Oklahoma Bar Journal

Caution: Approaching the Symbolic Limits of the Establishment Clause

The Lemon Test Sours on Symbols

By Micheal Salem

When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion. The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs. That same history showed that many people had lost their respect for any religion that had relied upon the support of government to spread its faith. The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its “unhallowed perversion” by a civil magistrate. Another purpose of the Establishment Clause rested upon an awareness of the historical fact that governmentally established religions and religious persecutions go hand in hand.1

For over half a century, the rationale of Justice Black’s opinion in the New York Regents’ Prayer case has stoked controversy with its mandate of strict government neutrality toward religion. Engel was, and has remained, very unpopular2 and led many to conclude Justice Black’s opinion was composed out of hostility to religion. The historical record is to the contrary, and the very language quoted above illustrates Black’s deep reverence for religious belief. The overwhelming evidence is that Black’s view of strict separation of church and state grew out of his Southern Baptist religious beliefs3 where separation was a longstanding doctrine, and after Engel was decided, many religious leaders welcomed and supported Justice Black’s strict formulation.4

Nowhere has this controversy over religious neutrality been more self-evident than in legal cases involving the use of religious symbols by government or governmental entities. This controversy over symbols raises tough questions for courts keenly aware such cases are unpopular to a vast majority of the population. Some defend the use of holy symbols or references in government ceremony as mere ritual – a form of “ceremonial deism”5 devoid of religious meaning. However, the term ignores Justice Black’s warning that the use of religious symbols in such a casual manner drains them of the very religious significance which gave them meaning in the first place. With this argument, the sacred becomes profane.

Certainly, some governmental uses of religious identifications are unavoidable and reasonable, such as the names of towns with origin stories of longtime religious meaning or simple appropriation of biblical names for locations.6

With a recent case of the U.S. Supreme Court, the controversy of government use of religious symbols continues unabated, and it seems likely that even with seven separate opinions the court has confirmed that the test from Lemon v. Kurtzman7 (Lemon test) will no longer apply to Establishment Clause8 violations alleged when government uses religious symbols. Instead, the court will balance context, history and tradition.9

American Legion challenged the “Bladensburg Peace Cross” war memorial, a 32-foot tall “Latin” or “Christian” cross.10 It was erected as a memorial monument after World War I and eventually acquired and maintained by the local government.

The court’s majority opinion, that the cross monument did not violate the Establishment Clause, did not emerge easily, consuming 87 pages of the U.S. reports and seven different opinions by the justices.

The American Humanist Association (AHA) and three individuals12 challenged on Establishment Clause grounds the Bladensburg Peace Cross constructed on public property in the middle of a highway median in Prince George’s County, Maryland. It was apparently assumed from the beginning by the proponents that the monument would be built on public property.13 Planning commenced, and funds were raised by the “Calvary Cross Memorial Committee”14 beginning in 1918. When funding difficulties arose, the project was taken over and completed by the American Legion which then included its emblem displayed at the center of the cross. The pedestal on which the cross sits has a bronze plaque that lists the names of 49 soldiers from the county killed in the war.15

The cross was completed in 1925. The dedication of the cross included an invocation by a Catholic priest and a benediction by a Baptist minister.16 Over the years the cross hosted numerous events honoring veterans as well as religious services.17

Monuments honoring veterans of other military conflicts were added in a park near the cross.18 As urban growth continued, the location of the cross became a busy intersection and it was acquired by the Maryland-National Capital Park and Planning Commission (commission) in 1961. Public funds were used to maintain the cross after its acquisition by the commission.19 The American Legion reserved the right to continue use of the site for ceremonies.20

The AHA sued in 2014, contending the presence of the cross on public land and its maintenance by the government violated the Establishment Clause. The American Legion intervened to defend the cross and its placement. The district court granted summary judgment to both the commission and the American Legion. The district court applied the Lemon v. Kurtzman test21 and the test of the separate concurring opinion of Justice Breyer in Van Orden v. Perry.22

The 4th Circuit reversed, holding that AHA had standing and analyzed the cross under Lemonconcluding that although there was a secular purpose for displaying the cross, the historical meaning and physical settings overshadowed its secular purpose. The circuit also found that a reasonable observer would conclude that the primary effect of the cross was an endorsement of religion, there was an excessive entanglement of religion and government in that the commission owned and maintained the cross which was displayed on government property and the cross dominated its surroundings.23

The Supreme Court reversed the 4th Circuit, 7-2, finding the cross constitutional. Justice Alito’s plurality opinion24 begins with a discussion of the decisions of the district court and court of appeals and their application of the Lemon test. He notes its use has been criticized and that, in some cases, the court had not applied Lemon because it presented “daunting problems” and shortcomings in cases such as this one. As a “great array of laws and practices came to the Court, it became more and more apparent that the Lemon test could not resolve them.”25 Justice Alito did not apply Lemon, even while not expressly repudiating it, but instead appeared to narrow the circumstances in which it would be applied, noting criticism of it and occasions when the Supreme Court did not use it.26

First, Justice Alito acknowledged the difficulty in identifying the original purpose of symbols or practices established years ago, and the problem that those purposes multiply, and/or become obscure, or evolve as time goes by.27 While there was fairly clear evidence in the record of the purpose and choice of the Bladensburg Peace Cross as a war memorial, Justice Alito instead chose to focus on the facts of Salazar v. Buono28 – the case of a cross constructed in the Mojave Desert more than 70 years earlier by a small group of veterans where the record was sparse as to events and motives.29

“Second, as time goes by, the purposes associated with an established monument, symbol, or practice often multiply.”30

Third, just as purpose can change over time, the message conveyed can also change as these religious expressions become embedded features whose significance becomes independent of their religious origins, such as the names of towns and cities.31

Finally, Justice Alito determined that with passage of time, a religious symbol becomes so imbued with familiarity and multiple purposes of historical significance that removing it no longer appears to be a neutral act.32

Justice Breyer, joined by Justice Kagan, wrote separately to affirm his prior concurring opinion in Van Orden v. Perry,33 that there is no “single formula” as a rule of decision, and that the review should determine if the symbol or practice meets the objectives of the religion clauses, ”assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its ‘separate spher[e].’”34 He concluded there was evidence of a secular motive and no effort to disparage or exclude a religious group and that a lack of public outcry over the years was not due to a “climate of intimidation.” The case might be different if evidence showed “the organizers had ‘deliberately disrespected’ members of minority faiths or if the Cross had been erected only recently, rather than in the aftermath of World War I” in light of “greater religious diversity today” and divisiveness that a contemporary “religious display” might cause.35

Justice Kavanaugh separately concurred to point out the court no longer applies Lemon, but used a “history and tradition test” in evaluating the constitutionality of the cross.36 He identifies five “relevant categories of Establishment Clause cases”37 concluding that Lemon does not explain any of them and is no longer “good law.”38

Although joining the majority decision in part, Justice Kagan did not agree that Lemon is no longer valid as she considered a “focus on purposes and effects is crucial in evaluating government action in this sphere ... on a case by case basis.”39

Justice Thomas questioned the incorporation of the Establishment Clause against the states and that it might be limited “to ‘law[s]’ enacted by a legislature.” However, even if the Establishment Clause went beyond “laws,” the cross “does not involve the type of actual legal coercion that was a hallmark of historical establishments of religion.”40

Justice Gorsuch, joined by Justice Thomas, would deny the AHA standing to sue on an “offended observer” basis.41

Lemon was an aggregation of tests applied in prior cases and offered a useful distillation of the protections of the Establishment Clause with an application based on enforced neutrality. However, prior to incorporation of the Establishment Clause against the states in Everson v. Board of Ed. of Ewing42 government made decisions about religious preferences based upon choices selected by the majority. At the time the Bladensburg Cross was designed and built, the Establishment Clause only bound the federal government and had not yet been applied to the states under Everson.

So, what is Justice Alito saying when he says Lemon does not work in some instances because of “daunting problems?” One factor may be that Lemon leads to conclusions that overturn decisions or practices that arose prior to Everson, results that some of the justices apparently simply do not agree should change.

Judges or justices may simply accord less concern about the removal of a longstanding religious monument than maintaining neutrality. To the modern Supreme Court, religious minorities must simply “develop a thicker skin” when confronted by government sponsored religious symbols preferred by the majority.43

The reality is that Lemon is not very different from many other constitutional tests which result in 5-4 decisions. Why does Justice Alito think evaluating a symbolic object many years after its construction involves unique difficulties in discerning its original meaning or purpose?44 What is the difficulty in finding the original meaning and purpose of a monument constructed long ago for a court composed in part of “originalists” who claim the capability of finding facts of original intent well over 150 years after the creation of a “dead Constitution” and its Civil War amendments?45 At least four members of the present court identify themselves as “originalist” in part. Yet, even though we have considerable information about the “original intent” of the Constitution, justices also make considered judgments about the original meaning of old statutes with much less “history” than the Bladensburg Cross.

As previously noted, the retreat from Lemon may simply be that it presents results with which the justices disagree because they are unpopular. Yet, an unfavorable personal view of a case result is not supposed to be part of judicial decision making as the writings of some justices have emphasized. Both Justice Scalia and Justice Gorsuch have written that a judge will occasionally render a decision that he or she does not like and will personally disagree with the holding.46

A different question that arises for originalists is that considering “history and tradition,” how does a governmental religious display become “more constitutional” with the passage of time? In reality, isn’t this a variation of the “reasonable observer” factor of the “effect” prong of Lemon?

This leads to the most perplexing part of the plurality opinion: the Catch 22 holding that over time the religious significance of the cross fades practically into invisibility until its removal is sought, and then, because the cross is a religious symbol, its removal is not a neutral act but instead signifies hostility to religion. Justice Alito sees a violation of the First Amendment for those opposed to removal of the cross, while he detects no violation for those who seek its removal.

Justice Alito acknowledges the cross is a “preeminent Christian symbol,”47 yet finds that this “preeminent symbol of Christianity” has become secular?48 Only painters and justices can turn black into white.

While in theory this constitutional principle could be applied to any religious symbol, historically it will most frequently protect Christian symbols since those are part of the dominant religious narrative in the history of this country. Meanwhile, the “history” of public symbols of religions of believers other than Christians will not merit consideration because they have no similar history.

Finally, a Christian cross does not equally honor non-Christian war dead as explained in the AHA BIO Cert., which notes, for example, the “3,500 Jewish soldiers [who] gave their lives for the United States in World War I.”49 The Supreme Court’s holding in American Legion expects Jewish and other non-Christian war veteran organizations to gather at a Christian cross to honor their dead.

As for Justices Gorsuch and Thomas, would they deny Jewish veterans access to the federal courts if the only standing they possess is an “offensive” encounter with a government religious symbol used to honor Jewish war dead that is incongruent with their religious beliefs? If “offended observer” status is insufficient to enforce the Establishment Clause, what is to prevent government from all manners of violations of adoption of religious practices? Who could stop the Regents’ Prayer in Engel v. Vitale?

In an increasingly pluralistic society, protecting the values of the Establishment Clause can be made more certain by following neutrality, not acquiescence.

By recognizing the difficulty of unpopular decisions, the Supreme Court’s struggle to find the appropriate tests for Establishment Clause violations may likely continue to lead its decisions away from the neutrality of Justice Black’s Engel decision. Government will more readily bend to the popular will of a dominant religious population and, in effect, force dissenting citizens, through the expenditure of tax dollars, to join in a “tithe” for religious symbols, activities or practices with which they disagree.

Thomas Jefferson noted in his autobiography that tax support of the established Anglican Church in Virginia was a “spiritual tyranny” imposed on citizens who were not members.50 Financial support of the Bladensburg Cross certainly looks like such a “tithe.”

In American Legion, the Supreme Court encountered a clearly religious monument constructed long before the modern enforcement of civil rights laws. The determination of the constitutionality of the Bladensburg Cross was an acknowledgment by the court that a cross that time-travels to the present from a much different past will eclipse the rights of minority religious believers.

Micheal Salem is a solo practitioner in Norman. His practice areas are federal constitutional law and civil rights, including First Amendment law. He received his J.D. from the OU College of Law in 1975. He is the recipient of the Oklahoma Courageous Advocacy Award (1984), Golden Quill Award (2010), Fern Holland Courageous Lawyer Award (2013) and Joe Stamper Distinguished Service Award (2016) from the Oklahoma Bar Association.

1. Engel v. Vitale, 370 U.S. 421, 431-32 (1962) (Op. Justice Black).
2. Corinna Barrett Lain, “God, Civic Virtue, and the American Way: Reconstructing Engel,” 67 Stan. L. Rev. 479, 481-83 (March 2015).
3. Hugo Black and Elizabeth Black, Mr. Justice and Mrs. Black: The Memoirs of Hugo L. Black and Elizabeth Black 93 (1986) (“Hugo went on to say he was a Baptist; his father was a Baptist; his grandfather was a Baptist; his grandmother was a Baptist.”). Black embraced religious traditions from Baptist and Unitarian beliefs. Id.

The phrase, “wall of separation between Church and State” came from Jefferson’s letter to the Danbury Baptists in 1802. Jefferson was preaching to the choir, essentially telling them what they wanted to hear. www.loc.gov/loc/lcib/9806/danpre.html (last visited 1/10/2020).

Some authors have identified this separation tradition as existing more than 300 years prior to Engel. John C. Jeffries Jr. & James E. Ryan, “A Political History of the Establishment Clause,”
Mich. L. Rev. 279, 327 (2001).

Jeffries and Ryan also identify the separation requirement as primarily financial, while more tolerant toward religious exercise in schools. Id.

4. “[T]he vast majority of Protestant leaders and organizations announced their support for excluding official prayer and Bible readings from the public schools.” Jeffries and Ryan, 100 Mich. L. Rev. at 327. Many religious leaders signed statements supporting the decision. Id., n. 228. The Southern Baptist Convention issued a statement “thank[ing] the Supreme Court for this decision simply because such a required prayer is using the government to establish religion.” Id., n. 225. Editorials supporting Engel were published in 1962 in both the conservative Christianity Today and the liberal religious periodical The Christian CenturyId., n. 227.

In the early 1980’s while working on a church-state case, this author had the opportunity to talk on the telephone with Dr. Herschel Hobbs, pastor of the First Baptist Church in Oklahoma City and president of the Southern Baptist Convention from 1961 to 1963 during the time of the Engel decision. He said he heard about Engel while returning to Oklahoma on a flight and obtained a copy after his arrival and read it. He commented that Black’s opinion read like “regular Baptist doctrine.”

5. The first use of the term “ceremonial deism” in a Supreme Court opinion was a dissenting opinion by Justice William Brennan in Lynch v. Donnelly, 465 U.S. 668, 716, 104 S. Ct. 1355 (1984). Brennan referenced the term used by Dean Eugene Rostow of the Yale Law School that described certain references such as “God” in the Pledge of Allegiance as expressions that “have lost through rote repetition any significant religious content.” Id.
6. Examples include St. Paul, Minnesota; Bethlehem, Pennsylvania; St. Charles, Missouri; Corpus Christi, Texas (Body of Christ); San Jose, California (St. Joseph); San Francisco, California (St. Francis); San Juan, Puerto Rico (St. John); Santa Fe, New Mexico (Holy Faith).

A less than exhaustive list of names of towns and places from the Bible is available on Wikipedia:

en.wikipedia.org/wiki/List_of_biblical_place_names_in_North_America (last visited 1/10/2020).

There is divided evidence about how Los Angeles (City of Angels) got its name, but while a previous longer name appears disputed, it eventually took a shortened form for which we must give thanks, especially when addressing letters:

Los Angeles historian Doyce B. Nunis Jr. presented one argument that ... the name of the town was El Pueblo de la Reyna de los Angeles meaning “The Town of the Queen of Angels.” As evidence, Nunis presented maps dated a few years after the city’s founding.

The archivist for the Archdiocese of Los Angeles, Monsignor Francis J. Weber, argued that the name of the city was closer to the name of the river. He claimed that the city was called El Pueblo de Nuestra Señora de los Angeles de Porciúncula meaning “The Town of Our Lady of the Angels of Porciúncula.”

Regardless of the origin of the city’s name, it was eventually shortened to the City of Los Angeles, a title it has retained since its incorporation in 1850.

www.worldatlas.com/articles/wheredidlosangelesgetitsname.html (last visited 1/10/2020).

7. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105 (1971).
8. The Establishment Clause of the First Amendment provides, “Congress shall make no law respecting an establishment of religion ...”
9. American Legion v. American Humanist Ass’n, 588 U.S. ___, 139 S. Ct. 2067 (2019) (American Legion).
10. A “Latin” cross is “a cross whose base stem is longer than the other three arms.” Harris v. City of Zion, 927 F.2d 1401, 1403 (7th Cir. 1991), reh. den. 934 F.2d 141 (7th Cir. 1991), cert. den. 505 U.S. 1229, 112 S.Ct. 3054 (1992).

See American Humanist Ass’n v. Md.National Capital Park & Planning Comm’n, 874 F.3d 195, 20607 (4th Cir. 2017):

The Latin cross is the “preeminent symbol of Christianity.” Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004) (internal quotation marks omitted); see Robinson v. City of Edmond, 68 F.3d 1226, 1232 (10th Cir. 1995); Gonzales v. N. Twp. of Lake Cty., 4 F.3d 1412, 1418 (7th Cir. 1993); Murray v. City of Austin, 947 F.2d 147, 149 (5th Cir. 1991); ACLU v. Rabun Cty. Chamber of Commerce, Inc., 698 F.2d 1098, 1110 (11th Cir. 1983).

Its sectarian significance is obvious as the justices have acknowledged. Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 776 (1995) (O’Connor, J., concurring) (“the cross is an especially potent sectarian symbol”); Justice Souter did the same. 515 U.S. 792. (Souter, J., concurring) (the cross is “the principal symbol of Christianity”).

The Latin cross is also a proselytizing symbol. See County of Allegheny v. ACLU, 492 U.S. 573, 661 (1989) (Kennedy, J., concurring and dissenting) (the Latin cross is a “proselytiz[ing]” Christian symbol). Its selection as a government choice is a specific expansion of sectarian preference.

SeeAmerican Legion (Ginsburg dissenting), 139 S. Ct. at 2108, n. 10. citing Gonzales, 4 F.3d at 1418 (“[W]e are masters of the obvious, and we know that ... the Latin cross ... is ‘[the] unmistakable symbol of Christianity as practiced in this country today.’” (quoting Harris v. Zion, 927 F. 2d 1401, 1403 (7th Cir. 1991)).

11. Court filings and briefs in the Supreme Court referenced in this article as well as other resources can be located on SCOTUSblog: www.scotusblog.com/casefiles/cases/theamericanlegionvamericanhumanistassociation/ (last visited 1/10/2020).

The Supreme Court Docket for No. 17-1717 is at: www.supremecourt.gov/docket/docketfiles/html/public/171717.html (last visited 1/10/2020).

A companion appeal from the Maryland-National Capital Park Commission was consolidated with American Legion for briefing and oral argument. MarylandNational Capital Park and Planning Commission v. American Humanist Association, No. 18-18. The SCOTUSBlog case page is here: www.scotusblog.com/casefiles/cases/marylandnationalcapitalparkandplanningcommissionvamericanhumanistassociation/ (last visited 1/10/2020).

After consolidation, subsequent filings were made in No. 17-1717.

12. The three individuals are not identified in the Supreme Court opinion but were identified in the 4th Circuit’s decision as Steven Lowe, Fred Edwords and Bishop McNeill and described as “nonChristian residents of Prince George’s County.” American Humanist Ass’n, 874 F.3d at 202.
13. Respondent AHA Brief in Opposition to Cert. (AHA BIO Cert.), p. 6 (“...the government owned the Cross from the outset. The Cross was erected on Town property, with the Town’s approval, then taken over by the State Roads Commission for highway expansion, and then transferred to the Commission in 1960 for the sole purpose of ‘future repair and maintenance.’”).
14. The full name of the committee is never used in any of the opinions of the courts. The AHA alleged this was its name and referenced the Joint Appendix at J.A.1118. (AHA BIO Cert., p. 6). AHA said the purpose of the cross was always to be a memorial in the likeness of the Cross of Calvary as described in the Bible. Id.

The 4th Circuit said “local media described the proposed monument as a ‘mammoth cross, a likeness of the Cross of Calvary, as described in the Bible.’” American Humanist Ass’n, 874 F.3d at 200.

The only reference to “Calvary” in the majority opinion of the Supreme Court is to the keynote speech at the time of dedication by Rep. Stephen W. Gambrill, who referenced the “token of this cross, symbolic of Calvary,” to “keep fresh the memory of our boys who died for a righteous cause.” American Legion, 139 S. Ct. at 2077.

15. American Legion, 139 S.Ct. at 2077.
16. American LegionId.
17. Justice Alito does not mention religious services even though the district court found evidence religious services occurred at the cross. American Humanist Ass’n v. Md.National Capital Park & Planning Comm’n, 147 F. Supp. 3d 373, 379 n. 5 (D. Md. 2015). The 4th Circuit found Sunday worship services had occurred at the cross. American Humanist Ass’n, 874 F.3d at 201. (“Nothing in the record indicates that any of these services represented any faith other than Christianity.”).
18. Justice Alito’s opinion points out that because the cross’ location is on a traffic island, the closest war memorial is 200 feet away and across the road. American Legion, 139 S.Ct. at 2077-78. Thus, the cross sits in isolation on the island with the nearest monument a distance over six times the height of the cross.
19. Besides the maintenance costs such sites accrue, AHA claims the county spent $100,000 in 1985 for the renovation of the cross which resulted in a “Rededication Ceremony” to all war veterans. AHA BIO Cert., p. 6. AHA estimates a total of a $250,000 has been spent for cross maintenance. AHA BIO Cert., p. i (“Questions Presented”).

Besides that 1985 expenditure, respondents detail the necessity of more expenditures needed to prevent the apparent deterioration of the cross:

In 2008, the Commission set aside $100,000 for substantial modifications because the Cross is “rapidly deteriorating” with large chunks falling off, even posing a safety hazard.

In 2009, the Commission reported: “There are two cracks that are getting worse which potentially will cause a face of the [Bladensburg] Cross to fall off.”

- - - - - -

A 2010 Commissionfunded report referred to the Cross as a “public eyesore seen by hundreds of passing motorists each day.”

AHA BIO Cert., pp. 11-12.

20. American Legion, 139 S.Ct. at 2077-78. Logically, like any other public park, the space would be available to the public, including the American Legion.
21. In its original form, Lemon proposed a three-part test for government action said to violate the Establishment Clause. “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’” Lemon v. Kurtzman, 403 U.S. at 612-13.

There have been some variations of Lemonwith the best-known version a later separate concurring opinion by Justice O’Connor which added whether a “reasonable observer evaluates if the challenged governmental practice conveys a message of endorsement of religion.” County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 630, 109 S. Ct. 3086 (1989) (O’Connor, J., concurring in part and concurring in judgment).

22. Van Orden v. Perry, 545 U.S. 677, 698-701, 125 S. Ct. 2854 (2005). In Van Orden, Justice Breyer proposed another variation applied to religious symbols intended to remain faithful to the underlying purposes of the Establishment Clause: to assure the fullest possible scope of religious liberty and tolerance for all, to avoid the religious divisiveness that promotes social conflict and to maintain the separation of church and state “that has long been critical to the ‘peaceful dominion that religion exercises in [this] country...’” This is a fact-intensive analysis without an exact formulation.
23. American Humanist Ass’n., 874 F.3d at 208-212.
24. Justice Kagan did not join Parts II-A and II-D of Alito’s opinion, apparently because she does not categorically reject Lemon. She agrees, however, that Lemon does not solve every Establishment Clause problem, and she would presumably continue to support the use of “purposes” and “effects” in evaluating government action in this area on a “case by case” basis. American Legion 139 S. Ct. at 2094.
25. American Legion, 139 S. Ct. at 2080-82.
26. Alito notes past decisions where Lemon was “expressly declined ... or simply ignored ...” See American Legion, 139 S.Ct. at 2080, citing:

See Zobrest v. Catalina Foothills School Dist.509 U.S. 1, 113 S. Ct. 2462 (1993); Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 114 S. Ct. 2481 (1994); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 115 S. Ct. 2510 (1995); Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 115 S. Ct. 2440 (1995); Good News Club v. Milford Central School, 533 U.S. 98, 121 S. Ct. 2093 (2001); Zelman v. SimmonsHarris536 U.S. 639, 122 S. Ct. 2460 (2002); Cutter v. Wilkinson, 544 U.S. 709, 125 S. Ct. 2113 (2005); Van Orden, 545 U.S. 677, 125 S. Ct. 2854; HosannaTabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171, 132 S. Ct. 694 (2012); Town of Greece v. Galloway, 572 U.S. 565, 134 S. Ct. 1811 (2014); Trump v. Hawaii, 585 U.S. _, 138 S. Ct. 2392 (2018).

27. American Legion, 139 S. Ct. at 2082.
28. Salazar v. Buono, 559 U.S. 700, 130 S. Ct. 1803 (2010).
29. American Legion, 139 S. Ct. at 2082.
30. American Legion, 139 S. Ct. at 2082-83.
31. American Legion, 139 S. Ct. at 2084.
32. American Legion, 139 S. Ct. at 2084-85.
33. Van Orden v. Perry, 545 U.S. at 698-701.
34. American Legion, 139 S. Ct. at 2091 (Separate concurring opinion of Breyer).
35. American LegionId.
36. American Legion, 139 S. Ct. at 2092. Breyer (and apparently Justice Kagan) disagreed with Justice Kavanaugh’s assertion that a “history and tradition” test has been adopted. American Legion, 139 S. Ct. at 2091. However, he concluded the plurality opinion considered “particular historical context and its longheld place in the community.”
37. See, American Legion, 139 S. Ct. at 2092 (Separate concurring opinion of Kavanaugh):

(1) religious symbols on government property and religious speech at government events; (2) religious accommodations and exemptions from generally applicable laws; (3) government benefits and tax exemptions for religious organizations; (4) religious expression in public schools; and (5) regulation of private religious speech in public forums.

38. American Legion, 139 S. Ct. at 2091-92.
39. American Legion, 139 S. Ct. at 2094.
40. American Legion, 139 S. Ct. at 2094-95.
41. American Legion, 139 S. Ct. at 2098-103.
42. Everson v. Board of Ed. of Ewing, 330 U.S. 1, 67 S. Ct. 504 (1947).
43. This is the preference of a district court opinion involving school prayer later reversed by Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct. 2479 (1985). The opinion of Judge W. Brevard Hand of the Southern District Court of Alabama not only declared the “incorporation theory” unconstitutional (holding that states were not forbidden by the Establishment Clause from establishing a religion), Judge Hand, like Justices Thomas and Gorsuch, had little regard for offended person standing:

The Constitution, however, does not protect people from feeling uncomfortable. A member of a religious minority will have to develop a thicker skin if a state establishment offends him. Tender years are no exception.

Jaffree v. Bd. of Sch. Comm’rs, 554 F. Supp. 1104, 1118, n. 24 (S.D. Ala. 1983).

44. “Original meaning or purpose” would appear to be part of Justice Kavanaugh’s test of “history and tradition.”
45. Justice Alito has described himself as a “‘practical originalist’ for the reason that he believes ‘the Constitution means something and that that meaning doesn’t change.’” Neil Siegel, “The Distinctive Role of Justice Samuel Alito: From a Politics of Restoration to a Politics of Dissent,” Yale Law Journal (Jan. 24, 2017):

www.yalelawjournal.org/forum/thedistinctiveroleofjusticesamuelalito (last visited 1/10/2020).

Justice Scalia was a primary proponent of originalism and a “dead Constitution.” Bruce Allen Murphy, “Justice Antonin Scalia and the ‘Dead’ Constitution,” N.Y. Times (Feb. 14, 2016):

www.nytimes.com/2016/02/15/opinion/justiceantoninscaliaandthedeadconstitution.html (last visited 01/10/2020).

As noted, Justice Kavanaugh joined the opinion of Justice Alito “in full.” American Legion, 139 S. Ct. at 2092. He is considered an “originalist” in the mold of Justice Scalia. Sol Wachtler, “Brett Kavanaugh Is an Originalist,” New York Law Journal (Sept. 20, 2018):

www.law.com/newyorklawjournal/2018/09/20/brettkavanaughisanoriginalist/ (last visited 1/10/2020).

Although Justice Gorsuch and Justice Thomas did not concur in Justice Alito’s opinion, they both embrace originalism. Eric J. Segall, “Does Originalism Matter Anymore?,” N.Y. Times (Sept. 10, 2018):

www.nytimes.com/2018/09/10/opinion/kavanaughoriginalismsupremecourt.html (last visited 1/10/2020).

Nina Totenberg, “Judge Gorsuch’s Originalism Contrasts With Mentor’s Pragmatism” (Feb. 6, 2017):

www.npr.org/2017/02/06/513331261/judgegorsuchsoriginalismphilosophycontrastswithmentorspragmatism (last visited 1/10/2020).

46. Clare Kim, “Justice Scalia: Constitution is ‘dead.’” MSNBC (Jan. 29, 2013): http://www.msnbc.com/thelastword/justicescaliaconstitutiondead (last visited 1/10/2020). (“‘The judge who always likes the results he reaches is a bad judge,’ Scalia told the audience.”).

Justice Neil Gorsuch, “Why Originalism Is the Best Approach to the Constitution,“ Time Magazine (Sept. 6, 2019): time.com/5670400/justiceneilgorsuchwhyoriginalismisthebestapproachtotheconstitution/ (last visited 1/10/2020). (“Suppose originalism does lead to a result you happen to dislike in this or that case. So what? The ‘judicial Power’ of Article III of the Constitution isn’t a promise of all good things.”).

47. American Legion, 139 S. Ct. at 2074.
48. See n. 32.
49. AHA BIO Cert., p. 3. Citing Buono, 559 U.S. at 72627 (Alito, J., concurring). “The Jewish War Veterans organization has challenged war memorial crosses for this very reason. See Trunk v. City of San Diego, 629 F.3d 1099, 1105 (9th Cir. 2011); Jewish War Veterans v. United States, 695 F. Supp. 3 (D.D.C. 1988).”
50. Thomas Jefferson, “Autobiography of Thomas Jefferson,” The Life and Selected Writings of Thomas Jefferson, edited by A. Kach and W. Peden (New York: Modern Library, 1944), pp. 4042. (“To meet these expenses, all the inhabitants of the parishes were assessed, whether they were or not, members of the established church. Towards Quakers who came here, they were most cruelly intolerant, driving them from the colony by the severest penalties.”).

Originally published in the Oklahoma Bar Journal -- OBJ 90 pg. 28 (March 2020)