SUPREME COURT OF THE
UNITED STATES THE
AMERICAN LEGION, et al., PETITIONERS v. AMERICAN
HUMANIST ASSOCIATION, et al.; and
MARYLAND-NATIONAL CAPITAL PARK AND PLANNING
COMMISSION, PETITIONER [June 20, 2019] Justice Alito announced the
judgment of the Court and delivered the opinion of the
Court with respect to Parts I, II–B, II–C, III, and
IV, and an opinion with respect to Parts II–A and
II–D, in which The Chief Justice, Justice Breyer, and
Justice Kavanaugh join. Since 1925, the Bladensburg Peace
Cross (Cross) has stood as a tribute to 49 area soldiers
who gave their lives in the First World War. Eighty-nine
years after the dedication of the Cross, respondents
filed this lawsuit, claiming that they are offended by
the sight of the memorial on public land and that its
presence there and the expenditure of public funds to
maintain it violate the Establishment Clause of the
First Amendment. To remedy this violation, they asked a
federal court to order the relocation or demolition of
the Cross or at least the removal of its arms. The Court
of Appeals for the Fourth Circuit agreed that the
memorial is unconstitutional and remanded for a
determination of the proper remedy. We now reverse. Although the cross has long been a
preeminent Christian symbol, its use in the Bladensburg
memorial has a special significance. After the First
World War, the picture of row after row of plain white
crosses marking the overseas graves of soldiers who had
lost their lives in that horrible conflict was
emblazoned on the minds of Americans at home, and the
adoption of the cross as the Bladensburg memorial must
be viewed in that historical context. For nearly a
century, the Bladensburg Cross has expressed the
community’s grief at the loss of the young men who
perished, its thanks for their sacrifice, and its
dedication to the ideals for which they fought. It has
become a prominent community landmark, and its removal
or radical alteration at this date would be seen by many
not as a neutral act but as the manifestation of “a
hostility toward religion that has no place in our
Establishment Clause traditions.” And contrary to
respondents’ intimations, there is no evidence of
discriminatory intent in the selection of the design of
the memorial or the decision of a Maryland commission to
maintain it. The Religion Clauses of the Constitution
aim to foster a society in which people of all beliefs
can live together harmoniously, and the presence of the
Bladensburg Cross on the land where it has stood for so
many years is fully consistent with that aim. I The cross came into widespread use as
a symbol of Christianity by the fourth century, and it
retains that meaning today. But there are many contexts
in which the symbol has also taken on a secular meaning.
Indeed, there are instances in which its message is now
almost entirely secular. A cross appears as part of many
registered trademarks held by businesses and secular
organizations, including Blue Cross Blue Shield, the
Bayer Group, and some Johnson & Johnson products.
Many of these marks relate to health care, and it is
likely that the association of the cross with healing
had a religious origin. But the current use of these
marks is indisputably secular. The familiar symbol of the Red
Cross—a red cross on a white background—shows how the
meaning of a symbol that was originally religious can be
transformed. The International Committee of the Red
Cross (ICRC) selected that symbol in 1863 because it was
thought to call to mind the flag of Switzerland, a
country widely known for its neutrality. . . . The image used in the Bladensburg
memorial—a plain Latin cross—also took on new meaning
after World War I. “During and immediately after the
war, the army marked soldiers’ graves with temporary
wooden crosses or Stars of David”—a departure from the
prior practice of marking graves in American military
cemeteries with uniform rectangular slabs. The vast
majority of these grave markers consisted of crosses,
and thus when Americans saw photographs of these
cemeteries, what struck them were rows and rows of plain
white crosses. As a result, the image of a simple white
cross “developed into a ‘central symbol’ ” of the
conflict. Perhaps most famously, John McCrae’s poem, In
Flanders Fields, began with these memorable lines: “In Flanders fields the poppies blow Between the crosses, row on row.” The poem was enormously popular. A
1921 New York Times article quoted a description of
McCrae’s composition as “ ‘the poem of the army’ ” and “
‘of all those who understand the meaning of the great
conflict.’ ”The image of “the crosses, row on row,”
stuck in people’s minds, and even today for those who
view World War I cemeteries in Europe, the image is
arresting. . . . Recognition of the cross’s symbolism
extended to local communities across the country. In
late 1918, residents of Prince George’s County,
Maryland, formed a committee for the purpose of erecting
a memorial for the county’s fallen soldiers. The
committee decided that the memorial should be a cross
and hired sculptor and architect John Joseph Earley to
design it. Although we do not know precisely why the
committee chose the cross, it is unsurprising that the
committee—and many others commemorating World War
I—adopted a symbol so widely associated with that
wrenching event. . . . The completed monument is a 32-foot
tall Latin cross that sits on a large pedestal. The
American Legion’s emblem is displayed at its center, and
the words “Valor,” “Endurance,” “Courage,” and
“Devotion” are inscribed at its base, one on each of the
four faces. The pedestal also features a 9- by 2.5-foot
bronze plaque explaining that the monument is “Dedicated
to the heroes of Prince George’s County, Maryland who
lost their lives in the Great War for the liberty of the
world.” . . . .In 2012, nearly 90 years after
the Cross was dedicated and more than 50 years after the
Commission acquired it, the American Humanist
Association (AHA) lodged a complaint with the
Commission. The complaint alleged that the Cross’s
presence on public land and the Commission’s maintenance
of the memorial violate the Establishment Clause of the
First Amendment. The AHA sought declaratory and
injunctive relief requiring “removal or demolition of
the Cross, or removal of the arms from the Cross to form
a non-religious slab or obelisk.” The American Legion
intervened to defend the Cross. . . . II A The Establishment Clause of the First
Amendment provides that “Congress shall make no law
respecting an establishment of religion.” While the
concept of a formally established church is
straightforward, pinning down the meaning of a “law
respecting an establishment of religion” has proved to
be a vexing problem. . . . After grappling with such
cases for more than 20 years, Lemon ambitiously
attempted to distill from the Court’s existing case law
a test that would bring order and predictability to
Establishment Clause decision-making. That test, as
noted, called on courts to examine the purposes and
effects of a challenged government action, as well as
any entanglement with religion that it might entail. The
Court later elaborated that the “effect[s]” of a
challenged action should be assessed by asking whether a
“reasonable observer” would conclude that the action
constituted an “endorsement” of religion. If the Lemon Court thought that its
test would provide a framework for all future
Establishment Clause decisions, its expectation has not
been met. In many cases, this Court has either expressly
declined to apply the test or has simply ignored it. This pattern is a testament to the
Lemon test’s shortcomings. 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. For at least four reasons, 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.
Together, these considerations counsel against efforts
to evaluate such cases under Lemon and toward
application of a presumption of constitutionality for
longstanding monuments, symbols, and practices. B First, these cases often concern
monuments, symbols, or practices that were first
established long ago, and in such cases, identifying
their original purpose or purposes may be especially
difficult. In Salazar v. Buono (2010), for example, we
dealt with a cross that a small group of World War I
veterans had put up at a remote spot in the Mojave
Desert more than seven decades earlier. The record
contained virtually no direct evidence regarding the
specific motivations of these men. We knew that they had
selected a plain white cross, and there was some
evidence that the man who looked after the monument for
many years—“a miner who had served as a medic and had
thus presumably witnessed the carnage of the war
firsthand”—was said not to have been “particularly
religious.” Without better evidence about the
purpose of the monument, different Justices drew
different inferences. The plurality thought that this
particular cross was meant “to commemorate American
servicemen who had died in World War I” and was not
intended “to promote a Christian message.” The dissent,
by contrast, “presume[d]” that the cross’s purpose “was
a Christian one, at least in part, for the simple reason
that those who erected the cross chose to commemorate
American veterans in an explicitly Christian manner.”
The truth is that 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. Second, as time goes by, the purposes
associated with an established monument, symbol, or
practice often multiply. Take the example of Ten
Commandments monuments, the subject we addressed in Van
Orden and McCreary County v. American Civil Liberties
Union of Ky. (2005). 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. In Van Orden and McCreary, no
Member of the Court thought that these depictions are
unconstitutional. Just as depictions of the Ten
Commandments in these public buildings were intended to
serve secular purposes, the litigation in Van Orden and
McCreary showed that secular motivations played a part
in the proliferation of Ten Commandments monuments in
the 1950s. . . . The existence of multiple purposes is
not exclusive to longstanding monuments, symbols, or
practices, but this phenomenon is more likely to occur
in such cases. Even if the original purpose of a
monument was infused with religion, the passage of time
may obscure that sentiment. As our society becomes more
and more religiously diverse, a community may preserve
such monuments, symbols, and practices for the sake of
their historical significance or their place in a common
cultural heritage. Third, just as the purpose for
maintaining a monument, symbol, or practice may evolve,
“[t]he ‘message’ conveyed . . . may change over time.”
Consider, for example, the message of the Statue of
Liberty, which began as a monument to the solidarity and
friendship between France and the United States and only
decades later came to be seen “as a beacon welcoming
immigrants to a land of freedom.” 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.’” Fourth, 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. 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. C The role of the cross in World War I
memorials is illustrative of each of the four preceding
considerations. .
. . D While the Lemon Court 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. . . . III Applying these principles, we
conclude that the Bladensburg Cross does not violate the
Establishment Clause. As we have explained, the Bladensburg
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
Bladensburg 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 Bladensburg 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. Finally, it is surely relevant that
the monument commemorates the death of particular
individuals. It is natural and appropriate for those
seeking to honor the deceased to invoke the symbols that
signify what death meant for those who are memorialized.
In some circumstances, the exclusion of any such
recognition would make a memorial incomplete. This well
explains why Holocaust memorials invariably include
Stars of David or other symbols of Judaism. It explains
why a new memorial to Native American veterans in
Washington, D. C., will portray a steel circle to
represent “‘the hole in the sky where the creator
lives.’” And this is why the memorial for soldiers from
the Bladensburg community features the cross—the same
symbol that marks the graves of so many of their
comrades near the battlefields where they fell. IV 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. |