Does the government-funded display and maintenance of a 40-foot-tall cross-shaped World War I memorial placed at a public highway intersection violate the Establishment Clause of the First Amendment because of its relation to Christianity?
This case asks the Supreme Court to resolve whether the state’s ownership and maintenance of a 40-foot-tall World War I memorial shaped like a Latin cross violates the Establishment Clause of the First Amendment. Petitioner American Legion proposes that the Court adopt a standard for Establishment Clause violations that focuses on coercion, or whether the government compelled citizens to participate in religion. Under this standard, the American Legion contends that the memorial is constitutional because it is a passive display. Alternatively, co-Petitioner Maryland-National Capital Park and Planning Commission, argues that the memorial is constitutional because its purpose and meaning are secular. On the other hand, Respondent American Humanist Association asserts that that the Supreme Court’s existing Establishment Clause jurisprudence already relies on a clear standard—the Lemon endorsement test—and maintains that the memorial is unconstitutional under that test. They advance that the use of a Latin cross reflects a sympathetic preference for Christian soldiers, and claim that the size and permanency of the memorial adds to the monument’s endorsement of Christianity. The outcome of this case has grave implications for other existing monuments and memorials that incorporate religious symbols, and whether they will be allowed to stand.
Questions as Framed for the Court by the Parties
- Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross.
- Whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test.
- Whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
Prince George County, Maryland is the location of a World War I monument entitled the Peace Cross. Am. Humanist Ass'n v. Maryland-National Capital Park at 201, 208. Erected in 1925, the Peace Cross is placed in the middle of a public highway intersection. Id. It is four stories tall, and bears the inscription “Valor Endurance Courage Devotion” as well as the American Legion’s symbol. Id. The monument is supplemented by a small plaque listing the names of 49 fallen World War I veterans and was completed in 1925. Id. Historically, the Peace Cross has been used predominantly during ceremonies for veterans and today, the Peace Cross is surrounded by a number of monuments in what has become known as “Veterans Memorial Park.” Id. at 201–03. The Peace Cross is the only monument in the park that contains religious symbolism. Id. at 202. Petitioner Maryland–National Capital Park and Planning Commission (the "Commission")—a state entity—acquired ownership of the Peace Cross and its underlying land in 1961. Id.
Respondent, American Humanist Association (“the Association”), is a non-profit organization whose mission is to ensure the separation of church and state. Id. The Association filed a § 1983 lawsuit against the Commission in the District Court of Maryland. See Am Humanist Ass’n v. Maryland-Nat. Capital Park. The Association also filed a separate lawsuit against Petitioner American Legion and the two cases were consolidated into this case. See The American Legion v. American Humanist Association.
The Association based its case on the argument that the Peace Cross violates the First Amendment’s Establishment Clause—a Constitutional clause that prohibits the government from creating any law “respecting an establishment of religion.” Am. Humanist Ass'n v. Maryland-Nat. Capital Park at 202. The Association argued that the Commission violated the Establishment Clause by funding the display and upkeep of the Peace Cross. Id. The District Court granted summary judgment in favor of the Commission, holding that the Peace Cross was displayed and maintained by the Commission for the secular reasons of honoring veterans and ensuring traffic safety. Id. at 202–03.
The Association then appealed to the United States Court of Appeals for the Fourth Circuit. Id. at 203. The Fourth Circuit noted that when adjudicating Establishment Clause claims, the Court typically uses the three-pronged test applied in Lemon v. Kurtzman. Id. at 204. Under the Lemon test, the Commission would violate the Establishment Clause if (1) the Peace Cross did not have a secular purpose, (2) the Peace Cross’s primary purpose was to advance religion, or (3) the Peace Cross encouraged the overlap between government and religion. Id. The Commission countered that applying this test was inappropriate, and instead the court should follow Van Orden v. Perry in which the Court rejected the Lemon test and instead considered the historical context of a monument that contained religious symbolism. Id. at 204–05.
Ultimately, the Fourth Circuit held that the Van Orden factors were unhelpful for resolving this case. Id. at 205. Instead, the court applied the Lemon test and held that the Commission violated the Establishment Clause because the Peace Cross violated Lemon’s second and third prongs. Id. at 205. Accordingly, the court reversed and remanded the holding of the lower district court. On November 2, 2018, the United States Supreme Court granted the Commission’s petition for a writ of certiorari.
USING THE COERECION STANDARD FOR ESTABLISHMENT CLAUSE CLAIMS
The American Legion contends that—in light of the Supreme Court’s decision in Town of Greece v. Galloway, which upheld a town’s practice of praying before legislative sessions—there is no clear Establishment Clause standard to govern the resolution of this case. See Brief for Petitioner, The American Legion at 18–23. Although the Fourth Circuit applied the “endorsement test” derived from Lemon v. Kurtzman—which “asks whether a ‘reasonable observer’ would perceive the challenged government action to have the purpose or effect of ‘endorsing’ religion”—the American Legion argues that Town of Greece undermines that test for two reasons. Id. at 16–18.
First, the American Legion asserts that Town of Greece made clear that the Establishment Clause must be interpreted in accordance with history. Id. at 18. The American Legion also indicates that the history of the Establishment Clause shows that it was aimed at preventing religious coercion, and thus argues that the Supreme Court should adopt the Town of Greece coercion standard for Establishment Clause claims. Id. at 23. Second, the American Legion reasons that because Town of Greece upheld religious government speech in the absence of coercion—that is, the absence of the government compelling citizens to participate in the religious speech—then other forms of religious government speech, like passive displays, should also be upheld in the absence of coercion. Id.
The American Legion further argues that the text of the First Amendment supports coercion standard because the Lemon endorsement test creates tension between the Amendment’s Free Exercise and Free Speech Clauses. Id. at 40, 42. According to the American Legion, the endorsement test allows for a “heckler’s veto”—that is, the endorsement test, upon a complaint by anyone who feels that a particular instance of religious government speech is underinclusive, requires courts to censor that government speech simply because it reflects the religious beliefs of only some members of the community. Id. at 42–43. This “heckler’s veto,” the American Legion asserts, causes tension within the First Amendment because, as illustrated here, if the Commission had maintained only those memorials without religious symbols in Veterans Memorial Park, it would have committed religious discrimination. Id. at 45. Similarly, had the Commission allowed only monuments without religious symbols into the park, it would have violated free speech rights. Id. Thus, the American Legion argues for a coercion standard because such a standard would not condemn the government’s attempts to accommodate the free exercise of religion, nor would it condemn government speech that merely offends without any tangible harm. Id. at 46.
Under a coercion standard, the American Legion argues that the Peace Cross does not violate the Establishment Clause because it is merely a passive display. Id. at 53. They make the analogy that, if sectarian prayers were found noncoercive in Town of Greece, then surely passive displays are noncoercive. Id. at 54–55.
The American Humanist Association counters that, although the Court did not apply the Lemon endorsement test in Town of Greece, neither did the Court overturn it. Brief for Respondent, The American Humanist Association, at 67. In fact, according to the Association, the Court has consistently applied the Lemon endorsement test to religious display cases. Id. at 68. Furthermore, the Association states that the Court has, on numerous occasions, struck down historical practices for violating the Establishment Clause. Id. at 69. Indeed, the Association points out that the Court in Town of Greece specifically stated that its decision should not be read to permit a constitutional violation just because a practice has a historical foundation. Id. at 71.
The Association further argues that the Supreme Court has consistently rejected coercion as a necessary element in Establishment Clause claims. Id. at 81. Instead, the Association asserts, the Establishment Clause is meant to stop the government from conveying that it favors a particular religion. Id. Although the Association agrees that coercion is certainly not permissible, it contends that a coercion-only standard is not compatible with history and would violate the touchstone of Establishment Clause jurisprudence: religious neutrality. Id. at 82–83. The Association also maintains that a coercion-only standard itself would render the Establishment Clause redundant because practices that coerce individuals to participate in any religion also violate their Free Exercise Clause rights. Id. at 82. In other words, because compelling nonadherents to participate in a particular religion would prevent them from being able to choose their own religion—the right protected by the Free Exercise Clause—the Association argues that the Establishment Clause standard logically must be something other than coercion. Id.
The Association additionally asserts that the Peace Cross would violate the Establishment Clause even if the Court uses the coercion standard because the Peace Cross is extraordinary, standing 40-feet tall and displayed year-round. Id. Also, the Association notes that the Peace Cross has been used as “the centerpiece for annual Town-sponsored events that include Christian prayer.” Id. at 88. Moreover, the Association contends that the Peace Cross has coerced financial support from the Commission, including using $117,000 of taxpayer money for upkeep and renovation as well as earmarking an additional $100,000 for future renovations. Id.
THE PEACE CROSS’S PURPOSE, MEANING, AND LONGEVITY
The Commission asserts that there are two independently sufficient grounds for finding passive governmental displays of religious constitutional under Establishment Clause. See Brief for Petitioner, Maryland-National Capital Park and Planning Commission, at 31. First, the Commission contends that if the purpose and objective of a government display are secular when considering the display’s full context—not just the display’s religious context—the display does not violate the Clause. Id. Here, the Commission argues that the Peace Cross is secular in purpose and meaning for several reasons. For one, the Commission asserts that when the Latin cross is used in association with World War I, it holds a secular commemorative meaning. Id. at 36. The Commission finds further support for its position in the Peace Cross’s “Valor Endurance Courage Devotion”, placement around other secular war memorials, recognition as a historic landmark, and lack of controversy over an extended period of time dating back to 1919. Id. at 37, 39, 41, 44.
The Commission additionally maintains that, although history and tradition are not dispositive, displays with considerable longevity and a lack of controversy pose no “meaningful threat of religious establishment.” Id. at 33. The Commission claims that crosses have not only been used to commemorate sacrifice and military valor for over 200 years, but after World War I, “the cross became the central symbol of wartime sacrifice and loss.” Id. at 45, 47. Furthermore, the Commission states that Congress has tried to preserve cross monuments by classifying them as national monuments. Id. at 48–49. Thus, the Commission argues that the Establishment Clause should be interpreted with the longstanding tradition surrounding cross memorials in mind. Id. at 49.
The Association counters that in multiple cases, Supreme Court justices have stated that large, permanent sectarian monuments—in particular, large Latin crosses—would run afoul of the Establishment Clause. See Brief for Respondent, at 31–32. Further, the Association argues that simply because the Latin cross is common does not mean that it is not secular. Id. at 42. As such, the Association asserts that using the Latin cross not only fails to honor non-Christian veterans but also signals that their sacrifices are less important. Id. at 37.
Additionally, the Association submits that the Peace Cross’s donors’ intended to model the memorial after the biblical Cross of Calvary, suggesting its religious purpose. Id. at 48. The Association also contends that, although there are other monuments around the Peace Cross, the Peace Cross was built in isolation and stood in isolation for much of its existence, and that it is clearly the most prominent monument. Id. at 61. Likewise, the Association argues that the Peace Cross’s lack of controversy is immaterial because religious minorities have many reasons to “not want to be the face of a challenge to a popular Christian monument.” Id. at 65.
APPLYING THE LEMON ENDORSEMENT TEST
Both the American Legion and the Commission argue that, even if the Supreme Court decides to apply the Lemon endorsement test in this case, the Peace Cross still does not violate the Establishment Clause. See Brief for Petitioner, The American Legion, at 59; Brief for Petitioner, Maryland-National Capital Park and Planning Commission, at 54. Under the Lemon endorsement test, a monument such as the Peace Cross is constitutional if it has a secular purpose, does not have the primary effect of advancing nor inhibiting religion, and does not excessively entangle the government with religion. See Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971).
As the Commission argues, its purpose for acquiring the Peace Cross was to assure traffic safety and preserve a historic landmark honoring World War I soldiers. Brief for Petitioner, Maryland-National Capital Park and Planning Commission, at 55. The Commission and American Legion further argue that the Peace Cross has a secular effect because a reasonable observer, fully informed of the history and context of the monument, would conclude that the monument is solely a World War I memorial based on the history of crosses and the war, the inscription on the monument, its use in commemorative events, and the other surrounding secular monuments. Id. at 56–57. The Commission lastly asserts that its upkeep of the Peace Cross does not excessively entangle government with religion because excessive entanglement requires a continuous, comprehensive surveillance that was lacking here. Id. at 58; see also Brief for Petitioner, The American Legion, at 59–61.
The Association argues that the Supreme Court should reaffirm and apply the Lemon endorsement test, stating that the American Legion’s “attack on Lemon is an attack on the entire history of Establishment Clause jurisprudence.” Brief for Respondent, at 89. In contrast to the American Legion and the Commission’s views, the Association believes that the Peace Cross is clearly unconstitutional under the Lemon test. Id. at 92. Principally, the Association claims that the Peace Cross fails the effect prong of the Lemon test because it is a cross, which the Association asserts is not embraced by non-Christians and discriminates against soldiers that are not Christian. Id.
Additionally, the Association contends that the Peace Cross’s permanence and prominence and the Commission’s use of funds to restore it add to its effect of endorsing Christianity. Id. The Association also argues that the magnitude of the Commission’s funding excessively entangles the government in religion. Id.
THE PURPOSE OF WAR MEMORIALS
The Military Order of the Purple Heart (“the Order”) in support of the American Legion, warns that a holding against the American Legion could result in the destruction of military memorials and demoralize veterans and their families throughout the country. Brief of Amicus Curiae Military Order of the Purple Heart, in support of Petitioners at 4, 14–15. The Order asserts that reminding citizens of the sacrifices of war is a valuable societal interest that is furthered by all war memorials, irrespective of secular symbols, because every war memorial exists to remind citizens of the sacrifices of war. Id. at 15-16. In an attempt to accentuate the Peace Cross’s educational contribution to society, the Order compares the Peace Cross and its surrounding memorials to an outdoor museum. Id. at 8–9. The Order also underscores the historical richness of a number of war memorials and implies that the removal of religious symbolism from historical monuments would reduce the public’s ability to understand the historical context of such monuments. Id. at 7.
The Order maintains that, in light of historical context, crosses are useful to honor veterans because crosses evoke images of courage and military accomplishment. Id. at 11–12. In support of this point, the Order notes that the cross is a commonly used image in military awards. Id. at 14. The Order maintains that a holding against the American Legion in this case would not be limited to memorials containing large crosses, but instead would threaten the existence of any war memorial that has the potential to evoke a religious message. Id. at 14. For example, the Order suggests that if the Peace Cross is found to violate the Establishment Clause, so too will the Tomb of the Unknown Soldier because it evokes religion by containing the inscription: “Here rests in honored glory an American soldier known but to God.” Id.
The Jewish War Veterans of America (“JWV”), in support of the Association, contends that memorials must honor all veterans, and memorials containing Christian dishonor certain veterans by valuing Christian soldiers above all others. Brief of Amicus Curiae Jewish War Veterans of America, in support of Respondents at 13, 18. JWV, in direct opposition to the Order, further contends that military morale is decreased by memorials containing crosses because the juxtaposition of a cross and a war memorial only heightens the memorial’s religious—and thereby exclusionary—message. Id. at 13, 18. According to JWV, a memorial that is exclusionary is also hurtful. Id. at 13.
Here, JWV maintains that the Peace Cross is nationally exclusionary because it broadcasts the message that the United States is a Christian country. Id. at 13. JWV contends that war memorials containing Christian symbolism are incapable of honoring all veterans because such memorials are created to remind the viewer that life after death is only possible through adherence to Christianity. Id. at 7–8. Additionally, JWV asserts that such memorials dishonor all soldiers by erasing the contributions of non-Christian soldiers from society’s collective memory by falsely implying that deceased soldiers were all Christians. Id. at 9, 11. The erasure of Jewish soldiers’ contributions to the American war effort, JWV contends, is harmful to Jewish and Christian soldiers alike. Id. at 9. JWV rejects the assertion that a memorial containing Christian symbolism is capable of representing non-Christian veterans. Id. at 8–9. Claiming that the American Legion exaggerates the number of war memorials that will be affected by a ruling in favor of the Association, JWV asserts that the risk of destroying war memorials whose existence is perceived by some groups as hurtful is outweighed by the strong societal interest in ensuring that war memorials are inclusive to and affirming of all veterans. Id. at 13, 16.
- Adam Liptak, Supreme Court to Rule on 40-Foot War Memorial Cross at Center of Church-State Debate, The New York Times (Nov. 2, 2018).
- Kristen Waggoner, Cross Case Offers Supreme Court Chance to Clarify Religious Expression, The Hill (Dec. 26, 2018).