Before the month is out, the US Supreme Court is expected to issue its decision in an establishment clause case with the potential to create a new standard for dealing with problems related to religious liberty, religious symbols, and the relationship between religion and public life.
The case, The American Legion v. American Humanist Association, hinges on the legality of the Bladensburg Peace Cross--a 40-foot stone cross that was erected in 1925 in Prince George’s County, Maryland.
The cross honors those from the area who were killed in World War I. The Maryland-National Capital Park and Planning Commission has performed regular maintenance around the monument since 1961, as it is located on a median in the middle of a public road. This, the American Humanist Association has argued, is entangling government unnecessarily with religion.
Joe Davis, legal counsel for the Becket Fund for Religious Liberty, told CNA that things appeared to be positive during oral arguments, and that “at least five” of the justices indicated that they felt as though the cross monument was legal. Oral arguments do not, however, always reflect what the justices decide months later.
If the Supreme Court does indeed rule in favor of keeping the peace cross, it is increasingly likely that they would have to use a new sort of legal test to justify how the cross is constitutional. Since 1971, the Supreme Court has used the “Lemon test” to decide these cases, something Davis described as “wildly inconsistent.” The application of the Lemon test has led to some religious symbols being found constitutional, and others not.
“(The Lemon test) has been heavily criticized over the decades," explained Davis.
It is a threefold standard, which examines if the action in question has a secular purpose, a primarily religious or secular effect, and if the action “entangles the government with religion” excessively.
The “test” was established in the Court's 1971 decision in Lemon v. Kurtzman, which struck down a Pennsylvania law allowing the reimbursement of private school teacher's salaries from public funds.
In The American Legion v. American Humanist Association, those arguing in favor of the Peace Cross proposed alternative tests for the court to consider instead of Lemon.
"The parties defending the cross argued that (the Lemon test) should be replaced by a coercion test, when you ask if the government action is coercing some religious exercise,” said Davis. “And if it's not, it's not an establishment clause violation."
The governmental party defending the Peace Cross put forward an “independent, secular meaning test,” said Davis, which would be similar to parts of the Lemon test.
The Becket lawyers argued what Davis termed a “historical approach,” which would put the action in the context of what the founders of the United States intended when they created the establishment clause of the First Amendment.
“The idea would be, you take the government action and you say ‘Does this look like what establishment of religion looks like at the founding? Is this the kind of thing that the founders were concerned about when they ratified the establishment clause?’” said Davis.
This historical approach would work, said Davis, “because you can just compare whatever the current case is about to the historical data, and see whether it matches up.”
The Supreme Court heard oral arguments in the case in February. The court’s term ends at the end of the month, meaning that the decision will be released shortly.