AuthorMyers, Richard S.


Cases involving the public display of religious symbols have long perplexed the courts. (1) These cases are important for many reasons. Public symbols have an important role in shaping our public culture. (2) Moreover, the cases provide the occasion for judges to articulate their understanding of the meaning of the Establishment Clause. (3) The Supreme Court's most recent venture into this area is the June 2019 decision in American Legion v. American Humanist Ass 'n in which the Court rejected an Establishment Clause challenge to the display of the "Bladensburg" or "Peace" Cross (hereinafter "the Cross"), which was erected nearly 100 years ago as a memorial to honor soldiers who gave their lives in World War I. (4) This paper will examine the American Legion case and reflect upon the impact of the decision.


    The Supreme Court has decided a series of cases involving the public display of religious symbols. In this section of the article, I will briefly review several of the Court's most important cases.

    In 1984, in Lynch v. Donnelly, (5) the Court held that it did not violate the Establishment Clause for Pawtucket, Rhode Island to sponsor a Christmas display that included a Santa Claus house, a reindeer, a clown, an elephant, a teddy bear, a talking wishing well, Christmas lights, and a Nativity scene. Although it noted that it had "repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area[,]" (6) the majority "essentially applied the Lemon test" (7) and concluded that there was no Establishment Clause violation because "the city has a secular purpose for including the creche,... the city has not impermissibly advanced religion, and... including the creche does not create excessive entanglement between religion and government." (8) Justice O'Connor joined the majority opinion but wrote "separately to suggest a clarification of our Establishment Clause doctrine." (9) According to Justice O'Connor, a key focus of the Establishment Clause was to avoid an endorsement of religion. (10) As Justice O'Connor described the inquiry in Lynch, "[t]he central issue in this case is whether Pawtucket has endorsed Christianity by its display of the creche. To answer that question, we must examine both what Pawtucket intended to communicate in displaying the creche and what message the city's display actually conveyed." (11) Justice O'Connor concluded that there was no Establishment Clause violation because the city had the legitimate secular purpose of celebrating a public holiday through its traditional symbols and that, in light of "the overall holiday setting," (12) the city was not properly understood as conveying approval of Christianity. This latter conclusion was based on Justice O'Connor's assessment that found that the "display of the creche in this particular physical setting [was] no more an endorsement of religion than such [accepted] governmental 'acknowledgements' of religion" (13) as legislative prayer and the printing of the national motto ("In God We Trust") on coins. (14)

    In 1989, in County of Allegheny v. ACLU, (15) the Court considered the constitutionality of two holiday displays on public property. The Court held (by a 5-4 vote) that it did violate the Establishment Clause to display a creche on the Grand Staircase of the Allegheny County Courthouse. (16) By a 6-3 vote, the Court held that it did not violate the Establishment Clause to place a Jewish menorah just outside the City-County building next to a Christmas tree and a sign saluting liberty. (17) Justice Blackmun's lead opinion applied the endorsement gloss on the Lemon test. (18) His analysis of the creche display arguably departed from Lynch. Justice Blackmun viewed the creche display in County of Allegheny as more religious than the display in Lynch and thus was inconsistent with "the constitutional command of secular government." (19) His analysis of the display including the menorah was intriguing. Justice Blackmun viewed the display as essentially secular. (20) Justice O'Connor agreed with the conclusion that the menorah display was not unconstitutional. Her conclusion was not based on the idea that the display was secular; rather, she emphasized that despite the religious quality of the menorah and Chanukah, the overall message was one of "pluralism and freedom of belief during the holiday season" (21) and thus did not endorse religion. Justice Kennedy thought both displays were constitutional. (22) Justice Kennedy applied the Lemon test (23) but also suggested that the Court should substantially revise its approach to Establishment Clause cases. (24) According to Justice Kennedy, a major focus ought to be on whether the challenged conduct was coercive. (25) Justice Kennedy thought that the Court's invalidation of the creche display "reflect[ed] an unjustified hostility toward religion." (26)

    In June 2005, the Court decided McCreary County v. ACLU (27) and Van Orden v. Perry (28) To no one's surprise, the Court was again closely divided. In McCreary County, the Court (by a 5-4 vote), held that the displays of the Ten Commandments in two county courthouses in Kentucky violated the Establishment Clause. The majority opinion by Justice Souter was joined by Justices Stevens, O'Connor, Ginsburg, and Breyer. The displays evolved into three separate versions during the litigation and the displays before the Court included the Ten Commandments and other documents (e.g., Magna Carta, the Declaration of Independence, and the National Motto) as part of "The Foundations of American Law and Government Display." (29) The conclusion that there was an Establishment Clause violation was based on the majority's view that the third display violated the purpose prong of the Lemon test because, according to the Court's review of the record, there was "ample support for the District Court's finding of a predominantly religious purpose behind the Counties' third display." (30) With an eye to the Supreme Court's courtroom frieze that includes Moses holding the Ten Commandments, the majority did allow that its opinion did not mean "that a sacred text can never be integrated constitutionally into a governmental display on the subject of law, or American history." (31) Justice Scalia's dissent emphasized the Court's error in interpreting the Establishment Clause to require "neutrality between... religion and nonreligion." (32) He emphasized that the majority's approach promoted a "revisionist agenda of secularization." (33)

    In contrast, in Van Orden v. Perry, the Court (again by a 5-4 vote) upheld the constitutionality of "the display of a monument inscribed with the Ten Commandments on the Texas State Capitol grounds." (34) Chief Justice Rehnquist's opinion for three other Justices (Justices Scalia, Kennedy, and Thomas) did not think that the Lemon test was "useful in dealing with the sort of passive monument that Texas had erected on its Capitol grounds. [Rather, the Court's] analysis [was] driven both by the nature of the monument and by our Nation's history." (35) Although he did admit that the Ten Commandments are religious, Chief Justice Rehnquist emphasized that the monument was an acceptable part of "an unbroken history of official acknowledgement by... government of the role of religion in American life from at least 1789." (36) On the other hand, the unconstitutional display of the Ten Commandments in Stone v. Graham was limited to the public school setting. (37)

    The deciding vote in Van Orden v. Perry was cast by Justice Breyer who declined to apply any "test" and instead exercised "legal judgment" in what he characterized as a "difficult borderline case[]." (38)...

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