A Victory for the American Legion.

On June 20, 2019 the Supreme Court of the United States (SCOTUS) ruled in AMERICAN LEGION v. AMERICAN HUMANIST ASSN. that the Bladensburg Cross could remain on public land, reversing the United States Court of Appeals for the Fourth Circuit which had ruled differently. SCOTUS reversed and remanded the 4th Circuit, 7-2.

The American Legion was a party to this case, challenging those who wanted the cross removed. The American Legion also participated in building the cross almost 100 years ago and in ceremonies since.  Thus, the decision is a victory for the American Legion and its pillars (principles).  Other issues, however, were not  decided in this decision of six opinions, amongst nine justices.

Below, I selectively copy, without citation, from the SCOTUS syllabus and opinions to provide background, the differing views of the Justices, and to outline the on-going legal issue which SCOTUS avoided disposing by this decision.

The Cross was erected Nearly 100-years ago and has a history of use to honor veterans.

In 1918, residents of Prince George’s County, Maryland, formed a committee for the purpose of erecting a memorial for the county’s soldiers who fell in World War I.  The 32-foot tall Latin cross displays the American Legion’s emblem at its center and sits on a large pedestal bearing a bronze plaque that lists the names of the 49 county soldiers who had fallen in the war. The monument stands on local government land.

The Establishment Clause issue remains unresolved.

The First Amendment of the United States Constitution both prohibits any law “respecting an establishment of religion” and protects the free exercise of religion. Lawsuits were filed that the Bladensburg violates the establishment clause. The U.S. Court of Appeals for the 4th Circuit held in 2017 that the display unconstitutionally endorsed Christianity and ordered its removal from public land. In doing so, the 4th Circuit relied on a 1971 SCOTUS decision, Lemon v. Kurtzman, 403 U. S. 602 (1971).

In parts of their decisions, JUSTICE GORSUCH, joined by JUSTICE THOMAS discussed the Lemon case. Justices Gorsuch and Thomas conclude that a suit like this one should be dismissed for lack of standing. They write in part that: The American Humanist Association claims that its members come into regular, unwelcome contact with the Bladensburg Cross when they drive through the area, but this “offended observer” theory of standing has no basis in law.

SCOTUS declined to reverse Lemon.

JUSTICE THOMAS would reverse Lemon altogether but SCOTUS did not go that far in the Bladensburg case. JUSTICE THOMAS explains part that Clause cases in response to Lemon v. Kurtzman, 403 U. S. 602, reasoning that if the Establishment Clause forbids anything that a reasonable observer would view as an endorsement of religion, then such an observer must be able to sue. Lemon, however, was a misadventure, and the Court today relies on a more modest, historically sensitive approach, interpreting the Establishment Clause with reference to historical practices and understandings.

The Justices not only do not reverse Lemon but also divide in their views about the Establishment clause. ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B , II–C , III, a nd IV , in which ROBE RTS, C. J., and BREYER, KAGAN, and KAV ANAUGH, JJ., joined, and an opinion with respect to Parts II–A and II–D, in which ROBE RTS, C. J., and BREYER and KAV ANAUGH, JJ., joined. BREYER, J., filed a concurring opinion, in which KAGAN, J., joined. KAVANAUGH, J., filed a concurring opinion. KAGAN, J., filed an opinion concurring in part. THOMAS, J., filed an opinion concurring in the judgment. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined.

The majority opinion relied on the history of the monument among other considerations. JUSTICE ALITO, joined by THE CHIEF JUSTICE, JUSTICE BREYER, and JUSTICE KAV ANAUGH, concluded in Parts II–A and II–D of the decision: The Lemon Court ambitiously attempted to find a grand unified theory of the Establishment Clause, but the Court has since taken a more modest approach that focuses on the particular issue at hand and looks to history for guidance.

The image of the simple wooden cross that originally marked the graves of American soldiers killed in World War I became a symbol of their sacrifice, and the design of the Bladensburg Cross must be understood in light of that background. That the cross originated as a Christian symbol and retains that meaning in many contexts does not change the fact that the symbol took on an added secular meaning when used in World War I memorials. The Cross has also acquired historical importance with the passage of time, reminding the townspeople of the deeds and sacrifice of their predecessors as it stands among memorials to veterans of later wars. It has thus become part of the community.

In this lawsuit, the American Humanist Association (AHA) “tries to connect the Cross and the American Legion with anti-Semitism and the Ku Klux Klan, but the monument, which was dedicated during a period of heightened racial and religious animosity, includes the names of both Black and White soldiers; and both Catholic and Baptist clergy participated in the dedication.”

The fact that the cross is undoubtedly a Christian symbol should not blind one to everything else that the Bladensburg Cross has come to represent: 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. For many, destroying or defacing the Cross would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.

This relationship between the cross and the war may not have been the sole or dominant motivation for the design of the many war memorials that sprang up across the Nation, but that is all but impossible to determine today. The passage of time means that testimony from the decisionmakers may not be available. And regardless of the original purposes for erecting the monument, a community may wish to preserve it for very different reasons, such as the historic preservation and traffic-safety concerns noted here.

JUSTICE THOMAS, agrees that the Bladensburg Cross is constitutional, concluding in part (I select only a few of his passages)): The text and history of the Clause—which reads “Congress shall make no law respecting an establishment of religion”—suggest that it should not be incorporated against the States.
Respondents have not demonstrated that maintaining a religious display on public property shares any of the historical characteristics of an establishment of religion.

JUSTICE GORSUCH, joined by JUSTICE THOMAS, concludes that a suit like this one should be dismissed for lack of standing. Pp. 1–11. The American Humanist Association claims that its members come into regular, unwelcome contact with the Bladensburg Cross when they drive through the area, but this “offended observer” theory of standing has no basis in law.

The dissenting Justices had different perspectives and reasoning.

The dissent states, in part, that:

“[T]he City’s use of a cross to memorialize the war dead may lead observers to believe that the City has chosen to honor only Christian veterans.”. The Peace Cross is no exception. That was evident from the start. At the dedication ceremony, the keynote speaker analogized the sacrifice of the honored soldiers to that of Jesus Christ, calling the Peace Cross “symbolic of Calvary,” where Jesus was crucified. Local reporters variously described the monument as “[a] mammoth cross, a likeness of the Cross of Calvary, as described in the Bible,” “a monster [C]alvary cross,” and “a huge sacrifice cross,” (cites omitted here). The character of the monument has not changed with the passage of time

“The cross was never perceived as an appropriate headstone or memorial for Jewish soldiers and others who did not adhere to Christianity.”

“When the War Department began preparing designs for permanent headstones in 1919, “no topic managed to stir more controversy than the use of religious symbolism.” Everyone involved in the dispute, however, saw the Latin cross as a Christian symbol, not as a universal or secular one. “

Conclusion:  Stay tuned.

This decision is a victory for the American Legion and other veterans groups.. The decision does not address underlying issues, however, that pertain to other displays or monuments on public land that observers may claim violate the Establishment clause.

For your leisurely summer reading, links to the decision and blogs by academics and others decision are:

Decision is!rsxNF3


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