Symposium: Supreme Court at the crossroads of the establishment clause as it considers a cross

Marci A. Hamilton is Robert A. Fox Professor of Practice and Senior Resident Fellow of the Program for Research on Religion at the University of Pennsylvania.

The Supreme Court’s grant of certiorari in The American Legion v. American Humanist Association (along with a companion case brought by the state involving the same facts) is troubling. There was no split in the circuits that required the Supreme Court’s attention and the rulings in both cases were eminently reasonable. In the American Legion case in particular, a large, and I mean huge, cross dominates an intersection. It is intended to be dedicated to veterans of World War I, and is referred to as the Bladensburg World War I Veterans Memorial. There is no question, however, that it is a deeply religious symbol on public property that sends a message of government endorsement of Christ and Christianity. The government has had to pay over $100,000 for upkeep. The U.S. Court of Appeals for the 4th Circuit correctly held it is a violation of the establishment clause and remanded for consideration of either removal or adding other religious symbols for the purpose of changing the Christian message to one of religious diversity and inclusion. The Supreme Court’s grant signals that the current conservative members of the Supreme Court may be poised to do what many feared they might: further cripple the separation of church and state.

The push by conservative religious entities like the Becket Fund and the Alliance Defending Freedom since the 1990 Employment Division v. Smith decision has been to enlarge free exercise rights while diminishing the restrictions on religion that flow from the establishment clause’s mandate of government neutrality toward religion. Unfortunately for the United States and the unity of this diverse nation, the goal of these entities has been to co-opt government power – whether state or federal – to further their positions on specific religious ends, including opposition to abortion and even contraception, denying civil rights to LGBTQ people, and expanding the right to refuse service or healthcare delivery to those with whom they religiously differ. They have pursued two pathways. First, they have pressed for extreme religious liberty statutes like the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA). Second, they have litigated to dismantle establishment clause doctrine that restricts the ability of government to support and promote religion. They have argued that the establishment clause exists solely to enlarge rights for religion, and that any restrictions on religion that flow from the establishment clause are “hostile” to religion. And, of course, they have succeeded in getting those priorities set in the Trump administration’s Department of Justice, where former Attorney General Jeff Sessions issued strong letters to federal departments and agencies directing them to follow RFRA to its logical extreme and to cater to religious entities as a first priority.

This combination of preference for religious practices with an attack on the establishment clause marks the religion-clause jurisprudence of the conservative justices now on the Supreme Court. For example, this wing of the court is responsible for the decisions in Burwell v. Hobby Lobby, which expanded RFRA rights to for-profit corporations; Hein v. Freedom from Religion Foundation, which restricted taxpayer standing for establishment clause cases; and Trinity Lutheran v. Comer, which held that if a state provided funding for playgrounds it could not deny funding for a church’s playground. The Trinity Lutheran case may seem silly and marginal in that it was about playgrounds but is still concerning, because it espouses an insidious theory at the core of the anti-establishment-clause movement that would require government to fund religious organizations anytime that nonreligious entities are funded. For those who have not been tracking this issue, that is the pathway from tax-funded public schools to tax-funded public and private schools, also an agenda item.

The conservatives have been hostile to the so-called Lemon v. Kurtzman “test” for determining when government action violates the establishment clause and to Justice Sandra Day O’Connor’s “endorsement test.” Instead, they have pushed for a standard of “coercion”: If the government is not forcing someone to believe something against her will, the courts should find no violation, according to them. That opens the door wide to government financial support of religion, as in the plurality’s reasoning in Mitchell v. Helms, a case involving funding for computers in private religious schools, and to the introduction of prayer into government proceedings, a la Town of Greece v. Galloway.

In Lemon, the Supreme Court set out three factors to be considered: the purpose and effect of the government action and whether it leads to excessive entanglement of government and religion. The 4th Circuit found a violation of the establishment clause in that the Bladensburg Cross led to excessive entanglement. It is also in my view an unconstitutional government endorsement of a specific religious message. The American Legion case is best understood in light of the Supreme Court’s 2005 dual holdings on public displays, in which it held in McCreary County v. ACLU of Kentucky that a Ten Commandments display in a Kentucky county courthouse was unconstitutional but, in Van Orden v. Perry, that a Ten Commandments monument on the Texas statehouse grounds was not.

As I discussed in this column at the time, the cases turned on context. The McCreary County courthouse posting of the Ten Commandments was saturated with religious intent. Moreover, a courthouse is a venue where neutrality is especially important. The Texas statehouse grounds set the Ten Commandments in the context of other monuments and did not scream at passersby that the state was endorsing a particular religious tradition.

The guiding principle in establishment clause cases should be the separation of power between church and state. It’s not that church and state must exist in non-overlapping universes, wholly divorced from each other. Of course they coexist. Rather, the danger that the establishment clause seeks to deter is the peril posed by a union of power between church and state. History — especially the European history preceding the founding of the United States — shows the tyranny imposed when these two most authoritative structures of human existence unite to control society. One important weapon in preventing a tyrannical union is limiting the capacity of religious believers and organizations to co-opt the state for their religious messages. If that line is erased, despotism is closer at hand.

At this time in history and particularly in this case, the Supreme Court needs to pay attention to the religious makeup of the United States, where the fastest growing cohort consists of the “Nones,” those who are not religiously affiliated. The Nones may be spiritual and even believe in God, but they are not enamored of organized religion. They are reminiscent of the Deists prevalent at the time of the framing of the Constitution, including the likes of Thomas Jefferson, who famously cut out the parts of his Bible that he found too fantastical. The Nones are important, because they are a reminder that Americans are not just religiously diverse but also independent. They don’t need and don’t want the government to tell them what to believe. Nor are they interested in having anyone push any one religious tradition or faith on them. The Nones are not likely to buy the duplicitous argument that a cross is nonreligious. Thus, no justice should presume that Americans will look at this imposing cross as some neutral symbol, just because it has been there for decades. Public sensibility about religion and government endorsement is context- and era-dependent. At this time, this symbol is religious, and the message is being sent by the government.

Sadly in my view, veterans have sided with the American Legion, while the American Humanists have had to be the ones to fight for the distinctive constitutional value of the separation of church and state. I would argue that the veterans were fighting in World War I to preserve the American way of religious diversity and the right to government neutrality toward all Americans. The American Humanists are on the side of the American core constitutional virtues the two world wars preserved. I understand the emotional attachment to a symbol that is tied to particular veterans, but the 4th Circuit rightly suggested that other religious symbols in memory of veterans could be added or the cross could be moved to private property. Given its size, surely no one is concerned that it won’t be visible from the road! In light of the 4th Circuit’s sensible holding and suggested remedies, the only plausible reason the court took this case was to further disable the requirement of government neutrality and to decrease the separation between church and state, which in turn reinforces the cause of religious triumphalism. Thus, the best thing that could happen in this case would be for it to be relegated to a “DIG,” a denial of certiorari after it was “improvidently” granted.