U.S. Supreme Court

Erwin Chemerinsky. Photo by Jim Block.

Few issues predictably divide liberals and conservatives, including those on the U.S. Supreme Court, as much as the First Amendment’s prohibition on the government making any law respecting the establishment of religion.

Liberals think this provision creates, as President Thomas Jefferson put it, a wall that separates church and state. Conservatives reject that notion and seek to accommodate religion and government; they think the government violates the establishment clause only if it coerces religious participation. And to make things even more complicated, there are moderate justices who see the Establishment clause as forbidding the government from endorsing religion.

Not surprisingly, the law of the establishment clause is confusing and recently was described by the 11th Circuit as a “hot mess.” This is especially so concerning when religious symbols on government property violate the First Amendment. For example, on the same day in June 2005, the high court decided two cases involving Ten Commandments displays. In McCreary County v. ACLU, the court declared unconstitutional a county ordinance requiring that the Ten Commandments be posted in county buildings. But in Van Orden v. Perry, the court, in a case that I argued and lost, rejected a constitutional challenge to a 6-foot-high, 3-foot-wide Ten Commandments monument that sits directly at the corner between the Texas State Capitol and the Texas Supreme Court. Both were 5-4 decisions; only Justice Stephen G. Breyer was in the majority in both and saw a meaningful difference between the Ten Commandments displays.

Commentators have noted that ever since Justice Samuel A. Alito Jr. replaced Justice Sandra Day O’Connor in 2006, there appear to be five justices to change the law of the establishment clause and to adopt the conservative vision that only government coercion violates the Constitution. But that hasn’t happened yet, although the Roberts court has rejected every establishment clause challenge to come before it. In its most recent establishment clause case, Town of Greece v. Galloway (2014), the court split 5-4 along ideological lines and rejected a constitutional challenge to a town board having invited almost exclusively Christian clergy members to deliver prayers before meetings over a 10-year period.

But the court did not change the overall test for the establishment clause. Justice Clarence Thomas, joined by Justice Antonin Scalia, wrote a concurring opinion arguing that the government violates the establishment clause only if by law it coerces religious participation and imposes punishment for those who do not comply. Justice Anthony Kennedy’s majority opinion ruled in favor of Town of Greece but without changing the test used for the establishment clause.

The establishment clause has now returned to the Supreme Court in American Legion v. American Humanist Association, set to be argued Wednesday. The case is the first about the establishment clause to be heard since Justices Neil M. Gorsuch and Brett M. Kavanaugh joined the high court.

The case involves a 40-foot-tall cross located at a busy intersection in Bladensburg, Maryland. The cross was erected in 1925 as a monument to 49 soldiers from Prince George’s County, Maryland, who died during World War I. In 1961, the state government acquired the cross and the land it sits on, in part because of concerns about traffic safety.

A lawsuit was brought challenging the cross as violating the establishment clause. The district court ruled for the government, seeing the cross as a memorial to war dead. But the 4th U.S. Circuit Court of Appeals at Richmond, Virginia, reversed, concluding that the cross violates the establishment clause because it “has the primary effect of endorsing religion and excessively entangles the government in religion.” The 4th Circuit said is impossible to “ignore the fact that for thousands of years the Latin cross has represented Christianity.” The 4th Circuit explained that the average citizen “would fairly understand the cross to have the primary effect of endorsing religion.”

The American Legion, which joined the case to defend the cross, argues to the Supreme Court that it is a symbol of war dead, and that its longtime presence on government property makes it constitutional. It expressly analogizes to the Ten Commandments monument that the court allowed in Van Orden. But the American Legion goes further and urges the high court to change the law of the establishment clause, so that there is no violation of the clause unless the government “coerce[s] religious belief or observance.”

The American Humanist Association, which brought the lawsuit, argues that a cross is an unmistakable Christian religious symbol and, thus, the large cross is an impermissible establishment of religion. At an oral argument several years ago in Salazar v. Buono (2010), which involved a large cross in a federal park, Scalia asserted that a cross is a universal symbol for war dead. Peter Eliasberg, representing the American Civil Liberties Union of Southern California in that case, replied that he had been in many Jewish cemeteries and never saw a cross on a headstone.

The American Humanist Association points out that if the Supreme Court was to adopt the “coercion test,” there would be no limit on religious symbols on government property. A city could put a large cross atop city hall or in front of its meeting room. No longer would the test be whether the symbol is an endorsement of religion or a particular religion.

At the very least, American Legion v. American Humanist Association is important in providing the high court the opportunity to clarify when religious symbols on government property violate the First Amendment. But the case also might be the vehicle for a much greater change in establishment clause jurisprudence. Will there be five votes for the view that nothing violates the clause other than government coercion of religious belief or conduct? If so, decades of precedent will be overruled, and little ever will violate the establishment clause of the First Amendment.

In a term where the Supreme Court has stayed away from the most divisive social issues, such reproductive rights and LGBTQ rights, American Legion v. American Humanist Association is an unusual case because of the intense division in society and on the court about the proper relationship between religion and government.