On Wednesday, the Supreme Court heard oral arguments in the case to take down the Bladensburg Cross outside Washington, D.C., called The American Legion v. American Humanist Association. Eric Baxter, vice-president and senior counsel at Becket, which is defending the cross, explained that he was excited about the judges’ reactions, as they seemed to resonate to the arguments in the defendants’ amicus brief that said the establishment clause must be interpreted according to its historical understanding.
As Amy Howe explained at SCOTUS Blog, “The challengers say that the cross is an illegal government endorsement of Christianity, while its defenders counter that the cross is simply a secular war memorial. The justices’ eventual opinion will likely decide the fate of the cross, but the ruling could also clarify – or potentially even revamp – the Supreme Court’s test for resolving these kinds of challenges.”
Howe continued, “The Constitution’s establishment clause bars the government from both establishing an official religion and favoring one religion over another. In 1971, in a case called Lemon v. Kurtzman, the Supreme Court struck down state programs that provided financial support for private schools, including religious ones. At the same time, the justices also outlined a test for courts to use to determine whether a government law or practice violates the establishment clause. They concluded that the law or practice will pass constitutional muster if it has a secular purpose, its principal effect does not advance or inhibit religion, and it does not create an 'excessive entanglement with religion.'"
Howe cited 2005’s Van Orden v. Perry, in which the Supreme Court “rejected an establishment clause challenge to the display of a Ten Commandments monument on the grounds of the Texas state capitol without relying on the Lemon test.”
The Bladensburg Cross was built to honor 49 soldiers from Prince George’s County, Maryland, killed during World War I. After private organizers could not fund protecting it any more, in 1922, local American Legion post replaced them. The cross and the surrounding area was acquired by the state government in 1961.
Some local residents joined the American Humanist Association to argue that because the cross sits on government land and the state maintains it, the establishment clause of the United States Constitution was being violated. Their claim was rejected by the district court, but the U.S. Court of Appeals for the 4th Circuit reversed the decision by using the Lemon test, saying the cross violated the establishment clause because it “has the primary effect of endorsing religion and excessively entangles the government in religion.”
Baxter commented on Wednesday:
The justices seemed clearly tired of the existing interpretation of the establishment clause what’s known as the “Lemon test,” which is a very fact-intensive test that asked, just what would the reasonable observer think? Is the government, by using this cross, trying to endorse Christianity or some other religion? And of course, every judge across the country has a different answer to that question. Judges for decades have been protesting that the “Lemon test” provides no guidance. And Becket’s amicus brief presents an answer to that concern. Justice Roberts specifically talked about our amicus brief and said, “A historical understanding of the establishment clause shows that the Founders were concerned about very specific harms.”
Baxter continued, “They were worried about government control of religious officials or religious doctrines. They were concerned about taxes to support established churches. They were worried about citizens being punished or fined for not attending the established churches. They concerned about government giving control of civic functions to religious organizations. These are very specific and distinct harms that the Founders were concerned about. They weren’t concerned about benign manifestations of religion in our history and culture.” He added, “The court has an excellent opportunity to adopt an interpretation of the establishment clause that is historically sound.”
Baxter also mentioned Justice Gorsuch: “Justice Gorsuch also raised the important argument that there are many ways to address these issues. Citizens can go to their local town boards, they can go to their state legislatures; they can go to their park planning commission like the party that’s at issue in this case.”
Baxter concluded, “It’s really exciting that the court today mentioned our brief directly. It was Justice Roberts … Justice Gorsuch also talked about our standing arguments: who can bring challenges to these kinds of cases, noting that just being offended by something you see in a park or on the roadside is not a sufficient ground to bring a constitutional claim of an establishment of religion.”