Establishment Clause and Constitutional Protection of Religious Monuments

Peace Cross

1. The Establishment Clause of the First Amendment

On June 20, 2019, the United States Supreme Court ruled in the case of The American Legion vs. American Humanist Association that keeping a Peace Cross on public land does not violate the Establishment Clause of the US Constitution.

The Peace Cross is a monument built by The American Legion in honor of the 49 servicemen that died overseas in World War I, and is located in the city of Bladensburg, Maryland (8.6 miles from central Washington, DC). The cross was originally built on private lands with private funds, but the lands were turned over to the state of Maryland in 1961. The maintenance costs are also made out of public funds.

The First Amendment reads as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Previously, in October 2017, the Fourth Circuit Court of Appeal ruled in favor of the American Humanist Association. The association, representing the interests of a group of atheists and agnostics, wanted to remove the cross on the grounds that it was a religious symbol placed on public land and supported with public money.

The lower court argued that publicly funded maintenance of the cross was unconstitutional because it “excessively entangles the government in religion because the cross is the core symbol of Christianity and breaches the wall separating church and state.”

2. The Lemon test

The Court of Appeal considered that the Lemon test was applicable to the present case. The Lemon Test was created in 1971 by the Supreme Court in the case of Lemon vs. Kurtzman.

In that case, in order for a statute be deemed constitutional in accordance to the Establishment Clause, three criteria are to be met: (1) the statute must have a secular legislative purpose, (2) the primary effect of the statute must neither advance nor inhibit religion, and 3) the statute must not result in an “excessive government entanglement” with religion.

The Court of Appeal Judge James Wynn rejected the American Legion’s argument that the cross held a mostly secular meaning, as it was part of a war memorial. He reasoned instead that the cross “convey[s] a predominantly sectarian message.”

The Supreme Court did not share this view and ruled 7-2 in favor of the cross’ backers. Associate Judge Samuel Alito wrote the opinion for the majority: the cross does not violate the Establishment Clause, but carries “special significance in commemorating the World War I” and has taken on “added secular meaning” since its construction.

3. The principle of neutrality

Another rationale of Judge Alito was the principle of neutrality. “[The memorial] removal or radical alteration at this date would be seen by many not as a neutral act but as the manifestation of a hostility toward religion that has no place in our Establishment Clause traditions,” Alito also said.

In addition, Justice Brett Kavanaugh wrote in a concurring opinion: “The practice of displaying religious memorials, particularly religious war memorials, on public land is not coercive and is rooted in history and tradition.”

The Supreme Court considered the Lemon Test as inapplicable in this case, although it did not expressly overturned it.

In a dissenting opinion, Judge Ruth Bader Ginsburg argued that “[t]he Constitution demands governmental neutrality among religious faiths, and between religion and nonreligion.” According to Ginsburg, this neutrality principle was “eroded” for religious war monuments or memorials, but not for nonreligious war monuments or memorials.

There was also an opinion according to which the cross could have been replaced with an obelisk.

4. Constitutional protection of religious monuments at the crossroads

The Supreme Court’s decision, though favoring the preservation of religious monuments in public areas, did not give full satisfaction to the supporters of these monuments.

Although criticized as inconsistent in the written opinion of the majority of judges, the Lemon Test was not overturned. This means that the Peace Cross case has a limited applicability.

Also, in order to back up the viewpoint that religious monuments and memorials on public land are protected constitutionally, the judges resorted to elements of monuments being old, where their religious significance has been substantially reduced and largely replaced by “secular significance.”

Another argument was that in the case of religious war monuments and memorials, the elements of religious and military imagery are strongly intertwined and cannot be dissociated.

These arguments were prevalent in the Peace Cross case, but they do not solve the issue of war religious monuments and memorials, built more recently on public land with public money. They can still be subject to court trials in the future.

How will a court decide the situation of a more recently established military cemetery with crosses, placed on public land? How about in the case of a civil cemetery with crosses, located, as most of them are, on public land?

5. The real motivation for constitutional protection of religious monuments and memorials on public lands

In fact, the problem is much simpler. The Establishment Clause does not apply to erecting religious monuments and memorials (related or not to war).

The First Amendment text does not read about “building religious monuments or memorials.” Instead, it demands that “Congress shall make no law respecting an establishment of religion.”

The act of building religious monuments of various denominations is different than “mak[ing] no law respecting an establishment of religion.”

The Lemon Test refers to issuing statutes and policies that may be deemed unconstitutional for favoring religion, not to building religious monuments and memorials.

Thus, iIn the case of Lemon vs. Kurtzman in 1971, the Supreme Court ruled that the Pennsylvania’s Nonpublic Elementary and Secondary Education Act from 1968 was unconstitutional, violating the Establishment Clause of the First Amendment. The act allowed the Superintendent of Public Schools to reimburse private schools (mostly Catholic) for the salaries of teachers who taught in these private schools, from public textbooks and with public instructional materials.

The Lemon Test has been applied later on several relatively similar cases, involving statutes, policies and executive orders deemed unconstitutional, such as the Santa Fe Independent School District vs. Doe (2005).

More recently, the test was applied in the International Refugee Assistance Project vs. Trump (2017).

6. Interpreting the principle of neutrality

The principle of neutrality is clearly stated in the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

The Constitution does not bound Congress to act, but to refrain from acting. This is the originalist interpretation of the text.

Liberals, like Justice Ginsburg, interpret the text as an obligation for Congress to act, and they vigorously advocate for an “active neutrality”. In reality, the Framers of the Constitution conceived this principle as a “passive neutrality” where Congress shall refrain from acting. Therefore, they are wrong twice.

First, because the Establishment Clause reads about “legislating” not “building.” Second, because Congress (and Government) shall refrain from acting for “prohibiting the free exercise” of “establishment of religion.”

When a religious monument or memorial is built on public land with public money, the legislative and executive branches cannot prevent this action on the ground that the monument is religious (or, in particular, Christian). Otherwise, no religious monument (of any religion) cannot be built on a public domain ever. Is this the plan, to establish an atheist state, like all communist nations are? This will never happen in America!

A final remark on obelisks. Those who believe that obelisks are not religious monuments are delusional and they should ask any Egyptian. The obelisk symbolized the sun god Ra. It was also thought that the god existed within the structure.

7. Religious and non-religious war monuments and memorials

The Peace Cross case also brings into question the constitutional protection of non-religious war monuments and memorials.

Both judges with concurring and dissenting opinions (the last two, Ruth Bader Ginsburg and Sonia Sotomayor) have not challenged the constitutional protection of by non-religious war monuments.

In this category fall the statues, monuments and memorials of confederates, built after the American Civil War (1861-1865).

After the events in Charlottesville, Virginia in August 2017, some of these monuments and statues of political and military confederate men were vandalized and removed by gangs of left-wing extremists or leftist local administrations from various cities, such as Baltimore, Maryland and Memphis, Tennessee.

In other cities, such as Louisville, Kentucky and Richmond, Virginia, liberal local governments have made efforts to move the statues of the confederates, but unsuccessfully.

The ad-hoc arguments that these monuments are symbols of white nationalists or ​​slavery have no legal ground. On the contrary, all these monuments enjoy a solid constitutional protection.

Various state courts have ruled that the statues of confederates cannot be removed because they are war monuments. Most of the statues represent men dressed in military clothing and on horses, during the Civil War.

In order to clarify the issue for the future, the Supreme Court should be challenged with at least one case of this kind, in order to standardize constitutional protection over these types of non-religious war monuments, too.

The protection of religious monuments is being stronger now, but it’s not over yet.


NOTE – A version of the article was published in MEDIUM.


TIBERIU DIANU has published several books and a host of articles in law, politics, and post-communist societies. He currently lives and works in Washington, DC and can be followed on MEDIUM.





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