Are We Done Taking God Out of Government?

Written by Sorin A. Leahu

Is the law settled when it comes to eliminating religious symbols from public places? Or are we still awaiting a case with broader implications for religious exercise?

On June 20, 2019 the United States Supreme Court issued an important decision finding that the State of Maryland did not violate the establishment clause by allowing the Bladensburg Peace Cross on public land. Nor did the State violate the establishment clause by using public funds to maintain the cross.

By way of background, the cross is a 40-foot Latin cross erected in 1925 to pay tribute to World War I soldiers. The lawsuit was brought by the American Humanist Association in the District Court of Maryland which ruled in favor of the cross and against the humanists. The Fourth Circuit Court of Appeals, however, reversed, ruling that the cross violated the establishment clause. The U.S. Supreme Court, by a vote of 7-2, reversed.

The lead opinion was authored by Justice Alito who provided four rationales for why there should be a “strong presumption of constitutionality” in favor of “retaining established, religiously expressive monuments, symbols and practices.” (Slip op. at 16-21.). These four rationales were summarized by Ed Whalen at the National Review as follows:

“First, it may be “especially difficult” to identify the “original purpose or purposes” of monuments, symbols, or practices that “were first established long ago.”

Second, “as time goes by, the purposes associated with an established monument, symbol, or practice often multiply”: a community may preserve such monuments, symbols, and practices “for the sake of their historical significance or their place in a common cultural heritage.”

Third, the message they convey might also change over time. Consider, for example, the messages now conveyed by the Statue of Liberty, Notre Dame Cathedral, or the many cities that bear religious names.

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” but might instead “strike many as aggressively hostile to religion.”

Alito, applying these four rationales, found that the cross in this case passed constitutional muster.

The Court’s opinion is also interesting for other reasons. Two justices, Gorsuch and Thomas, issued a concurring opinion rejecting standing in the case on the basis of the “offended observer” theory. Under this theory, a court has jurisdiction to hear a case challenging religious display simply because the one challenging the display was offended by it. The two justices would reject that theory altogether.

Another interesting part of the case revolves around what has become known as the Lemon Test. At least three of the justices would reject the Lemon Test altogether while all seven who joined the lead opinion agreed that Lemon does not apply to the ceremonial, celebratory, or commemorative use of words or symbols with religious associations.

But perhaps the most important part of the decision is what was left unresolved. It is unclear how this opinion would apply to the erection of new religious monuments and displays. Two of the concurring justices, Kagan and Breyer, believe that the Court’s ruling only applies to historic monuments and that newer ones might well be unconstitutional. Justice Gorsuch and Thomas disagreed writing separately to state that the ruling applies to new monuments as well. This question may need to be resolved by future court cases.

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