by on 
By Mark Satta[1]
On June 20, in a 7-2 decision, the Supreme Court ruled that the presence of a ninety-year-old World War I memorial in the form of a 32-foot Latin cross on public land in Maryland does not violate the constitutional prohibition against governmental establishment of religion. The Court’s decision in American Legion v. American Humanist Association joins a long line of cases decided in the past thirty years concerning when a religious symbol on public land constitutes impermissible endorsement of religion.[2]
A notable feature of the Court’s opinion, written by Justice Samuel Alito, was the explicit decision not to apply the so-called “Lemon test” to determine if the continued presence of the cross on public land was constitutional.[3] The Lemon test is a controversial three-part test first articulated in the 1971 case of Lemon v. Kurtzman for determining when government action violates the Establishment clause of the Constitution’s First Amendment.[4] Alito’s opinion did not overturn the Lemon test, but it did narrow the circumstances under which the test should be applied.[5]
By foregoing application of the Lemon test, the Court was left with the challenge of determining on what grounds the constitutionality of the cross monument should be settled. As evidenced by the four concurring opinions and the dissenting opinion filed in the case, the Justices disagree over the proper method to fill Lemon’s absence in cases like American Legion.
At many points Justice Alito sensibly fell back on a longstanding part of the Court’s religious freedom jurisprudence: namely that government action should be neutral toward religion, as opposed to favoring or showing hostility toward particular religious or non-religious views.[6] Determining what constitutes neutral behavior toward religion in a pluralistic society is a hard task because what appears to constitute neutral treatment of religion to some may look like unfair treatment to others and vice versa.
Justice Alito’s choice to consider the monument’s potential neutrality or non-neutrality was a wise move in theory. However, Justice Alito’s neutrality analysis exhibits an all-too-predictable bias in which only a privileged and familiar slice of the population’s perspectives from within our pluralistic society is given significant consideration.
Early on in his opinion, Justice Alito writes that “removal or radical alteration” of the cross “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 Claus traditions.”[7] Justice Alito is likely correct that this is how many would see the act. But it is just as likely that many see the use of public funds to maintain a Latin cross on public lands as a non-neutral act manifesting hostility toward non-Christian religions and non-religious people. Yet Alito only mentions the former perspective.
Later in the opinion, Alito returns to this theme writing that one of the “strong presumptions of constitutionality” for the public cross is 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 [to religion], especially to the local community for which it has taken on particular meaning.”[8] This too is likely true, but given the lawsuit filed by local residents and the American Humanist Association (and supported by multiple amicus briefs from other interested parties) long-term maintenance of this “religiously expressive monument” on public land appears to others to be hostile to their non-Christian faith or non-religious worldview.[9] Once again, Justice Alito focuses only on the one side.
These one-sided refrains continue to appear in Justice Alito’s opinion. According to Justice Alito, requiring the removal of religious World War I memorials “would not be viewed by many as a neutral act,” alterations to the monument “would be seen by many as profoundly disrespectful,” and destroying “items with religious associations may evidence hostility to religion.”[10] This is all very likely true, but on the other hand, keeping such World War I memorials is viewed by many as a non-neutral act favoring Christianity, failing to remove or alter public religious symbols is seen by many as profoundly disrespectful of their own non-majority religious or non-religious views, and retaining and maintaining items with religious associations on public land may evidence hostility to other religions or non-religious worldviews. These alternative perspectives are consistently overlooked and underplayed in Alito’s analysis.
Concerning questions about the permissibility of historical, religiously expressive symbols on government land, there are many people who hold strong but contradictory views on both side of such issues. Thus, the fact that “many” “may” view an act as non-neutral cannot on its own be determinative. Such a principle, if followed faithfully, would lead to contradictory outcomes whenever many people would find keeping a monument up non-neutral toward religion while many others would find the same monument being taken down non-neutral toward religion. The question of what to do with the Bladensburg Peace Cross seems to be one such situation.
The alternative is for the concern over what “many” would find non-neutral to religion to track only the perspective of some. This is what happened in Justice Alito’s opinion. But neutrality toward religion requires neutral attention to the perspective of Christians and non-Christians alike.
For all its flaws, one of the strengths of the Lemon test is that it pushes courts to look at the “principal or primary effect” of the state’s action.[11] The very nature of the task of determining a principal and primary effect requires an ordering and ranking of the significance of effects. That the removal of the Peace Cross “would not be viewed by many as a neutral act” is an effect worth paying attention to. But within the broader context of the Lemon test, it is harder to let this effect play an undue role to the exclusion of other relevant effects and reactions.
Justice Kagan noted this kind of value in the Lemon test, writing that, “[a]lthough I agree that rigid application of the Lemon test does not solve every Establishment Clause problem, I think that test’s focus on purposes and effects is crucial in evaluating government action in this sphere—as this very suit shows.”[12]
While the Lemon test is no panacea for difficult Establishment Clause questions, its charge to make sure that the principal or primary effect neither advances nor inhibits religion requires that courts determine what the primary effect is. This, in theory, should provide a check against courts focusing disproportionately on the effect of how a particular group of the population would perceive a state action. While the interests of “many” were represented in the Court’s American Legion opinion, the goal should be to balance the interests of us all.
[1] Mark Satta has a JD from Harvard Law School and a PhD in Philosophy from Purdue University. He is currently studying for the New York bar and will begin work as an associate at Harter Secrest & Emery in September 2019. Mark is a former Online Editor for the Harvard Law & Policy Review.
[2] American Legion v. American Humanist Ass’n, 588 U. S. ____ (2019); See, e.g. Lynch v. Donnelly, 465 U. S. 668 (1984); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 592 (1989); Van Orden v. Perry, 545 U. S. 677 (2005).
[3] American Legion, 588 U.S. at *15–16.
[4] See generally, Lemon v. Kurtzman, 403 U. S. 602 (1971).
[5] American Legion, 588 U.S. at *16.
[6] Id. at *20, *24, *31.
[7] Id. at *2.
[8] Id. at *20–21.
[9] The American Humanist Association has compiled links to the amicus briefs filed in support of their position at https://americanhumanist.org/honorthemall/#amici.
[10] American Legion, 588 U.S. at *24.
[11] Lemon, 403 U. S. at 412.
[12] American Legion, 588 U.S. at *1 (Kagan concurring).