Travis Weber is Vice President for Policy and Director of the Center for Religious Liberty at Family Research Council, which filed an amicus brief in support of the constitutionality of the cross in The American Legion v. American Humanist Association. This article appeared on the SCOTUS Blog on June 21, 2019.
The Supreme Court’s decision in American Legion v. American Humanist Association no doubt broadly pleased conservative constitutionalists who thought the Peace Cross should remain standing under the First Amendment. It likely irked those, such as the challengers to the constitutionality of this memorial, who believe the establishment clause should eliminate much religious expression and symbolism (often Christian) from the public square. The real significance of the decision and many opinions in the case, however, is that they put Lemon v. Kurtzman on the ropes and lay the groundwork for its test to be felled in the future – perhaps sooner than we think.
To begin with, no justice on the court seriously engaged Lemon in this case. The court’s opinion, authored by Justice Samuel Alito, refused to apply it, and the dissenters never tried to attack this memorial under the test either.
The only justice who provided even a tepid defense of Lemon was Justice Elena Kagan, who drafted a concurrence explaining why she refused to join that portion of Alito’s opinion that casts serious doubt on Lemon. That portion, Section II-A, reads in part: “For at least four reasons, the Lemon test presents particularly daunting problems in cases, including the one now before us, that involve the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations. Together, these considerations counsel against efforts to evaluate such cases under Lemon and toward application of a presumption of constitutionality for longstanding monuments, symbols, and practices.” Later, Section II-D, which Kagan also refused to join, clearly laid out a historical test for this type of establishment clause case, building on Marsh v. Chambers and Town of Greece v. Galloway, and declaring: “Where categories of monuments, symbols, and practices with a longstanding history follow in that tradition [of the recognition of the important role of religion in the lives of Americans] they are likewise constitutional.” Justice Brett Kavanaugh, who joined these portions of the opinion, was even harder on Lemon in his concurrence, noting how the test has simply not helped the Supreme Court, and thus should be discarded.
While Sections II-A and II-D of Alito’s opinion were only joined by Chief Justice John Roberts, Justice Stephen Breyer, and Kavanaugh, the refusal of Justices Neil Gorsuch and Clarence Thomas to join them was likely not due to disagreement with the outcome they would produce, but rather because they didn’t go far enough toward an originalist approach that would itself eliminate Lemon. Thus, six justices appear poised to discard Lemon entirely in favor of a historical test regarding certain religious practices and commemorations, if not something even stronger.
The portions of Alito’s opinion that Kagan did join acknowledged the religious significance of certain monuments, public displays, and even city names as perfectly consistent with the establishment clause, and warned against scrubbing them: “A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion.” The court even referred to the challengers’ arguments urging that result as “disparaging” to the religious expression in this case.
As Family Research Council noted in our amicus brief, religion is naturally manifested by a religious people, an understanding implicit in Alito’s opinion: “When faith was important to the person whose life is commemorated, it is natural to include a symbolic reference to faith in the design of the memorial.” Requiring the removal of such religious markers “would not be viewed by many as a neutral act.” As the court noted through examples of a Native American veterans’ memorial and the displays of different faiths in the U.S. Capitol’s Statuary Hall, a test permitting more robust religious expression in the public square actually benefits all faiths, not just Christianity – a reality oft-overlooked by establishment clause commentators. Given what Gorsuch and Thomas have articulated about the First Amendment here and elsewhere, seven members of the court would seem to be in agreement with the idea that religion will understandably manifest in the life of a community.
Such community manifestations of religion were highlighted by the court when discussing the propensity for “religiously expressive monuments, symbols, and practices [to] become embedded features of a community’s landscape and identity.” Eliminating such a manifestation “may no longer appear neutral, especially to the local community for which it has taken on particular meaning.”
As Gorsuch noted in concurrence, offended-observer standing (which in his view should be eliminated) allows one or two aggrieved and offended observers to shut down an entire community’s corporate expression of religion. This is currently taking place in local communities around the country, where entities like the American Humanist Association bring suit – just like they did in this case – under rules of standing that allow them to get into court and claim that a community’s city seal, motto, placement of monuments, etc. somehow violate the establishment clause. The only thing this often serves to accomplish is to aggravate local communities which should be left alone to sort these matters out, exacerbating the religious tension the court specifically noted that the establishment clause must be construed to avoid. Doing away with offended-observer standing, which would do away with these cases, would ease social tensions in addition to preserving community manifestations of religion perfectly consistent with the establishment clause.
In their concurring opinions, both Kavanaugh and Gorsuch observed that such tensions can be resolved in the legislatures and don’t need to be resolved in the courts, with the latter remarking: “In a large and diverse country, offense can be easily found. Really, most every governmental action probably offends somebody. No doubt, too, that offense can be sincere, sometimes well taken, even wise. But recourse for disagreement and offense does not lie in federal litigation. Instead, in a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an ‘offended viewer’ may ‘avert his eyes,’ … or pursue a political solution.”
Indeed, religious tensions might be lowered by allowing more people to have a stake in these matters by keeping decisions on religious symbols out of the courts and in the people’s hands through their elected officials.
As Alito noted, when practices follow “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 … they are … constitutional.”
By ridding itself and the lower courts of the confusion and stifling effect on religion brought on by Lemon, the Supreme Court can help reach this worthy aspiration and bring clarity and a breath of fresh air for religious expression – for those of all faiths – to the public square.