In American Legion, et al. v. American Humanist Association, et al. (2019), the Supreme Court held that a large World War I memorial in the shape of a cross and located on public land did not violate the Establishment Clause of the First Amendment.
In 1925, the Bladensburg Peace Cross was erected in the community of Bladensburg, Maryland, to honor area soldiers killed in World War I. The 32-foot cross was designed to resemble the many crosses used to mark the gravesites of American soldiers killed during the conflict. The cross sits on public land and is maintained by public funds.
The American Humanist Association filed suit to have the cross demolished or to have the arms removed on grounds that its maintenance with public funds and presence on public land make it a violation of the Establishment Clause, which reads: “Congress shall make no law respecting an establishment of religion.” This case was combined by the Court with another case dealing with the same issue, Maryland-National Capital Park and Planning Commission v. American Humanist Association.
Writing for a 7-2 majority, Justice Samuel Alito noted that the Establishment Clause test announced in Lemon v. Kurtzman has proven problematical in application. Under the Lemon test, a court must ask whether a challenged government action 1) has a secular purpose; 2) has a “principal or primary effect” that “neither advances nor inhibits religion”; and 3) does not foster “an excessive government entanglement with religion.”
The Court suggested that four considerations outside the Lemon test should be taken into account in dealing with Establishment Clause cases that concern monuments: 1) the difficulty of discerning the intent of the people who erected the monument; 2) the fact that, as time goes by, the purposes associated with a monument, symbol, or practice often multiply; 3) the “message” conveyed by the monument . . . could also change over time; and 4) when time’s passage imbues a religiously expressive monument, symbol, or practice with historical significance, removing it may no longer appear neutral, especially to the local community for which it has taken on particular meaning.
With these considerations in mind, the Court declared that the Bladensburg Peace Cross must be evaluated in light of the history surrounding it. The Court noted that the crosses that inspired the Bladensburg Cross were those placed at the graves of American soldiers killed in the war. The cross thus became a symbol of their sacrifice: “That the cross originated as a Christian symbol and retains that meaning in many contexts does not change the fact that the symbol took on an added secular meaning when used in World War I memorials.”
The Court acknowledged that the cross is a Christian symbol, but stated that it would be improper to ignore its other meanings in the context of a war memorial. “For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark.” The Court also declared that destroying or defacing the cross would “not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.” The Court therefore concluded that the use of public funds to maintain the Bladensburg Peace Cross did not violate the Establishment Clause.