Justices Uphold Cross on Public Land and Debate Key Test for School Religion Cases

By Mark Walsh — June 20, 2019 4 min read


The U.S. Supreme Court on Thursday upheld a 94-year-old cross memorializing a Maryland county’s World War I dead, but stopped short of overruling the so-called Lemon test for evaluating government interaction with religion.

In multiple opinions in the 7-2 decision allowing the Bladensburg Peace Cross to remain, a majority of justices suggested the test from the 1971 case of Lemon v. Kurtzman had little viability remaining. Under that three-part test, courts must examine whether government action regarding religion had a secular purpose, had the primary effect of advancing or inhibiting religion, or created an excessive entanglement with religion.

“If the Lemon Court thought that its test would provide a framework for all future establishment clause decisions, its expectation has not been met,” Justice Samuel A. Alito Jr. wrote in the main opinion in American Legion v. American Humanist Association (Case No. 17-1717), parts of which were a mere plurality of four justices, and much of which was joined by a total of five justices.

Alito said the Lemon test presents particularly daunting problems in cases that involve the ceremonial use of words or symbols with religious associations, such as the cross case before the court.

The case before the court involved a 40-foot-tall memorial that stands in a large highway median in Bladensburg, Md. It was erected in 1925 by the American Legion to honor 49 men from Prince George’s County, Md., who died during World War I. In 1961, the cross and the land beneath it were acquired by the Maryland-National Capital Park and Planning Commission, a state agency.

Last year, ruling on a 2012 challenge brought by the American Humanist Association, a panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., ruled 2-1 that the cross on public land violated the Lemon test because it has the primary effect of endorsing religion and excessively entangles the government in religion.

Alito wrote for the Supreme Court that the Bladensburg cross was a symbol closely linking to World War I, when American soldiers buried overseas were memorialized with row after row of simple white crosses or Stars of David, depending on their faith.

“The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent,” Alito said.

His opinion was joined in large parts by Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer, Elena Kagan, and Brett M. Kavanaugh. Justices Clarence Thomas and Neil M. Gorsuch concurred in the outcome, each offering separate opinions on various points.

Justice Ruth Bader Ginsburg wrote a dissent joined by Justice Sonia Sotomayor.

“By maintaining the Peace Cross on a public highway, the [Maryland] commission elevates Christianity over other faiths, and religion over nonreligion,” Ginsburg said in the dissent, part of which she read from the bench. “Memorializing the service of American soldiers is an admirable and unquestionably secular objective. But the commission does not serve that objective by displaying a symbol that bears a starkly sectarian message.”

The Lemon Test and School Cases

Justice Ginsburg did not address the Lemon test, but almost every other justice who wrote an opinion did.

Alito, in a portion of his opinion signed only by Roberts, Breyer, and Kavanaugh, cited numerous religious cases in which the court has declined to apply or “simply ignored” the Lemon test, including such education cases as Zobrest v. Catalina Foothills School District, Board of Education of Kiryas Joel School District v. Grumet, and Good News Club v. Milford Central School.

“This pattern is a testament to the Lemon test’s shortcomings,” Alito said. But he ultimately concluded that cases involving the use of religious words or associations for ceremonial purposes were not well-suited for evaluation under Lemon, and he said there should be “a presumption of constitutionality for longstanding monuments, symbols, and practices.”

But with the court not applying it to the cross case, and with conservative justices joining their predecessors who have criticized the Lemon test for decades, it remains unclear how lower courts should apply the test to First Amendment establishment of religion cases involving schools.

In a concurrence, Kavanaugh said that Lemon has not guided the court on any number of recent establishment clause cases, include those involving government-sponsored prayer in public schools (citing 1992’s Lee v. Weisman) or those allowing private religious speech in public forums on an equal basis with secular speech, for which he cited Good News and 1993’s Lamb’s Chapel v. Center Moriches Union Free School District, both of which upheld after-school use of public school facilities by religious groups.

“The court’s decisions over the span of several decades demonstrate that the Lemon test is not good law and does not apply to establishment clause cases in any” of five broad categories, Kavanaugh said.

Kagan, in a short concurrence, came to the Lemon test’s defense.

“Although I agree that rigid 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,” she wrote.

Thomas, in his opinion concurring in the judgment, said the Lemon test was “long-discredited.”

Gorsuch, in his own opinion concurring in the judgment, joined by Thomas, said “Lemon was a misadventure.”

“It sought a ‘grand unified theory’ of the establishment clause but left us only a mess,” he said.

Gorsuch objected to the idea of the “offended observer” who can bring an establishment clause challenge, but he said “a public school student compelled to recite a prayer will still have standing to sue.”

A version of this news article first appeared in The School Law Blog.

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