American Legion v. American Humanist Association

Notable Items:

Petitioner:
Respondent:
Venue:
Opinion of the Court: American Legion v. American Humanist Association (2019)

Issue(s) Before the Court:

Whether the Bladensburg Cross does not violates the Establishment Clause.

Petitioner's Claim(s):

the Cross’s presence on public land and the Commission’s maintenance of the memorial violate the First Amendment’s Establishment Clause.
The AHA sought declaratory and injunctive relief requiring “removal or demolition of the Cross, or removal of the arms from the Cross to form a non-religious slab or obelisk.”

Respondent's Claim(s):

Holding(s) and Disposition:

Held:No. The Bladensburg Cross does not violate the Establishment Clause.
Disposition: The judgment is reversed and remanded.

Material Facts:

In 1918, residents of Prince George’s County decided to erect a cross as a war memorial ....
The Maryland-National Capital Park and Planning Commission acquired the Cross and the land in 1961 and uses public funds for its maintenance.
2014, the American Humanist Association (AHA) and others filed suit in District Court
A full recounting of the facts is available below

Procedural History:

2014, the American Humanist Association (AHA) and others filed suit in District Court
District Court granted summary judgment for the Commission and the American Legion, concluding that the Cross satisfies both the test announced in Lemon v. Kurtzman, 403 U.S. 602, and the analysis applied by Justice Breyer in upholding a Ten Commandments monument in Van Orden v. Perry, 545 U.S. 677.
The Fourth Circuit reversed.

Rationale

Alito Majority Opinion (Roberts, Breyer, Kavanaugh)

Secularized meaning to Bladensburg Cross.
With the passage of time use of religious symbols becomes presumptively Constitutional. Lemon Test discarded.
[Therefore, declare its okay.]
A full description of the rationale is available below

Gorsuch Concurrance (Thomas)

Thomas Concurrance (none)

Kagan Concurrance (none)

I fully agree with the Court’s reasons for allowing the Bladensburg Peace Cross to remain as it is, and so join Parts I, II–B, II–C, III, and IV of its opinion,....
...application of the Lemon test does not solve every Establishment Clause problem, I think that test’s focus on purposes and effects is crucial in evaluating government action in this sphere...
I therefore do not join Part II–A. I do not join Part II–D out of perhaps an excess of caution.

Breyer Concurrance (Kagan)

I have long maintained that there is no single formula for resolving Establishment Clause challenges. See Van Orden v. Perry, 545 U.S. 677, 698 (2005) (opinion concurring in judgment)
... the basic purposes that the Religion Clauses were meant to serve:
assuring religious liberty and tolerance for all,
avoiding religiously based social conflict, and
maintaining that separation of church and state that allows each to flourish in its “separate spher[e].”
Nor do I understand the Court’s opinion today to adopt a “history and tradition test” that would permit any newly constructed religious memorial on public land. See post at 1, 4 (Kavanaugh, J., concurring); cf. post at 8−9 (Gorsuch, J., concurring in judgment).

Kavanaugh Concurrance (none)

Ginsberg Dissent (Sotomayor)

Full Recounting of Facts

In 1918, residents of Prince George’s County decided to erect a cross as a war memorial ....
The Maryland-National Capital Park and Planning Commission acquired the Cross and the land in 1961 and uses public funds for its maintenance.
Over the next five decades, the Commission spent approximately $117,000 to maintain and preserve the monument.
In 2008, it budgeted an additional $100,000 for renovations and repairs to the Cross.
2014, the American Humanist Association (AHA) and others filed suit in District Court
A list of the material facts is available above

Majority Full Argument

[Part I A: Cross as Secular Symbol]
But there are many contexts in which the symbol [cross] has also taken on a secular meaning. Indeed, there are instances in which its message is now almost entirely secular.
Americans saw photographs of these cemeteries, what struck them were rows and rows of plain white crosses.
As a result, the image of a simple white cross “developed into a ‘central symbol’ ” of the conflict. [not single, multiplicity]
The image of “the crosses, row on row,” stuck in people’s minds, and even today for those who view World War I cemeteries in Europe, the image is arresting. [italics added]
[Part I B: detailed history of committee, history, dedication, etc. givin the lie to "original purpose or purposes may be especially difficult." above]
[Part I C: Procedural History]
The Cross, the District Court held, satisfies both the three-pronged test announced in Lemon v. Kurtzman
(1) has a secular purpose; [to commemorate World War I and to ensure traffic safety]
(2) has a “principal or primary effect” that “neither advances nor inhibits religion”; [reasonable observer aware of the Cross’s history, setting, and secular elements]and
(3) does not foster “an excessive government entanglement with religion,” [Nor, did ... maintenance create “continued and repeated government involvement with religion” that would constitute an excessive entanglement]
and the analysis applied by Justice Breyer in upholding the Ten Commandments monument at issue in Van Orden v. Perry,
Court of Appeals for the Fourth Circuit reversed....
reasonable observer would view the Commission’s ownership and maintenance of the monument as an endorsement of Christianity.
excessively entangled with religion...more than de minimis public funds to maintain it.
[Part II A: Repudiate Lemon Test]
[In re: Lemon test] (1971) In many cases, this Court has either expressly declined to apply the test or has simply ignored it. Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993)
[In re: Lemon test] could not “explain the Establishment Clause’s tolerance, for example, of the prayers that open legislative meetings, ... Van Orden
For at least four reasons, the Lemon test presents particularly daunting problems in cases
[Part II B: Detail Lemon Test Issues]
First, these cases often concern monuments, symbols, or practices that were first established long ago, and thus, identifying their original purpose or purposes may be especially difficult.
Second, as time goes by, the purposes associated with an established monument, symbol, or practice often multiply, ... Van Orden
Third, the message of a monument, symbol, or practice may evolve, ... Maryland’s flag, .... [idiot: quartering of Calvert and Crossland families (Lords Baltimore and Calvert)]
Fourth, when time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance, removing it may no longer appear neutral, especially to the local community. [oh...we do care how we are preceived]
[Part II C: Repeated Action Excuses ]
The AHA is not offended by the sight of the Argonne Cross or the Canadian Cross of Sacrifice ....
The difference, according to the AHA, is that their location in a cemetery gives them a closer association with individual gravestones and interred soldiers.
But a memorial’s placement in a cemetery is not necessary to create such a connection.
[Part II D: More Repeated Action Excuses]
Court conspicuously ignored Lemon and did not respond to Justice Brennan’s argument in dissent that the legislature’s practice could not satisfy the Lemon test.
As the Court put it in Town of Greece: “Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation.”
[Part III]
Applying these principles, we conclude that the Bladensburg Cross does not violate the Establishment Clause.
The core of the rationale is available above