The American Legion v American Humanist Association: Bladensburg Cross Does Not Violate First Amendment

In The American Legion v American Humanist Association, 588 U. S. ____ (2019), the U.S. Supreme Court held that the Bladensburg Cross does not violate the Establishment Clause of the First Amendment. While seven justices agreed with the Court’s judgment, only four joined the lead opinion, with many justices diverging on the continued relevance of the test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971).

Facts of The American Legion v American Humanist Association

In 1918, residents of Prince George’s County, Maryland, formed a committee for the purpose of erecting a memorial for the country’s soldiers who fell in World War I. The committee decided that the memorial should be a cross, which was not surprising since the plain Latin cross had become a central symbol of the war. The image of row after row of plain white crosses marking the overseas graves of soldiers was emblazoned on the minds of Americans at home. The memorial would stand at the terminus of another World War I memorial—the National Defense Highway connecting Washington to Annapolis.

When the committee ran out of funds, the local American Legion took over the project, completing the memorial in 1925. The 32-foot tall Latin cross displays the American Legion’s emblem at its center and sits on a large pedestal bearing a bronze plaque that lists the names of the 49 county soldiers who had fallen in the war. At the dedication ceremony, a Catholic priest offered an invocation and a Baptist pastor offered a benediction.

The Bladensburg Cross (Cross) has since been the site of patriotic events honoring veterans on, e.g., Veterans Day, Memorial Day, and Independence Day. Monuments honoring the veterans of other conflicts have been added in a park near the Cross. As the area around the Cross developed, the monument came to be at the center of a busy intersection. In 1961, the Maryland-National Capital Park and Planning Commission (Commission) acquired the Cross and the land where it sits, but the American Legion reserved the right to continue using the site for ceremonies. The Commission has used public funds to maintain the monument ever since.

In 2014, the American Humanist Association (AHA) and others filed suit in District Court, alleging that the Cross’s presence on public land and the Commission’s maintenance of the memorial violate the First Amendment’s Establishment Clause. The American Legion intervened to defend the Cross. The District Court granted summary judgment for the Commission and the American Legion, concluding that the Cross satisfies both the test announced in Lemon and the analysis applied by Justice Stephen Breyer in upholding a Ten Commandments monument in Van Orden v. Perry, 545 U.S. 677 (2005). The Fourth Circuit reversed.

Court’s Decision in The American Legion v American Humanist Association

By a vote of 7-2, the Supreme Court reversed. Justice Samuel Alito wrote on behalf of the Court in a plurality opinion joined by Chief Justice John Roberts, Justice Stephen Breyer, and Justice Brett Kavanaugh. Justice Elena Kagan joined the majority opinion in part. Justice Clarence Thomas and Justice Neil Gorsuch concurred in the judgement, each writing separately.

In reaching its conclusion, the plurality made a distinction between retaining established, religiously expressive monuments, symbols, and practices and erecting or adopting new ones. According to Justice Alito, “The passage of time gives rise to a strong presumption of constitutionality.” With regard to the Bladensburg Cross, Justice Alito wrote:

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. For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark. For many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment. For all these reasons, the Cross does not offend the Constitution.

Notably, the Court notably did not apply the test set forth in Lemon in reaching its decision. “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 Alito wrote. “In many cases, this Court has either expressly declined to apply the test or has simply ignored it.”

Justice Kagan wrote separately to clarify that she did not believe Lemon should be abandoned. While she acknowledged that “rigid application of theLemontest does not solve every Establishment Clause problem,” Justice Kagan maintained that the “test’s focus on purposes and effects is crucial.”

Justice Kavanaugh took the opposite approach. In his concurring opinion, he argued that the Court “no longer applies the old test articulated in Lemon,” further stating that it “is not good law.” Justice Kavanagh also put forth a replacement test under which the Establishment Clause is not violated “if the challenged government practice is not coercive and if it (i) is rooted in history and tradition; or (ii) treats religious people, organizations, speech, or activity equally to comparable secular people, organizations, speech, or activity; or (iii) represents a permissible legislative accommodation or exemption from a generally applicable law.”