When Anti-establishment Becomes Exclusion: the Supreme Court's Opinion in American Legion v. American Humanist Association and the Flip Side of the Endorsement Test

• Publication year: 2021

98 Nebraska L. Rev. 643. When Anti-Establishment Becomes Exclusion: The Supreme Court's Opinion in American Legion v. American Humanist Association and the Flip Side of the Endorsement Test

When Anti-Establishment Becomes Exclusion: The Supreme Court's Opinion in American Legion v. American Humanist Association and the Flip Side of the Endorsement Test

Patrick M. Garry(fn*)

ABSTRACT

In American Legion v. American Humanist Association, the Court addressed the Establishment Clause issues surrounding a longstanding Latin cross veteran's memorial located on public property. Although the Court upheld the memorial with a narrow ruling, an unresolved issue lurking beneath the surface of passive display cases like American Legion is whether a government dismantling of a longstanding religious symbol might itself under certain circumstances, constitute an independent Establishment Clause violation. Such a dismantling of a religious symbol built decades earlier, before the property became publicly owned, might well be considered a government act hostile to religion, especially as America becomes increasingly secular and government actors demonstrate increasing hostility to religious institutions and beliefs.

Given the continual drift toward secularism in American society, this Article uses the decision in American Legion to explore the question of whether government exclusion of religion from the public square in favor of a secularism baseline violates the neutrality doctrine and constitutes its own Establishment Clause infringement. The Court has never ruled that a government exclusion of religion violates the First Amendment, but as American Legion demonstrates, the necessity of such a ruling may well arise in the future.

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TABLE OF CONTENTS

I. Introduction.......................................... 644

II. The American Legion Decision ........................ 645
A. Facts of the Case.................................. 646
B. The Supreme Court's Decision..................... 647

III. Passive Displays and the Establishment Clause ....... 649
A. Problems with the Endorsement Test.............. 651
B. The Endorsement Test as a Secular Trump Card... 652

IV. The Meaning of the Establishment Clause............. 653
A. Institutional Nonpreferentialism................... 653
B. Protecting the Existence of Religion................ 654

V. Religion in Modern Secular Society.................... 656

VI. The Weaknesses of Current Establishment Clause Approaches........................................... 660
A. The Rise of the Neutrality Approach............... 660
B. Neutrality as a Denial of Religion's Role........... 663
C. Neutrality's Erosion of Religious Liberty........... 666
D. The Wrong Baseline............................... 667
E. The Endorsement Test's Favoring of Anti-Religion . 668

VII. Conclusion: When the Supposed Remedy Becomes the Deprivation........................................... 670

I. INTRODUCTION

In American Legion v. American Humanist Association,(fn1) the Court had an opportunity to define the scope and meaning of the Establishment Clause. The case involved the passive display of a Latin cross now situated on government land.(fn2) Given the confusion and uncertainty in Establishment Clause jurisprudence, hope existed that American Legion might finally settle some big questions: What does it mean to have an establishment of religion? What is the real concern of the Establishment Clause? And who is the Clause meant to serve?

Although the opportunity existed for such resolutions, hope was not high that the Court would finally agree on such fundamental issues. Too much polarization has characterized the Court's Establishment Clause opinions and the mistaken legacies of the Wall of Separation metaphor still hang over that jurisprudence. Moreover, the social and cultural setting underlying Establishment Clause conflicts is in a state of change. American society is becoming less religious and more secular. Christianity no longer exerts a dominant hold on a democratic society that continues to move away from religious affiliations.

In light of the changing social and political conditions underlying Establishment Clause cases, American Legion offers a chance to contemplate

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an Establishment Clause issue not directly presented to the Court in that case. The American Humanist Association argued, and the Fourth Circuit held, that the cross violated the Establishment Clause.(fn3) If the Supreme Court had upheld the Fourth Circuit, the cross would have had to be dismantled and removed from its site. However, such an action probably would have had just the effect that the endorsement test seeks to avoid-the alienation of individuals (e.g., religious believers), who would be made to feel as second-class citizens and outsiders.

This Article will explore the meaning and application of the Establishment Clause in contemporary society through an analysis of the issue of state-conducted dismantling of longstanding religious displays. The Establishment Clause issues surrounding such displays have historically been evaluated from the standpoint of government maintenance of those displays, not from the standpoint of government removal of displays built by private parties. But the removal of displays built during more religious eras raises issues not yet addressed by the Court, with one question being whether affirmative government exclusion of religion might violate the Establishment Clause.

The constitutional issue in American Legion arose decades after the cross was constructed when there were no objections to the display.(fn4) The display was first erected during an era in which Christianity was far more prominent in America but was litigated in a time of rising secularism. And yet, current Establishment Clause doctrines still embrace an unstated assumption that secularists and religious objectors are still minorities subject to the majoritarian dictates of Christian activists.

American Legion implicated an issue the Court bypassed earlier in Salazar v. Buono, where it avoided having to directly address the constitutional issue of whether a cross erected on government land as a memorial to WWI veterans violated the Establishment Clause.(fn5) But while the Salazar Court left intact the lower court's ruling that the cross constituted an improper establishment, no court has addressed whether the destruction of that cross might itself have violated the Establishment Clause.

II. THE AMERICAN LEGION DECISION

The American Legion facts in many ways mirror the facts in Salazar v. Buono. In both cases, the government did not build or initiate

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the cross memorial and it was not until decades later that any Establishment Clause objections were made against the memorials.

A. Facts of the Case

In 1918 a group of private citizens started raising money to erect a giant cross monument to honor forty-nine area soldiers killed in World War I.(fn6) In 1922 the American Legion assumed control of the project and completed it in 1925.(fn7) The monument, in the shape of a Latin cross (the Cross), stands thirty-two feet high in the median of a three-way highway intersection in Bladensburg, Maryland.(fn8) Due to safety concerns arising from the placement of the Cross in the middle of a busy traffic median, the Maryland-National Capital Park and Planning Commission, a state parks agency, acquired title to the land on which the Cross sat and assumed care and maintenance of the monument in 1961.(fn9)

Currently, the Cross stands in a traffic island taking up one-third of an acre at the busy intersection of two highways.(fn10) The American Legion's symbol is affixed near the top of the Cross and a nine-foot wide plaque listing the names of the soldiers memorialized by the Cross is located at the base.(fn11) The Cross is also part of a memorial park honoring veterans, known as Veterans Memorial Park.(fn12) Monuments in the park include a War of 1812 memorial, a World War II memorial, a Korean and Vietnam veterans memorial, and a September 11th memorial walkway.(fn13)

No objections were made to the Cross until 2012, when the American Humanist Association lodged a complaint with the Commission. The American Humanist Association and a group of individuals who were offended by the Cross commenced litigation in 2014.(fn14) Claiming the Cross violated the Establishment Clause, the plaintiffs asked a federal court to demolish the Cross or at least remove its arms.(fn15) The district court upheld the Cross against this challenge, but the Fourth Circuit Court of Appeals ruled it breached the wall of separation between church and state, violating the Establishment Clause.(fn16)

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The issue in American Legion in many ways arose from the question the Supreme Court left unanswered in the 2010 case of Salazar v. Buono.(fn17) Like American Legion, Salazar involved the issue of a large Latin cross built by private parties to commemorate the loss of American soldiers in World War I.(fn18) That cross stood for seventy years before anyone objected. On appeal the Court never ruled on the constitutionality of the cross but disposed of the case on procedural grounds.(fn19)

B. The Supreme Court's Decision

In a 7-2 decision, with five concurrences and an opinion written by Justice Alito, the United States Supreme Court in American Legion overturned the Fourth Circuit's holding. The Court held the Cross did not violate the...