The threatened Bladensburg cross was protected in a crucial decision from the Supreme Court on June 20, providing a greatly improved legal situation for faith in the public square and religious monuments on public property. The Alliance Defending Freedom sponsored a panel discussion of the nature and place of religious expression in government venues in light of the recent Supreme Court decision upholding the constitutionality of a large war memorial cross on public property in Bladensburg, Maryland. Held at the Jones Day law firm in Washington, D.C. on Sept. 16, panelists included David Cortman of ADF, Charles Rothfeld of Mayer Brown, and Kaytlin Roholt of Jones Day. Adam Liptak of the New York Times moderated the panel.

The Bladensburg Cross case (American Legion vs. the American Humanist Association, 2019) is a crucial case in addressing whether religious expression is uniquely excluded from public property. While it might seem that this is only neutrality, it is in fact a unique disadvantage, since other expression, even other expression of non-negotiable commitments (such as environmentalism) is entirely acceptable. The “Lemon test,” a three pronged test first devised by Chief Justice Warren Burger in 1971, attempts to exclude religious ideas from law and public policy if they 1) have no secular justification, or 2) primarily advance or inhibit religion, or 3) excessively entangle the state with religion. This writer would observe that these are markedly subjective criteria, especially the last. But the difficulty in determining whether there is acceptable secular justification has resulted in repeated modifications and clarifications from the Supreme Court, such as the ridiculed “three reindeer rule,” that said that specifically Christian expressions of Christmas (such as a nativity scene) needed to be sufficiently secular (have perhaps three reindeer near the nativity) to be constitutional.

The cross was placed on public property in Bladensburg, Maryland, by the American Legion nearly a hundred years ago, to honor American soldiers who fell in World War I. Given the difficulties in applying the Lemon test and the direction of the court’s jurisprudence with respect to it, it was expected that the cross would be held constitutional. The question was whether or not the Lemon test would be overturned, and if not, how much its application would be restricted. Roholt observed that before the current case, “no court had ever upheld a cross shaped memorial on public land.” But the court apparently felt that establishment clause jurisprudence “is not working” if it requires the state to “tear down a hundred year old war memorial.” The result is that there is “now a presumption in favor” of the constitutionality of religious monuments on public property.

Cortman said that as far as the Lemon test is concerned “I don’t think there was a strict overruling.” Basically, with monuments that are “commemorative or ceremonial,” the Lemon test doesn’t apply. He sees a real “change in the court’s language … and tone,” in addressing the establishment clause. In the 1940s and 1950s, the court used “wall of separation” language in addressing these issues. It was held important to keep the wall “high and impregnable.” It was from the legal reasoning of this period that the Lemon test appeared in 1971. The court began backtracking in the 1980s and 90s, as it recognized that the establishment clause “could not easily be reduced to a single test.” This was so because the test itself “has no more grounding” in the history of the First Amendment “than does the wall upon which the theory [of the Lemon test] rests.” It was slowly recognized that the Lemon test was leading not to neutrality, but to state hostility toward religion. A major problem is that “the reasonable observer is the judge.”

Rothfeld maintained that establishment clause cases should indeed be decided on a case by case basis, looking particularly at the views of the founders, such as Jefferson and Madison. They made general references to “the Creator,” or to “providence,” but no mention of Christianity or any particular religion. The Bladensburg cross was clearly seen to violate this understanding of religion’s role in the state. Rothfeld doesn’t want the replacement of the Lemon test with a coercion test, advocated by the American Legion and (as a strictly historical test) by legal scholar Michael McConnell. Such a test would require that it be shown that religious expression on public property was an effort to coerce individuals on religious matters in ways done before the American founding (such as compelling public attendance at religious services or authorizing a state religion). Rothfeld does believe that the court’s coming term will better define its establishment clause position, and believes that there is reason to hope that Justice Elena Kagan’s “centrist” position will be successful. He also feels that her “centrist” position is closer to what the America right wants than the American left.

Liptak asked if monuments having religious expression are acceptable if they are old monuments, whereas new displays are unconstitutional or questionable. Roholt responded that with other constitutional rights than religion “there is a presumption that the government is acting constitutionally.” But Rothfeld said that the American founders were particularly concerned with sectarianism. They were “very concerned not to use sectarian language.” He observed that John Adams said that he lost re-election because his statements were too religious. This, he believes is strongly suggestive that the founders regarded specific religious beliefs as dangerous in public life. Cortman replied that we must “define ‘sectarian’ a little bit better than we do.” Virtually any prayer, for instance, could be characterized as “sectarian” because it expresses some specific religious ideas; at the very least, it excludes atheism (held by the Supreme Court to be a religion). He said “sectarianism” at the American founding referred to particular Christian sects, yet Christianity is not a sect, but a religion. He noted that for “many, many years” legislative prayers had addressed Jesus by name.

Liptak then suggested that the conclusion the courts are coming to is that “a really old cross” is acceptable, but not necessarily others. Would today’s demographics mandate a war memorial with “more inclusive” symbols? Roholt observed that Justices Breyer, Kavanaugh and Gorsuch are trying to “carve out” how the Bladensburg decision will apply in “other contexts.” Gorsuch seems concerned that the ruling will apply only to war monuments. Breyer was concerned to keep the ruling narrow. Roholt thought that lower courts would “flesh that out” (although authorities below the Supreme Court have had difficulty with the Lemon test). She favors Gorsuch’s opinion that age should not matter, but consonance with American history and tradition.

Cortman believes that Justice Kagan “did a great job of inserting herself into the majority.” As with the Trinity Lutheran case, which Kagan said in a footnote to the decision applies only to the facts of the case, so with this decision, she endeavored to restrict its scope. But as Gorsuch pointed out, all decisions are cognizant of facts. If every case must be litigated afresh on facts, there is no general rule.

Rothfeld seemed to favor age as an important factor in the constitutionality of a religious symbol on public property. He feels that the public reaction to a monument should be important in determining its constitutionality. Cortman replied that a test about public reaction is basically a “know it when I see it” standard (referring to Justice Potter Stewart’s definition of pornography). He said that such a test is “worse than Lemon.” It gives “no guidance at all.” While it might not be “politically wise,” Cortman said he would “have a hard time believing” that a cross put up on public property today would be unconstitutional. He believes that in any case, with the present makeup of the Supreme Court, there will be no sweeping decisions to establish or take away precedent, but “gradual steps.” The Bladensburg case was like that.

Liptak asked whether or not Justice Alito’s comment that the proposed removal of the cross “itself has an expressive component” is correct. Rothfeld agreed that removal of a century old cross indeed expresses hostility to religion. Liptak then asked Cortman whether or not the government should permit a symbol of a “fringe religion” on public property. Cortman replied that “that would be just as acceptable as a cross.” Cortman then asked that if prayers at government functions must be “inclusive and nonsectarian,” how can a prayer be said that is “inclusive to everyone?” Rothfeld conceded that even if a prayer is “completely generic” it remains an “indication of religion.” He believes the solution to making prayer inclusive is to open government functions to the prayers of all religions

Liptak also asked about the claim that ADF’s victory in the Trinity Lutheran decision (2017) was “marred by a footnote.” Cortman recounted that the Trinity Lutheran case dealt with both the free exercise and establishment clauses. Trinity Lutheran Church in Columbia, Missouri was denied a state award for funding for a playground in a competition aimed at environmental improvement because it was a church. The Supreme Court overturned this, but a footnote inserted by Justice Kagan said that the decision was restricted to the facts in the case. But Justice Gorsuch said all cases “deal with the fact at hand.” The footnote was only agreed to by a plurality of the court; there is a question of how lower courts will regard it.

A questioner asked if the Bladensburg cross decision had “gone the other way” would there have been the possibility of suing the city of St. Paul, Minnesota with the claim that the city’s name must be changed to eliminate the religious reference in the name. Rothfeld seemed to say that if the cross decision had been different it could have been maintained in defense of the current city name that the cross had a religious meaning when it was erected, but city name of St. Paul had long lost its religious connection.

A very reasonable conclusion to draw from the prayers and monuments controversy, which seems to be winding down, if not nearing an end, is that commonly accepted religious ideas may reasonably be expressed on public monuments and in state occasions. Most people around the world would consider this reasonable, and undoubtedly the American founders engaged in numerous references to God and providence as overarching ideas of the American nation. Unanimity in any country is impossible; it is completely unreasonable to insist on it. Christians and other religious believers can see and hear national expressions of allegiance to God with confidence that they are both ideals to strive for and consistent with our constitution and history.