Cross Purposes

The Supreme Court’s greatly anticipated Establishment Clause decision of the term, American Legion v. American Humanist Association, is a complicated and perplexing piece of work. There are many opinions going in different directions, with some justices refusing to join parts of opinions that they actually embrace, and other justices joining parts that they actually disavow. In this essay, I do three modest things: identify the holding of the case, discuss the case’s implications for future Establishment Clause cases, and think through what this fractured decision suggests about the dynamics on the Court and elsewhere concerning religious symbols.

If that doesn’t seem ambitious enough, just sit tight.

American Legion is about the constitutionality of a thirty-two-foot cross that stands on a traffic island straddling a highway in Prince George’s County, Maryland. The cross was dedicated in 1919 and was erected as a World War I memorial to honor the county’s fallen soldiers. Local residents and members of the community selected a cross, rather than another symbol, to honor their war dead for what would today be deemed both “religious” and “secular” purposes; at the time, these were intertwined motivations that could not be disaggregated and splintered in the modern style (though many today insist on doing so). While the cross was initially erected and funded privately, several years later the local government acquired it and has preserved it since. The American Humanist Association sued to remove the cross as a violation of the Establishment Clause, and the Fourth Circuit agreed, striking it down as unconstitutional and proposing to lop off the cross’s arms.

Almost nobody thought the Supreme Court would accept this outcome. To that extent, expectations were vindicated. By a vote of seven to two, the Cross was allowed to stand, with only Justices Ginsburg and Sotomayor in dissent.

The Holding

Normally, though, the Supreme Court doesn’t just announce a result. It explains the outcome by reference to an approach or method that will apply to future cases implicating analogous issues. It provides guidance to lower courts, and it stabilizes the law, at least a little. The holding of a case is the rule that is necessary to decide it. And this is where things start to get complicated.

Justice Alito wrote the principal opinion in the case. Part of that opinion was joined by a majority of the justices: Chief Justice Roberts, Justice Breyer, Justice Kagan, and Justice Kavanaugh. But another part of Alito’s opinion, the “plurality,” was joined by only three other justices: the Chief Justice, Justice Breyer, and Justice Kavanaugh.

The holding of American Legion lays out what could be called a jurisprudence of old religious monuments, symbols, and practices. When a religious monument, symbol, or practice, is old—whether it is a cross or a Ten Commandments monument or some other government practice of long standing—it is especially likely to be imbued with many purposes and messages that have changed and developed with time. Communities are entitled to maintain these religious monuments, symbols, and practices as part of their historical and cultural heritage, and the Court will no longer “roam[] the land, tearing down monuments with religious symbolism and scrubbing away an reference to the divine.” “The passage of time,” the majority said, “gives rise to a strong presumption of constitutionality,” and the Cross in this case clearly enjoys that presumption. It is both a Christian symbol and a symbol of war and patriotism. It is these things together.

Already, this holding works a considerable change in Supreme Court doctrine. It surrounds “old” religious “monuments, symbols, and practices” with a protective shield against judicial mischief in the name of the Establishment Clause. New religious monuments, symbols, and practices whose purposes are manifestly discriminatory, it is true, are not covered by the holding (more on this below), and the terms “new” and “old” are not defined. But the Court’s existing approach to state-sponsored religious displays is quite different. The much-reviled test in Lemon v. Kurtzman (1971) focuses on “the” purpose—“religious” or “secular”—of a display, as well as its “primary effect,” which the Court has subsequently interpreted in this context to mean whether a “reasonable observer” would perceive that the government is “endorsing” religion by displaying a monument or symbol. While Justice Kagan believed that the cross also survived under this approach, none of the other justices in the majority accepted Lemon, and all justices in the majority held that “old” displays have neither single purposes nor single meanings. This is flatly incompatible with the assumptions of Lemon.

There is overwhelming support on the Court for what would have been a broader holding. In Part II(A) of Justice Alito’s opinion, a four-justice plurality rejected the Lemon test and its “endorsement” application for these types of religious displays. It was something of a surprise that Justice Breyer joined the plurality. But it was a real shock that this part of Alito’s opinion was not officially joined by Justice Thomas or Justice Gorsuch. Those two justices authored respective concurrences in the judgment, which technically means that while they agree with the outcome, they do not join the Alito opinion’s reasoning. But both of them would have gone further than the plurality and rejected the Lemon test in its entirety. That they did not join Part II(A) rejecting the Lemon test—at least with regard to “old” displays—is baffling. For those who were hoping that something clearer would emerge from this case, it’s also rather exasperating.

Justice Thomas, in fact, goes so far as to say this about the Lemon/endorsement test: “the plurality rightly rejects its relevance to claims, like this one, involving ‘religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.’ I agree with that aspect of the opinion” (emphasis added). With Thomas, the reasoning in Part II(A) therefore has the explicit support of five justices. But because Thomas did not formally join Part II(A), the statement seems to be dicta, material in an opinion unnecessary to the judgment. Admittedly, the line between dicta and holding is not crystal clear, and the statement could even be read as an alternative holding. Justice Gorsuch’s concurrence in the judgment also has highly critical comments about Lemon, but Justice Thomas’s statement is a clear and explicit affirmation of the plurality’s position.

At any rate, the lesson of American Legion seems to be that the Lemon/endorsement test is rejected—at least for “old” religious monuments, symbols, and practices.

The Implications

Readers can certainly be forgiven if all this seems like stultifying hair-splitting. The Court could have avoided some of this complexity by offering clearer guidance. When it comes to American Legion’s implications for future cases, the picture is generally cloudy. Still, the case brings three issues into focus.

First, “old” religious “monuments, symbols, and practices” are now presumptively protected from court meddling on ostensible Establishment Clause bases. The older the better. It would not be surprising to see new litigation about how old is old enough to receive the Court’s presumption of constitutionality. Still, it is now clear that any court reviewing challenges to long-enduring religious symbols ought to focus not on possible hurt feelings caused by government “endorsement” of religious symbols or on the primary purposes of those who erected it. Instead, they should focus on the concrete historical context of the symbol.

Second, as for “new” or comparatively recent religious monuments, symbols, and practices, the bidding is open. If it were my money, in light of the composite of the plurality and concurrences in the judgment, I would place only very small wagers on the Lemon/endorsement test’s application even in those situations. I might bet a bit more on the Court’s possible intervention, with or without the Lemon/endorsement test, where the monument, symbol, or practice was both “new” and where there was clear evidence that it was motivated by religious animus against a particular group. But even new religious monuments, symbols, and practices, a majority of the Court concluded, may carry multiple meanings. The constitutional status of “new” symbols is perhaps the least clear feature of this case.

Third, one might reasonably wonder about the Court’s Establishment Clause method going forward. No fewer than five justices indicated that they favored a method based on “history and tradition.” (I set to the side Justice Breyer, who concurred in the part of the plurality opinion adopting that approach and yet also confusingly indicated in his separate concurrence that he was not adopting that approach.) It is notable that this is the second Establishment Clause case about this general type of issue in which the Court strongly supported an approach derived from “tradition.” The first was Town of Greece v. Galloway, concerning the constitutionality of legislative prayer. At the time, many who disliked Town of Greece argued that the traditionalist method was simply an exception for extremely well-established, ancient, and enduring practices like legislative prayer—a category essentially of one. But American Legion suggests that traditionalism might have a considerably broader application.

True, there are divisions among the justices who favor it about just what a traditionalist interpretive approach might look like. The plurality seems to focus on the age and endurance of a specific monument or practice. Justice Kavanaugh would combine an inquiry about whether a challenged government practice is “rooted in history and tradition” with whether it is also “coercive”; Justice Thomas, too, emphasizes coercion. Justice Gorsuch argues that the question is not whether a particular monument or practice is new or old, but whether a monument or practice—new or old—fits within the broader historical and enduring tradition engaged in by Americans.

If the Court is to pursue its “history and tradition” approach in the future, it will need to achieve some clarity and unity about what that method means. Fortunately for the Court, I am here to help.

The Court’s Dynamics (and Ours)

Some will regard American Legion as a lost opportunity for the Court to say something stronger, clearer, and more far-reaching about the Establishment Clause. Certainly, it might have been better if some of the various concurrences could have found their way to even partial zones of consensus with the plurality. That the Court instead issued such a fractured and complex opinion suggests that there are real divisions among the justices, even among the Court’s conservatives.

Nevertheless, if American Legion should not be overread, neither should it be dismissed. Together with Town of Greece, its practical effect is to indicate in no uncertain terms that the Court is moving away from its mid-to-late twentieth-century, highly secularist approach to the constitutionality of state-sponsored religious displays and expression. American Legion could have done more, but it could also have done a lot less.

There is a puzzle about why these cases about religious symbols provoke so much intense feeling. After all, nobody is being forced to do or say anything in them. They aren’t like other First Amendment cases in that respect. The stakes in them seem lower as a practical matter.

Perhaps they generate such deep emotion because they concern the type of people we Americans take ourselves to be, or to want to be. Our symbols and practices represent who we are and what we aspire to, so it should not be surprising that different religious, non-religious, and (especially) class-based constituencies should watch these cases so closely and respond to them with such intensity. The Supreme Court has long channeled the views of a very particular sort of religious and elite class interest in its Establishment Clause jurisprudence concerning religious displays. Cases like American Legion suggest that it is—gradually and haltingly, but nevertheless steadily—withdrawing from this field of cultural combat.