Supreme Court: Commemorative Cross on Public Land Did Not Offend the Constitution

1. The Lemon test

In 1971, the Supreme Court announced a three-part test to assess alleged violations of the First Amendment’s ban on any establishment of religion: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive governmental entanglement with religion.’” Lemon v. Kurtzman, 403 U.S. 602 (1971).

But, the Court in the Bladensburg case noted:

As Establishment Clause cases involving a great array of laws and practices came to the Court, it became more and more apparent that the Lemon test could not resolve them. It could not explain the Establishment Clause’s tolerance, for example, of the prayers that open legislative meetings . . . certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving. The test has been harshly criticized by Members of this Court, lamented by lower court judges, and questioned by a diverse roster of scholars.

The Court noted that “the Lemon test presents particularly daunting problems in cases, including the one now before us, that involve the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations.” The Court enumerated four considerations that made the Lemon test inappropriate in evaluating the constitutionality of the cross.

First, “70 years after the fact, there was no way to be certain about the motivations of the men who were responsible for the creation of the monument. And this is often the case with old monuments, symbols, and practices. Yet it would be inappropriate for courts to compel their removal or termination based on supposition” of an impermissible religious purpose.

Second, “as time goes by, the purposes associated with an established monument, symbol, or practice often multiply,” thereby diluting any religious motivation. For example, “for believing Jews and Christians, the Ten Commandments are the word of God handed down to Moses on Mount Sinai, but the image of the Ten Commandments has also been used to convey other meanings. They have historical significance as one of the foundations of our legal system, and for largely that reason, they are depicted in the marble frieze in our courtroom and in other prominent public buildings in our Nation’s capital. . . . No Member of the Court thought that these depictions are unconstitutional.”

Third, “just as the purpose for maintaining a monument, symbol, or practice may evolve, the message conveyed . . . may change over time. . . . With sufficient time, religiously expressive monuments, symbols, and practices can become embedded features of a community’s landscape and identity. The community may come to value them without necessarily embracing their religious roots. The recent tragic fire at Notre Dame in Paris provides a striking example. Although the French Republic rigorously enforces a secular public square, the cathedral remains a symbol of national importance to the religious and nonreligious alike. Notre Dame is fundamentally a place of worship and retains great religious importance, but its meaning has broadened. For many, it is inextricably linked with the very idea of Paris and France. Speaking to the nation shortly after the fire, President Macron said that Notre Dame ‘is our history, our literature, our imagination. The place where we survived epidemics, wars, liberation. It has been the epicenter of our lives.’”

The Court continued:

In the same way, consider the many cities and towns across the United States that bear religious names. Religion undoubtedly motivated those who named Bethlehem, Pennsylvania; Las Cruces, New Mexico; Providence, Rhode Island; Corpus Christi, Texas; Nephi, Utah, and the countless other places in our country with names that are rooted in religion. Yet few would argue that this history requires that these names be erased from the map. Or take a motto like Arizona’s, “Ditat Deus” (“God enriches”), which was adopted in 1864, or a flag like Maryland’s, which has included two crosses since 1904. Familiarity itself can become a reason for preservation.

Fourth, the Court noted that “when time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance, removing it may no longer appear neutral, especially to the local community for which it has taken on particular meaning. A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion. Militantly secular regimes have carried out such projects in the past, and for those with a knowledge of history, the image of monuments being taken down will be evocative, disturbing, and divisive.” The Court referenced the attempt during the French Revolution to “dechristianize” the nation by removing “plates, statues and other fittings from places of worship,” destroying “crosses, bells, shrines and other, external signs of worship,” and altering “personal and place names which had any ecclesiastical connotations to more suitably Revolutionary ones.”

The Court concluded that “these four considerations show that retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones. The passage of time gives rise to a strong presumption of constitutionality.”

2. Avoiding hostility toward religion

The Court observed:

As World War I monuments have endured through the years and become a familiar part of the physical and cultural landscape, requiring their removal would not be viewed by many as a neutral act. And an alteration like the one entertained by [the AHA]—amputating the arms of the Cross—would be seen by many as profoundly disrespectful.

The Court concluded: “A campaign to obliterate items with religious associations may evidence hostility to religion even if those religious associations are no longer in the forefront.”

3. A new test for evaluating established monuments and symbols

The Court then observed: “While the Lemon [test] ambitiously attempted to find a grand unified theory of the Establishment Clause, in later cases, we have taken a more modest approach that focuses on the particular issue at hand and looks to history for guidance. Our cases involving prayer before a legislative session are an example.” The Court referenced its 1983 ruling upholding the Nebraska Legislature’s practice of beginning each session with a prayer by an official chaplain. Marsh v. Chambers, 463 U.S. 783 (1983). In so holding, the Court conspicuously ignored Lemon and did not respond to Justice Brennan’s argument in dissent that the legislature’s practice could not satisfy the Lemon test. Instead, “the Court found it highly persuasive that Congress for more than 200 years had opened its sessions with a prayer and that many state legislatures had followed suit.”

In the Court’s 2013 decision upholding the practice of the city council of Greece, New York, to open its sessions with prayer, the Court stressed that the Establishment Clause must be interpreted “by reference to historical practices and understandings” and that the decision of the First Congress to “provide for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion’s role in society.” Town of Greece, N.Y. v. Galloway, 134 S. Ct. 1811 (2014).

4. Conclusion

The Court concluded:

Applying these principles, we conclude that the Cross does not violate the Establishment Clause. As we have explained, the Cross carries special significance in commemorating World War I. Due in large part to the image of the simple wooden crosses that originally marked the graves of American soldiers killed in the war, the cross became a symbol of their sacrifice, and the design of the Cross must be understood in light of that background. That the cross originated as a Christian symbol and retains that meaning in many contexts does not change the fact that the symbol took on an added secular meaning when used in World War I memorials.

Not only did the Cross begin with this meaning, but with the passage of time, it has acquired historical importance. It reminds the people of Bladensburg and surrounding areas of the deeds of their predecessors and of the sacrifices they made in a war fought in the name of democracy. As long as it is retained in its original place and form, it speaks as well of the community that erected the monument nearly a century ago and has maintained it ever since. The memorial represents what the relatives, friends, and neighbors of the fallen soldiers felt at the time and how they chose to express their sentiments. And the monument has acquired additional layers of historical meaning in subsequent years. The Cross now stands among memorials to veterans of later wars. It has become part of the community. . . .

The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the 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.