It is likely, but not entirely certain, that there are five votes on the Supreme Court to overrule Lemon v. Kurtzman, a nearly half-century-old precedent preventing the government from advancing religion. It is also all but certain that the court will uphold the so-called “Peace Cross,” a 40-foot tall, cross-shaped monument in Maryland. One or two of the liberal justices may even join an opinion favoring the cross, which was erected to honor fallen soldiers from the First World War.
Yet, while several members of the court seemed eager to blow up much of the law preventing the government from advancing a particular faith in two consolidated cases argued on Wednesday — American Legion v. American Humanist Association and Maryland-National Capital Park and Planning Commission v. American Humanist Association — it is far from clear what will emerge to replace the toppled precedents.
True to form, Neil Gorsuch staked out the most radical possible position, at one point suggesting that plaintiffs who challenge government endorsements of religion shouldn’t be allowed to sue in the first place. As a general rule, a plaintiff must show that they were somehow injured by the party they are suing in order to file a lawsuit, a requirement known as “standing.” Yet Gorsuch suggested that no plaintiff may have standing to challenge a religious display on government property because their only injury is that they take “offense” to the display — and “mere offense” isn’t enough.
Later in the argument, Gorsuch criticized the court’s holding in Lemon, a 1971 decision holding that laws must have a “secular legislative purpose,” a “primary effect” that “neither advances nor inhibits religion,” and that the law cannot “foster ‘an excessive government entanglement with religion.’” This test, according to Gorsuch, fostered a “welter of confusion” among the lower courts, and thus it’s time to thank Lemon “for its service” and send it “on its way.”
Significantly, both Brett Kavanaugh and the court’s median justice, Chief Justice John Roberts, also seemed to believe that Lemon causes more trouble than it’s worth. Different people will view different symbols in different ways, Roberts warned, and the Lemon test seems too vague to remove that subjective element from the law.
Yet, while the court seems likely to overrule at least some of its existing decisions interpreting the Constitution’s ban on an “establishment of religion,” it is far more uncertain what will rise up in its place. The litigants and several members of the court proposed new rules, but it is not at all clear which — if any — of these rules will garner a majority.
Michael Carvin, an archconservative lawyer and one of three attorneys arguing in favor of the Peace Cross, proposed a radical solution in his briefs — any law that advances religion should be upheld unless it coerces individuals into religious activity. Yet even Carvin seemed unwilling to embrace that test at oral argument.
For one thing, as Justice Ruth Bader Ginsburg noted, the Constitution prohibits both establishments of religion and attacks on the “free exercise” of religion. Yet Carvin’s coercion-only test suggests that the Establishment Clause doesn’t actually prohibit anything that isn’t already banned by the Free Exercise Clause. As a general rule, the court reads the Constitution as if each word is significant, and the test proposed in Carvin’s brief is hard to square with that rule.
Instead, Carvin delivered a baffling presentation in which he tried to distinguish between “proselytizing,” which he said the government may not do, and “endorsement” of religion, which Carvin says the government may do. This distinction appeared to be a non-starter with the court. Roberts criticized it because it would reduce every case to a fact-based inquiry with few clear legal rules. Justice Sonia Sotomayor said that a ban on proselytizing is no different than “the endorsement test,” a legal standard that liberals tend to favor but that has little support among conservative judges. Gorsuch warned that it would take courts back to a “dog’s breakfast.”
Meanwhile Neal Katyal, a former acting solicitor general, and Principal Deputy Solicitor General Jeffrey Wall — the other two lawyers defending the cross — seemed to endorse two different articulations of a very similar test. The Peace Cross is permissible if it has “taken on a secular meaning,” according to Wall. Katyal likewise argued that the Peace Cross should be allowed to stand because, even though it is in the shape of a Christian symbol, this particular cross has a “second meaning” — honoring fallen World War One veterans.
As a practical matter, it’s unclear whether this rule would prohibit many government displays of religious symbols at all. The Peace Cross is, as Sotomayor noted, a giant, 40-foot Christian icon that “dwarfs” nearby buildings. Yet it also includes a plaque honoring fallen combatants. A Ten Commandments statute could be given a “second meaning” by adding a plaque stating that it exists to remind people of the importance of written laws. A giant crucifix could be erected in the middle of a town and then touted at a dedication ceremony as a memorial to victims of a deadly disease.
Indeed, at one point during Mr. Wall’s presentation, Justice Elena Kagan offered him a series of five different hypotheticals — ranging from a cross that has been viewed as a war memorial for nearly a century, to an identical monument that is “just a cross” — meaning that the government that erected it made no effort to present it as anything other than an endorsement of Christianity. Though Wall conceded that the most extreme hypothetical — the “just a cross” — would be problematic under the Constitution, he appeared to believe that even fairly minor efforts to give a religious icon a secular meaning would immunize that icon from legal attack.
And then there was Justice Stephen Breyer, the moderate liberal who, in his 2005 opinion in Van Orden v. Perry, suggested that religious monuments may stay if removing them is likely “to prove divisive.” Breyer suggested a kind of grandfather rule that would allow existing religious monuments to stay on government land, but prohibit new ones.
“History counts,” Breyer said at one point. Don’t “tear down historical monuments,” but proclaim from here on “no more.”
At a public event last September, Justice Kagan warned that her court’s legitimacy is in danger if it is perceived as too political. The solution, according to Kagan, is to take “big questions and make them small.”
At times, Kagan seemed to be feeling around for such a small solution. Memorials shaped like crosses, Kagan noted at one point, were the “preeminent symbol” used to honor World War One dead around the time when the Peace Cross was built. This particular monument is also engraved with words honoring the valor of fallen service members. There’s a particularly strong argument that this cross has a secular purpose aside from its religious iconography.
Perhaps it might be possible to assemble a majority that will uphold this cross based on the narrow facts on this particular case, and put larger doctrinal questions off until another day.
Kagan’s challenge, however, is that her most frequent partner in her efforts to make cases smaller — Chief Justice Roberts — did not seem open to such a solution. Indeed, Roberts repeatedly criticized legal tests that would reduce every case into a fact specific inquiry.
It seems likely, in other words, that a majority of the court is about to blow up a lot of existing law. And it also seems likely that they will come up with a test that is quite permissive of government-sponsored displays honoring religion. The specific contours of that test, however, remain to be seen.