The Peace Cross Case: Has The Court Soured on Lemon?

In The American Legion v. American Humanist Ass’n, Nos. 17-1717, 18-18, argued February 27, 2019, the Supreme Court will decide whether the “Peace Cross” erected in 1925 in Bladensburg, Maryland, as a memorial to 49 soldiers who died in World War I violates the Establishment Clause. The cross is 40 feet tall, is made of stone and concrete, and was erected at a busy intersection. At its base, the words “Valor, Endurance, Courage, Devotion” appear on its four sides, with no religious language on any portion of the monument. At its center, the monument has a large American Legion symbol, identifying the monument’s sponsor.

In the Fourth Circuit decision below, the Court of Appeals found a violation of the Establishment Clause based upon the highly-critized three-part test set forth in Lemon v. Kurtzman (1971). That test inquires if legislation or state-sponsored activity (1) has a secular purpose, (2) whether its primary effect is to advance or inhibit religion, and (3) whether there is “an excessive government entanglement with religion.” The Fourth Circuit found that the average person would believe that the Peace Cross endorses the Christian religion, and thus violates the Establishment Clause.

Based on the oral argument in the Supreme Court, it appears that the likely result will be that the cross is found not to violate the Establishment Clause because it is a 93-year-old war memorial which was erected at a time when there was not as much religious diversity as there is today.

While the Lemon case may not be the basis for the ultimate decision, it nevertheless received significant attention, particularly from the court’s newest members. Justice Gorsuch twice referred to the Lemon tests as a “dog’s breakfast,” and noted that it had been a long time since the court applied it, leading to what he termed “a welter of confusion.” He then asked “Is it time for this court to thank Lemon for its services and send it on its way?”

Justice Gorsuch added that a majority of the justices, at different times, have “advocated for Lemon’s dismissal.” Indeed, Justice Scalia was a long time opponent of the Lemon test. See, e.g., Edwards v. Aguillard (1987) (arguing that abandoning Lemon would be “a good place to start” to get “clarity and predictability”); Lee v. Weisman (1992) (contending that the failure to rely on Lemon represented “the internment of that case” and “the one happy byproduct of the Court’s otherwise lamentable decision.”)

Justice Kavanaugh also criticized Lemon at the Peace Cross argument, noting that the lower courts needed clarity in this area. He questioned the American Humanist Association lawyer who argued that the Lemon precedent was useful, stating “How could it be useful when we haven’t used it in the most important cases that are on point here? ”

While Neal Katyal, who argued for the American Legion, lectured Justice Gorsuch that, if he was concerned about Lemon, this was not the proper case to rule on its continuing viability, Justice Kavanaugh later questioned “What if we think it’s unconstitutional under Lemon? What is your view then?” Katyal replied that, in that case,”you should take a look at Lemon because then it would be necessarily presented.” That response was met with laughter in the court.

Given the many comments by several justices suggesting that the case could be decided on the basis of upholding historic monumental use of crosses, and considering Chief Justice Roberts’ favoring of narrow decisions avoiding constitutional rulings, this may not be the case where Lemon finally, in the word of Justice Scalia, is given its “internment.” Nevertheless, given the critical comments made by Justices Gorsuch and Kavanaugh, I would not be surprised to see a concurring opinion authored by Justice Gorsuch, and joined by Justices Kavanaugh and Thomas, and perhaps even by Justice Alito, calling for Lemon to be overruled.

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