Back in February, the U.S. Supreme Court held oral arguments in a case asking the question: Does a 94-year old war memorial in the shape of a cross, sitting on government land for more than 50 years, violate the First Amendment’s “Establishment Clause,” i.e., “Congress* shall make no law concerning the establishment of religion…” The U.S. Court of Appeals for the Fourth Circuit said “yes” in response to that question, and the Maryland state commission in charge of the Memorial and the American Legion appealed to the nation’s highest court.
The Supreme Court will offer its own answer to that question before the month of June is over.
If the Supreme Court agrees with the Fourth Circuit, similar war memorials in Arlington National Cemetery and around the country would have to be removed. And what about the thousands of iconic white crosses set in perfect rows in military cemeteries all across Europe commemorating the final resting place of U.S. soldiers who died in combat there? Those sites are managed by a U.S. federal agency. Would they have to be removed as well?
Isn’t it outrageous that these possibilities, in the minds of at least some federal judges on the Fourth Circuit, even exist?
Whether it’s a Christian cross in a desert, Christmas crèches on the courthouse lawn, Ten Commandment monuments at the state capitol, the phrase “In God We Trust” on our currency and in our National Motto, or “Under God” in our Pledge of Allegiance, the Supreme Court—and the lower courts that look to it for guidance—are still looking for an over-arching principle that provides consistent answers to the question: Is it constitutional, or not?
The simple answer—that religious images in our public life do not “establish religion” at all–still manages to evade the Court after decades of grappling with mixed success over the various factual situations that come before it based on Establishment Clause challenges.
The ongoing problem with this area of the Supreme Court’s jurisprudence results from problems in applying the various “tests” or “rules” the high court has created over the years to examine religious symbolism in public life.
For example, the Court has come up with phrases like the “Lemon test,” the “modified Lemon test,” the “coercion test,” the “endorsement test,” and the “neutrality test” in an effort to determine what is constitutional and what is not.
The Lemon test, named after the court decision where the Court created it, Lemon v. Kurtzman, may be the worst of the lot. The late Justice Antonin Scalia famously compared the Lemon test to “some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” Translation: The Supreme Court sometimes uses the Lemon test, and sometimes not, and sometimes denounces it entirely, only to use it again in the next case.
The Court’s reputation as well as the public’s confidence in its work product depends on the Court being able to logically explain how it reaches each decision. Inconsistency is dangerous to both.
With each new Establishment Clause case comes the hope that, finally, the Court will come up with one workable test to replace the existing ones.
That has proven to be an elusive goal for a long time now, and perhaps the most we can hope for in the upcoming Bladensburg Memorial decision is a well-driven stake through the heart of the Lemon test ghoul.
But there looks to be at least some good news on the horizon. The Bladensburg Memorial may well be able to stay where it is. The consensus of those court-watchers who followed the oral arguments in February was that a majority of the justices were sympathetic to the arguments for keeping the monument in place.
But it remains to be seen whether the Court will provide a useful test for the next such case. And the one after that.
*The word “Congress” in the First Amendment is now interpreted to also apply to the states because of the Fourteenth Amendment.
