The Supreme Court on Wednesday hears oral argument in American Legion v. American Humanist Association, which involves an Establishment Clause challenge to a 94-year-old cross memorializing World War I veterans. Just about everyone expects the Court to uphold the cross. The key question is how the Court will get there—and whether its ruling will clear up decades of confusion surrounding the Establishment Clause.
As my Becket colleague Eric Rassbach has argued, there are four main ways the Court could resolve the case.
1. The Court could stick with the Lemon test, which asks whether the government’s action lacks a secular purpose, “endorses” religion, or excessively entangles government in religion. This is the basic position of the plaintiffs, represented by the American Humanist Association. But the Lemon test has been heavily criticized and almost certainly can’t get five votes.
2. The Court could punt. It could issue a narrow ruling upholding the cross based on the unique circumstances of this case—including the cross’s age, its use as a war memorial, and its positioning among other war memorials. That’s the position of the Maryland agency represented by Neal Katyal, and some of the separationist amici who are hoping for a narrower loss. But another punt would leave lower courts in the same Establishment Clause morass they’ve been lamenting for over a decade.
3. The Court could jettison Lemon in favor of a “coercion test,” which says that the Establishment Clause bars the government from coercing people to participate in religious exercise or engaging in speech that amounts to “proselytization.” That’s the position of the American Legion, represented by Michael Carvin at Jones Day. The coercion test would be an improvement over Lemon, but would leave many questions unanswered about the nature of “coercion” and “proselytization.”
4. Or the Court could jettison Lemon in favor of a historical approach, which asks whether the government’s conduct shares the characteristics of “an establishment of religion” as understood at the founding. That’s the position of the Becket Fund, represented by Michael McConnell, and other amici. Although some separationist amici have argued that a historical approach would be difficult to apply, there is abundant historical evidence of what constituted an established church at the time of the founding. Nine of the thirteen original colonies had one, as did England.
A ruling adopting the historical approach would have several benefits. First, it would give courts an objective basis for resolving Establishment Clause disputes. Rather than abstract concepts of “endorsement,” “coercion,” or “proselytization,” courts could decide cases based on the concrete historical record.
Second, a historical approach would reduce needless conflict over passive religious displays. The Supreme Court didn’t wade into disputes over religious displays until 1980—almost 200 years after the Constitution was ratified—and it’s made a mess of the cases ever since.
Most importantly, a historical approach would keep government and religion in their proper spheres. It would forbid the government from trying to control religious doctrine, coerce religious observance, or provide exclusive funding for religious groups. But it would also avoid sending a message of hostility toward religion by scrubbing religion from the public square. That’s a result everyone can support—and it’s far better than the infinitely malleable Lemon test. Let’s hope the Court adopts it.
Luke Goodrich is Vice President and Senior Counsel at The Becket Fund for Religious Liberty, which filed an amicus brief in support of the petitioners in The American Legion v. American Humanist Association.