Historical, Religiously Expressive Monuments May Be Maintained by Municipalities Without Violating the Establishment Clause

American Legion v. American Humanist Association
United States Supreme Court No. 17-1716
Thursday, June 20, 2019

In 1918, residents of Prince George's County, Maryland, formed a committee for the purpose of erecting a memorial for the county's World War I dead. Evoking the rows of crosses marking the overseas graves of soldiers, the committee decided to erect a Latin cross at the terminus of another World War I memorial - the National Defense Highway. Ultimately, the American Legion took over the project, completing it in 1925. The 32-foot tall Latin cross displays the American Legion's emblem at its center and sits on a large pedestal bearing a bronze plaque that lists the names of the 49 county soldiers who had fallen in the war. The area around the cross developed into a park with monuments honoring veterans of other conflicts and was the site of war memorial ceremonies.

In 1961, the Maryland-National Capital Park and Planning Commission acquired the Cross and the land where it sits, but the American Legion retained the right to continue using the site for ceremonies.

In 2014, the American Humanist Association sued alleging that the Cross's presence on public land and the Commission's maintenance of the memorial violate the First Amendment's Establishment Clause as its primary/principal effect was endorsing Christianity and because it represented excessive entanglement between the government and religion.

The United States Supreme Court disagreed. In a 7-2 opinion, the Supreme Court held that the government did not violate the Establishment Clause by acquiring and maintaining the cross. The Court explained that historical context matters and that "retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones." The Court then outlined four considerations which led it to hold that the cross did not violate the First Amendment. Those four considerations are:

  1. where monuments / symbols were established a long time ago, it is especially difficult to identify their original purpose;
  2. the purpose associated with an older monument or symbol can have multiple meanings;
  3. the meaning behind these monuments may change over time and something that may have had an originally religious meaning can now have a secular or historical one, for example, the names of many cities and towns throughout the United States; and
  4. as these monuments gain historical and secular significance, removing them may not appear religiously neutral, particularly to the local community.

This ruling appears to modify the Court's earlier ruling in Lemon v. Kurtzman, 403 U.S. 602 (1971), which established a three-part test to determine whether a monument violates the Establishment Clause by not applying the Lemon test in the context of this historical war memorial. The Court stated that the cross carries a "special significance commemorating World War I" and, with the passage of time, it has also acquired historical importance. Further, there was no evidence that monument was intended to disrespect other religions by for example, excluding Jewish soldiers. In addition, the Court stated that it had to matter that the monument was commemorating the death of particular individuals rather than being a generic war memorial. Justice Breyer wrote a concurring opinion that Justice Kagan joined, explained that "[t]his case would be different...if the Cross had been erected only recently, rather than in the aftermath of World War I."

Presumably, newer memorials would be subject to the test in Lemon which requires:

  1. The statute or governmental action must have a secular legislative purpose. ("Purpose Prong")
  2. The principal or primary effect of the statute or governmental action must neither advance nor inhibit religion. ("Effect Prong")
  3. The statute or governmental action must not result in an "excessive government entanglement" with religion based on the following factors ("Entanglement Prong"):
    1. Character and purpose of institution benefited.
    2. Nature of aid the state provides.
    3. Resulting relationship between government and religious authority.

While this decision does appear to adopt a new test for war memorials dating to the First World War, it is unclear whether that test will apply to more recently constructed memorials which contain religious symbolism. More newly erected monuments seem to be in a gray zone and will require further litigation to determine how the Court would ultimately handle these monuments.

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Practice Pointer:  Municipalities should continue to apply the Lemon test in the context of new memorials, but carefully consider the implications of this opinion if their ownership or maintenance of older, especially pre-1925, memorials is challenged.