One of the big legal issues facing our country is where and how we are going to draw the line between religion and the government. And church and state arguably got a bit closer this week — before the end of the decade, we may find them in a full embrace.
On Thursday, the Supreme Court ruled on the contours of the Establishment Clause, a portion of the First Amendment that provides “Congress shall make no law respecting an establishment of religion.” The court has previously interpreted the clause to mean that the government cannot promote one religion over another religion, or promote religion generally over nonreligion, or vice versa.
The question in American Legion v. American Humanist Association violates that clause. But it involves not just any 40-foot cross, but a war memorial honoring veterans of World War I.
This week, the court ruled that the cross could stand, but in doing so, it provided more questions than answers about how much the government can support or promote religious symbols.
This week, the court ruled that the cross could stand, but in doing so, it provided more questions than answers about how much the government can support or promote religious symbols. The decision showed us what we really have on the Supreme Court — a group of justices coming to some consensus on only the most macro issues. Look behind the curtain and we have justices putting forward opinions that would fundamentally re-shape our understanding of the Establishment Clause.
We have our longest-serving justice, Clarence Thomas, arguing that the Establishment Clause may not even apply to actions by states and localities, but instead only applies to laws passed by Congress. We have one of our newest justices, Neil Gorsuch, arguing that if you’re offended by a religious display on government property, you should just look away, not go to federal court. In other words, we have at least two members of the court ready to defang the Establishment Clause. And we have our most recent member of the court, Justice Brett Kavanaugh, arguing that the Establishment Clause only applies when the government does something relatively extreme like forcing people to support religion.
How did this case begin? The American Humanist Association, a nonprofit group, sued the Maryland-National Capital Park and Planning Commission, which maintains the memorial, arguing that the war memorial amounts to an unconstitutional promotion of religion. They lost in the trial court, but won on appeal in the U.S. Court of Appeals for the 4th Circuit, which concluded that the primary effect of the cross was to endorse religion. On Thursday the Supreme Court disagreed.
Justice Samuel Alito, joined by six other members of the court, concluded that the war memorial does not violate the Establishment Clause. But the justices wrote seven separate opinions, indicating that just below the surface of a relatively united front, there are significant fracture lines on the court about the role of religion in public life, and specifically whether religious symbols can be displayed on government land.
First to the main opinion. After oral arguments, it appeared that not only the five conservative justices but also two of the liberal ones, Stephen Breyer and Elena Kagan, were comfortable letting the cross stand. And indeed, Breyer joined the entire opinion and Kagan joined most of it. It is interesting to note that prior to joining the Supreme Court, Kagan was a lawyer for the federal government. In that capacity she successfully argued that a different cross did not violate the Establishment Clause.
The big takeaway from Alito’s opinion may be that established monuments, even when in the form of religious symbols, do not violate the Establishment Clause. “The passage of time gives rise to a strong presumption of constitutionality,” Alito wrote. Mark this as a win for old religious symbols everywhere.
In fact, the court concluded that while the memorial is a cross, it is now considered a “community landmark,” and that it had lost its religious meaning and become a secular symbol. Alito found that if the court ordered the cross removed or altered, it would actually look like the court was being hostile toward religion. Alito also relied on the fact that there was no evidence of discriminatory intent in the creation or maintenance of the cross on government land.
The decision Thursday is consistent with a 2005 Establishment Clause decision in which the court said it was constitutional for the Ten Commandments to be displayed in the Texas state Capitol. In that case, as in the American Legion case, the court relied heavily on the idea that the display had a historical meaning.
Gorsuch wrote a separate concurring opinion arguing that people who are offended by religious symbols lack standing to sue in court. Essentially Gorsuch is arguing that an individual or a group in Establishment Clause cases like these does not have a sufficient, concrete injury that could be remedied in federal court. Somewhat surprisingly, Gorsuch argues that people offended by the cross should avert their eyes. This would significantly reduce the power and force of the Establishment Clause. Thomas joined this portion of the opinion.
Thomas, for his part, wrote separately to reiterate his belief that the Establishment Clause is relatively narrow. He argued that it should not apply to the states at all, and does not apply to things like monuments, but only laws that would promote religion. This is, at least currently, a fairly radical view. It would mean that states are only bound by state constitutions regarding the promotion of religions or nonreligious beliefs, like atheism. The federal Constitution would conceivably be inapplicable in a situation in which the city of San Francisco, for example, decided to erect an enormous cross in the middle of Union Square. Time will tell if Thomas’ view enters the mainstream of legal thought.
Kavanaugh, in his separate opinion, appeared to put forward the idea that the Establishment Clause only prevents activities that are seen as coercive, such as government laws that would force people, against their desires, to support religion. Like the arguments put forward by Gorsuch and Thomas, this would also significantly limit the scope of the clause.
Somewhat surprisingly, Gorsuch argues that people offended by the cross should avert their eyes. This would significantly reduce the power and force of the Establishment Clause. Thomas joined this portion of the opinion.
Justices Ruth Bader Ginsburg and Sonia Sotomayor were the only justices to dissent from all portions of the court’s opinion. Ginsburg took the somewhat unusual step of reading her dissent from the bench, a statement indicating the extent of her displeasure with the court’s conclusion. Ginsburg argued that a cross was and is an inherently religious symbol, and therefore when it is shown on government property, the government is seen as endorsing religion. Ginsburg also took issue with Alito’s conclusion that this cross has become a secular symbol, instead suggesting that the cross is only an appropriate memorial for Christian soldiers.
Thursday's decision means that not only can the cross in Maryland stand, but also that other religious symbols on government property may not violate the Establishment Clause. This has clear implications for symbols like the Ten Commandments and even religious holiday scenes on government property like public schools, public libraries, public parks and courthouses. After the court’s opinion in American Legion, it appears those symbols must be old, established and on government property for a lengthy, but unspecified, period of time.
While the opinion may bring some clarity to the line between church and state, it remains a line drawn on an Etch A Sketch. The fact that there were a whopping seven separate written opinions Thursday indicates that the court remains divided and conflicted about the role of religious symbols in public life.