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Symposium: Crosses and constitutional clarity

Lindsay See is the solicitor general of West Virginia, which led a group of 27 other states and the governor of Kentucky in a cert-stage amicus brief in support of the petitioners in The American Legion v. American Humanist Association.

No case is ever a lock for Supreme Court review, but the odds were always in favor of the consolidated cases in The American Legion v. American Humanist Association and Maryland-National Capital Park & Planning Commission v. American Humanist Association. The U.S. Court of Appeals for the 4th Circuit’s decision below called for the destruction of a near-century-old war memorial honoring local soldiers who died in World War I. With a trifecta of striking facts, intractable circuit splits and doctrinal confusion, and implications for hundreds of other public memorials nationwide, there was little surprise that this case caught the Supreme Court’s eye.

The memorial at the center of this dispute is a large Latin cross standing on a pedestal in Bladensburg, Maryland. Yet despite the memorial’s obvious Christian symbolism, this is a monument that was conceived for civic, not religious purposes: Sponsored by the American Legion and a committee of mothers whose children died fighting overseas in World War I, it was built with private funds and on then-privately owned land. It was designed as a type of surrogate gravesite, with its shape chosen in conscious reflection of the fields of crosses in Europe that marked the actual gravesites of the soldiers it commemorates. It is inscribed with the names of 49 local service members, the American Legion’s symbol, and words that sound in a civic and military key, like “valor” and “courage.” It has been used consistently and exclusively for the secular purpose of honoring those who died fighting for the United States. And since it was completed in 1925, the community has surrounded it with several other war memorials honoring the fallen. In other words, as facts in establishment clause challenges go, this is about as good a draw as the memorial’s defenders could hope for.

The legal issues also called strongly for review, because the decision below reveals a doctrine in disarray. The 4th Circuit majority shoehorned the three-pronged test from Lemon v. Kurtzman into the more historical and context-based analysis that five justices (across four opinions) found appropriate for passive monument challenges over a decade ago in Van Orden v. Perry. The majority might be pardoned for this odd fusion, however, given that the Supreme Court’s decisions in this area have long been marked by competing interpretations and fractured opinions. As early as 1980, for instance, Justice John Paul Stevens called attempts to reconcile the decisions stemming from Lemon as a “Sisyphean task.” And justices on the other end of the jurisprudential spectrum have repeated that refrain ever since — as when Justice Clarence Thomas lamented in 2011 that the court’s jurisprudence has “rendered the constitutionality of displays of religious imagery on government property anyone’s guess.”

Finally, the potentially vast implications of the decision below rounded out the need for Supreme Court review. The author of the majority opinion left no question about what could be done to rectify the supposed constitutional violation, suggesting twice at oral argument that the state could simply lop off the memorial’s arms. As the bipartisan brief for the 28 states which supported certiorari shows, the same fate could befall hundreds of similar monuments and memorials nationwide. Within the 4th Circuit, the decision threatens memorials in Arlington National Cemetery and West Virginia’s Harpers Ferry alike. Without reversal, it would also call into question memorials adopting religious imagery as far apart as Hawaii’s Pearl Harbor memorial and a group of crosses in New York state meant to evoke the battlefield at Normandy, as well as countless more remembering those who fought in the Spanish-American War, the war against terrorism, and all the battles in between.

These factors make it easy to see why four justices considered this case the right vehicle to resolve the significant uncertainty around the establishment clause’s boundaries. Likewise, a majority of the Supreme Court should conclude quite easily that the Bladensburg memorial should continue to stand (with both arms). War memorials incorporating religious symbols have existed since our country’s earliest days. The cross, in particular, has taken on cultural resonance beyond its religious meaning as a marker of collective grief and respect for the dead — consider any makeshift cross marking the site of a highway fatality. And Bladensburg’s memorial specifically has stood for almost 100 years, has never been used for religious observances, was built without government funds, and was only transferred to public ownership after nearby highway construction made continued private ownership too great a safety risk.

Yet despite what should be a relatively straightforward case in terms of outcome, the more important question is whether this case will allow the Supreme Court to achieve what has so far eluded it: a rationale for passive monument challenges that can provide clear guidance for the fate of not only this memorial, but the many others nationwide too. So far, the court has been unable to coalesce on a doctrinal through-line for First Amendment challenges like these. And although the new composition of the bench may change that calculus, there is a risk that the same court that has not hesitated in recent terms to adopt minimalistic, fact-bound outcomes in what could have been blockbuster decisions will stay that course here.

After all, the same facts can build a strong case for reversal here under multiple First Amendment theories. Any approach that garners majority support is likely to be grounded in both the history and context of the Bladensburg memorial specifically and the role and perception of public war memorials more generally. The jurisprudential underpinnings of that fact-specific analysis, however, could vary widely. For example, the court could see this case as an extension of its 2014 legislative-prayer decision in Town of Greece v. Galloway, which held that, absent evidence or proselytization or disparagement, historical practice and long-standing cultural acceptance are all but conclusive. Under that approach, the 4th Circuit’s refusal to consider the Bladensburg memorial’s origins and broader context — and its choice instead to deem fatal the fact the memorial is shaped like a cross — could be seen as hostility toward religion, not neutrality. Or the court could use the same facts to reinforce a more Lemon-like approach that assesses the monument’s primary purpose and effects, or that tries to stand in the shoes of a reasonable observer who sees no government sponsorship of religion in light of the monument’s history, or because it is surrounded in the park by multiple, indisputably secular war memorials.

The upshot thus may be a repeat of Van Orden: five or more justices who vote for reversal, but no more than a plurality who agree on the reason why. And in this respect, the same strong facts that pushed for the court to hear the case could ultimately undermine its ability to provide the clarity this area of constitutional law so desperately needs. When so many of the history- and context-based factors point in the same direction, it becomes less important to say plainly which ones matter most, and why.

The importance of these constitutional questions and their profound implications for public war memorials in every state deserve better. This case stands at the intersection of how we understand the role of religious imagery in the public square, and how we honor those who die in defense of our constitutional ideals — including the First Amendment’s. The court should make clear that memorials like Bladensburg’s World War I monument are fully consistent with the First Amendment and the best of our national tradition. And it should do so in a way that accounts for the history and context of the establishment clause itself, and that provides clarity for all the challenges to follow.

Recommended Citation: Lindsay See, Symposium: Crosses and constitutional clarity, SCOTUSblog (Dec. 13, 2018, 11:57 AM),