Closing the Door to Establishment Clause Challenges

      The Supreme Court's eventual decision to leave a 40-foot Christian cross standing on government land as a memorial to U.S. soldiers killed in World War I was a foregone conclusion once the justices agreed to hear the case. Church-state separationists braced themselves for defeat with hopes that the Court would inflict as little damage as possible on the constitutional precedents limiting government support for religious displays and religious institutions.
      With the result fully anticipated, experts and advocates on both sides of the issue largely overlooked the damage that the ruling actually does to potential Establishment Clauses in the future. Taking language in the various opinions at the broadest sweep, the ruling in American Legion v. American Humanist Association [June 20] virtually closes federal courts to Establishment Clause cases by leaving potential plaintiffs with no grounds to object in the mine run of cases.
      Justice Samuel Alito's opinion in the case stops just short of formally overruling the much maligned decision in Lemon v. Kurtzman (1971) that set up a three-part test for judging government practices or policies alleged to amount to establishment of religion. In its place, Alito's opinion appears to prohibit only government practices that amount to coercion and gives a constitutional pass to longstanding government actions—as, for example, the 90-year history of the Peace Cross on a centrally located traffic island in suburban Bladensburg, Maryland.
      The Lemon test, adopted with only one justice dissenting, directed courts to determine whether a government practice had a secular purpose, whether a reasonable observer would see it as an endorsement of religion, and whether it resulted in government entanglement with religion. The test has been much maligned through the years, but seemingly only because the second prong actually put some teeth into what church-state separationists views as the religious neutrality promised by the Establishment Clause.
      Applying the Lemon test not at all strictly, the Bladensburg Peace Cross fails, just as the federal appeals court for Maryland ruled in the decision that the Supreme Court reversed. Anyone living in or visiting Bladensburg surely would view an immense cross standing on government property at a gateway to the city as an endorsement of the Christian faith. Try to imagine the monument standing on the grounds of the U.S. Capitol and try to think of it as something other than a singular endorsement of Christianity among any other religious faiths.
      Alito cast the cross as a universal symbol for those lost in World War I, but he overlooked not only the Star of David tombstones for Jewish soldiers but also the actual history of the monument. The Christian pastors who spoke at the dedication in 1925 viewed it in exactly those terms, as symbolic of Jesus' sacrifice at Calvary, which they likened to the sacrifices that fallen soldiers made in defense of liberty worldwide.
      In a separate opinion, Justice Neil Gorsuch drew an important corollary from what he called the Court's decision to scrap Lemon. Gorsuch found it wrong for the Court, in a string of prior decisions, to have allowed Establishment Clause plaintiffs standing based on what he called their status as "offended observers" under Lemon's second prong. "With Lemon now shelved," he wrote, "little excuse will remain for the anomaly of offended observer standing . .  ."
      The individual plaintiffs in the case—one Bladensburg resident and two members of the American Humanist Association or an affiliated group -- would have been knocked out of the case on Gorsuch's premise, perhaps the humanist association itself as well. The government entanglement with the Peace Cross was relatively minimal: a six-figure expenditure by the Maryland-National Capital Park Commission over the years to maintain the monument.
      An earlier Roberts Court decision would cut the legs off an Establishment Clause challenge based solely on the expenditure of government funds. It was Alito who wrote for the Court in a decision, Hein v. Freedom From Religion Foundation (2007), that virtually eliminated taxpayer standing to object to government expenditures to promote or endorse religion generally or one faith over another. The 7-2 ruling in that case gave the Bush administration free rein to reprogram White House expenditures to a newly created Office of Faith-Based and Community Initiatives tasked with promoting faith-based groups nationwide.
      In the new decision, Alito found the Peace Cross unobjectionable based in large part on "its historical importance." As constitutional logic, this reasoning would have undercut any number of important Supreme Court decisions. Imagine if the Brown v. Board Court had given racial segregation a constitutional pass because of the long-standing acceptance of the practice. School-sponsored classroom prayer would also pass muster under what Justice Brett Kavanaugh characterized as Alito's "history and tradition" test unless a court viewed the government-supported conformity as coercive.
      Oddly, Alito revives the idea of the "offended observer" as an additional reason for leaving the Peace Cross undisturbed. Many people, he argued, would view "destroying or defacing the Cross" as "aggressively" hostile toward religion, not neutral. In many other settings, the Court has correctly disregarded the risk of public criticism in weighing its responsibility to enforce the Constitution against prevailing public sentiment.
      The muted reaction to the Court's decision included a statement from the American Civil Liberties Union calling it a "blow against the separation of church and state." But even the ACLU failed to remark on the new barriers the decision appears to erect to enforcing the Establishment Clause.