Supreme Court Decides American Legion v. American Humanist Ass'n

On June 20, 2019, the U.S. Supreme Court decided American Legion v. American Humanist Ass’n, holding that longstanding public memorials with historical importance that also have religious associations are entitled to a strong presumption of constitutionality, so the Bladensburg Cross World War I Memorial in Maryland does not violate the Establishment Clause.

During World War I, the army marked soldiers’ graves with the image of a simple white cross. In 1925 the American Legion of Prince George’s County, Maryland, completed a World War I monument in the form of a 32-foot-tall Latin cross that sits on a large pedestal, with a plaque that lists the names of 49 local men who died in the war. The memorial became known as the Bladensburg Cross. In 1961, the Maryland-National Capital Park and Planning Commission (Commission) acquired the cross and the land on which it sits in order to preserve the monument and address traffic-safety concerns.” The cross is now located on a traffic island, but memorials honoring the veterans of other conflicts have been added to the surrounding area, which is now known as Veterans Memorial Park.

The American Humanist Association sued the Commission in federal court, alleging that the cross is an unconstitutional establishment of religion and requesting that it be removed or re-shaped into an obelisk. The district court held that the cross satisfied the three-pronged test of Lemon v. Kurtzman, 403 U.S. 602 (1971), but the Fourth Circuit reversed, holding that the cross violates the Establishment Clause of the Constitution.

The Supreme Court reversed. The Court cited four reasons for concluding that that long-established religiously expressive monuments, symbols, and practices are entitled “to a strong presumption of constitutionality.” First, the Court explained that “identifying their original purpose or purposes may be especially difficult,” and courts should not “compel their removal or termination based on supposition” that the original motivation was impermissibly religious. Second, “even if the original purpose of a monument was infused with religion,” over time a community may preserve them “for the sake of their historical significance or their place in a common cultural heritage.” Third, the message conveyed by a monument may change over time from religious to nonsecular. And fourth, removing longstanding historical monuments “may no longer appear neutral” to religion, and may in fact “strike many as aggressively hostile to religion.”

The Court held that these four considerations favored the Bladensburg Cross’ constitutionality. Because the cross quickly became a symbol of the Great War, “it is impossible to tell” whether the original purpose for the memorial cross was predominantly religious, but it certainly “took on an added secular meaning”. The Court added that, despite its shape, the monument had from the beginning commemorated Jewish as well as Christian soldiers. And in any event, in modern times “historic preservation” is an additional secular reason for maintaining the memorial, to remind citizens “of the deeds of their predecessors and of the sacrifices they made in a war fought in the name of democracy.” In addition, the numerous additional monuments that are now located nearby may have attenuated any impermissible religious message that the cross once sent. And “a campaign to obliterate items with religious associations may evidence hostility to religion” rather than the government neutrality that the Establishment Clause requires.

Justice Alito delivered the opinion of the Court, in which Chief Justice Roberts and Justices Breyer, Kagan, and Kavanaugh joined. (Justice Kagan did not join portions of Justice Alito’s opinion.) Justices Breyer and Kavanaugh filed concurring opinions. Justice Kagan filed an opinion concurring in part. Justice Gorsuch filed an opinion concurring in the judgment, in which Justice Thomas joined. Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined.