Symposium: More light than heat

Michael Stokes Paulsen is Distinguished University Chair and Professor at the University of St. Thomas School of Law.

Establishment clause cases involving religious symbols tend to generate more rhetorical heat than intellectual light. Passions and prejudices run high; clarity and principle tend to run low. The Supreme Court’s decisions have turned, embarrassingly, on the proximity of plastic elves and jumbo candy canes to traditional Christmas nativity scene displays. (Lynch v. Donnelly from 1984 is the classic illustration.) Others have involved incomprehensibly fractured outcomes in which just two justices agreed with the ultimate result and everybody else thought this the one outcome that could not possibly be right. (1989’s County of Allegheny v. American Civil Liberties Union and the split doubleheader of Ten Commandments cases, McCreary County v. ACLU and Van Orden v. Perry, decided the same day in 2005, both fit this description.) The result has been a combination of incoherence and occasional bitter comedy.

Not so with the Supreme Court’s decision in The American Legion v. American Humanist Association. The court upheld the constitutionality of the Bladensburg Peace Cross, a prominent Latin cross erected as a World War I war memorial by private groups in 1925, and maintained on public land in Maryland. This decision generated more light than heat. It produced more reasonable, reasoned analysis – and less vitriol – than practically any of the other of the court’s recent religious-symbols cases. The careful majority opinion by Justice Samuel Alito made an almost astonishing amount of sense, wrestling thoughtfully with the issues and producing a coherent, unifying rationale for a five-vote majority opinion comprising a diverse ideological center of the court (Alito, plus Chief Justice John Roberts and Justices Stephen Breyer, Brett Kavanaugh and Elena Kagan).

What Alito wrote for the Supreme Court was limited and sensible and, to its great credit, did not in any way depend upon or imply a denial of the intrinsic religious significance of the Latin cross as the central symbol of Christianity. “The cross is undoubtedly a Christian symbol,” the court affirms, “but that should not blind us to everything else that the Bladensburg Cross has come to represent.” Alito’s reasoning was straightforward and practical: Attributing a single purpose or message to a monument, symbol or practice is difficult, especially when a memorial or practice was established long ago. Motives and purposes vary, change over time, dissipate, and are sometimes replaced in whole or in part by other purposes. The messages associated with a monument or symbol thus tend to “multiply” over time. The meanings of a symbol also may change, or proliferate, over the years. Finally, the act of removing or mutilating a religiously expressive symbol – here, the plaintiffs had requested that the Bladensburg Peace Cross be either destroyed or its arms removed – would, in context, not be a neutral act, but one likely to be viewed as anti-religious hostility: “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.”

These considerations, Alito wrote, “show that retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones.” This is a sensible insight. The majority does not say that use of a religiously expressive symbol is constitutional only where it has already stood for a long time, or acquired a new meaning wholly apart from any religious significance. It says merely that the question is different – easier – when it involves the tearing down of a longstanding religious symbol rather than erecting or establishing a new one. This difference establishes some common ground of presumptive constitutionality.

Some of the concurring opinions argued, gently, over what the principles of the majority opinion might mean for other religious displays that lacked the same 90-year historical pedigree. (More on that presently.) But upholding the Bladensburg Cross under these criteria was easy. The cross had been a symbol closely linked to World War I memorials generally, and this display stood firmly in that tradition. As such monuments have “endured through the years,” they become “a familiar part of the physical and cultural landscape” whose dismantling would not be viewed as a neutral act, but evidence of “hostility to religion” even if the religious associations of such memorials “are no longer in the forefront.” Thus, “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.”

There was more to be said, of course. (This was an establishment clause case, after all.) And nearly everybody had something more to say: A plurality of four would have gone one step further (or simply been more explicit) in rejecting prior doctrine; there were five separate concurring opinions of various types, producing an overall majority of seven; and there was a predictable dissent by Justice Ruth Bader Ginsburg (joined by Justice Sonia Sotomayor). Significantly, nothing in the plurality or any of the concurrences impaired the clarity and unity of the majority opinion on the points covered. Rather, the various separate opinions served to reinforce and amplify the majority’s reasoning.

Alito, for a four-justice plurality – the majority minus Kagan – essentially repudiated the infamous “Lemon test” of 1971’s Lemon v. Kurtzman in the religious-symbols context and perhaps entirely. The Lemon test was simply incompatible with the approach of the majority opinion. That conclusion, when combined with the positions of Justices Clarence Thomas and Neil Gorsuch discussed below, would appear to mean that, finally, at long last, “Lemon is Dead” (as some have been prophesying or proclaiming for years).

Breyer, Kavanaugh and Kagan each offered brief concurring opinions, elaborating further views and expressing only the most mild intramural disagreement: Breyer (joined by Kagan) explained why he understood the majority opinion to leave open the constitutionality of a “newer memorial, erected under different circumstances.” Kavanaugh explained why he viewed the majority opinion as a “safe harbor” only, not a decision limited in principle to its facts – a position actually consistent with Breyer’s. Kavanaugh also emphasized that the Lemon test “is not good law and does not apply to Establishment Clauses cases” more broadly. Kagan explained her reluctance to sign on to an outright repudiation of Lemon, but agreed that it “does not solve every Establishment Clause question.” She praised Alito’s opinion even as to the parts she did not join.

Thomas concurred in the judgment only, reiterating his long-held idiosyncratic (but defensible) view that the establishment clause does not apply to the states. Even if it did, Thomas wrote, public religious symbols do not themselves coerce religious observance or other action and thus would not violate the establishment clause in any event. Thomas made five votes for interring Lemon’s “long-discredited test.”

Gorsuch, in an insightful opinion concurring in the judgment (joined by Thomas), found that the plaintiffs lacked standing to sue to challenge the constitutionality of the Bladensburg Peace Cross by virtue of being “offended observers.” If one thinks about it, this is simply a different way of saying that displays of religious symbols do not inflict any cognizable legal injury against which the establishment clause provides protection on the merits. Gorsuch drew this connection explicitly: It was a mistaken view of the establishment clause that had led to mistaken views of standing to raise an establishment clause challenge. “Lemon was a misadventure” that “left us only a mess,” he wrote, noting his agreement with the plurality that Lemon was “now shelved.” Count six votes nailing the lid to Lemon’s coffin.

Gorsuch’s Article III “standing” objection is a good one. Taken seriously, as it should be, it would have the salutary effect of disposing of nearly all of these types of cases at the threshold. That would avoid the questions left open by the majority opinion. That opinion settles most, if not all, questions of traditional or longstanding government use of religious symbols, displays, city names and ceremonial invocations – and that is itself a major and welcome achievement. But as Gorsuch noted, “it’s hard not to wonder: How old must a monument, symbol, or practice be to qualify for this new presumption [of constitutionality]?” Indeed. What about comparable religious symbols that lack the same historical pedigree as the Bladensburg Peace Cross? Gorsuch had it right: “what matters when it comes to assessing a monument, symbol, or practice isn’t its age, but its compliance with ageless principles.”

And in broadest terms, the correct principle is that the establishment clause is about protecting religious freedom – the freedom not to exercise religion. (It is the mirror image of the free exercise clause in this respect, not a contradictory principle.) The establishment clause is not about protecting against offense. The Supreme Court would do well to borrow a page from its free-speech decisions in this regard. Government invocation or maintenance of religious symbols is at root a form of government speech, and speech alone is generally not regarded as coercive of conduct. People can ignore messages they find offensive. The supposed offense of a message is not a basis for censoring it. As with Paul Robert Cohen’s jacket in 1971’s Cohen v. California, offended observers can avert their eyes or walk on. So too with displays of religious symbols: They do not present serious problems of religious freedom because they do not compel anyone to engage in religious exercise or expression.

Instead, they present questions of mainly of decorum, civic discourse, mutual respect and toleration – not constitutional law. The majority opinion in The American Legion v. American Humanist Association captured that sense perfectly: “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.”