis is driven both by the nature of the monument and by our nation's history” [16]. The Court found no encroachment on the Establishment Clause, instead undoing Establishment Clause jurisprudence and paving the way for a pivotal ruling in American Legion.
ii. Government Speech Doctrine
The “Government Speech Doctrine,” despite its limited use, conflicts with strict interpretations of the Establishment Clause. As established by the Court in Rosenberger v. Rector & Visitors of the University of Virginia (1995), although the Constitution limits the government’s regulation of private speech, it does not restrict the government when it speaks for itself, meaning that the government is not required to act neutral when expressing its own opinion [17, 18]. The Court re-applied this precedent in a religious display case during Pleasant Grove City v. Summum (2009) where the Summum Church argued that the city violated the Free Speech Clause by accepting a Ten Commandments monument but rejecting the organization's monument containing the Seven Aphorisms [19]. The Court ruled unanimously in favor of Pleasant Grove City. Granting the government the ability to “say what it wishes” when placing religiously-affiliated monuments conflicts with its secular limitations as defined in the Establishment Clause and the third part of the Lemon test [20]. The possibility of sanctioning unconstitutional action may account for the Court’s refrain from excessive use of this doctrine.
iii. Article III Standing, Offended Observer
The extent to which Article III standing applies to plaintiffs comes into question in American Legion. Plaintiffs require standing to bring a case to federal courts, such as the Court of Appeals and the Supreme Court. The Standing Clause of the U.S. Constitution’s Article III, as interpreted in Lujan v. Defenders of Wildlife (1992), requires plaintiffs to personally have suffered an injury that can be attributed to and redressable by the actions of the defendant [21]. “Offended observer” theory, a post-Lemon doctrine, can provide plaintiffs standing for taking offense to a religious display upon observation. The late Justice Scalia found that this theory has “absolutely no basis” and that “in ignoring the concrete injury requirement described in our cases, [courts] would be discarding a principle fundamental to the separate and distinct constitutional role of the Third Branch” [22]. In American Legion, the justices are unable to find a unifying perspective on standing, complicating the future of religious display cases.
The Decision in American Legion and Court Dynamics
In a 7–2 decision, the Court overturned the Fourth Circuit’s decision and sided with American Legion in that “the Religion Clauses of the Constitution aim to foster a society in which people of all beliefs can live together harmoniously, and the presence of the Bladensburg Cross on the land where it has stood for so many years is fully consistent with that aim” [23].
The initial consideration for this case is standing. The Court should not have given American Legion standing per its judicial standards, yet it instead adopted a fallible view that provides observers the right to sue in Establishment Clause cases. The majority opinion in Schlesinger v. Reservists Committed to Stop the War (1974) established that “generalized grievances about the conduct of government being insufficient to confer standing under the case or controversy requirements of Article III of the Constitution” [24]. The Schlesinger ruling should bar the American Humanist Association from obtaining standing against the Maryland National Capital Park and Planning Commission due to the simple premise of disapproval with a religious display. Justices Gorsuch and Thomas also disagree with the provision of standing, but instead challenge the “offended observer” theory. Citing Valley Forge Christian College v. Americans United for Separation of Church and State, J. Gorsuch notes that “the psychological consequence presumably produced by observation of conduct with which one disagrees” is not an injury-in-fact “sufficient to confer standing under Article III” [25]. In other words, the Bladensburg Cross did not concretely injure the American Humanist Association in a particularized manner. Nevertheless, these arguments conflict with the one adopted by the court, which reasons that “if the Establishment Clause forbids anything a reasonable observer would view as an endorsement of religion, then such an observer must be able to sue” [26]; therefore, an observer’s offense could, in the case of American Legion, constitute standing.
The competing logic demonstrates the complexity of Supreme Court litigation, but it neither justifies nor entertains a violation of a Constitutional provision, such as Article III. According to the syllabus, the American Humanist Association “claims that its members come into regular, unwelcome contact with the Bladensburg Cross when they drive through the area”—an injury caused by the Commission in displaying the cross [27]. This statement does not purport to be an injury in fact, but rather a mere emotional offense since disapproval of a sight does not impede on a legally protected interest that is either (1) concrete and particularized and (2) actual or imminent. Furthermore, the absence of an injury prevents both the ability to trace and redress the defendant's alleged wrongdoing, effectively proving that the American Humanist Association fails to meet any of the three criteria of Article III standing.
Following the provision of standing, the Court determined that the monument does not hold sectist meaning. Instead, the Bladensburg Cross resonates as a symbol for sacrifices during the First World War [28]. Justice Alito references popular registered trademarks, such as the American National Red Cross, Blue Cross Blue Shield, the Bayer Group, and certain Johnson & Johnson products, demonstrating that religious symbols can “transform” into messages related to health care and healing [29]. Similarly, the Court can apply this “transformation” to the Bladensburg Cross given its use by the community. Since construction, the Cross has hosted numerous events for the residents of Prince George’s County, such as gatherings on Veterans Day, Memorial Day, and Independence Day, therefore instilling a sense of community [30]. Accordingly, due to its initial secular meaning (i.e., commemoration of the fallen) and added community meaning, the Bladensburg Cross does not entangle religion and government. Justices Roberts, Breyer, Kagan, and Kavanaugh join this view.
J. Alito’s opinion critiques the Lemon test and its framework with a four-part argument. He begins by expressing the difficulty in identifying a monument’s original purpose as it pertains to part 1 of the Lemon test, therefore “it would be inappropriate for courts to compel [a monument’s] removal or termination based on supposition” [31]. Reiterating his argument in §1b of the opinion, J. Alito writes that “as time goes by, the purposes associated with an established monument, symbol, or practice often multiply” [32]; the presence of many motives obscure a sectist effect. The same train of thought applies to meaning, in which the community can value the Bladensburg Cross “without necessarily embracing their religious roots” [33]. In making this point, J. Alito refers to the Notre Dame Cathedral in Paris, which stands as a symbol of national importance to religious observers and non-observers alike [34]. The final part of J. Alito’s argument refers to the Court’s balancing act of interests. Removing a long-standing monument with possible religious interpretations “may no longer appear neutral,” indicating a possible infraction of the First Amendment’s Free Speech Clause by obstructing religious expression, if any [35]. Despite J. Alito’s grievances, Justice Kagan, who does not join the opinion’s view on this subject, notes that the Lemon test still has judicial precedent and applications to other Establishment Clause cases despite its flaws [36].
Following its informal rejection of the Lemon test, the Court forgoes a second judicial precedent. Use of the Government Speech Doctrine from Pleasant Grove City v. Summum, although an applicable precedent, does not find much space in the court’s opinion due to its undefined bounds. As mentioned earlier, the Government Speech Doctrine determines that the government “is entitled to say what it wishes” [37]. Adherence to this doctrine would allow the Maryland National Capital Park and Planning Commission to host the Bladensburg Cross since any message shared through the cross’ presence would lie within constitutional bounds. However, a flaw persists in that this concept has no particular boundaries; therefore, the courts would have to determine when the law no longer tolerates a view expressed by a government entity. Another setback in the Government Speech Doctrine is that its use would imply that the Bladensburg Cross adheres to Constitutional limitations on the premise that the government has an inexhaustible right to speech, even if it creates excessive entanglement between church and state.
Although the judgment reversed the Fourth Circuit’s decision with a significant majority, the Bench’s two most liberal Justices did not join the opinion. Justice Ginsburg with whom Justice Sotomayor joins, dissented on the basis that the Bladensburg Cross is a religious symbol and “when a cross is displayed on public property, the government may be presumed to endorse its religious content” [38, 39]; accordingly, the Cross is a violation of the Establishment Clause. Ginsburg expands her point to include that secularizing the Cross does a disservice to Christianity, highlighting the difficulty of this ruling [40]. In sum, siding with American Legion suggests that the Establishment Clause has a high tolerance for the “endorsement of religion,” while also diminishing the religious value of a Christian symbol used for seventeen centuries [41].
The American Legion ruling’s divisions testify to a greater transition of the Court. Rejection of Establishment Clause jurisprudence coupled with concerns about standing fundamentally redefine the Court’s approach.
A New Meaning for the Court in Establishment Clause and Religious Display Cases
American Legion will forever influence the outcome of future cases pertinent to the separation of church and state. The court’s opinion nullified how it decides Establishment Clause cases by challenging the ambiguous, half-century-old Lemon test. As J. Alito suggested, appropriate decisions should instead look to “history for guidance,” therefore implementing the “history and tradition” test [42]. Furthermore, although granted by the court, Justices Gorsuch and Thomas once again challenge plaintiffs’ claims to standing as an “offended observer,” casting doubt on yet another element of religions display cases. The Courts’ newfound perspectives resonate in future cases, shifting the way courts approach the separation of church and state in the United States.
Three years after American Legion, the court finalized its abandonment of the Lemon test by overruling Lemon v. Kurtzman (1971) and subsequent precedents stemming from that decision [43]. Initially, justices believed that the test was “not useful” when dealing with “passive monument[s]” [44]. However, in American Legion, J. Alito cites non-monument cases that did not apply Lemon, such as Town of Greece v. Galloway (2014), and Marsh v. Chambers (1983). This pattern prompted the decision in Kennedy v. Bremerton School District (2022) to replace the standard for viewing Establishment Clause cases with a new “history and tradition” test, formally altering the court’s approach to that of a new, ambiguous, and untested precedent [45]. However, the adoption of a new test poses the counterargument that a longer violation does not equate to a lessened severity or presence of the violation itself. Were the government to own a monument that attempts to proselytize, for example, its ownership would violate the Establishment Clause even if litigated 200 years later—therefore eliminating the relevancy of a religious diaplay’s “history and tradition.” The Court has applied the ambiguous method toward Second Amendment matters as well, as seen in New York State Rifle & Pistol Association v. Bruen (2022), where they assessed the constitutionality of a handgun licensing restriction using the “history and tradition” test [46]. This test’s extensive scope and recent use indicate that the Court will adopt history and tradition as new pillars to enact traditionalism in Establishment Clause cases and beyond.
Upon a petition for a writ of certiorari, the Court voted to not hear City of Ocala, Florida v. Art Rojas (2023), a religious display case, effectively sending it back to the lower court system. In a statement respecting the denial of certiorari, J. Gorsuch boldly attacks “offended observers” in regards to Art Rojas, et al.: “[i]n a large and diverse country, offense can be easily found. Really, most [of] every governmental action probably offends somebody… But recourse for disagreement and offense does not lie in federal litigation” [47]. The second clause in J. Gorsuch’s statement particularly stands out since federal litigation has resolved some of the nation’s most complex disagreements. Moreover, offense taken toward a religious display is the foundation of American Legion—a case that the Court granted both certiorari and standing. J. Thomas, the only justice to dissent, conveyed the same message but took a different approach. He writes that “although…Lemon is no longer good law, we should have granted certiorari to review whether respondents had standing to bring their claims” [48]. One can assume that J. Thomas intended to take the case and vote that “offended observers” do not have standing—a view that, if adopted by the Court, could end the precedent altogether. Although nothing changes yet, Justices Gorsuch and Thomas foreshadow future challenges to the doctrine.
Conclusion: The Court’s Transition Toward Sectarian Secularism
Following his tenure in the Continental Congress, James Madison served in the Virginia Assembly where he produced one of his earliest, yet most salient political pamphlets titled: “Memorial and Remonstrance against Religious Assessments” [49]. This work responded to a bill that would tax Virginia residents as a means for the state to pay Christian educators, which would effectively remove Reverend John Cotton’s proposed wall between church and state. In his pamphlet, Madison argues that “torrents of blood have been spilt in the old world, by vain attempts of the secular arm, to extinguish Religious discord, by proscribing all difference in Religious opinion” [50]. This quote conveys that a sectist intertwinement with governance, such as funding the Christian educators, would favor a religion and therefore work against diversity in the religious sect. Its byproducts could subject the United States to the kinds of violence experienced by European nations that established unitary religious systems. Madison’s work reminds not only his fellow Virginia legislators but even contemporary political actors why the nation must maintain a secular establishment. Despite Madison’s warning, the Courts have steered the judicial system toward a newfound sectarian secularism, where decisions blur the lines of free establishment.
A significant voting majority in the American Legion decision is not only a testament to a recent conservative transition in the Court but to this conservative bloc’s ambitious attitude that sanctions government entanglement with religion—a contrast to earlier, more timid decisions. Cases such as Engel v. Vitale (1962), in which the Court found voluntary classroom prayers at a public school a violation of the Establishment Clause, demonstrate a cautious approach to Establishment Clause cases that can no longer be seen today. The coincidence of three Supreme Court vacancies during the Trump Presidency formed the most conservative Supreme Court in 90 years [51]. Moreover, liberally-moderate justices Kagan and Breyer occasionally break rank, as done in American Legion. The ideological shift has led to a relaxation of the Establishment Clause, as seen in Carson v. Makin (2022), where the Court ruled Maine’s denial of tuition assistance to parents of sectarian schools as unconstitutional—a reinforcement of Espinoza v. Montana Department of Revenue (2020) [52, 53]. A similar ‘relaxation’ took place for alleged violations, like in Kennedy v. Bremerton School District (2022), in concern to a high school football coach, Joseph Kennedy, who prayed in the middle of the field after each game. The Court ruled that Mr. Kennedy had permission to perform an act of religious observance due to the Free Exercise Clause and that the school district’s obstruction of his expression violates the Establishment Clause—a distinctly different approach to that of the Engel ruling [54]. With the current makeup of the Court, future verdicts will likely continue to narrow the boundaries between church and state.
Perhaps the approach toward sectarian secularism recognizes the importance of religious displays and observations, rather than pressuring the Constitution’s framework. The Court stresses that it grounds decisions on its commitment to protecting religious freedom; accordingly, its adoption of a flexible Establishment Clause can be deemed an effort to balance a pluralistic society [55]. Regardless of the Court’s intentions, its rulings should cater to the federal judicial system’s duty to uphold the Constitution. However, it is up to the nine justices on the bench to prevent their newfound approaches from interfering with this demanding task.
Endnotes
[1] Roger Williams (edited by Edward B. Underhill), The Bloudy Tenent of Persecution for Cause of Conscience Discussed and Mr. Cotton’s Letter Examined and Answered XXIII (2021), available at https://www.gutenberg.org/files/65739/65739-h/65739-h.htm#FNanchor_46.
[2] Edward J. Eberle, Roger Williams on Liberty of Conscience, 10 Roger Williams University Law Review 313 (2005).
[3] Ibid at 291.
[4] U.S. Const., Amdt. 1.
[5] Id.
[6] Am. Legion v. Am. Humanist Ass'n, 139 S. Ct. 2067, 2069.
[7] Am. Legion v. Am. Humanist Ass'n, 139 S. Ct. 2067, 2069.
[8] Id.
[9] Lemon v. Kurtzman, 403 U.S. 602, 613.
[10] Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971) (internal citation omitted) (quoting Walz, 397 U.S. at 674).
[11] Ibid.
[12] Ibid.
[13] Van Orden v. Perry, 545 U.S. 677, 681.
[14] Van Orden v. Perry, 545 U.S. 677, 699, 125 S. Ct. 2854, 2868 (2005)
[15] Van Orden v. Perry, 545 U.S. 677, 700, 125 S. Ct. 2854, 2869 (2005)
[16] Van Orden v. Perry, 545 U.S. 677, 686.
[17] Id.
[18] Government Speech. Cornell Legal Information Institute. Available at https://www.law.cornell.edu/wex/government_speech.
[19] Pleasant Grove City v. Summum, 555 U.S. 460, 460.
[20] Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 833.
[21] 3 Federal Litigation Guide § 42.41 (2023).
[22] Lujan v. Defenders of Wildlife, 504 U.S. 555, 576.
[23] Am. Legion v. Am. Humanist Ass'n, 139 S. Ct. 2067, 2074.
[24] Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 217, 94 S. Ct. 2925, 41 L. Ed. 2d 706 (1974).
[25] Am. Legion v. Am. Humanist Ass'n, 139 S. Ct. 2067, 2100.
[26] Am. Legion v. Am. Humanist Ass'n, 139 S. Ct. 2067, 2101 (2019)
[27] Am. Legion v. Am. Humanist Ass'n, 139 S. Ct. 2067, 2072 (2019)
[28] Am. Legion v. Am. Humanist Ass'n, 139 S. Ct. 2067, 2076.
[29] Am. Legion v. Am. Humanist Ass'n, 139 S. Ct. 2067, 2074-2075.
[30] Am. Legion v. Am. Humanist Ass'n, 2019 U.S. LEXIS 4182, *22-23.
[31] Am. Legion v. Am. Humanist Ass'n, 2019 U.S. LEXIS 4182, *28.
[32] Am. Legion v. Am. Humanist Ass'n, 139 S. Ct. 2067, 2082 (2019)
[33] Am. Legion v. Am. Humanist Ass'n, 139 S. Ct. 2067, 2084.
[34] Id.
[35] Am. Legion v. Am. Humanist Ass'n, 139 S. Ct. 2067, 2085.
[36] Am. Legion v. Am. Humanist Ass'n, 139 S. Ct. 2067, 2094.
[37] Id.
[38] Am. Legion v. Am. Humanist Ass'n, 139 S. Ct. 2067, 2104.
[39] Am. Legion v. Am. Humanist Ass'n, 139 S. Ct. 2067, 2106 (2019)
[40] Am. Legion v. Am. Humanist Ass'n, 139 S. Ct. 2067, 2107.
[41] Am. Legion v. Am. Humanist Ass'n, 139 S. Ct. 2067, 2101.
[42] Am. Legion v. Am. Humanist Ass'n, 139 S. Ct. 2067, 2071.
[43] Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2434.
[44] Van Orden v. Perry, 545 U.S. 677, 686.
[45] Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2434.
[46] N.Y. State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111, 2128.
[47] City of Ocala v. Rojas, 2023 U.S. LEXIS 1105, *4.
[48] City of Ocala v. Rojas, 143 S. Ct. 764, 766 (2023).
[49] James H. Read, The First Amendment Encyclopedia, James Madison (2009), available at https://www.mtsu.edu/first-amendment/article/1220/james-madison.
[50] University of Chicago Press, The National Archives, Memorial and Remonstrance against Religious Assessments, [ca. 20 June] 1785, available at https://founders.archives.gov/documents/Madison/01-08-02-0163.
[51] Nina Totenberg, NPR. The Supreme Court is the most conservative in 90 years (2022), available at https://www.npr.org/2022/07/05/1109444617/the-supreme-court-conservative.
[52] Carson v. Makin, 142 S. Ct. 1987.
[53] Espinoza v. Mont. Dep't of Revenue, 140 S. Ct. 2246
[54] Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407.
[55] Carson v. Makin, 142 S. Ct. 1987 (2022).