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By James J. Barney
Associate Professor of Legal Studies, School of Security and Global Studies, American Military University

In 1925, in the aftermath of World War I, the American Legion in Bladensburg, Maryland, constructed a 40-foot monument in the form of a Celtic-Latin cross to recognize the sacrifice of the 49 local men who died during the war.

The monument that now stands on state land in a small park surrounded by busy crossroads contains an inscription celebrating the men who died with the words Valor, Endurance, Courage and Devotion.

After standing unchallenged for more than 90 years, the cross became an object of litigation when an activist organization called American Humanist Association (AHA), which advocates for a strict separation between church and state, was offended by the monument’s cross shape and sued. The AHA argument was that the presence of the monument on state property violates the establishment clause of the First Amendment.

In a 1971 case, Lemon v. Kurtzman, 403 U.S. 602 (1971), the United States Supreme Court established a three-part test that examined the purpose, effect and relationship created between religion and a state by the law in question.

The district court, relying on the three-part test, held that although the memorial was in the shape of a cross, it had a predominately secular purpose.

But in a 2-1 decision, the Fourth Circuit Court disagreed and held that the cross was, at its core, a religious symbol associated with Christianity. The monument therefore constituted an endorsement of religion and the court directed that the monument be moved or altered.

The case then went to the United States Supreme Court consolidated as American Legion v. American Humanist Association and Maryland–National Capital Park and Planning Commission v. American Humanist Association.

Known simply as the “Peace Cross case,” it provided Supreme Court observers with one of the first opportunities to assess the impact of the two Justices appointed by President Trump, Justices Brent Kavanaugh and Neil Gorsuch, on First Amendment jurisprudence.

On June 20, the Supreme Court issued its decision, one of the most significant of the current Supreme Court term.

In a 7-2 decision that has sparked a tremendous amount of commentary and criticism, the Supreme Court reversed the Fourth Circuit ruling and found that the monument should remain in place. More significantly, a majority of the Justices sharply criticized the Lemon case and seriously limited its applicability.

The Lemon Test, the Town of Greece Test or a Coin Flip? 

Legal commentators have long complained about the confusing state of First Amendment jurisprudence when evaluating the constitutionality of symbols on government property that have arguably both secular and religious meanings.

Thus, at its core, the Peace Cross Case sought to determine whether the courts should apply the three-part test in Lemon or the test established in Town of Greece v. Galloway, 572 U.S. (2014) when evaluating whether a display of symbols that have both secular and religious meanings on government land violates the Establishment Clause. The Establishment Clause states in part that “Congress shall make no law respecting an establishment of religion.”

In Town of Greece, the Supreme Court in a 5-4 decision held that a town’s practice of beginning legislative sessions with a short prayer did not violate the Establishment Clause. In reaching this decision, the Court looked at the history of the prayer, the prayer’s effect on those who subscribed to a different faith or no faith at all, and whether the prayer had a coercive effect.

Over the years, several Justices, including recently retired Justice Anthony Kennedy, have questioned whether the three-part Lemon test provides the courts with a functional way to evaluate if a law or practice has violated the Establishment Clause, especially in situations where the Supreme Court had to review the display of symbols or practices commonly associated with religions.

The Peace Cross case represented the perfect opportunity to clarify the standard that courts must apply when addressing the constitutionality of symbols on federal or state land that arguably have both religious as well as secular meanings. The Supreme Court ruling provides further clarity to First Amendment jurisprudence by firmly stating that the Lemon test was inapplicable when evaluating such symbols.

Oral Argument Provided Valuable Insight into the Justices’ Reasoning

While some Supreme Court watchers often discount predictions of Supreme Court decisions based on the questions Justices ask, several Justices — including Justice Alito — appeared to have revealed their positions during oral argument in the Peace Cross case on February 27.

Moreover, not only did the audio of the oral argument provide listeners with a vivid illustration of the unworkability of the Lemon three-part test, it also provided keen Supreme Court observers with insight into how the Justices viewed the legal issues raised by the Peace Cross case.

While Justice Ruth Bader Ginsburg continuously linked the cross and Christianity during oral argument, other Justices including Roberts, Kavanaugh, Alito and Gorsuch focused their questioning on the monument’s origins, its effect on non-believers who saw it, and whether the monument sought to proselytize non-believers.

Throughout oral argument, Justices Roberts and Alito asked questions that hinted they believed that the mere presence of religious symbols on state or federal property, like the Peace Cross or hypothetical Native American totem poles, did not violate the Establishment Clause.

Justices Roberts and Alito’s questions centered on whether the Peace Cross had a secular purpose, whether it sought to coerce non-believers into belief in Christianity, and whether the presence of the Peace Cross on government land was in line with a long-standing historical practice in the United States.

The fact that the Peace Cross sought to commemorate a historical event and that the monument had not been associated with any religious practice for nearly a century also featured prominently in the Justices’ questioning. Several of them asked whether a violation of the First Amendment occurred in 1925 when the American Legion erected the monument and whether its presence on public lands for nearly a century “grandfathered” it in for having occurred long before any of the cited rulings.

Moreover, during oral argument, several Justices also appeared very concerned about the possible implications of adopting the AHA’s view of the Establishment Clause as an absolute. Their concern was that such an absolutist view of the Establishment Clause would potentially result in the removal of hundreds of religious symbols from public lands, including the crosses from Arlington National Cemetery. However, at least four Justices signaled such a result was unlikely.

The Justices’ profound skepticism – as reflected during the oral argument on the applicability of the three-part Lemon test, as well as their emphasis on the age of the monument and its history – eventually found a home in the plurality decision drafted by Justice Alito as well as in the concurrence opinion issued by Justice Gorsuch on June 20.

Seven Justices Agreed the Peace Cross Should Remain, but They Disagreed on Why

Seven justices agreed that the Peace Cross should remain. However, the seven disagreed on why it should remain.

Justices Alito, Kavanaugh and Breyer, along with Chief Justice Roberts, determined that the Peace Cross should stand in large part because it not only had a secular meaning, but also because the monument stood unchallenged for nearly a century. Thus, the plurality emphasized how the history of the monument played a pivotal role in their analysis of its constitutionality.

Moreover, the plurality stated that they supported retiring Lemon’s three-part test and replacing it with the test outlined in Town of Greece when evaluating whether religious symbols displayed on state or federal property violated the Establishment Clause.

According to the plurality in the Peace Cross case, the Town of Greece test allows the courts to consider the history of the monuments and that of the United States when evaluating the constitutionality of the item in question. Also, Town of Greece provides a more workable test when evaluating the constitutionality of items that have religious as well as secular meanings.

Justice Kagan, who agreed that the Lemon test had limited applicability, found that Town of Greece’s emphasis on “history” was too vague. Thus, in a separate concurring opinion, she advocated for a replacement of the Lemon test, but cautioned against the adoption of the Town of Greece standard.

By issuing her separate concurrence, Justice Kagan set up future court battles over what standard to use when evaluating symbols on government land with both religious and secular meanings.

In another concurrence, Justice Thomas stated that the organizations and individuals that sought to remove the monument lacked standing to bring the lawsuit in the first place. He then proceeded to discuss the many weaknesses of Lemon. Because Justice Thomas held that the organizations and individuals who challenged the monument lacked standing, his criticism of the Lemon test amounts to little more than obiter dictum, i.e., the expression of a judge’s opinion that does not establish a binding precedent.

Justice Gorsuch also found that the challengers to the monument lacked standing and he too celebrated the eventual demise of the Lemon test. However, Gorsuch did not fully endorse the adoption of the Town of Greece test. Instead, he suggested that cases like the Peace Cross case should never result in federal litigation in the first place.

In a vigorous dissent written by Justice Ginsburg and joined by Justice Sotomayor, the dissenters found that the Peace Cross was inherently a religious symbol and that the presence of the monument in a shape of a cross on state land was a violation of the First Amendment.

The Decision Hints at the Future Retirement of the Lemon Test

The outcome of the Peace Cross case was ultimately an easy call to predict based on the voting in Town of Greece. Justices Kavanaugh and Gorsuch were widely predicted to vote along with Justices Roberts, Thomas and Alito (three of the five majority votes in Town of Greece) to keep the monument in place. Ultimately seven Justices agreed that the monument should remain in place for various reasons.

While the outcome of the Peace Cross case may not have been much in doubt to keen Supreme Court watchers, the plurality’s decision to issue a broader ruling that adopted the Town of Greece test may have surprised some of them.

While not wholly jettisoning the Lemon test, the plurality’s decision provides a degree of clarity to First Amendment jurisprudence.

Specifically, the plurality decision allows courts to consider the traditions and history of the United States ignored by the Lemon test when evaluating the constitutionality of monuments and symbols on state and federal land that have both secular and religious meanings. Moreover, the case represents the further erosion of the applicability of the Lemon test and hints that a future Supreme Court decision might finally retire the unworkable test.

For these reasons, the Peace Cross case represents one of the most consequential cases of the current Supreme Court term.

About the Author

James Barney is an Associate Professor of Legal Studies in the School of Security and Global Studies. In addition to possessing a J.D., James has several master’s degrees, including in American foreign policy. He is currently completing his Ph.D. in History. James serves as one of the faculty advisors of the Phi Alpha Delta law fraternity as well as the Model United Nations Club and acts as the pre-law advisor at APU. Currently, he is working on a year-long research project that focuses on Justice Kavanaugh’s impact on the Supreme Court.

James is licensed to practice law in New York, New Jersey, Alabama and the District of Columbia. Over the past several years, he has served in various roles at debating and moot trial competitions in New York and Washington, D.C. In 2019, James will coach the APUS mock trial team at Phi Alpha Delta’s annual mock trial competition in Arlington, Virginia and will also serve as one of the faculty advisors for the school’s Model UN delegation to the National Model United Nations-Washington D.C. conference.