The Supreme Court has an opportunity to protect a WWI memorial and make religious lib
The Supreme Court has an opportunity to protect a WWI memorial and make religious liberty history
February 22, 2019
Nate Madden
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Next week, the Supreme Court will hear oral arguments in what may be a watershed case for religion in public life in the United States. At least, that’s what some religious liberty proponents hope will happen.
The question is whether a 40-foot, 93-year-old World War I memorial in the shape of a cross at a busy intersection in Bladensburg, Maryland, violates the Establishment Clause of the First Amendment of the Constitution.
Here’s my explainer from 2017:
So why could the Supreme Court make legal history on this case? Well, as it stands, the body of precedent on the Establishment Clause gives courts, attorneys, and government officials no clear standards to figure out whether or not a “passive display” that has religious imagery violates the First Amendment or not.
Since 1971, courts have inconsistently applied the three-pronged “Lemon test,” which came out of the Lemon v. Kurtzman case. In short, it tests whether the display in question has a secular purpose, doesn’t advance or inhibit religion, and doesn’t foster “excessive entanglement” between church and state. However, in a 2005 Ten Commandments case, a plurality of the SCOTUS justices opted to forgo the Lemon test, calling it “not useful in dealing with the sort of passive monument” in that case and instead focusing on the “nature of the monument” and “our Nation’s history.”
In addressing the Bladensburg monument, the lower courts have used what the solicitor general’s office calls a “hybrid approach” that combines elements of the standards used the two cases mentioned above, further adding to the confusion.
“Because each test’s application is so context-dependent,” the brief asserts, “disputes often cannot be resolved at an early stage; and even seemingly minor differences between displays can produce divergent outcomes.”
“Cases like these cannot help but divide those with sincerely held beliefs on both sides,” the SG’s brief concluded. “This case presents an opportunity for the Court to adopt a standard for Establishment Clause challenges to passive displays that will reduce factious litigation, provide clarity to lower courts, and promote consistency across cases.”
Jeremy Dys, deputy general counsel at Texas-based First Liberty Institute, which is representing the American Legion in the case, explained things to me this way: “We’ve gotten away from the historic understanding of the Establishment Clause.”
Dys says that he would like to see the Supreme Court “abandon the Lemon Test entirely” and adopt what his team is calling a “coercion test,” which would simply test whether or not the government is coercing people to engage in religious beliefs or behavior; if not, the Establishment Clause “is not offended,” he says.
“There’s all kinds of weird little spin-offs of this,” Dys says. “Nobody knows exactly what is going to come out of any given passive display.”
This state of legal confusion comes with real-world consequences, especially for state and local governments. What happens, Dys asks hypothetically, “when there’s a question mark raised about whether or not you’ve got enough reindeer next to the creche on the city square to ensure that it’s secular enough for it to pass constitutional muster?”
“It’s become completely unwieldy for city councilmen and county commissioners and the like to be able to have confidence that they are going to be able to avoid unnecessary and frivolous lawsuits against public displays that may invoke religious imagery or language.”
But while there’s opportunity for clarity if the cross prevails at the high court, a loss could end up endangering some of America’s most solemn national memorials. If the lower court ruling is allowed to stand, Dys explains, “you’re going to find Arlington National Cemetery under threat.”
The hallowed cemetery for our nation’s heroes is on public land and full of memorial crosses similar to the one in suburban Maryland, such as the Argonne Cross and the Canadian Cross of Sacrifice.
Dys also notes that the Tomb of the Unknown Soldier bears the words “known but to God” as part of its inscription. “Is that gonna have to be sandblasted off the side the Tomb of the Unknowns?” He asks. “I’d like to see them try.”
Dys and the solicitor general’s office are not alone in their assessments. Justice Clarence Thomas has repeatedly noted how confusing this area of First Amendment law has become, and he started making that point decades ago.
In his concurring opinion in the 1995 Rosenberger v. Rector decision, Thomas wrote that “our Establishment Clause jurisprudence is in hopeless disarray.” When dissenting against the court’s refusal to hear a case out of Utah in 2011, Thomas also noted that “this Court’s nebulous Establishment Clause analyses” have “confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone’s guess.”
In a 1993 opinion, Justice Antonin Scalia compared the Lemon test to “some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad.”
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