The World War I Memorial Cross Case: U.S. Supreme Court Takes a New Approach with the Establishment Clause

On June 20, 2019, the Supreme Court of the United States handed down its much-awaited opinion in American Legion v. American Humanist Association, concerning constitutional restraints on religious expression by government. A World War I Memorial in the State of Maryland centered on a 32-foot tall Latin cross was alleged to prefer the Christian faith. By a division of seven to two, the High Court held that the state’s sponsorship and maintenance of the WW I Memorial Cross did not violate the Establishment Clause. In doing so, six of those seven justices refused to follow the formulation announced almost 60 years ago in Lemon v. Kurtzman, as well as Lemon’s no-endorsement spin-off, and they proceeded to followed a different interpretative approach—albeit not the same approach by each justice. Cases involving religious content or imagery in longstanding monuments, mottos, and displays are now likely upheld. Most important, five of the seven justices, still a Court majority, interpreted the Establishment Clause by aligning it with historical practices at the founding and early republic. There is no denying that a Latin cross is the preeminent symbol of Christianity. There also is no denying that the tall Latin cross is the dominant feature of the WW I Memorial located on a traffic island at a highway intersection in urban Maryland. While the site is not easily accessible to pedestrians, to automobile passengers such as Plaintiffs the cross is the memorial’s only discernable feature as they negotiating their way through the busy intersection. After detailing the facts, Part II of this article is an account of the High Court’s decision, splintered into six separate opinions by the seven-justice majority, concerning all that ails Lemon and its uneven results. Most importantly, it discusses how five of these seven justices interpreted the Establishment Clause by reference to historical practices—but with continued division over which events from the past are binding. The separate opinions concurring in the judgment by the two conservative justices, Thomas and Gorsuch, are essential to understanding the ascendance of the historical test. Part III of the article raises multiple concerns about the decision in American Legion. The Plaintiffs sought only prospective injunctive relief, not compensatory damages for past injuries. That should have put the judiciary’s focus primarily on the present intentions and actions of the State of Maryland in continuing to sponsor the Memorial Cross. Instead, the Court entertained testimony about decision points over the memorial’s hundred-year history, and evidence about the purposes not just of the government but private parties. Given Plaintiffs’ limited claim, only the present intentions of state actors are material. Also, overlooked by the Court is the role the Establishment Clause has in preventing harm to religion by too close an embrace by government. For example, for government to appropriate a religious symbol or name and use it to advance the state’s own policies can result in a church’s identity being confused or diluted. Moreover, government-favored religion can become civil religion, along with its conflation of patriotism and piety. An interest in preventing such injury was not represented by any of the parties before this Court, albeit Justice Ginsburg did touch on it in her dissent. Although urged forward by Defendants, the Court did not adopt a “coercion test.” That would have overturned a long line of precedent going back to the early 1960s. Too bad a couple of the concurring opinions spoke favorably of the test. There also was a suggestion that public perception of state “hostility to religion” was unconstitutional, when it is axiomatic that government is alone accountable for “state action,” not private perceptions. Finally, Justice Gorsuch did not join the Court’s opinion because he thought Plaintiffs did not have standing to sue. Yet the Court has four times reduced the rigor of standing in cases like this so that the Establishment Clause can fulfill its role in rightly ordering these two centers of authority we call church and state.