case_law | United States Federal
American Legion v. American Humanist Assn.
Summary
The Bladensburg Cross does not violate the Establishment Clause.
Text
(Slip Opinion) OCTOBER TERM, 2018 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of t he Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
AMERICAN LEGION ET AL. v. AMERICAN HUMANIST
ASSN. ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 17–1717. Argued February 27, 2019—Decided June 20, 2019*
In 1918, residents of Prince George’s County, Maryland, formed a
committee for the purpose of er ecting a memorial for the county’s sol-
diers who fell in World War I . The committee decided that the me-
morial should be a cross , which was not surprising since the p lain
Latin cross had become a central symbol of the war. The image of
row after row of pla in white crosses marking the overseas graves of
soldiers was emblazoned on the minds of Americans at home. The
memorial would stand at the terminus of another World War I m e-
morial—the National Defense Highway connecting Washington to
Annapolis. When the committee ran out of funds, the local American
Legion took over the project, completing the memorial in 1925. The
32-foot tall Latin cross displays the American Legion’s emblem at its
center and sits on a large pedestal bearing, inter alia , a bronze
plaque that lists the names of the 49 county soldiers who had fallen
in the war. At the dedication ceremony, a Catholic priest offered an
invocation and a Baptist pastor offered a benedic tion. The Bladens-
burg Cross (Cross) has since been the site of patriotic events honoring
veterans on , e.g., V eterans Day, Memorial Day, and Independence
Day. Monuments honoring the veterans of other conflicts have been
added in a park near the Cross. As the area around the Cross deve l-
oped, the monument came to be at the center of a busy intersection.
In 1961, the Maryland-National Capital Park and Planning Commis-
sion (Commission) acquired the Cross and the land where it sits, but
——————
* Together with No. 18 –18, Maryland-National Capital Park and
Planning Commission v. American Humanist Assn. et al., also on cert i-
orari to the same court.
2 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
Syllabus
the American Legion reserved the right to continue using the site for
ceremonies. The Commission has used public funds to maintain the
monument ever since.
In 2014, the American Humanist Association (AHA) and others
filed suit in District Court, alleging that the Cross’s presence on pub-
lic land and the Commission’s maintenance of the memorial viol ate
the First Amendment’s Establishment Clause. The American Legion
intervened to defend the Cross. The District Court granted summary
judgment for the Commission and the American Legion , concluding
that the Cross satisfies both the test announced in Lemon v. Kurtz-
man, 403 U. S. 602, and the analysis applied by J USTICE BREYER in
upholding a Ten Commandments monument in Van Orden v. Perry,
545 U. S. 677. The Fourth Circuit reversed.
Held: The judgment is reversed and remanded.
874 F. 3d 195, reversed and remanded.
J USTICE ALITO delivered the opinion of the Court with respect to
Parts I, II–B, II–C, III, and IV , concluding that the Bladensburg
Cross does not violate the Establishment Clause. Pp. 16–24, 28–31.
(a) At least four considerations show that retaining established, re-
ligiously expressive monuments, symbols, and practices is quite di f-
ferent from erecting or adopting new ones. First , these cases often
concern monuments, symbols, or practices that were first established
long ago, and thus, identifying their original purpose or purposes
may be especially difficult. See Salazar v. Buono, 559 U. S. 700.
Second, as time goes by, the purposes associated with an established
monument, symbol, or practice often multiply , as in the Ten Com-
mandments monum ents a ddressed in Van Orden and McCreary
County v. American Civil Liberties Union of Ky., 545 U. S. 844. Even
if the monument’s original purpose was infused with religion, the
passage of time may obscure that sentiment and the monument may
be retained for the sake of its historical significance or its place in a
common cultural heritage . Third, the message of a monument, sym-
bol, or practice may evolve, Pleasant Grove City v. Summum, 555
U. S. 460, 477, as is the case with a city name like Bethlehem, Pen n-
sylvania; Arizona’s motto “Ditat Deus” (“ God enriches”), adopted in
1864; or Maryland’s flag, which has included two crosses since 1904.
Familiarity itself can become a reason for preservation. Fourth,
when time’s passage imbues a religiously expressive m onument,
symbol, or practice with this kind of familiarity and historical signif i-
cance, removing it may no longer appear neutral, especially to the l o-
cal community. The passage of time thus gives rise to a strong pr e-
sumption of constitutionality. Pp. 16–21.
(b) The cross is a symbol closely linked to World War I. The United
States adopted it as part of its military honors, establishing the Di s-
Cite as: 588 U. S. ____ (2019) 3
Syllabus
tinguished Service Cross and the Navy Cross in 1918 and 1919, re-
spectively. And the fallen soldiers’ final resting places abroad were
marked by white crosses or Stars of David , a solemn image that be-
came inextricably linked with and symbolic of the ultimate price pai d
by 116,000 soldiers. This relationship between the cross and the war
may not have been the sole or dominant motivation for the design of
the many war memorials that sprang up across the Nation , but that
is all but impossible to determine today. The passage of time means
that testimony from the decisionmakers may not be available. And
regardless of the original purposes for erecting the monument, a
community may wish to preserve it for very different reasons, such as
the historic preservation and traffic-safety concerns noted here. The
area surrounding a monument like the Bladensburg Cross may al so
have been altered in ways that change its meaning and provide new
reasons for its preservation . Even the AHA recognizes that the mo n-
ument’s surroundings are important, as it concedes that the presence
of a cross monument in a cemetery is unobjectionabl e. But a memo-
rial’s placement in a cemetery is not necessary to create the connec-
tion to those it honors . Memorials took the place of gravestones for
those parents and other relatives who lacked the means to travel to
Europe to visit the graves of their war dead and for those soldiers
whose bodies were never recovered. Similarly, memorials and mo n-
uments honoring important historical figures e.g., Dr. Martin Luther
King, Jr., often include a symbol of the faith that was important to
the persons whose lives are commemorated. Finally, as World War I
monuments have endured through the years and become a familiar
part of the p hysical and cultural landscape, requiring their removal
or alteration would not be viewed by many as a neutral act. Few
would say that California is attempting to convey a religious message
by retaining the many city names, like Los Angeles and San Diego,
given by the original Spanish settlers . But it would be something
else entirely if the State undertook to change those names. Much the
same is true about monuments to soldiers who sacrificed their lives
for this country more than a century ago. Pp. 21–24.
(c) Applying these principles here, the Bladensburg Cross does not
violate the Establishment Clause. The image of the simple wood en
cross that originally marked the graves of American soldiers killed in
World War I became a symbol of their sacrifice, and the design of the
Bladensburg Cross must be understood in light of that background.
That the cross originated as a Christian symb ol and retains that
meaning in many contexts does not change the fact that the symbol
took on an added secular meaning when used in World War I mem o-
rials. The Cross has also acquired historical importance with the
passage of time, reminding the townspeopl e of the deeds and sacrific-
4 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
Syllabus
es of their predecessors as it stands among memorials to veterans of
later wars. It has thus become part of the community . It would not
serve that role had its design deliberately disrespected area soldiers,
but there is no evi dence that the names of any area Jewish soldiers
were either intentionally left off the memorial’s list or included
against the wishes of their families. The AHA tries to connect the
Cross and the American Legion with anti -Semitism and the Ku Klux
Klan, but the monument, which was dedicated during a period of
heightened racial and religious animosity , includes the names of both
Black and White soldiers ; and both Catholic and Baptist clergy pa r-
ticipated in the dedication. It is also natural and appropriat e for a
monument commemorating the death of particular individuals to in-
voke the symbols that signify what death meant for those who are
memorialized. Excluding those symbols could make the memorial
seem incomplete. This explains why Holocaust memorials invariably
feature a Star of David or other symbols of Judaism and why the
memorial at issue features the same symbol that marks the graves of
so many soldiers near the battlefi elds where they fell. Pp. 28–30.
(d) The fact that the cross is undoubtedly a Christian symbol
should not blind one to everything else that the Bladensburg Cross
has come to represent : a symbolic resting place for ancestors who
never returned home, a place for the community to gather and honor
all veter ans and their sacrifices for this Nation, and a historical
landmark. For many, destroying or defacing the Cross would not be
neutral and would not further the ideals of respect and tolerance e m-
bodied in the First Amendment. P. 31.
J
USTICE A LITO, joined by T HE C HIEF JUSTICE, JUSTICE BREYER, and
JUSTICE KAVANAUGH, conclu ded in Parts II–A and II–D:
(a) Lemon ambitiously attempted to fashion a test for all Estab-
lishment Clause cases. The test called on courts to examine the pur-
poses and effects of a challenged government action, as well as any
entanglement with religion that it might entail . The expectation of a
ready framework has not been met, and the Court has many times ei-
ther expressly declined to apply the test or simply ignored it. See,
e.g., Zobrest v. Catalina Foothills Sc h. Dist., 509 U. S. 1; Town of
Greece v. Galloway, 572 U. S. 565. Pp. 12–16.
(b) The Lemon Court ambitiously attempted to find a grand unified
theory of the Establishment Clause, but the Court has since taken a
more modest approach that focuses on the pa rticular issue at hand
and looks to history for guidance . The cases involving prayer before
legislative sessions are illustrative. In Marsh v. Chambers, 463 U. S.
783, the Court upheld a State Legislature’s practice of beginning each
session with a praye r by an official chaplain, finding it highly persua-
sive that Congress for over 200 years had opened its sessions with a
Cite as: 588 U. S. ____ (2019) 5
Syllabus
prayer and that many state l egislatures had followed suit. And the
Court in Town of Greece reasoned that the historical practice of ha v-
ing, since the First Congress, chaplains in Congress showed “ that the
Framers considered legislative prayer a benign acknowledgment of
religion’s role in society.” 572 U. S., at 576. Where monuments,
symbols, and practices with a longstanding history follow in the tra-
dition of the First Congress in respecting and tolerating different
views, endeavoring to achieve inclusivity and nondiscrimination, and
recognizing the important role religion plays in the lives of many
Americans, they are likewise constitutional. Pp. 24–28.
J
USTICE THOMAS, agreeing that the Bladensburg Cross is constit u-
tional, concluded:
(a) The text and history of the Clause—which reads “Congress
shall make no law respecting an establishment of religion” —suggest
that it should not be incorporated against the States. When the
Court incorporated the Clause in Everson v. Board of Ed. of Ewing ,
330 U. S. 1, 15, it apparently did not consider that an incorporated
Establishment Clause would prohibit exactly what the text of the
Clause seeks to protect: state establishments of religion. The appr o-
priate question is whether any longstanding right of citizenship re-
strains the States in the establishment context. Further confounding
the incorporation question is the fact that the First Amendment by
its terms applies only to “law[s]” enacted by “Congress .” Pp. 1–3.
(b) Even if the Clause applied to state and local gover nments in
some fashion, “[t]he mere presence of the monument along [respon d-
ents’] path involves no [actual legal] coercion, ” the sine qua non of an
establishment of religion. Van Orden v. Perry, 545 U. S. 677, 694
(opinion of T
HOMAS, J.). The plaintiff c laiming an unconstitutional
establishment of religion must demonstrate that he was actually co-
erced by government conduct that shares the characteristics of an e s-
tablishment as understood at the founding. Respondents have not
demonstrated that maintaining a religious display on public property
shares any of the historical characteristics of an establishment of re-
ligion. Town of Greece v. Galloway, 572 U. S. 565, 608 (same). The
Bladensburg Cross is constitutional even though the cross has rel i-
gious significance. Religious displays or speech need not be limited to
those considered nonsectarian. Insisting otherwise is inconsistent
with this Nation’s history and traditions, id., at 578– 580 (majority
opinion), and would force the courts “to act as superviso rs and ce n-
sors of religious speech,” id., at 581. Pp. 3–5.
(c) The plurality rightly rejects the relevance of the test set forth in
Lemon v. Kurtzman, 403 U. S. 602, 612– 613, to claims like this one,
which involve religiously expressive monuments, symbol s, displays,
and similar practices, but J
USTICE THOMAS would take the logical
6 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
Syllabus
next step and overrule the Lemon test in all contexts. The test has
no basis in the original meaning of the Constitution; it has “been m a-
nipulated to fit whatever result the Court aimed to achieve, ”
McCreary County v. American Civil Liberties Union of Ky. , 545 U. S.
844, 900 (Scalia, J., dissenting); and it continues to cause enormous
confusion in the States and the lower courts. Pp. 6–7.
J USTICE GORSUCH, joined by JUSTICE THOMAS, concludes that a suit
like this one should be dismissed for lack of standing. Pp. 1–11.
(a) The American Humanist Associat ion claims that its members
come into regular, unwelcome contact with the Bladensburg Cross
when they drive through the area, but this “offended observer” theory
of standing has no basis in law. To establish standing to sue co n-
sistent with the Constitution, a plaintiff must show: (1) injury-in-fact,
(2) causation, and (3) redressability. And the injury -in-fact must be
“concrete and particularized. ” Lujan v. Defenders of Wildlife, 504
U. S. 555, 560. This Court has already rejected the notion that o f-
fense alone qualifies as a “concrete and particularized” injury suff i-
cient to confer standing, Diamond v. Charles, 476 U. S. 54, 62, and it
has done so in the context of the Establishment Clause itself, see Val-
ley Forge Christian College v. Americans United for the Separation of
Church and State, 454 U. S. 464. Offended observer standing is
deeply inconsistent, too, with many other longstanding principles and
precedents, including the rule that “
‘generalized grievances’ about
the conduct of Government” are insufficient to confer standing to sue,
Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 217,
and “the rule that a party ‘ generally must assert his own legal rights
and interests,’
” not those “ ‘of third parties,’ ” Kowalski v. Tesmer, 543
U. S. 125, 129. Pp. 1–6.
(b) Lower courts invented offended observer standing for Esta b-
lishment Clause cases in response to Lemon v. Kurtzman, 403 U. S.
602, reasoning that if the Establishment Clause forbids anything
that a reasonable observer would view as an endorsement of religion,
then such an observer must be able to sue . Lemon, however, was a
misadventure, and the C ourt today relies on a more modest, histor i-
cally sensitive approach, interpreting the Establishment Clause with
reference to historical practices and understandings. The monument
here is clearly constitutional in light of the nation’s traditions. Al-
though the plurality does not say it in as many words , the message of
today’s decision for the lower courts must be this: whether a monu-
ment, symbol, or practice is old or new, apply Town of Greece v. Gal-
loway, 572 U. S. 565, not Lemon, because what matters when it
comes to assessing a monument, symbol, or practice is not its age but
its compliance with ageless principles. Pp. 6–9.
(c) With Lemon now shelved, little excuse will remain for the
Cite as: 588 U. S. ____ (2019) 7
Syllabus
anomaly of offended observer standing, and the gaping hole it tor e in
standing doctrine in the courts of appeals should now begin to close.
Abandoning offended observer standing will mean only a return to
the usual demands of Article III, requiring a real controversy with
real impact on real persons to make a federal case out of it. Pp. 9–11.
A LITO, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II –B, II–C, III, and IV , in
which ROBERTS, C. J., and B REYER, KAGAN, and K AVANAUGH, JJ., joined,
and an opinion with respect to Parts II –A and II–D, in which ROBERTS,
C. J., and B REYER and KAVANAUGH, JJ., joined. B REYER, J., filed a co n-
curring opinion, in which K AGAN, J., joined. K AVANAUGH, J., filed a co n-
curring opinion. K AGAN, J., filed an opinion concurring in part. THOM-
AS, J., filed an opinion concurring in the judgment. G ORSUCH, J., filed
an opinion concurring in the judgment, in which T HOMAS, J., joined.
GINSBURG, J., filed a dissenting opinion, in which S OTOMAYOR, J.,
joined.
Cite as: 588 U. S. ____ (2019) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash -
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 17–1717 and 18–18
_________________
THE AMERICAN LEGION, ET AL., PETITIONERS
17–1717 v.
AMERICAN HUMANIST ASSOCIATION, ET AL.; AND
MARYLAND-NATIONAL CAPITAL PARK AND
PLANNING COMMISSION, PETITIONER
18–18 v.
AMERICAN HUMANIST ASSOCIATION, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 20, 2019]
J USTICE ALITO announced the judgment of the Court
and delivered the opinion of the Court with respect to
Parts I, II– B, II– C, III, and IV, and an opinion with r e-
spect to Parts II –A and II– D, in which T HE CHIEF
JUSTICE, JUSTICE BREYER, and JUSTICE KAVANAUGH join.
Since 1925, the Bladensburg Peace Cross (Cross) has
stood as a tribute to 49 area soldiers who gave their lives
in the First World War. Eighty -nine years after the ded i-
cation of the Cross, respondents filed this lawsuit, clai m-
ing that they are offended by the sight of the memorial on
public land and that its presence there and the expend i-
ture of public funds to maintain it violate the Establis h-
ment Clause of the First Amendment. To remedy this
violation, they asked a federal court to order the relocation
or demolition of the Cross or at least the removal of its
2 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
Opinion of the Court
arms. The Court of Appeals for the Fourth Circuit agreed
that the memorial is unconstitutional and remanded for a
determination of the proper remedy. We now reverse.
Although the cross has long been a preeminent Chri s-
tian symbol, its use in the Bladensburg memorial has a
special significance. After the First World War, the pi c-
ture of row after row of plain white crosses marking the
overseas graves of soldiers who had lost their lives in that
horrible conflict was emblazoned on the minds of Amer i-
cans at home, and the adoption of the cross as the
Bladensburg memorial must be viewed in that historical
context. For nearly a century, the Bladensbur g Cross has
expressed the community’s grief at the loss of the young
men who perished, its thanks for their sacrifice, and its
dedication to the ideals for which they fought. It has
become a prominent community landmark, and its 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.” Van Orden v. Perry, 545 U. S. 677, 704
(2005) ( B
REYER, J., concurring in judgme nt). And con -
trary to respondents’ intimations, there is no evidence of
discriminatory intent in the selection of the design of the
memorial or the decision of a Maryland commission to
maintain it. The Religion Clauses of the Constitution aim
to foster a society in which people of all beliefs can live
together harmoniously, and the presence of the Bladen s-
burg Cross on the land where it has stood for so many
years is fully consistent with that aim.
I
A
The cross came into widespread use as a symbol of Chris-
tianity by the fourth century,
1 and it retains that meaning
today. But there are many contexts in which the symbol
——————
1 B. Longenecker, The Cross Before Constantine: The Early Life of a
Christian Symbol 2 (2015).
Cite as: 588 U. S. ____ (2019) 3
Opinion of the Court
has also taken on a secular meaning. Indeed, there are
instances in which its message is now almost entirely
secular.
A cross appears as part of many registered trademarks
held by businesses and secular organizations, including
Blue Cross Blue Shield, the Bayer Group , and some John-
son & Johnson products. 2 Many of these marks relate to
health care, and it is likely that the association of the
cross with healing had a religious origin. But the current
use of these marks is indisputably secular.
The familiar symbol of the Red Cross —a red cross on a
white background —shows how the meaning of a symbol
that was originally religious can be tran sformed. The
International Committee of the Red Cross (ICRC) selected
that symbol in 1863 because it was thought to call to mind
the flag of Switzerland, a country widely known for its
neutrality.
3 The Swiss flag consists of a white cross on a
red background. In an effort to invoke the message ass o-
ciated with that flag, the I CRC copied its design with the
colors inverted. Thus, the I CRC selected this symbol for
an essentially secular reason, and the current secular
message of the symbol is shown by its use today in nations
with only tiny Christian populations.
4 But the cross was
originally chosen for the Swiss flag for religious reasons. 5
——————
2 See Blue Cross, Blue Shield, https://www.bcbs.com; The Bayer Group,
The Bayer Cross —Logo and Landmark, https: //www.bayer.com/en/logo-
history.aspx; Band-Aid Brand Adhesive Bandages, Johnson & Johnson
All Purpose First Aid Kit, https://www.b and-aid.com/products/first-aid-
kits/all-purpose (all Internet materials as last visited June 18, 2019).
3 International Committee of the Red Cross, The History of the Emblems,
https://www.icrc.org/en/doc/resources/documents/misc/emblem-history.htm.
4 For example, the Indian and Japanese affiliates of the ICRC and
Red Crescent Societies use the symbol of the cross. See Indian Red Cross
Society, https://www.indianredcross.org/ircs/index.php; Japanese Red Cross
Society, http://www.jrc.or.jp/english /.
5 See “Flag of Switzerland,” Britannica Academic, https://academic.
eb.com/levels/collegiate/article/flag-of-Switzerland/93966.
4 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
Opinion of the Court
So an image that began as an expression of faith was
transformed.
The image used in the Bladensburg memorial —a plain
Latin cross6—also took on new meaning after World War I.
“During and immediately after the war, the army marked
soldiers’ graves with temporary wooden crosses or Stars of
David”—a departure from the prior practice of marking
graves in American military cemeteries with uniform
rectangular slabs. G. Piehler, Remembering War th e
American Way 101 (1995); App. 1146 . The vast majority
of these grave markers consisted of crosses,
7 and thus
when Americans saw photographs of these cemeteries,
what struck them were rows and rows of plain white
crosses. As a result, the image of a simple white cross
“developed into a ‘central symbol’
” of the conflict. Ibid.
Contemporary literature, poetry, and art reflected this
powerful imagery. See Brief for Veterans of Fo reign Wars
of the United States et al. as Amici Curiae 10–16. Pe r-
haps most famously, John McCrae’s poem, In Flanders
Fields, began with these memorable lines:
——————
6 The Latin form of the cross “has a longer upright than crossbar. The
intersection of the two is usually such that the upper and the two
horizontal arms are all of about equal length, but the lower arm is
conspicuously longer.” G. Ferguson, Signs & Symbols in Christian Art
294 (1954). See also Webster’s Third New International Dictionary
1276 (1981) (“latin cross, n.”: “a figure of a cross having a long upright
shaft and a shorter crossbar traversing it above the middle”).
7 Of the roughly 116,000 casualties the United States suffered in
World War I, some 3,500 were Jewish soldiers. J. Fredman & L. Falk,
Jews in American Wars 100 (5th ed. 1954). In the congressional
hearings involving the appropriate grave markers for those buried
abroad, one Representative stated that ap proximately 1,600 of these
Jewish soldiers were buried in overseas graves marked by Stars of
David. See Hearings before the Committee on Military Affairs, 68th
Cong., 1st Sess., 3 (1924). That would constitute about 5.2% of the
30,973 graves in American World War I cemeteries abroad. See Amer i-
can Battle Monuments Commission ( ABMC), World War I Burials and
Memorializations, https://www.abmc.gov/node/1273.
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Opinion of the Court
“In Flanders fields the poppies blow
Between the crosses, row on row.”
In Flanders Fields and Other Poems 3 (G. P. Putnam’s
Sons ed. 1919). The poem was enormously popular. See
P. Fussell, The Great War and Modern Memory 248– 249
(1975). A 1921 New York Times article quoted a descri p-
tion of McCrae’s composition as “ ‘the poem of the army’ ”
and “ ‘of all those who understand the meaning of the great
conflict.’ ”8 The image of “the crosses, row on row,” stuck
in people’s minds, and even today for those who view
World War I cemeteries in Europe, the image is arresting.
9
After the 1918 armistice, the War Department a n-
nounced plans to replace the wooden crosses and Stars of
David with uniform marble slabs like those previously
used in American military cemeteries. App. 1146. But the
public outcry against that proposal was swift and fierce.
Many orga nizations, including the American War Mot h-
ers, a nonsectarian group founded in 1917, urged the
Department to retain the design of the temporary mar k-
ers. Id., at 1146–1147. When the American Battle Mo n-
uments Commission took over the project of designing t he
headstones, it responded to this public sentiment by op t-
ing to replace the wooden crosses and Stars of David with
marble versions of those symbols. Id., at 1144. A Member
of Congress likewise introduced a resolution noting that
“these wooden symbols h ave, during and since the World
War, been regarded as emblematic of the great sacrifices
which that war entailed, have been so treated by poets
and artists and have become peculiarly and inseparably
associated in the thought of surviving relatives and co m-
rades and of the Nation with these World War graves.” H.
Res. 15, 68th Cong., 1 (1924), App. 1163– 1164. This n a-
——————
8 “In Flanders Fields,” N. Y. Times, Dec. 18, 1921, p. 96.
9 See ABMC, Cemeteries and Memorials, https://www.abmc.gov/cemeteries-
memorials.
6 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
Opinion of the Court
tional debate and its outcome confirmed the cross’s wide-
spread resonance as a symbol of sacrifice in the war.
B
Recognition of the cross’s symbolism extended to local
communities across the country. In late 1918, residents of
Prince George’s County, Maryland, formed a committee for
the purpose of erecting a memorial for the county’s fallen
soldiers. App. 988 –989, 1014. Among the c ommittee’s
members were the mothers of 10 deceased soldiers. Id., at
989. The committee decided that the memorial should be
a cross and hired sculptor and architect John Joseph
Earley to design it. Although we do not know precisely
why the committee chose the cross, it is unsurprising that
the committee—and many others commemorating World
War I
10—adopted a symbol so widely associated with that
wrenching event.
After selecting the design, the c ommittee turned to the
task of financing the project. The committee held fun d-
raising events in the community and invited donations, no
matter the size, with a form that read:
“We, the citizens of Maryland, trusting in God, the
Supreme Ruler of the Universe, Pledge Faith in our
Brothers who gave their all in the World War to make
[the] World Safe for Democracy. Their Mortal Bodies
have turned to dust, but their spirit Lives to guide
us through Life in the way of Godliness, Justice and
Liberty.
“With our Motto, ‘One God, One Country, and One
Flag’ We contribute to this Memorial Cross Comme m-
——————
10 Other World War I memorials that incorporate the cross include
the Argonne Cross and the Cana dian Cross of Sacrifice in Arlington
National Cemetery; the Wayside Cross in Towson, Maryland; the
Wayside Cross in New Canaan, Connecticut; the Troop K Georgia
Cavalry War Memorial Front in Augusta, Georgia; the Chestnut Hill
and Mt. Airy World War Memorial in Philadelphia, Pe nnsylvania; and
the Great War for Democracy Memorial in Waterbury, Connecticut.
Cite as: 588 U. S. ____ (2019) 7
Opinion of the Court
orating the Memory of those who have not Died in
Vain.” Id., at. 1251.
Many of those who responded were local residents who
gave small amounts: Donations of 25 cents to 1 dollar were
the most common. Id. , at 1014. Local businesses and
political leaders assisted in this effort. Id., at 1014, 1243.
In writing to thank United States Senator John Walter
Smith for his donation, c ommittee treasurer Mrs. Martin
Redman explained that “[t]he chief reason I feel as deeply
in this matter [is that], my son, [Wm.] F. Redman, lost his
life in France and because of that I feel that our memorial
cross is, in a way, his grave stone.” Id., at 1244.
The Cross was to stand at the terminus of another
World War I memorial —the National Defense Highway,
which connects Washington to Annapolis. The community
gathered for a joint groundbreaking ceremony for both
memorials on September 28, 1919; the mother of the first
Prince George’s County resident killed in France broke
ground for the Cross. Id., at 910. By 1922, however, the
committee had run out of funds, and progress on the Cross
had stalled. The local post of the American Legion took
over the project, and the monument was finished in 1925.
The completed monument is a 32 -foot tall Latin cross
that sits on a large pedestal. The American Legion’s
emblem is displayed at its cen ter, and the words “Valor,”
“Endurance,” “Courage,” and “Devotion” are inscribed at
its base, one on each of the four faces. The pedestal also
features a 9- by 2.5-foot bronze plaque explaining that the
monument is “Dedicated to the heroes of Prince Georg e’s
County, Maryland who lost their lives in the Great War
for the liberty of the world.” Id ., at 915 (capitalization
omitted). The plaque lists the names of 49 local men, both
Black and W hite, who died in the war. It identifies the
dates of American in volvement, and quotes President
Woodrow Wilson’s request for a declaration of war: “The
8 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
Opinion of the Court
right is more precious than peace. We shall fight for the
things we have always carried nearest our hearts. To such
a task we dedicate our lives.” Ibid.
At the dedi cation ceremony, a local Catholic priest
offered an invocation. Id., at 217–218. United States
Representative Stephen W. Gambrill delivered the key-
note address, honoring the “
‘men of Prince George’s County’ ”
who “ ‘fought for the sacred right of all to live in peace
and security.’ ” Id., at 1372. He encouraged the commu -
nity to look to the “ ‘token of this cross, symbolic of Calvary,’ ”
to “ ‘keep fresh the memory of our boys who died for a
righteous cause. ’ ” I bid. The ceremony closed with a
benediction offered by a Baptist pastor.
Since its dedication, the Cross has served as the site of
patriotic events honoring veterans, including gatherings
on Veterans Day, Memorial Day, and Independence Day.
Like the dedication itself, these events have typically
included an invocation, a keynote speaker, and a benedi c-
tion. Id., at 182, 319–323. Over the years, memorials
honoring the veterans of other conflicts have been added
to the surrounding area, which is now know n as Veterans
Memorial Park. These include a World War II Honor
Scroll; a Pearl Harbor memorial; a Korea- Vietnam veter-
ans memorial; a September 11 garden; a War of 1812
memorial; and two recently added 38-foot-tall markers
depicting British and American s oldiers in the Battle of
Bladensburg. Id., at 891–903, 1530. Because the Cross is
located on a traffic island with limited space, the closest of
these other monuments is about 200 feet away in a park
across the road. Id., at 36, 44.
As the area around the Cross developed, the monument
came to be at the center of a busy intersection. In 1961,
the Maryland -National Capital Park and Planning Co m-
mission (Commission) acquired the Cross and the land on
which it sits in order to preserve the monument and a d-
Cite as: 588 U. S. ____ (2019) 9
Opinion of the Court
dress traffic -safety concerns. 11 Id., at 420–421, 1384–
1387. The American Legion reserved the right to continue
using the memorial to host a variety of ceremonies, includ-
ing events in memory of departed veterans. Id., at 1387.
Over the next five decades, the Commission spent approx-
imately $117,000 to maintain and preserve the monu-
ment. In 2008, it budgeted an additional $100,000 for
renovations and repairs to the Cross.
12
C
In 2012, nearly 90 years after the Cross was dedicated
and more than 50 years afte r the Commission acquired it,
the American Humanist Association (AHA) lodged a co m-
plaint with the Commission. The complaint alleged that
the Cross’s presence on public land and the Commission’s
maintenance of the memorial violate the Establishment
——————
11 There is some ambi guity as to whether the American Legion ever
owned the land on which the Cross rests. When the Legion took over
the Cross, the town of Bladensburg passed a resolution “assign[ing] and
grant[ing] to the said Snyder-Farmer Post #3, American Legion, that
parcel of ground upon which the cross now stands and that part nece s-
sary to complete . . . the park around said cross, to the perpetual care of
the Snyder-Farmer Post #3 as long as it is in existence, and should the
said Post go out of existence the plot to revert to the Town of Bladen s-
burg, together with the cross and its surroundings.” App. 65. In 1935,
a statute authorized the State Roads Commission of Maryland to
“investigate the ownership and possessory rights” of the tract surround-
ing the Cross and to “acquire the same by purchase or condemnation.”
Id., at 421. It appears that in 1957, a court determined that it was
necessary for the S tate to condemn the property. Id., at 1377–1379.
The State Roads Commission thereafter conveyed the propert y to the
Commission in 1960. Id., at 1380, 1382. To resolve any ambiguities, in
1961, the local American Legion post “transfer[ed] and assign[ed] to
[the Commission] all its right, title and interest in and to the Peace
Cross, also originally known as the Memorial Cross, and the tract upon
which it is located.” Id., at 1387. At least by 1961, then, both the land
and the Cross were publicly owned.
12 Of the budgeted $100,000, the Commission had spent only $5,000
as of 2015. The Commission put off additional spending and repai rs in
light of this lawsuit. Id., at 823.
10 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
Opinion of the Court
Clause of the First Amendment. Id., at 1443–1451. The
AHA, along with three residents of Washington, D. C., and
Maryland, also sued the Commission in the District Court
for the District of Maryland, making the same claim. The
AHA sought declaratory and injunctive relief requiring
“removal or demolition of the Cross, or removal of the
arms from the Cross to form a non -religious slab or ob e-
lisk.” 874 F. 3d 195, 202, n. 7 (CA4 2017) (internal quota-
tion marks omitted). The American Legion intervened to
defend the Cross.
The District Court granted summary judgment for the
Commission and the American Legion. The Cross, the
District Court held, satisfies both the three -pronged test
announced in Lemon v. Kurtzman, 403 U. S. 602 (1971) ,
and the analysis applied by J
USTICE BREYER in upholding
the Ten Commandments monument at issue in Van Orden
v. Perry, 545 U. S. 677. Under the Lemon test, a court
must ask whether a challenged government action (1) has
a secular purpose; (2) has a “principal or primary effect”
that “neither advances nor inhibits religion”; and (3) does
not foster “an excessive government entanglement with
religion,” 403 U. S., at 612–613 (internal quotation marks
omitted). Applying that test, the District Court deter-
mined that the Commission ha d secular purposes for
acquiring and maintaining the Cross —namely, to co m-
memorate World War I and to ensure traffic safety. The
court also found that a reasonable observer aware of the
Cross’s history, setting, and secular elements “would not
view the Mon ument as having the effect of impermissibly
endorsing religion.” 147 F. Supp. 3d 373, 387 (Md. 2015).
Nor, according to the court, did the Commission’s mainte-
nance of the memorial create the kind of “continued and
repeated government involvement with reli gion” that
would constitute an excessive entanglement. Ibid. (inter-
nal quotation marks and emphasis omitted). Finally, in
light of the factors that informed its analysis of Lemon ’s
“effects” prong, the c ourt concluded that the Cross is
Cite as: 588 U. S. ____ (2019) 11
constitutional under J USTICE BREYER’s approach in Van
Orden. 147 F. Supp. 3d, at 388–390.
A divided panel of the Court of Appeals for the Fourth
Circuit reversed. The majority relied primarily on the
Lemon test but also took cognizance of J USTICE BREYER’s
Van Orden concurrence. While recognizing that the
Commission acted for a secular purpose, the court held
that the Bladensburg Cross failed Lemon’s “effects” prong
because a reasonable observer would view the Commis-
sion’s ownership and maintenance of the monument as an
endorsement of Christianity. The court emphasized the
cross’s “inherent religious meaning” as the “
‘preeminent
symbol of Christianity.’ ” 874 F. 3d, at 206–207. Although
conceding that the monument had several “secular ele-
ments,” the court asserted that they were “overshad-
ow[ed]” by the Cross’s size and Christian connection—
especially because the Cross’s location and condition
would make it difficult for “passers-by” to “read” or other-
wise “examine” the plaque and American Legion emblem.
Id., at 209–210. The court rejected as “too simplistic” an
argument defending the Cross’s constitutionality on the
basis of its 90-year history, suggesting that “[p]erhaps the
longer a violation persists, the greater the affront to those
offended.” Id., at 208. In the alternative, the court con-
cluded, the Commission had become excessively entangled
with religion by keeping a display that “aggrandizes the
Latin cross” and by spending more than de minimis public
funds to maintain it. Id., at 211–212.
Chief Judge Gregory dissented in relevant part, con-
tending that the majority misapplied the “effects” test by
failing to give adequate consideration to the Cross’s “phys-
ical setting, history, and usage.” Id., at 218 (opinion con-
curring in part and dissenting in part). He also disputed
the majority’s excessive-entanglement analysis, noting
that the Commission’s maintenance of the Cross was not
the kind of “comprehensive, discriminating, and continu-
ing state surveillance” of religion that Lemon was con-
Opinion of the Court
12 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
cerned to rule out. 874 F. 3d, at 221 (internal quotation
marks omitted).
The Fourth Circuit denied rehearing en banc over dis-
sents by Chief Judge Grego ry, Judge Wilkinson, and
Judge Niemeyer. 891 F. 3d 117 (2018). The Commission
and the American Legion each petitioned for certiorari.
We granted the petitions and consolidated them for arg u-
ment. 586 U. S. ___ (2016).
II
A
The Establishment Clause of the First Amendment
provides that “Congress shall make no law respecting an
establishment of religion.” While the concept of a formally
established church is straightforward, pinning down the
meaning of a “law respecting an establishment of religion”
has prove d to be a vexing problem. Prior to the Court’s
decision in Everson v. Board of Ed . of Ewing, 330 U. S. 1
(1947), the Establishm ent Clause was applied only to the
Federal Government, and few cases involving this prov i-
sion came before the Court. After Everson recognized the
incorporation of the Clause, however, the Court faced a
steady stream of difficult and controversial Establishment
Clause issues, ranging from Bible reading and prayer in
the public schools, Engel v. Vitale, 370 U. S. 421 (1962);
School Dist. of Abington T ownship v. Schempp, 374 U. S.
203 (1963), to Sunday closing laws, McGowan v. Mary-
land, 366 U. S. 420 (1961), to state subsidies for church-
related schools or the parents of students attending those
schools, Board of Ed. of Central School Dist. No. 1 v. Allen,
392 U. S. 236 (1968); Everson, supra. After grappling with
such cases for more than 20 years, Lemon ambitiously
attempted to distill from the Court’s existing case law a
test that would bring order and predictability to Esta b-
lishment Clause decisionmaking. That test, as noted,
called on courts to examine the purposes and effects of a
Opinion of ALITO, J.
Cite as: 588 U. S. ____ (2019) 13
challenged government action, as well as any entangl e-
ment with religion that it might entail. Lemon , 403 U. S.,
at 612–613. The Court later elaborated that the “effect[s]”
of a challenged action should be assessed by asking
whether a “reasonab le observer” would conclude that the
action constituted an “endorsement” of religion. County of
Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U. S. 573, 592 (1989); id., at 630
(O’Connor, J., concurring in part and concurrin g in
judgment).
If the Lemon Court thought that its test would provide a
framework for all future Establishment Clause decisions,
its expectation has not been met. In many cases, this
Court has either expressly declined to apply the test or
has simply i gnored it. See Zobrest v. Catalina Foothills
School Dist., 509 U. S. 1 (1993); B oard of Ed. of Kiryas
Joel Village School Dist. v. Grumet, 512 U.
S. 687 (1994);
Rosenberger v. Rector and Visitors of Univ . of V a., 515
U. S. 819 (1995); Capitol Square Review and Advisory Bd.
v. Pinette, 515 U. S. 753 (1995); Good News Club v. Mil-
ford Central School , 533 U. S. 98 (2001); Zelman v.
Simmons-Harris, 536 U. S. 639 (2002); Cutter v. Wilkinson,
544 U. S. 709 (2005); Van Orden , 545 U. S. 677; Ho sanna-
Tabor Evangelical Lutheran Church and School v. EEOC,
565 U. S. 171 (2012); Town of Greece v. Galloway, 572
U. S. 565 (2014); Trump v. Hawaii, 585 U. S. ___ (2018).
This pattern is a testament to the Lemon test’s shor t-
comings. As Establishment Clause cases involving a great
array of laws and practices came to the Court, it became
more and more apparent that the Lemon test could not
resolve them . It could not “explain the Establishment
Clause’s tolerance, for example, of the prayers that open
legislative meetings, . . . certain references to, and invoca-
tions of, the Deity in the public words of public officials;
the public references to God on coins, decrees, and build-
ings; or the attention paid to the religious objectives of
Opinion of ALITO, J.
14 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
certain holidays, including Thanksgiving.” Van Orden ,
supra, at 699 ( opinion of BREYER, J.). The test has been
harshly criticized by Members of this Court,13 lamented by
lower court judges,14 and questioned by a diverse roster of
scholars.15
——————
13 See, e.g., Utah Highway Patrol Assn. v. American Atheists, Inc., 565
U. S. 994, 995 (2011) (T HOMAS, J., dissenting from denial of certiorari);
County of Allegheny v. American Civil Liberties Un ion, Greater Pitt s-
burgh Chapter, 492 U. S. 573, 655–656 (1989) (Kennedy, J., concurring
in judgment in part and dissenting in part); Lamb’s Chapel v. Center
Moriches Union Free School Dist. , 508 U. S. 384, 398– 399 (1993)
(Scalia, J., concurring in judgment ); Wallace v. Jaffree, 472 U. S. 38,
112 (1985) (Rehnquist, J., dissenting).
14 See, e.g., Green v. Haskell Cty. Bd. of Comm’rs, 574 F. 3d 1235, n. 1
(CA10 2009) (Kelly, J., dissenting from denial of rehearing en banc)
(discussing the “judicial morass resul ting from the Supreme Court’s
opinions”); Cooper v. United States Postal Service, 577 F. 3d 479, 494
(CA2 2009) (“ Lemon is difficult to apply and not a particularly useful
test”); Roark v. South Iron R–1 School Dist., 573 F. 3d 556, 563 (CA8
2009) (“[T]he Lemon test has had a ‘checkered career’ ”); Skoros v. New
York, 437 F. 3d 1, 15 (CA2 2006) (government officials “confront a
‘jurisprudence of minutiae’ that leaves them to rely on ‘little more than
intuition and a tape measure’ to ensure the constitutiona lity of public
holiday displays” (quoting County of Allegheny , supra, at 674– 675
(opinion of Kennedy, J.)); Felix v. Bloomfield, 841 F. 3d 848, 864 (CA10
2016) (court “cannot speculate what precise actions a government must
take” to comply with the Establi shment Clause); Separation of Church
and State Comm. v. Eugene, 93 F. 3d 617, 627 (CA9 1996) (O’Scannlain,
J., concurring in result ) (The standards announced by this Court “are
not always clear, consistent or coherent”).
15 See McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L.
Rev. 115, 118– 120 (1992) (describing doctrinal “chaos” Lemon created,
allowing the Court to “reach almost any result in almost any case”) ;
Laycock, Towards a General Theory of the Religion Clauses: The Case
of Church Labor Re lations and the Right to Church Autonomy, 81
Colum. L. Rev. 1373, 1380– 1388 (1981) (criticizing the “unstructured
expansiveness of the entanglement notion” and the potential that
certain constructions of the effects prong may result in “the establis h-
ment clause threaten[ing] to swallow the free exercise clause”) ; Smith,
Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutral -
ity and the “No Endorsement” Test, 86 Mich. L. Rev. 266, 269 (1987)
Opinion of ALITO, J.
Cite as: 588 U. S. ____ (2019) 15
For at least four reasons, the Lemon test presents pa r-
ticularly daunting problems in cases, including the one
now before us, that involve the use, for ceremonial, cele-
bratory, or commemorative purposes, of words or symbols
with religious associations.
16 Together, these considera-
——————
(criticizing both the Lemon test and the endorsement gloss); Tushnet,
Reflections on the Role of Purpose in the Jurisprudence of the Religion
Clauses, 27 Wm. & Mary L. Rev. 997, 1004 (1986) (describing cases
involving “ ‘deeply ingrained practices’ ” as “not readily susceptible to
analysis under the ordinar y Lemon approach”); Choper, The Endors e-
ment Test: Its Status and Desirability, 18 J. L. & Pol itics 499 (2002)
(criticizing both Lemon and the endorsement gloss) ; Paulsen, Religion,
Equality, and the Constitution: An Equal Protection Approach to
Establishment Clause Adjudication, 61 Notre Dame L. Rev. 311, 315
(1986) (criticizing the Court’s reading of the Establishment Clause as
“producing a schizophrenic pattern of decisions”) ; Marshall, “We Know
It When We See It”: The Supreme Court and Establishment, 59 S. Cal.
L. Rev. 495, 526 (1986) (explaining that the purpose prong of Lemon ,
“[t]aken to its logical conclusion . . . suggests that laws which respect
free exercise rights . . . are unconstitutional”).
16 While we do not attempt to provide an authoritative taxonomy of
the dozens of Establishment Clause cases that the Court has decided
since Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947), most can be
divided into six rough categories: (1) religious references or imagery in
public monuments, symbols, mottos, displays, and ceremonies, e.g. ,
Lynch v. Donnelly, 465 U. S. 668 (1984); Van Orden v. Perry, 545 U. S.
677 (2005); (2) religious accommodations and exemptions from gener -
ally applicable laws, e.g. , Cutter v. Wilkinson , 544 U. S. 709 (2005);
Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day
Saints v. Amos, 483 U. S. 327 (1987); (3) subsidies and tax exemptions,
e.g., Walz v. Tax Comm’n of City of New York , 397 U. S. 664 (1970);
Zelman v. Simmons-Harris, 536 U. S. 639 (2002) ; (4) r eligious expres-
sion in public schools, e.g. , School Dist. of Abington Township v.
Schempp, 374 U. S. 203 (1963); Lee v. Weisman, 505 U. S. 577 (1992) ;
(5) regulation of private religious speech, e.g. , Capitol Square Review
and Advisory Bd. v. Pinette, 515 U. S. 753 (1995); and (6) state interfer-
ence with internal church affairs, e.g., Hosanna-Tabor Evangelical
Lutheran Church and School v. EEOC, 565 U. S. 171 (2012). A final,
miscellaneous category, including cases involving such issues as Su n-
day closing laws, see McGowan, v. Maryland, 366 U. S. 420 (1961) , and
church involvement in governmental decisionmaking, see Larkin v.
Opinion of ALITO, J.
Opinion of ALITO, J.
16 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
Opinion of the Court
tions counsel against efforts to evaluate such cases under
Lemon and toward application of a presumption of consti-
tutionality for longstanding monuments, symbols, and
practices.
B
First, these cases often concern monuments, symbols, or
practices that were first established long ago, and in such
cases, identifying their original purpose or purposes may
be especially difficult. In Salazar v. Buono, 559 U. S. 700
(2010), for example, we dealt with a cross that a small
group of World War I veterans had put up at a remote spot
in the Mojave Desert more than seven decades earlier.
The record contained virtually no direct evidence regar d-
ing the specific motivations of these men. We knew that
they had selected a plain white cross, and there was some
evidence that the man who looked after the monument for
many years—“a miner who had served as a medic and had
thus presumably witnessed the carnage of the war
firsthand”—was said not to have been “p articularly reli-
gious.” Id., at 724 (A
LITO, J., concurring in part and co n-
curring in judgment).
Without better evidence about the purpose of the mo n-
ument, different Justices drew different inferences. The
plurality thought that this particular cross was meant “to
commemorate American servicemen who had died in
World War I” and was not intended “to promote a Chri s-
tian message.” Id., at 715. The dissent, by contrast,
“presume[d]” that the cross’s purpose “was a Christian
one, at least in part, for the simple reason that those who
erected the cross chose to commemorate American vete r-
ans in an explicitly Christian manner.” Id., at 752 ( opin-
ion of Stevens, J. ). The truth is that 70 years after the
——————
Grendel’s Den, Inc., 459 U. S. 116 (1982); Board of Ed. of Kiryas Joel
Village School Dist . v. Grumet, 512 U. S. 687 (1994) , might be added.
We deal here with an issue that falls into the first category.
Cite as: 588 U. S. ____ (2019) 17
Opinion of the Court
fact, there was no way to be certain about the motivations
of the men who were responsible for the creation of the
monument. And this is often the case with old mon u-
ments, symbols, and practices. Yet it would be inappro-
priate for courts to compel their removal or termination
based on supposition.
Second, as time goes by, the purposes associated with an
established monument, symbol, or practice often multiply.
Take the example of Ten Commandments monuments, the
subject we add ressed in Van Orden , 545 U. S. 677, and
McCreary County v. American Civil Liberties Union of Ky.,
545 U. S. 844 (2005). For believing Jews and Christians,
the Ten Commandments are the word of God handed
down to Moses on Mount Sinai, but the image of the T en
Commandments has also been used to convey other mean-
ings. They have historical significance as one of the foun-
dations of our legal system, and for largely that reason,
they are depicted in the marble frieze in our courtroom
and in other prominent public buildings in our Nation’s
capital. See Van Orden, supra, at 688–690. In Van Orden
and McCreary, no Member of the Court thought that these
depictions are unconstitutional. 545 U. S., at 688–690; id.,
at 701 ( opinion of B
REYER, J.); id., at 740 (Souter, J.,
dissenting).
Just as depictions of the Ten Commandments in these
public buildings were intended to serve secular purposes,
the litigation in Van Orden and McCreary showed that
secular motivations played a part in the proliferation of
Ten Commandments monuments in the 1950s. In 1946 ,
Minnesota Judge E. J. Ruegemer proposed that the Ten
Commandments be widely disseminated as a way of com-
bating juvenile delinquency.
17 With this prompting, the
——————
17 See Bravin, When Moses’ Laws Run Afoul of the U. S.’s, Get Me
Cecil B. deMille —Ten Commandment Memorial Has Novel Defense in
Suit, Wall Street Journal, Apr. 18, 2001, p. A1.
18 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
Opinion of the Court
Fraternal Order of the Eagles began distributing paper
copies of the Ten Commandments to churches, school
groups, courts, and government offices. The Eagles,
“while interested in the religious aspect of the Ten Com-
mandments, sought to highlight the Commandments’ role
in shaping civic morality.” Van Orden , supra, at 701
(opinion of B REYER, J.). At the same time, Cecil B.
DeMille was filming The Ten Commandments .18 He
learned of Judge Ruegemer’s campaign, and the two co l-
laborated, deciding that the Commandments should be
carved on stone tablets and that DeMille would make
arrangements with the Eagles to help pay for them, thus
simultaneously promoting his film and public awareness
of the Decalogue. Not only did DeMille and Judge Rueg e-
mer have different purposes, but the motivations of those
who accepted the monumen ts and those responsible for
maintaining them may also have differed. As we noted in
Pleasant Grove City v. Summum, 555 U. S. 460, 476
(2009), “the thoughts or sentiments expressed by a go v-
ernment entity that accepts and displays [a monument]
may be quite different from those of either its creator or
its donor.”
The existence of multiple purposes is not exclusive to
longstanding monuments, symbols, or practices, but this
phenomenon is more likely to occur in such cases. Even if
the original purpose of a monument was infused with
religion, the passage of time may obscure that sentiment.
As our society becomes more and more religiously diverse,
a community may preserve such monuments, symbols,
and practices for the sake of their historical significance or
their place in a common cultural heritage. Cf. Schempp,
374 U. S., at 264–265 (Brennan, J., concurring) (“[The]
government may originally have decreed a Sunday day of
——————
18 See D. Davis, The Oxford Handbook of Church and State in the
United States 284 (2010).
Cite as: 588 U. S. ____ (2019) 19
Opinion of the Court
rest for the impermissible purpose of supporting religion
but abandoned that purpose and retained the laws for the
permissible purpose of furthering overwhelmingly secular
ends”).
Third, just as the purpose for maintaining a monument,
symbol, or practice may evolve, “[t]he ‘message’ conveyed
. . . may change over time.” Summum , 555 U. S., at 477.
Consider, for example, the message of the Statue of Lib -
erty, which began as a monument to the solidarity and
friendship between France and the United States and only
decades later came to be seen “as a beacon welcoming
immigrants to a land of freedom.” Ibid.
With sufficient time, religiously expressive monuments,
symbols, and practices can become embedded features of a
community’s landscape and identity. The community may
come to value them without necessarily embracing their
religious roots. The recent tragic fire at Notre Dame in
Paris provides a striking example. Although the French
Republic rigorously enforces a secular public square,
19 the
cathedral remains a symbol of national importance to the
religious and nonreligious alike. Notre Da me is fund a-
mentally a place of worship and retains great religious
importance, but its meaning has broadened. For many, it
is inextricably linked with the very idea of Paris and
France.
20 Speaking to the nation shortly after the fire,
President Macron sai d that Notre Dame “ ‘is our history,
our literature, our imagination. The place where we su r-
vived epidemics, wars, liberation. It has been the epicen-
ter of our lives.’
”21
In the same way, consider the many cities and towns
——————
19 See French Constitution, Art. 1 (proclaiming that France is a “secu-
lar . . . Republic”).
20 See Erlanger, What the Notre-Dame Fire Reveals About the Soul of
France, N. Y. Times, Apr. 16, 2019.
21 Hinnant, Petrequin, & Ganley, Fire Ravages Soaring Notre Dame
Cathedral, Paris Left Aghast, AP News, Apr. 16, 2019.
20 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
Opinion of the Court
across the United States that bear religious names. Reli-
gion undoubtedly motivated those who named Bethlehem,
Pennsylvania; Las Cruces, New Mexico; Providence,
Rhode Island; Corpus Christi, Texas; Nephi, Utah, and the
countless other places in our country with names that are
rooted in religion. Yet few would argue that this history
requires that these names be erased from the map. Or
take a motto like Arizona’s, “ Ditat Deus” (“God enriches”),
which was adopted in 1864,
22 or a flag like Maryland’s,
which has included two crosses since 1904. 23 Familiarity
itself can become a reason for preservation.
Fourth, when time’s passage imbues a religiously ex-
pressive monument, symbol, or practice with this kind of
familiarity and historical significance, removing it may no
longer appear neutral, especially to the local community
for which it has taken on particular meaning. A gover n-
ment that roams the land, tearing down monuments with
religious symbolism and scrubbing away any reference to
the divine will strike many as aggressively hostile to
religion. Militantly secular regimes have carried out such
projects in the past,
24 and for those with a knowledge of
——————
22 See B. Shearer & B . Shearer, State Names, Seals, Flags, and Sy m-
bols: A Historical Guide 17 –18 (3d ed. 2002). See also id., at 18 (Con-
necticut motto: “Qui Tanstulit Sustinet ” (“He Who Transplanted Still
Sustains”), dating back to the colonial era and adapted from the Book of
Psalms 79:3); ibid. (Florida motto: “In God We Trust,” adopted in 1868);
id., at 20 (Mar yland m otto: “Scuto Bonae Volantatis Tuae Coronasti
Nos” (“With Favor Wilt Thou Compass Us as with a Shield”), which
appeared on the seal adopted in 1876 and comes from Psalms 5:12); id.,
at 21–22 (Ohio m otto: “With God, All Things Are Possible,” adopted i n
1959 and taken from Matthew 19:26); id., at 22 (South Dakota motto:
“Under God the People Rule,” adopted in 1885); id., at 23 (American
Samoa motto: “Samoa—Muamua le Atua” (“Samoa—Let God Be First”),
adopted in 1975).
23 The current flag was known and used since at least October 1880, and
was officially adopted by the General Assembly in 1904. See History of the
Maryland Flag, https://sos.maryland.gov/Pages/Services/Flag-History.aspx.
24 For example, the French Revolution sought to “dechristianize” the
Cite as: 588 U. S. ____ (2019) 21
Opinion of the Court
history, the image of monuments being taken down will be
evocative, disturbing, and divisive. Cf. Van Orden , 545
U. S., at 704 ( opinion of BREYER, J.) (“[D]isputes concer n-
ing the removal of longstanding depictions of the Ten
Commandments from public buildings across the Nation
. . . could thereby create the very kind of religiously based
divisiveness that the Establishment Clause seeks to
avoid”).
These four considerations show that retaining esta b-
lished, religiously expressive monuments, symbols, and
practices is quite different from erecting or adopting new
ones. The passage of time gives rise to a strong presum p-
tion of constitutionality.
C
The role of the cross in World War I memorials is il -
lustrative of each of the four preceding considerations.
Immediately following the war, “[c]ommunities across Amer-
ica built memorials to commemorate those who had served
the nation in the struggle t o make the world safe for d e-
mocracy.” G. Piehler, The American Memory of War, App.
1124. Although not all of these communities included a
cross in their memorials, the cross had become a symbol
closely linked to the war. “[T]he First World War wit-
nessed a dramatic change in . . . the symbols used to com-
memorate th[e] service” of the fallen soldiers. Id., at 1123.
In the wake of the war, the United States adopted the
cross as part of its military honors, establishing the Di s-
tinguished Service Cross and the Navy Cross in 1918 and
——————
nation and thus removed “plate [s], statues and other fittings from
places of worship,” destroyed “crosses, bells, shrines and other , ‘exter-
nal signs of worship,’ ” and altered “personal and place names which
had any ecclesiastical connotations to more suit ably Revolutionary
ones.” Tallett, De christianizing France: The Year II and the Revol u-
tionary Experience , in Religion, Society and Politics in France Since
1789, pp. 1–2 (F. Tallett & N. Atkin eds. 1991).
22 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
Opinion of the Court
1919, respectively. See id. , at 147–148. And as already
noted, the fallen soldiers’ final resting places abroad were
marked by white crosses or Stars of David. The solemn
image of endless rows of white crosses became inextricably
linked with and symbolic of the ultimate price paid by
116,000 soldiers. And this relationship between the cross
and the war undoubtedly influenced the design of the
many war memorials that sprang up across the Nation.
This is not to say that the cro ss’s association with the
war was the sole or dominant motivation for the inclusion
of the symbol in every World War I memorial that features
it. But today, it is all but impossible to tell whether that
was so. T he passage of time means that testimony fr om
those actually involved in the decisionmaking process is
generally unavailable, and attempting to uncover their
motivations invites rampant speculation. And no matter
what the original purposes for the erection of a monument,
a community may wish to pr eserve it for very different
reasons, such as the hi storic preservation and traffic-
safety concerns the Commission has pressed here.
In addition, the passage of time may have altered the
area surrounding a monument in ways that change its
meaning and prov ide new reasons for its preservation.
Such changes are relevant here, since the Bladensburg
Cross now sits at a busy traffic intersection, and numerous
additional monuments are located nearby.
Even the AHA recognizes that there are instances in
which a w ar memorial in the form of a cross is unobjec-
tionable. The AHA is not offended by the sight of the
Argonne Cross or the Canadian Cross of Sacrifice, both
Latin crosses commemorating World War I that rest on
public grounds in Arlington National Cemetery. The
difference, according to the AHA, is that their location in a
cemetery gives them a closer association with individual
gravestones and interred soldiers. See Brief for Respon d-
ents 96; Tr. of Oral Arg. 52.
Cite as: 588 U. S. ____ (2019) 23
Opinion of the Court
But a memorial’s placement in a cemetery is n ot neces-
sary to create such a connection. The parents and other
relatives of many of the war dead lacked the means to
travel to Europe to visit their graves, and the bodies of
approximately 4,400 American soldiers were either never
found or never identified. 25 Thus, for many grieving rel a-
tives and friends, memorials took the place of gravestones.
Recall that the mother of one of the young men memoria l-
ized by the Bladensburg Cross thought of the memorial as,
“in a way, his grave stone.” App. 1244. Whether in a
cemetery or a city park, a World War I cross remains a
memorial to the fallen.
Similar reasoning applies to other memorials and mon-
uments honoring important figures in our Nation’s his -
tory. When faith was important to the person whose life is
commemorated, it is natural to include a symbolic refer-
ence to faith in the design of the memorial. For example,
many memorials for Dr. Martin Luther King, Jr. , make
reference to his faith. Take the Martin Luther King, Jr.
Civil Rights Memorial Park in Sea ttle, which contains a
sculpture in three segments representing “both the Chri s-
tian Trinity and the union of the family.”
26 In Atlanta, the
Ebenezer Baptist Church sits on the grounds of the Mar-
tin Luther King, Jr. National Historical Park. National
Statuary Hall in the Capitol honors a variety of religious
figures: for example, Mother Joseph Pariseau kneeling in
prayer; Po’Pay, a Pueblo religious leader with symbols of
the Pueblo religion; Brigham Young, president of the
Church of Jesus Christ of Latter -day Saints; and Father
Eusebio Kino with a crucifix around his neck and his hand
raised in blessing.
27 These monuments honor men and
——————
25 See App. 141, 936; M. Sledge, Soldier Dead 67 (2005).
26 Local Memorials Honoring Dr. King, https://www.kingcounty.
gov/elected/executive/equity-social-justice/mlk/local-memorials.aspx.
27 The National Statua ry Hall Collection, https://www.aoc.gov/the-
national-statuary-hall-collection.
24 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
women who have played an important role in the history
of our country, and where religious symbols are included
in the monuments, their presence acknowledges the cen-
trality of faith to those whose lives are commemorated.
Finally, as World War I monuments have endured
through the years and become a familiar part of the physi-
cal and cultural landscape, r equiring their removal would
not be viewed by many as a neutral act. And an alteration
like the one entertained by the Fourth Circuit —
amputating the arms of the Cross, see 874 F. 3d, at 202,
n. 7—would be seen by many as profoundly disrespectful.
One member of the majority below viewed this objection as
inconsistent with the claim that the Bladensburg Cross
serves secular purposes, see 891 F. 3d, at 121 (Wynn, J.,
concurring in denial of en banc), but this argument mi s-
understands the complexity of monumen ts. A monument
may express many purposes and convey many different
messages, both secular and religious. Cf. Van Orden, 545
U. S., at 690 (plurality opinion) (describing simultaneous
religious and secular meaning of the Ten Commandments
display). Thus , a campaign to obliterate items with
religious associations may evidence hostility to religion
even if those religious associations are no longer in the
forefront.
For example, few would say that the State of California
is attempting to convey a religious message by retaining
the names given to many of the State’s cities by their
original Spanish settlers —San Diego, Los Angeles, Santa
Barbara, San Jose, San Francisco, etc. But it would be
something else entirely if the State undertook to change
all those names. Much the same is true about monuments
to soldiers who sacrificed their lives for this country more
than a century ago.
D
While the Lemon Court ambitiously attempted to find a
grand unified theory of the Establishment Clause, in later
Opinion of ALITO, J.
Cite as: 588 U. S. ____ (2019) 25
cases, we have taken a more modest approach that focuses
on the particular issue at hand and looks to history for
guidance. Our cases involving prayer before a legislative
session are an example.
In Marsh v. Chambers, 463 U. S. 783 (1983), the Court
upheld the Nebraska Legislature’s practice of beginning
each session with a prayer by an official chaplain, and in
so holding, the Court conspicuously ignored Lemon and
did not respond to Justice Brennan’s argument in dissent
that the leg islature’s practice could not satisfy the Lemon
test. Id., at 797–801. Instead, the Court found it highly
persuasive that Congress for more than 200 years had
opened its sessions with a prayer and that many s tate
legislatures had followed suit. Id ., at 787–788. We took a
similar approach more recently in Town of Greece , 572
U. S., at 577.
We reached these results even though it was clear, as
stressed by the Marsh dissent, that prayer is by definition
religious. See Marsh , supra, at 797–798 ( opinion of Bren-
nan, J. ). As the Court put it in Town of Greece :
“Marsh must not be understood as permitting a practice
that would amount to a constitutional violation if not for
its historical foundation.” 572 U. S., at 576. “The case
teaches instead that the Es tablishment Clause must be
interpreted ‘by reference to historical practices and unde r-
standings’
” and that the decision of the First Congress to
“provid[e] for the appointment of chaplains only days after
approving language for the First Amendment demo n-
strates that the Framers considered legislative prayer a
benign acknowledgment of religion’s role in society.” Ibid.
The prevalence of this philosophy at the time of the
founding is reflected in other prominent actions taken by
the First Congress. It requested —and President Was h-
ington proclaimed—a national day of prayer, see 1 J.
Richardson, Messages and Papers of the Presidents, 1789–
1897, p. 64 (1897) (President Washington’s Thanksgiving
Opinion of ALITO, J.
26 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
Proclamation), and it reenacted the Northwest Territory
Ordinance, which provided that “[r]eligion, morality, and
knowledge, being necessary to good government and the
happiness of mankind, schools and the means of education
shall forever be encouraged,” 1 Stat. 52, n. ( a). President
Washington echoed this sentiment in his Farewell A d-
dress, calling religion and morality “indispensable su p-
ports” to “political prosperity.” Far ewell Address (1796),
in 35 The Writings of George Washington 229 (J. Fitzpa t-
rick ed. 1940). See also P. Hamburger, Separation of
Church and State 66 (2002). The First Congress looked to
these “supports” when it chose to begin its sessions with a
prayer. This practice was designed to solemnize congres-
sional meetings, unifying those in attendance as they
pursued a common goal of good governance.
To achieve that purpose, legislative prayer needed to be
inclusive rather th an divisive, and that required a dete r-
mined effort even in a society that was much more reli-
giously homogeneous than ours today. Although the
United States at the time was overwhelmingly Christian
and Protestant,
28 there was considerable friction between
Protestant denominations. See M. Noll, America’s God:
From Jonathan Edwards to Abraham Lincoln 228 (2002).
Thus, when an Episcopal clergyman was nominated as
chaplain, some Congregationalist M embers of Congress
objected due to t he “ ‘diversity of religiou s sentiments
represented in Congress.’ ” D. Davis, Religion and the
Continental Congress 74 (2000). Nevertheless, Samuel
Adams, a staunch Congregationalist, spoke in favor of the
motion: “ ‘I am no bigot. I can hear a prayer from a man
of piety and virtue, who is at the same time a friend of
his country.’ ” Ibid. Others agreed and the chaplain was
appointed.
Over time, the members of the clergy invited to offer
——————
28 W. Hutchison, Religious Pluralism in America 20–21 (2003).
Opinion of ALITO, J.
Cite as: 588 U. S. ____ (2019) 27
prayers at the opening of a session grew more and more
diverse. For example, an 1856 study of Senate and House
Chaplains since 1789 tallied 22 Methodists, 20 Presbyter i-
ans, 19 Episcopalians, 13 Baptists, 4 Congregationalists, 2
Roman Catholics, and 3 that were characterized as “mi s-
cellaneous.”
29 Four years later, Rabbi Morris Raphall
became the first rabbi to open Congress. 30 Since then,
Congress has welcomed guest chaplains from a variety of
faiths, including Islam, Hinduism, Buddhism, and Native
American religions.31
In Town of Greece, which concerned prayer before a
town council meeting, there was disagreement about the
inclusiveness of the town’s practice. Compare 572 U. S., at
585 (opinion of the Court) (“The town made reasonable
efforts to identify all of the congregations located within
its borders and represented that it would welcome a prayer
by any minister or layman who wished to give one”) ,
with id., at 616 ( K
AGAN, J., dissenting) (“Greece’s Board
did nothing to recognize religious diversity ”). But there
was no disagreement that the Establishment Clause
permits a nondiscriminatory practice of prayer at the
beginning of a town council session. See ibid. (“I believe
that pluralism and inclusion [in legislative prayer] in a
town hall can satisfy the constitut ional requirement of
neutrality”). Of course, the specific practice challenged in
Town of Greece lacked the very direct connection, via the
First Congress, to the thinking of those who were respon-
sible for framing the First Amendment. But what ma t-
tered was that the town’s practice “fi [t] within the trad i-
tion long followed in Congress and the state legislatures.”
——————
29 A. Stokes, 3 Church and State in the United States 130 (1950).
30 Korn, Rabbis, Prayers, and Legislatures, 23 Hebrew Union College
Annual, No. 2, pp. 95, 96 (1950).
31 See Lund, The Congressional Chaplaincies, 17 Wm. & Mary Bill of
Rights J. 1171, 1204– 1205 (2009). See also 160 Cong. Rec. 3853 (2014)
(prayer by the Dalai Lama).
Opinion of ALITO, J.
28 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
Opinion of the Court
Id., at 577 (opinion of the Court).
The practice begun by the First Congress stands out as
an example of respect and tolerance for differing views, an
honest endeavor to achieve inclusivity and nondiscrimina-
tion, and a recognition of the important role that religion
plays in the lives of many Americans. Where categories
of monuments, symbols, and practices with a longstand -
ing history follow in that tradition, they are like wise
constitutional.
III
Applying these principles, we conclude that the
Bladensburg Cross does not violate the Establishment
Clause.
As we have explained, the Bladensburg Cross carries
special significance in commemorating World War I. Due
in large par t to the image of the simple wooden crosses
that originally marked the graves of American soldiers
killed in the war, the cross became a symbol of their sacr i-
fice, and the design of the Bladensburg Cross must be
understood in light of that background. Tha t the cross
originated as a Christian symbol and retains that meaning
in many contexts does not change the fact t hat the symbol
took on an added secular meaning when used in World
War I memorials.
Not only did the Bladensburg Cross begin with this
meaning, but with the passage of time, it has acquired
historical importance. It reminds the people of Bladen s-
burg and surrounding areas of the deeds of their predeces-
sors and of the sacrifices they made in a war fought in the
name of democracy. As long as it is retained in its original
place and form, it speaks as well of the community that
erected the monument nearly a century ago and has main-
tained it ever since. The memorial represents what the
relatives, friends, and neighbors of the fallen soldiers felt
at the time and how they chose to express their sent i-
Cite as: 588 U. S. ____ (2019) 29
Opinion of the Court
ments. And the monument has acquired additional layers
of historical meaning in subsequent years. The Cross now
stands among memorials to veterans of later wars. It has
become part of the community.
T he monument would not serve that role if its design
had deliberately disrespected area soldiers who perished
in World War I. More than 3,500 Jewish soldiers gave
their lives for the United States in that conflict,
32 and
some have wondered whether the names of any Jewish
soldiers from the area were deliberately left off the list on
the memorial or whether the names of any Jewish soldiers
were included on the Cross against the wishes of their
families. There is no evidence that either thing was done,
and we do know that one of the local American Legion
leaders responsible for the Cross’s construction was a
Jewish veteran. See App. 65, 205, 990.
The AHA’s brief strains to connect the Bladensburg
Cross and even the American Legion with anti- Semitism
and the Ku Klux Klan, see Brief for Respondents 5 –7, but
the AHA’s disparaging intimations have no evidentiary
support. And when the events surrounding the erection of
the Cross are viewed in historical context, a very different
picture may perhaps be discerned. The monument was
dedicated on July 12, 1925, during a period when the
country was experiencing heightened racial and religious
animosity. Membership in the Ku Klux Klan, which
preached hatred of Blacks, Catholics, and Jews, was at its
height.
33 On August 8, 1925, just two weeks after the
dedication of the Bladensburg Cross and less than 10
miles away, some 30,000 robed Klansmen marched down
Pennsylvania Avenue in the Nation’s Capital. But the
Bladensburg Cross memorial included the names of both
——————
32 J. Fr edman & L. Falk, Jews in American Wars 100– 101 (5th ed.
1954).
33 Fryer & Levitt, Hatred and Profits: Under the Hood of the Ku Klux
Klan, 127 Q. J. Econ. 1883 (2012).
30 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
Opinion of the Court
Black and White soldiers who had given their lives in the
war; and despite the fact that Catholics and Baptists at
that time were not exactly in the habit of participating
together in ecumenical services, the ceremony dedicating
the Cross began with an invocation by a Catholic priest
and ended with a benediction by a Baptist pastor. App.
1559–1569, 1373 . We can never know for certain what
was in the minds of those responsible for the memorial,
but in light of what we know about this ceremony, we can
perhaps make o ut a picture of a community that, at least
for the moment, was united by grief and patriotism and
rose above the divisions of the day.
Finally, it is surely relevant that the monument co m-
memorates the death of particular individuals. It is natu-
ral and ap propriate for those seeking to honor the d e-
ceased to invoke the symbols that signify what death
meant for those who are memorialized. In some circu m-
stances, the exclusion of any such recognition would make
a memorial incomplete. This well explains why Holocaust
memorials invariably include Stars of David or other
symbols of Judaism.
34 It explains why a new memorial to
Native American veterans in Washington, D. C., will
portray a steel circle to represent “ ‘the hole in the sky
where the creator lives. ’ ”35 And this is why the memorial
for soldiers from the Bladensburg community features the
cross—the same symbol that marks the graves of so many
of their comrades near the battlefields where they fell.
——————
34 For example, the South Carolina Holocaust Memorial depicts a
large Star of David “ ‘in sacred memory of the six million,’ ”
see https://www.onecolumbiasc.com/public-art/south-carolina-holocaust-
memorial/, and the Philad elphia Monument to Six Million Jewish
Martyrs depicts a burning bush, Torah scrolls, and a blazing men -
orah, see https://www.associationforpublicart.org/artwork/monument -
to-six-million-jewish-martyrs/.
35 Hedgpeth, “A Very Deep Kind of Patriotism ”: Memorial to Honor
Native American Veterans Is Comi ng to the Mall, Washington Post ,
Mar. 31, 2019.
Cite as: 588 U. S. ____ (2019) 31
Opinion of the Court
IV
The cross is undoubtedly a Christian symbol, but that
fact should not blind us to everything else that the
Bladensburg Cross has come to represent. For some, that
monument is a symbolic resting place for ancestors who
never returned home. For others, it is a place for the
community to gather and honor all veterans and their
sacrifices for our Nation. For others still, it is a historical
landmark. For many of these people, destroying or defa c-
ing the Cross that has stood undisturbed for nearly a
century would not be neutral and would not further the
ideals of respect and tolerance embodied in the First
Amendment. For all these reasons, the Cross does not
offend the Constitution.
* * *
We reverse the judgment of the Court of Appeals for
the Fourth Ci rcuit and remand the cases for further
proceedings.
It is so ordered.
Cite as: 588 U. S. ____ (2019) 1
BREYER, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 17–1717 and 18–18
_________________
THE AMERICAN LEGION, ET AL., PETITIONERS
17–1717 v.
AMERICAN HUMANIST ASSOCIATION, ET AL.; AND
MARYLAND-NATIONAL CAPITAL PARK AND
PLANNING COMMISSION, PETITIONER
18–18 v.
AMERICAN HUMANIST ASSOCIATION, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 20, 2019]
J USTICE BREYER, with whom J USTICE KAGAN joins,
concurring.
I have long maintained that there is no single formula
for resolving Establishment Clause challenges . See Van
Orden v. Perry, 545 U. S. 677, 698 (2005) (opinion concur-
ring in judgment). The Court must instead consider each
case in light of the b asic purposes that the Religion
Clauses were meant to serve: assuring religious liberty and
tolerance for all, avoiding religiously based social conflict,
and maintaining that separation of church and state that
allows each to flourish in its “separate spher[e].” Ibid.; see
also Zelman v. Simmons-Harris, 536 U. S. 639, 717−723
(2002) (BREYER, J., dissenting).
I agree with the Court that allowing the State of Mary-
land to display and maintain the Peace Cross poses no
threat to those ends. The Court’s opinion eloquently
explains why that is so: The Latin cross is uniquely asso-
ciated with the fallen soldiers of World War I; the organiz-
2 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
BREYER, J., concurring
ers of the Peace Cross acted with the undeniably secular
motive of commemorating local soldiers; no evidence su g-
gests that they s ought to disparage or exclude any rel i-
gious group; the secular values inscribed on the Cross and
its place among other memorials strengthen its message of
patriotism and commemoration; and, finally, the Cross has
stood on the same land for 94 years, generating no contro-
versy in the community until this lawsuit was filed. Noth-
ing in the record suggests that the lack of public outcry
“was due to a climate of intimidation.” Van Orden, 545
U. S., at 702 ( B
REYER, J., concurring in judgment). In
light of all t hese circumstances, the Peace Cross cannot
reasonably be understood as “a government effort to favor
a particular religious sect” or to “promote religion over
nonreligion.” Ibid. And, as the Court explains, ordering
its removal or alteration at this late date would signal “a
hostility toward religion that has no place in our Esta b-
lishment Clause traditions.” Id., at 704.
The case would be different , in my view, if there were
evidence that the organizers had “deliberately disrespected”
members of mino rity faiths or if the Cross had been
erected only recently, rather than in the aftermath of
World War I. See ante, at 29; see also Van Orden, 545
U. S., at 703 (opinion of B
REYER, J.) (explaining that, in
light of the greater religious diversity today, “a more
contemporary state effort” to put up a religious display is
“likely to prove divisive in a way that [a] longstanding,
pre-existing monument [would] not”). But those are not
the circumstances presented to us here, and I see no rea-
son to order this cross torn down simply because other
crosses would raise constitutional concerns.
Nor do I understand the Court’s opinion today to adopt a
“history and tradition test” that would permit any newly
constructed religious memorial on public land. See p ost,
at 1, 4 ( K
AVANAUGH , J., concurring); cf. post, at 8−9
(GORSUCH, J., concurring in judgment). The Court appro-
Cite as: 588 U. S. ____ (2019) 3
BREYER, J., concurring
priately “looks to history for guidance,” ante, at 25 (plural-
ity opinion), but it upholds the constitutionality of the
Peace Cross only after considering its particular historical
context and its long-held place in the community, see ante,
at 28−30 (majority opinion). A newer memorial, erected
under different circu mstances, would not necessarily be
permissible under this approach. Cf. ante, at 21.
As I have previously explained, “where the Establis h-
ment Clause is at issue,” the Court must “ ‘distinguish
between real threat and mere shadow.’ ” Van Orden, 545
U. S., at 704 (opinion concurring in judgment) (quoting
School Dist. of Abington Township v. Schempp, 374 U. S.
203, 308 (1963) (Goldberg, J., concurring) ). In light of all
the circumstances here, I agree with the Court that the
Peace Cross poses no real threat to the values that the
Establishment Clause serves.
Cite as: 588 U. S. ____ (2019) 1
KAVANAUGH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 17–1717 and 18–18
_________________
THE AMERICAN LEGION, ET AL., PETITIONERS
17–1717 v.
AMERICAN HUMANIST ASSOCIATION, ET AL.; AND
MARYLAND-NATIONAL CAPITAL PARK AND
PLANNING COMMISSION, PETITIONER
18–18 v.
AMERICAN HUMANIST ASSOCIATION, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 20, 2019]
J USTICE KAVANAUGH, concurring.
I join the Court’s eloquent and persuasive opinion in
full. I write separately to emphasize two points.
I
Consistent with the Court’s case law, the Court today
applies a history and tradition test in examining and
upholding the constitutionality of the Bladensburg Cross.
See Marsh v. Chambers, 463 U. S. 783, 787–792, 795
(1983); Van Orden v. Perry, 545 U. S. 677, 686–690 (2005)
(plurality opinion); Town of Greece v. Galloway, 572 U. S.
565, 575–578 (2014).
As this case again demonstrates, this Court no longer
applies the old test articulated in Lemon v. Kurtzman, 403
U. S. 602 (1971). The Lemon test examined, among other
things, whether the challenged government action had a
primary effect of advancing or e ndorsing religion. If
Lemon guided this Court’s understanding of the Esta b-
lishment Clause, then many of the Court’s Establishment
2 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
KAVANAUGH, J., concurring
Clause cases over the last 48 years would have been d e-
cided differently, as I will explain.
The opinion identifies five relevant categories of Esta b-
lishment Clause cases: (1) religious symbols on gover n-
ment property and religious speech at government events;
(2) religious accommodations and exemptions from gener-
ally applicable laws; (3) government benefits and tax
exemptions for religious organizations; (4) religious ex-
pression in public schools; and (5) regulation of private
religious speech in public forums. See ante, at 15, n. 16.
The Lemon test does not explain the Court’s decisions in
any of those five categories.
In the first category of cases, the Court has relied on
history and tradition and upheld various religious symbols
on government property and religious speech at gover n-
ment events. See, e.g ., Marsh, 463 U. S., at 787–792, 795;
Van Orden, 545 U. S., at 686–690 ( plurality opinion);
Town of Greece, 572 U. S., at 575–578. The Court does so
again today. Lemon does not account for the results in
these cases.
In the second category of cases, this Court has allowed
legislative accommodations for religious activity an d
upheld legislatively granted religious exemptions from
generally applicable laws. See, e.g., Corporation of Presid-
ing Bishop of Church of Jesus Christ of Latter -day Saints
v. Amos, 483 U. S. 327 (1987); Cutter v. Wilkinson, 544
U. S. 709 (2005). But accommodations and exemptions “by
definition” have the effect of advancing or endorsing reli-
gion to some extent. Amos, 483 U. S., at 347 (O’Connor, J.,
concurring in judgment) (quotation altered). Lemon, fairly
applied, does not justify those decisions.
I n the third category of cases, the Court likewise has
upheld government benefits and tax exemptions that go to
religious organizations, even though those policies have
the effect of advancing or endorsing religion. See, e.g .,
Walz v. Tax Comm’n of City of New York , 397 U. S. 664
Cite as: 588 U. S. ____ (2019) 3
KAVANAUGH, J., concurring
(1970); Mueller v. Allen, 463 U. S. 388 (1983); Mitchell v.
Helms, 530 U. S. 793 (2000) (plurality opinion); Zelman v.
Simmons-Harris, 536 U. S. 639 (2002); Trinity Lutheran
Church of Columbia, Inc . v. Comer , 582 U. S. ___ (2017).
Those outcomes are not easily reconciled with Lemon.
In the fourth category of cases, the Court has proscribed
government-sponsored prayer in public schools. The
Court has done so not because of Lemon , but because the
Court concluded that government -sponsored prayer in
public schools posed a risk of coercion of students. The
Court’s most prominent modern case on that subject,
Lee v. Weisman, 505 U. S. 577 (1992), did not rely on
Lemon. In short, Lemon was not necessary to the Court’s
decisions holding government -sponsored school prayers
unconstitutional.
In the fifth category, the Court has allowed private
religious speech in public forums on an equal basis with
secular speech. See, e.g., Lamb’s Chap el v. Center
Moriches Union Free School Dist ., 508 U. S. 384 (1993);
Capitol Square Review and Advisory Bd . v. Pinette, 515
U. S. 753 (1995); Rosenberger v. Rector and Visitors of
Univ. of Va ., 515 U. S. 819 (1995); Good News Club v.
Milford Central School, 533 U. S. 98 (2001). That practice
does not violate the Establishment Clause, the Court has
ruled. Lemon does not explain those cases.
Today, the Court declines to apply Lemon in a case in
the religious symbols and religious speech category, just
as the Court declined to apply Lemon in Town of Greece v.
Galloway, Van Orden v. Perry, and Marsh v. Chambers.
The Court’s decision in this case again makes clear that
the Lemon test does not apply to Establishment Clause
cases in that category. And the Court’s decisions over the
span of several decades demonstrate that the Lemon test
is not good law and does not apply to Establishment
Clause cases in any of the five categories.
On the contrary, each category of Establishment Clause
4 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
KAVANAUGH, J., concurring
cases has its own principles based on history, tradition,
and precedent. And the cases together lead to an over-
arching set of principles: If the challenged government
practice is not coercive and if it (i) is rooted in history and
tradition; or (ii) treats religious people, organizations,
speech, or activity equally to comparable secular people,
organizations, speech, or activity; or (iii) represents a
permissible legislative accommodation or exemption from
a generally applicable law, then there ordinarily is no
Establishment Clause violation.*
The practice of displaying religious memorials, partic u-
larly religious war memorials, on public land is not coer-
cive and is rooted in history and tradition. The Bladen s-
burg Cross does not violate the Establishment Clause. Cf.
Town of Greece, 572 U. S. 565.
II
The Bladensburg Cross commemorates soldiers who
gave their lives for America in World War I. I agree with
the Court that the Bladensburg Cross is constitutional. At
the same time, I have deep respect for the plaintiffs’ sin-
cere objections to seeing the cross on public land. I have
great respect for the Jewish war veterans who in an ami-
cus brief say that the cross on public land sends a message
of exclusion. I recognize their sense of distress and aliena-
tion. Moreover, I fully understand the deeply religious
nature of the cross. It would demean both believers and
nonbelievers to say that the cross is not religious, or not
all that religious. A case like this is difficult because it
represents a clash of genuine and important interests.
Applying our precedents, we uphold the constitutionality
of the cross. In doing so, it is appropriate to also restate
this bedrock constitutional principle: All citizens are
——————
*That is not to say that challenged government actions outside that
safe harbor are unconstitutional. Any such cases must be analyzed
under the relevant Establishment Clause principles and precedents.
Cite as: 588 U. S. ____ (2019) 5
KAVANAUGH, J., concurring
equally American, no matter what religion they are, or if
they have no religion at all.
The conclusion that the cross does not violate the Estab-
lishment Clause does not necessarily mean that those who
object to it have no other recourse. The Court’s ruling
allows the State to maintain the cross on public land. The
Court’s ruling does not require the State to maintain the
cross on public land. The Maryland Legislature could
enact new laws requiring removal of the cross or transfer
of the land. The Maryland Governor or other state or local
executive officers may have authority to do so under cu r-
rent Maryland law. And if not, the legislature could enact
new laws to authorize such executive action. The Mar y-
land Constitution, as interpreted by the Maryland Court
of Appeals, may speak to this question. And if not, the
people of Maryland can amend the State Constitution.
Those alternative avenues of relief illustrate a fund a-
mental feature of our constitutional structure: This Court
is not the only guardian of indivi dual rights in America.
This Court fiercely protects the individual rights secured
by the U. S. Constitution. See, e.g., West Virginia Bd. of
Ed. v. Barnette, 319 U. S. 624 (1943); Wisconsin v. Yoder,
406 U. S. 205 (1972). But the Constitution sets a fl oor for
the protection of individual rights. The constitutional
floor is sturdy and often high, but it is a floor. Other
federal, state, and local government entities generally
possess authority to safeguard individual rights above and
beyond the rights secured by the U. S. Constitution. See
generally J. Sutton, 51 Imperfect Solutions (2018); Bren-
nan, State Constitutions and the Protection of Individual
Rights, 90 Harv. L. Rev. 489 (1977).
Cite as: 588 U. S. ____ (2019) 1
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 17–1717 and 18–18
_________________
THE AMERICAN LEGION, ET AL., PETITIONERS
17–1717 v.
AMERICAN HUMANIST ASSOCIATION, ET AL.; AND
MARYLAND-NATIONAL CAPITAL PARK AND
PLANNING COMMISSION, PETITIONER
18–18 v.
AMERICAN HUMANIST ASSOCIATION, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 20, 2019]
J USTICE KAGAN, concurring in part.
I fully agree with the Court’s reasons for allowing the
Bladensburg Peace Cross to remain as it is, and so join
Parts I, II– B, II– C, III, and IV of its opinion, as well as
JUSTICE BREYER’s concurrence. Although I agree that
rigid appl ication of the Lemon test does not solve every
Establishment Clause problem, I think that test’s focus on
purposes and effects is crucial in evaluating government
action in this sphere—as this very suit shows. I therefore
do not join Part II –A. I do not join Part II –D out of per-
haps an excess of caution. Although I too “look[
] to history
for guidance,” ante, at 25 (plurality opinion), I prefer at
least for now to do so case- by-case, rather than to sign on
to any broader statements about history’s role i n Esta b-
lishment Clause analysis. But I find much to admire in
this section of the opinion —particularly, its emphasis on
whether longstanding monuments, symbols, and practices
reflect “respect and tolerance for differing views, an honest
KAGAN, J., concurring in part
2 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
KAGAN, J., concurring in part
endeavor to achieve inclusivity and nondiscrimination,
and a recognition of the important role that religion plays
in the lives of many Americans.” Ante, at 28. Here, as
elsewhere, the opinion shows sensitivity to and respect for
this Nation’s pluralism, and the values of neutrality and
inclusion that the First Amendment demands.
Cite as: 588 U. S. ____ (2019) 1
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 17–1717 and 18–18
_________________
THE AMERICAN LEGION, ET AL., PETITIONERS
17–1717 v.
AMERICAN HUMANIST ASSOCIATION, ET AL.; AND
MARYLAND-NATIONAL CAPITAL PARK AND
PLANNING COMMISSION, PETITIONER
18–18 v.
AMERICAN HUMANIST ASSOCIATION, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 20, 2019]
J USTICE THOMAS, concurring in the judgment.
The Establishment Clause states that “Congress shall
make no law respecting an establishment of religion.”
U. S. Const., Amdt. 1. The text and history of this Clause
suggest that it should not be incorporated against the
States. Even if the Clause expresses an individual right
enforceable against the States, it is limited by its text to
“law[s]” enacted by a legislature, so it is unclear whether
the Bladensburg Cross would implicate any incorporated
right. And even if it did, this religious display does not
involve the type of actual legal coercion that was a hal l-
mark of historical establishments of religion. Therefore,
the Cross is clearly constitutional.
I
As I have explained elsewhere, the Establishment
Clause resists incorporation against the States. Town of
Greece v. Galloway, 572 U. S. 565, 604–607 (2014) (opinion
concurring in part and concurring in judgment); Elk Grove
THOMAS, J., concurring in judgment
2 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
Unified School Dist. v. Newdow, 542 U. S. 1, 49–51 (2004)
(opinion concurring in judgment); Van Orden v. Perry, 545
U. S. 677, 692–693 (2005) (concurring opinion); Zelman v.
Simmons-Harris, 536 U. S. 639, 677– 680 (2002) (same).
In Everson v. Board of Ed. of Ewing , 330 U. S. 1, 15
(1947), the Court “casually” incorporated the Clause with
a declaration that because the Free Exercise Clause had
been incorporated, “ ‘[t]here is every reason to give the
same application and broad interpretation to the “estab-
lishment of religion ” clause.’ ” Town of Gree ce, 572 U. S.,
at 607, n. 1 (opinion of THOMAS, J.). The Court apparently
did not consider that an incorporated Establishment
Clause would prohibit exactly what the text of the Clause
seeks to protect: state establishments of religion. See id.,
at 605–606.
The Court’s “ inattention” to the significant question of
incorporation “might be explained, although not excused,
by the rise of popular conceptions about ‘separation of
church and state ’ as an ‘American’ constitutional right.”
Id., at 608, n. 1; see P. Hamburger, Separation of Church
and State 454–463 (2002); see also id., at 391–454 (tracing
the role of nativist sentiment in the rise of “the modern
myth of separation” as an American ideal). But an ahis-
torical generalization is no substitute for careful constitu-
tional analysis. We should consider whether any
longstanding right of citizenship restrains the States in
the establishment context. See generally McDonald v.
Chicago, 561 U. S. 742, 805– 858, and n. 20 (2010)
(T
HOMAS, J., concurring in part and concurring in
judgment).
Further confounding the incorporation question is the
fact that the First Amendment by its terms applies only to
“law[s]” enacted by “Congress .” Obviously, a memorial is
not a law. And respondents have not identified any speci-
fic law they challenge as unconstitutional, either on its face
or as applied. Thus, respondents could prevail on their
THOMAS, J., concurring in judgment
Cite as: 588 U. S. ____ (2019) 3
establishment claim only if the prohibition embodied in
the Establishment Clause was understood to be an indi-
vidual right of citizenship that applied to more than just
“law[s]” “ma[de]” by “Congress.” 1
II
E ven if the Clause applied to state and local gover n-
ments in some fashion, “[t]he mere presence of the monu-
ment along [respondents’] path involves no coercion and
thus does not v iolate the Establishment Clause. ” Van
Orden, 545 U. S., at 694 (opinion of THOMAS, J.). The sine
qua non of an establishment of religion is “ ‘actual legal
coercion. ’ ” Id., at 693. At the founding, “[t]he coercion
that was a hallmark of historical establishments of rel i-
gion was coercion of religious orthodoxy and of financial
support by force of law and threat of penalty .” Lee v.
Weisman, 505 U. S. 577, 640 (1992) (Scalia, J., dissenting)
(emphasis deleted) . “In a typical case, attendance at the
established church was mandatory, and taxes were levied
to generate church revenue. Dissenting ministers were
barred from preaching, and political participation was
limited to members of the established church.” Town of
Greece, supra, at 608 ( opinion of T HOMAS, J. ) (citation
omitted). In an action claiming an unconstitutional estab-
lishment of religion , the plaintiff must demonstrate that
he was actually coerced by government conduct tha t
shares the characteristics of an establishment as unde r-
stood at the founding. 2
——————
1 In my view, the original meaning of the phrase “Congress shall
make no law” is a question worth exploring. Compare G. Lawson & G.
Seidman, The Constitution of Empire 42 (2004) (arguing that the First
Amendment “applies only to Congress”), with Shrum v. Coweta, 449
F. 3d 1132, 1140– 1143 (CA10 2006) (McConnell, J.) (arguing that it is
not so limited).
2 Of course, cases involving state or local action are not strictly spea k-
ing Establishment Clause cases, but instead Fourteenth Amendment
cases about a privilege or immunity of citizenship. It is conceivable
THOMAS, J., concurring in judgment
4 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
Here, respondents briefly suggest that the government’s
spending their tax dollars on maintaining the Bladen s-
burg Cross represents coercion, but they have not demon-
strated that maintaining a religious display on public
property shares any of the historical characteristics of an
establishment of religion. The local commission has not
attempted to control religious doctrine or personnel, co m-
pel religious observance, single out a particular religious
denomination for exclusive state subsidization, or punish
dissenting worship. Instead, the commission has done
something that the founding generation, as well as the
generation that ratified the Fourteenth Amendment,
would have found commonplace: displaying a religious
symbol on government property . See Brief for Becket
Fund for Religious Liberty as Amicus Curiae 14– 22.
Lacking any characteristics of “the coercive state esta b-
lishments that existed at the founding,” Town of Greece,
572 U. S., at 608 (opinion of T
HOMAS, J.), the Bladensburg
Cross is constitutional.
The Blade nsburg Cross is constitutional even though
the cross has religious significance as a central symbol of
Christianity. Respondents’ primary contention is that this
characteristic of the Cross makes it “sectarian” —a word
used in respondents’ brief more than 40 times. Putting
aside the fact that Christianity is not a “sect,” religious
displays or speech need not be limited to that which a
“judge considers to be nonsectarian.” Id., at 582 (majority
opinion). As the Court has explained, “[a]n insistence on
nonsectarian” religious speech is inconsistent with our
Nation’s history and traditions. Id., at 578–580; see id., at
595 ( A
LITO, J., concurring). Moreover, requiring that
——————
that the salient characteristics of an establishment changed by the time
of the Fourteenth Amendment, see Town of Greece v. Galloway, 572
U. S. 565, 607, 609– 610 (2014) ( THOMAS, J., concurring in part and
concurring in judgment), but respondents have presented no evidence
suggesting so.
THOMAS, J., concurring in judgment
Cite as: 588 U. S. ____ (2019) 5
religious expressions be nonsectarian would force the
courts “to act as supervisors and censors of religious
speech.” I d., at 581 (majority opinion). Any such effort
would find courts “trolling through . . . religious beliefs” to
decide what speech is sufficiently generic. Mitchell v.
Helms, 530 U. S. 793, 828 (2000) (plurality opinion). And
government bodies trying to comply with the inev itably
arbitrary decisions of the courts would face similarly
intractable questions. See Town of Greece, supra, at 596
(opinion of A
LITO, J.).3
——————
3 Another reason to avoid a constitutional test that turns on the “se c-
tarian” nature of religious speech is that the Court has suggested
“formally dispens[ing]” with this fa ctor in related contexts. Mitchell ,
530 U. S., at 826 (plurality opinion). Among other reasons, th e “sec-
tarian” test “has a shameful pedigree” that originated during the 1870s
when Congress considered the Blaine Amendment, “which would have
amended the C onstitution to bar any aid to sectarian institutions.” Id.,
at 828. “Consideration of the amendment arose at a time of pervasive
hostility to the Catholic Church and to Catholics in general, and it was
an open secret that ‘sectarian’ was code for ‘Cathol ic.’ ” Ibid. This anti-
Catholic hostility may well have played a role in the Court’s later
decisions. Everson v. Board of Ed . of Ewing, 330 U. S. 1 (1947), for
example, was written by Justice Black, who would later accuse Cath o-
lics who advocated for textbook loans to religious schools of being
“powerful sectarian religious propagandists . . . looking toward co m-
plete domination and supremacy of their particular brand of religion.”
Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236, 251
(1968) (Black, J., dissenting). Even by the time of Lemon v. Kurtzman,
403 U. S. 602 (1971), some Justices were still “influenced by residual
anti-Catholicism and by a deep suspicion of Catholic schools.” Laycock,
The Underlying Unity of Separation and Neu trality, 46 Emory L. J. 43,
58 (1997). Indeed, the Court’s opinion in Lemon “relied on what it
considered to be inherent risks in religious schools despite the absence
of a record in Lemon itself and despite contrary fact -finding by the
district court in the companion case .” Laycock, supra, at 58 (footnote
omitted); see generally W. Ball, Mere Creatures of the State?, 35 –40
(1994). And in his concurring opinion, Justice Douglas (joined by
Justice Black) repeatedly quoted an anti -Catholic book, including for
the proposition that, in Catholic parochial schools, “
‘[t]he whole educa-
tion of the child is filled with propaganda. ’ ” 403 U. S., at 635, n. 20
THOMAS, J., concurring in judgment
6 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
III
As to the long -discredited test set forth in Lemon v.
Kurtzman, 403 U. S. 602, 612–613 (1971), and reiterated
in County of Allegheny v. American Civil Liberties Union,
Greater Pittsburgh Chapter, 492 U. S. 573, 592– 594
(1989), the plurality rightly rejects its relevance to claims,
like this one, involving “religious references or imagery in
public monuments, symbols, mottos, displays, and cer e-
monies.” Ante, at 15–16, and n. 16. I agree with that
aspect of its opinion. I would take the logical next step
and overrule the Lemon test in all contexts. First, that
test has no basis in the original meaning of the Constit u-
tion. Second, “since its inception,” it has “been manipu-
lated to fit whatever result the Court aimed to achieve.”
McCreary County v. American Civil Liberties Union of Ky.,
545 U. S. 844, 900 (2005) (S calia, J., dissenting); see
Lamb’s Chapel v. Center Moriches Union Free School Dist.,
508 U. S. 384, 398– 399 (1993) (Scalia, J., concurring in
judgment). Third, it continues to cause enormous conf u-
sion in the States and the lower courts. See generally
Utah Highway Patrol Assn. v. American Atheists, Inc., 565
U. S. 994 (2011) (T
HOMAS, J., dissenting from denial of
certiorari). In recent decades, the Court has tellingly
refused to apply Lemon in the very cases where it purports
to be most useful. See Utah Highway, supra, at 997–998
(collecting cases); ante, at 13 (plurality opinion) (same).
The obvious explanation is that Lemon does not provide a
sound basis for judging Establishment Clause claims.
——————
(quoting L. Boettner, Roman Catholicism 360 (1962)); see 403 U. S., at
636 (similar). The tract said that Hitler, Mussolini, and Stalin learned
the “secret[s] of [their] success” in indoctrination from the Catholic
Church, and that “an undue proportion of the gangsters, racketeers,
thieves, and juvenile delinquents who roam our big city streets come
. . . from the [Catholic] parochial schools,” where children are taught by
“brain-washed,” “
‘ignorant European peasants. ’ ” Boettner, supra, at
363, 370–372.
THOMAS, J., concurring in judgment
Cite as: 588 U. S. ____ (2019) 7
However, the court below “s[aw] fit to apply Lemon .” 874
F. 3d 195, 205 (CA4 2017). It is our job to say what the
law is, and because the Lemon test is not good law, we
ought to say so.
* * *
Regrettably, I cannot join the Court’s opinion because it
does not adequately clarify the appropriate standard for
Establishment Clause cases. Therefore, I concur only in
the judgment.
THOMAS, J., concurring in judgment
Cite as: 588 U. S. ____ (2019) 1
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 17–1717 and 18–18
_________________
THE AMERICAN LEGION, ET AL., PETITIONERS
17–1717 v.
AMERICAN HUMANIST ASSOCIATION, ET AL.; AND
MARYLAND-NATIONAL CAPITAL PARK AND
PLANNING COMMISSION, PETITIONER
18–18 v.
AMERICAN HUMANIST ASSOCIATION, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 20, 2019]
J USTICE GORSUCH, with whom JUSTICE THOMAS joins,
concurring in the judgment.
The American Humanist Association wants a federal
court to order the destruction of a 94 year- old war mem o-
rial because its members are offended. Today, the Court
explains that the plaintiffs are not entitled to demand the
destruction of longstanding monuments, and I find much
of its opinion compelling. In my judgment, however, it
follows from the Court’s analysis that suits like this one
should be dismissed for lack of standing. Accordingly ,
while I concur in the judgment to reverse and remand the
court of appeals’ decision, I would do so with additional
instructions to dismiss the case.
*
The Association claims that its members “regularly”
come into “unwelcome direct contact” with a World War I
memorial cross in Bladensburg, Maryland “while driving
in the area.” 874 F. 3d 195, 203 (CA4 2017). And this, the
GORSUCH, J., concurring in judgment
2 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
GORSUCH, J., concurring in judgment
Association suggests, is enough to allow it to insist on a
federal judicial decree ordering the memorial’s removal.
Maybe, the Association concedes, others who are less
offended lack standing to sue. Maybe others still who are
equally affected but who come into contact with the m e-
morial too infrequently lack standing as well. See Tr. of
Oral Arg. 48– 49. But, the Association assures u s, its
members are offended enough —and with sufficient fr e-
quency—that they may sue.
This “offended observer” theory of standing has no basis
in law. F ederal courts may decide only those cases and
controversies that the Constitution and Congress have
authorized them to hear. And to establish standing to sue
consistent with the Constitution, a plaintiff must show:
(1) injury-in-fact, (2) causation, and (3) redressability. The
injury-in-fact test requires a plaintiff to prove “an invasion
of a legally prot ected interest which is (a) concrete and
particularized . . . and (b) actual or imminent, not conje c-
tural or hypothetical.” Lujan v. Defenders of Wildlife, 504
U. S. 555, 560 (1992) (internal quotation marks omitted).
Unsurprisingly, this Court has already rejected the
notion that offense alone qualifies as a “concrete and
particularized” injury sufficient to confer standing. We
could hardly have been clearer: “The presence of a dis -
agreement, however sharp and acrimonious it may be, is
insufficient by itself to meet Art. III’s requirements.”
Diamond v. Charles, 476 U. S. 54, 62 (1986). Imagine if a
bystander disturbed by a police stop tried to sue under the
Fourth Amendment. Suppose an advocacy organization
whose members were distressed by a State’s decision to
deny someone else a civil jury trial sought to complain
under the Seventh Amendment. Or envision a religious
group upset about the application of the death penalty
trying to sue to stop it. Does anyone doubt those cases
would be rapidly dispa tched for lack of standing? Cf.
Whitmore v. Arkansas, 495 U. S. 149, 151 (1990) (holding
Cite as: 588 U. S. ____ (2019) 3
GORSUCH, J., concurring in judgment
that a third party does not have “standing to challenge the
validity of a death sentence imposed on a capital defend-
ant who has elected to forgo his right of appeal”).
It’s not hard to see why this Court has refused suits like
these. If individuals and groups could invoke the author -
ity of a federal court to forbid what they dislike for no more
reason than they dislike it, we would risk exceeding the
judiciary’s lim ited constitutional mandate and infringing
on powers committed to other branches of government.
Courts would start to look more like legislatures, respond-
ing to social pressures rather than remedying concrete
harms, in the process supplanting the right of the people
and their elected representatives to govern themselves.
See, e.g., Clapper v. Amnesty Int’l USA, 568 U. S. 398, 408
(2013) (“The law of Article III standing, which is built on
separation-of-powers principles, serves to prevent the
judicial process from being used to usurp the powers of the
political branches ”); Warth v. Seldin, 422 U. S. 490, 500
(1975) ( without standing requirements “courts would be
called upon to decide abstract questions of wide public
significance even though other governmental institutions
may be more competent to address the questions”); Hein v.
Freedom From Religion Foundation, Inc. , 551 U. S. 587,
635–636 (2007) (Scalia , J. , con curring in judgment) (“
‘To
permit a complainant who has no concrete injury to re-
quire a court to rule on important constitutional issues in
the abstract would create the potential for abuse of the
judicial process, distort the role of the Judiciary in its
relationship to the Executive and the Legislature and open
the Judiciary to an arguable charge of providing “govern-
ment by injunction”
’ ”).
Proceeding on these principles, this Court has held
offense alone insufficient to convey standing in analo-
gous—and arguably more sympathetic —circumstances.
Take Allen v. Wright, 468 U. S. 737 (1984), whe re the
parents of African-American schoolchildren sued to compel
4 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
GORSUCH, J., concurring in judgment
the Internal Revenue Service to deny tax-exempt status to
schools that discriminated on the basis of race. The pa r-
ents claimed that their children suffered a “stigmatic
injury, or denigratio n” when the government supported
racially discriminatory institutions. Id., at 754. But this
Court refused to entertain the case, reasoning that stan d-
ing extends “only to those persons who are personally
denied equal treatment by the challenged discrimin atory
conduct.” Id. , at 755 (internal quotation marks omitted).
Now put the teachings there alongside the Association’s
standing theory here and you get this utterly unjustifiable
result: An African -American offended by a Confederate
flag atop a state capitol would lack standing to sue under
the Equal Protection Clause, but an atheist who is offended
by the cross on the same flag could sue under the Es -
tablishment Clause. Who really thinks that could be the
law? See Brief for Becket Fund for Religious Liberty as
Amicus Curiae 34–35.
Consider, as well, the Free Exercise Clause. In Harris
v. McRae, 448 U. S. 297 (1980), this Court denied standing
to a religious group that raised a free exercise challenge to
federal restrictions on abortion funding because “the
plaintiffs had ‘not contended that the [statute in question]
in any way coerce[d] them as individuals in the practice of
their religion.’
” Id., at 321, n. 24. Instead, the Court has
held, a free exercise plaintiff generally must “show that
his good -faith religious beliefs are hampered before he
acquires standing to attack a statute under the Free-
Exercise Clause.” Braunfeld v. Brown, 366 U. S. 599, 615
(1961) (Brennan, J., concurring and dissenting). And if
standing doctrine has such bite under the Free Exercise
Clause, it’s difficult to see how it could be as toothless as
plaintiffs suppose under the neighboring Establishment
Clause.
In fact, this Court has already expressly rejected “o f-
fended observer” standing under the Establishment
Cite as: 588 U. S. ____ (2019) 5
GORSUCH, J., concurring in judgment
Clause itself. I n Valley Forge Christian College v. Ameri-
cans United for Separation of Church and State , Inc., 454
U. S. 464 (1982), the plaintif fs objected to a transfer of
property from the federal government to a religious col-
lege, an action they had learned about through a news
release. T his Court had little trouble concluding that the
plaintiffs lacked standing to challenge the transfer , e x-
plaining that “t he psychological consequence presumably
produced by observation of conduct with which one dis -
agrees” is not an injury-in-fact “sufficient to confer standing
under Art. III.” Id. , at 485. To be sure, this Court h as
sometimes resolved Establishment Clause challenges to
religious displays on the merits without first addressing
standing. But as this Court has held, its own failure to
consider standing cannot be mistaken as an endorsement
of it: “ [D]rive-by jurisdiction al rulings of this sort” carry
“no precedential effect.” Steel Co. v. Citizens for Better
Environment, 523 U. S. 83, 91 (1998).
Offended observer standing is deeply inconsistent, too,
with many other longstanding principles and precedents.
For example, this Court has consistently ruled that “
‘gen-
eralized grievances’ about the conduct of Government” are
insufficient to confer standing to sue. Schlesinger v. Re-
servists Comm. to Stop the War , 418 U. S. 208, 217 (1974).
But if offended observers could bring suit, this rule would
be rendered meaningless: Who, after all, would have
trouble recasting a generalized grievance about gover n-
mental action into an “I -take-offense” argument for stand-
ing? Similarly, this Court has long “adhered to the rule
that a par ty ‘generally must assert his own legal rights
and interests, and cannot rest his claim to relief on the
legal rights or interests of third parties.’ ” Kowalski v.
Tesmer, 543 U. S. 125, 129 (2004) . We depart from this
rule only where the party seeking to invoke the judicial
power “has a ‘close’ relationship with the person who
possesses the right” and “there is a ‘hindrance’ to the
6 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
GORSUCH, J., concurring in judgment
possessor’s ability to protect his own interests.” Id., at
130. Applying these principles in Kowalski , this Court
held that attorneys lacked standing to assert the rights of
indigent defendants. Id., at 127. And in Whitmore , we
rejected a third party’s effort to appeal another person’s
death sentence. 495 U. S., at 151. But if offended obser v-
ers could sue, the attorneys in Kowalski might have sim -
ply claimed they were “offended” by Michigan’s procedure
for appointing appellate counsel, and the third party in
Whitmore could have just said he was offended (as he
surely was) by the impending execution. None of this
Court’s limits on third-party standing would really matter.
*
Offended observer standing cannot be squared with this
Court’s longstanding teachings about the limits of Article
III. Not even today’s dissent seriously attempts to defend
it. So at this point you m ight wonder: How did the lower
courts in this case indulge the plaintiffs’ “offended observer”
theory of standing? And why have other lower courts
done similarly in other cases?
The truth is, the fault lies here. Lower courts invented
offended observer standing for Establishment Clause
cases in the 1970s in response to this Court’s decision in
Lemon v. Kurtzman, 403 U. S. 602 (1971) . Lemon held
that whether governmental action violates the Establis h-
ment Clause depends on its (1) purpose, (2) effect, and
(3) potential to “
‘excessive[ly] . . . entangl[e]’ ” church and
state, id., at 613, a standard this Court came to unde r-
stand as prohibiting the government from doing anything
that a “
‘reasonable observer’ ” might perceive as “endor s-
ing” religion, County of Allegheny v. American Civil Liber-
ties Union, Greater Pittsburgh Chapter, 492 U. S. 573,
620–621 (1989) (opinion of Blackmun, J.); id. , a t 631
(O’Connor, J., concurring in part and concurring in judg-
ment). And lower courts reasoned that, if the Establis h-
Cite as: 588 U. S. ____ (2019) 7
GORSUCH, J., concurring in judgment
ment Clause forbids anything a reasonable observer would
view as an endorsement of religion, then such an observer
must be able to sue. Moore v. Bryant, 853 F. 3d 245, 250
(CA5 2017). Here alone, lower courts concluded, though
never with this Court’s approval, an observer’s offense
must “suffice to make an Establishment Clause claim
justiciable.” Suhre v. Haywood Cty., 131 F. 3d 1083, 1086
(CA4 1997).
As today’s plurality rightly indicates in Part II –A, how-
ever, Lemon was a misadventure. It sought a “grand
unified theory” of the Establishment Clause but left us
only a mess. See ante, at 24 (plurality opinion). How
much “purpose” to pro mote religion is too much (are Su n-
day closing laws that bear multiple purposes, religious
and secular, problematic)? How much “effect” of advan c-
ing religion is tolerable (are even incidental effects disa l-
lowed)? What does the “entanglement” test add to these
inquiries? Even beyond all that, how “reasonable” must
our “reasonable observer” be, and what exactly qualifies as
impermissible “endorsement” of religion in a country
where “In God We Trust” appears on the coinage, the eye
of God appears in its Great Seal, and we celebrate
Thanksgiving as a national holiday (“to Whom are thanks
being given”)? Harris v. Zion, 927 F. 2d 1401, 1423 (CA7
1991) (Easterbrook, J., dissenting). Nearly half a century
after Lemon and, the truth is, no one has any idea about
the answers to these questions. As the plurality doc u-
ments, our “doctrine [is] in such chaos” that lower courts
have been “free to reach almost any result in almost any
case.” McConnell, Religious Participation in Public Pr o-
grams: Religious Freedom at a Crossroads, 59 U. Chi.
L. Rev. 115, 119 (1992). Scores of judges have pleaded
with us to retire Lemon, scholars of all stripes have crit i-
cized the doctrine, and a majority of this Court has long
done the same. Ante , at 14–15 (plurality opinion). Today,
not a single Member of the Court even tries to defend
8 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
GORSUCH, J., concurring in judgment
Lemon against these criticisms —and they don’t because
they can’t. As Justice Kennedy explained, Lemon is
“flawed in its fundamentals,” has proved “unworkable in
practice,” and is “inconsistent with our history and our
precedents.” Coun ty of Allegheny , 492 U. S., at 655, 669
(opinion concurring in judgment in part and dissenting in
part).
In place of Lemon, Part II –D of the plurality opinion
relies on a more modest, historically sensitive approach,
recognizing that “the Establishment Clause must be i n-
terpreted by reference to historical practices and unde r-
standings.” Ante, at 25 (quoting Town of Greece v. Gallo-
way, 572 U. S. 565, 576 (2014) (internal quotation marks
omitted); see also ante, at 1– 4 ( K
AVANAUGH, J., concu r-
ring). So, by way of example, the plurality explains that a
state legislature may permissibly begin each session with
a prayer by an offi cial chaplain because “Congress for
more than 200 years had opened its sessions with a prayer
and . . . many state legislatures had followed suit.” Ante,
at 25 (discussing Marsh v. Chambers, 463 U. S. 783
(1983), and Town of Greece, 572 U. S. 565). The c onstitu-
tionality of a practice doesn’t depend on some artificial
and indeterminate three- part test; what matters, the
plurality reminds us, is whether the challenged practice
fits “
‘within the tradition’ ” of this country. Ante, at 27
(citing Town of Greece, 572 U. S., at 577).
I agree with all this and don’t doubt that the monument
before us is constitutional in light of the nation’s trad i-
tions. But then the plurality continues on to suggest that
“longstanding monuments, symbols, and practices” are
“presumpt[ively]” constitutional. Ante , at 16 . And about
that, it’s hard not to wonder: How old must a monument,
symbol, or practice be to qualify for this new presumption?
It seems 94 years is enough, but what about the Star of
David monument erected in South Carolina in 2001 to
commemorate victims of the Holocaust, or the cross that
Cite as: 588 U. S. ____ (2019) 9
GORSUCH, J., concurring in judgment
marines in California placed in 2004 to honor their co m-
rades who fell during the War on Terror? And where
exactly in the Constitution does this presumption come
from? The plurality does not say, nor does it even explain
what work its presumption does. To the contrary, the
plurality proceeds to analyze the “presumptively” constitu-
tional memorial in this case for its consistency with “
‘his-
torical practices and understandings’ ” under Marsh and
Town of Greece—exactly the same approach that the
plurality, quoting Town of Greece , recognizes “
‘must be’ ”
used whenever we interpret the Establishment Clause.
Ante, at 25; see also ante , at 2–4 (KAVANAUGH, J., concur-
ring). Though the plurality does not say so in as many
words, the message for our lower court colleagues seems
unmistakable: Whether a monument, symbol, or practice
is old or new, apply Town of Greece , not Lemon. Indeed,
some of our colleagues recognize this i mplication and
blanch at its prospect. See ante , at 2 –3 (B
REYER, J., co n-
curring); ante, at 1 –2 ( KAGAN, J., concurring in part)
(declining to join Parts II –A & II– D); post, at 2 , n. 2
(GINSBURG, J., dissenting). But if that’s the real message
of the plura lity’s opinion, it seems to me exactly right —
because what matters when it comes to assessing a mo n-
ument, symbol, or practice isn’t its age but its compliance
with ageless principles. The Constitution’s meaning is
fixed, not some good -for-this-day-only coupon, and a prac-
tice consistent with our nation’s traditions is just as pe r-
missible whether undertaken today or 94 years ago.
*
With Lemon now shelved, little excuse will remain for
the anomaly of offended observer standing, and the gaping
hole it tore in standing doctrine in the courts of appeals
should now begin to close. Nor does this development
mean colorable Establishment Clause violations will lack
for proper plaintiffs. By way of example only, a public
10 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
GORSUCH, J., concurring in judgment
school student compelled to recite a prayer will still have
standing to sue. See School Dist. of Abington Township v .
Schempp, 374 U. S. 203, 224, n. 9 (1963). So will persons
denied public office because of their religious affiliations or
lack of them. And so will those who are denied gover n-
ment benefits because they do not practice a favored reli-
gion or any at all. Texas Monthly, Inc. v . Bullock , 489
U. S. 1, 7–8 (1989) (plurality opinion). On top of all that,
States remain free to supply other forms of relief co n-
sistent with their own laws and constitutions.
Abandoning offended observer standing will mean only
a return to the usual demands of Article III, requiring a
real controversy with real impact on real persons to make
a federal case out of it. Along the way, this will bring with
it the welcome side effect of rescuing the federal judiciary
from the sordid business of having to pass aesthetic jud g-
ment, one by one, on every public display in this country
for its perceived capacity to give offense. It’s a business
that has consumed volumes of the federal reports, invited
erratic results, frustrated generations of judges, and f o-
mented “the very kind of religiously based divisiveness
that the Establishment Clause seeks to avoid.” Van Orden
v. Perry, 545 U. S. 677, 704 (2005) (B
REYER, J., concurring
in judgment). Courts applying Lemon ’s test have upheld
Ten Commandment displays and demanded their removal;
they have allowed memorial crosses and insisted that they
be razed; they have permitted Christmas displays and
pulled the plug on them; and they have pondered seemingly
endlessly the inclusion of “In God We Trust” on currency
or similar language in our Pl edge of Allegiance. No one
can predict the rulings—but one thing is certain: Between
the challenged practices and the judicial decisions, just
about everyone will wind up offended.
Nor have we yet come close to exhausting the potential
sources of offense and federal litigation Lemon invited, for
what about the display of the Ten Commandments on the
Cite as: 588 U. S. ____ (2019) 11
GORSUCH, J., concurring in judgment
frieze in our own courtroom or on the doors leading into it?
Or the statues of Moses and the Apostle Paul next door in
the Library of Congress? Or the depictions of the Ten
Commandments found in the Justice Department and the
National Archives? Or the crosses that can be found in
the U. S. Capitol building? And all that just takes us mere
steps from where we sit. In light of today’s decision, we
should be done with this business, and our lower court
colleagues may dispose of cases like these on a motion to
dismiss rather than enmeshing themselves for years in
intractable disputes sure to generate more heat than light.
*
In a large and diverse country, offense can be easily
found. Really, most every governmental action probably
offends somebody. No doubt, too, that offense can be
sincere, sometimes well taken, even wise. But recourse for
disagreement and offense does not lie in federal litigation.
Instead, in a society that holds among its most cherished
ambitions mutual respect, tolerance, self -rule, and dem o-
cratic responsibility, an “offended viewer ” may “avert his
eyes,” Erznoznik v. Jacksonville, 422 U. S. 205, 212 (1975),
or pursue a political solution. Today’s decision represents
a welcome step toward restoring this Court’s recognition of
these truths, and I respectfully concur in the judgment.
Cite as: 588 U. S. ____ (2019) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 17–1717 and 18– 18
_________________
THE AMERICAN LEGION, ET AL., PETITIONERS
17–1717 v.
AMERICAN HUMANIST ASSOCIATION, ET AL.; AND
MARYLAND-NATIONAL CAPITAL PARK AND
PLANNING COMMISSION, PETITIONER
18–18 v.
AMERICAN HUMANIST ASSOCIATION, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 20, 2019]
J USTICE GINSBURG, with whom J USTICE SOTOMAYOR
joins, dissenting.
An immense Latin cross stands on a traffic island at the
center of a busy three-way intersection in Bladensburg,
Maryland.1 “[M]onumental, clear, and bold” by day, App.
914, the cross looms even larger illuminated against the
night-time sky. Known as the Peace Cross, the monument
was erected by private citizens in 1925 to honor local
soldiers who lost their lives in World War I. “[T]he town’s
most prominent symbol” was rededicated in 1985 and is
now said to honor “the sacrifices made [in] all wars,” id., at
868 (internal quotation marks omitted), by “all veterans,”
id., at 195. Both the Peace Cross and the traffic island are
owned and maintained by the Maryland-National Capital
Park and Planning Commission (Commission), an agency
of the State of Maryland.
——————
1 A photograph of the monument and a map showing its location are
reproduced in the Appendix, infra, at 19.
2 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
GINSBURG, J., dissenting
Decades ago, this Court recognized that the Establis h-
ment Clause of the First Amendment to the Constitution
demands governmental neutrality among religious faiths,
and between religion and nonreligion. See Everson v.
Board of Ed. of Ewing , 330 U. S. 1, 15 (1947). Numerous
times since, the Court has reaffirmed the Constitution’s
commitment to neutrality. Today the Court erodes that
neutrality commitment, diminishing precedent designed to
preserve individual liberty and civic harmony in favor of a
“presumption of constitutionality for longstanding monu-
ments, symbols, and practices.” Ante, at 16 (plurality
opinion).
2
The Latin cross is the foremost symbol of the Christian
faith, embodying the “central theological claim of Christi-
anity: that the son of God died on the cross, that he rose
from the dead, and that his death and resurrection offer
the possibility of eternal life.” Brief for Baptist Joint
Committee for Religious Liberty et al. as Amici Curiae 7
(Brief for Amici Christian and Jewish Organizations).
Precisely because the cross symbolizes these sectarian
beliefs, it is a common marker for the graves of Christian
soldiers. For the same reason, using the cross as a war
memorial does not transform it into a secular symbol, as
the Courts of Appeals have uniformly recognized. See
——————
2 Some of my colleagues suggest that the Court’s new presumption
extends to all governmental displays and practices, regardless of their
age. See ante, at 3 ( KAVANAUGH, J., concurring); ante, at 6 ( THOMAS, J.,
concurring in judgment); ante, at 9 ( GORSUCH, J., concurring in jud g-
ment). But see ante, at 2 ( BREYER, J., joined by KAGAN, J., concurring)
(“ ‘[A] more contemporary state effort’ to put up a religious display is
‘likely to prove divisive in a way that [a] longstanding, pre -existing
monument [would] n ot.’ ”). I read the Court’s opinion to mean what it
says: “[R]etaining established, religiously expressive monuments,
symbols, and practices is quite different from erecting or adopting new
ones,” ante, at 21, and, consequently, only “longstanding monumen ts,
symbols, and practices” enjoy “a presumption of constitutionality,” id.,
at 16 (plurality opinion).
Cite as: 588 U. S. ____ (2019) 3
GINSBURG, J., dissenting
infra, at 10–11, n. 10. Just as a Star of David is not suit -
able to honor Christians who died serving their country, so
a cross is not suitable to honor those of other faiths who
died defending the ir nation. Soldiers of all faiths “are
united by their love of country, but they are not united by
the cross.” Brief for Jewish War Veterans of the United
States of America, Inc., as Amicus Curiae 3 (Brief for
Amicus Jewish War Veterans).
By maintaining the Peace Cross on a public highway,
the Commission elevates Christianity over other faiths,
and religion over nonreligion. Memorializing the service
of American soldiers is an “admirable and unquestionably
secular” objective. Van Orden v. Perry, 545 U. S. 677, 715
(2005) (Stevens, J., dissenting). But the Commission does
not serve that objective by displaying a symbol that bears
“a starkly sectarian message.” Salazar v. Buono, 559 U. S.
700, 736 (2010) (Stevens, J., dissenting).
I
A
The First Amendme nt commands that the government
“shall make no law” either “respecting an establishment of
religion” or “prohibiting the free exercise thereof.” See
Everson, 330 U. S., at 15. Adoption of these complemen-
tary provisions followed centuries of “turmoil, civ il strife,
and persecutio[n], generated in large part by established
sects determined to maintain their absolute political and
religious supremacy.” Id, at 8–9. Mindful of that history,
the fledgling Republic ratified the Establishment Clause,
in the wor ds of Thomas Jefferson, to “buil[d] a wall of
separation between church and state.” Draft Reply to the
Danbury Baptist Association, in 36 Papers of Thomas
Jefferson 254, 255 (B. Oberg ed. 2009) (footnote omitted).
This barrier “protect[s] the integrity o f individual con-
science in religious matters.” McCreary County v. Ameri-
can Civil Liberties Union of Ky. , 545 U. S. 844, 876 (2005).
4 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
GINSBURG, J., dissenting
It guards against the “anguish, hardship and bitter strife,”
Engel v. Vitale, 370 U. S. 421, 429 (1962), that can occur
when “the government weighs in on one side of religious
debate,” McCreary County , 545 U. S., at 876. And while
the “union of government and religion tends to destroy
government and to degrade religion,” separating the two
preserves the legitimacy of each. Engel, 370 U. S., at 431.
The Establishment Clause essentially instructs: “[T]he
government may not favor one religion over another, or
religion over irreligion.” McCreary County , 545 U. S., at
875. For, as James Madison observed, the government is
not “a competent Judge of Religious Truth.” Memorial and
Remonstrance Against Religious Assessments, 8 Papers of
James Madison 295, 301 (R. Rutland, W. Rachal, B. Ripel,
& F. Teute eds. 1973) (Memorial and Remonstrance).
When the government places its “power, prestige [or]
financial support . . . behind a particular religious belief,”
Engel, 370 U. S., at 431, the government’s imprimatur
“mak[es] adherence to [that] religion relevant . . . to a
person’s standing in the political community,” County of
Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter , 492 U. S. 573, 594 (1989) (internal
quotation marks omitted). Correspondingly, “the indirect
coercive pressure upon religious minorities to conform to
the prevailing officially approved religion is plain.” Engel,
370 U. S., at 431. And by demanding neutrality between
religious faith and the absence thereof, the Establishment
Clause shores up an individual’s “right to select any rel i-
gious faith or none at all.” Wallace v. Jaffree, 472 U. S. 38,
53 (1985).
B
In cases challenging the government’s display of a rel i-
gious symbol, the Court has tested fidelity to the principle
of neutrality by asking whether the display has the “effect
of ‘endorsing’ religion.” County of Allegheny , 492 U. S., at
Cite as: 588 U. S. ____ (2019) 5
GINSBURG, J., dissenting
592. The display fails this requirement if it objectively
“convey[s] a message that religion or a particular religious
belief is favored or preferred.” Id., at 593 (internal quota-
tion marks omitted; emphasis deleted).
3 To make that
determination, a court must consider “the pertinent facts
and circumstances surrounding the symbol and its plac e-
ment.” Buono , 559 U. S., at 721 (plurality opinion); id.,
at 750– 751 (Stevens, J., dissenting) (quoting plurality
opinion). 4
As I see it, when a cross is displayed on public property,
the government may be presumed to endorse its religious
content. The venue is surely associated with the State;
the symbol and its meaning are just as surely associated
exclusively with Christianity. “It certainly is not common
for property owners to open up their property [to] mon u-
ments that convey a message with which they do not wish
to be associated.” Pleasant Grove City v. Summum, 555
U. S. 460, 471 (2009). To non -Christians, nearly 30% of
the population of the United States, Pew Research Center,
America’s Changing Religious Landscape 4 (2015), the
——————
3 JUSTICE GORSUCH’s “no standing” opinion is startling in view of the
many religious -display cases this Court has resolved on the merits.
E.g., McCreary County, 545 U. S. 844; Van Orden, 545 U. S. 677; Stone
v. Graham, 449 U. S. 39 (1980) ( per curiam). And, if JUSTICE GORSUCH
is right, three Members of the Court were out of line when they recog-
nized that “[t]he [Establishment] Clause forbids a city to permit the
permanent erection of a large Latin cross on the roof of city hall,”
Buono, 559 U. S., at 715 (opinion of Kennedy, J., joined by R OBERTS,
C.J., and A LITO, J.) (quoting County of Alleghen y, 492 U. S., at 661
(second alteration in original), for no one, according to J USTICE
GORSUCH, should be heard to complain about such a thing. But see
Brief for Law Professors as Amici Curiae (explaining why offended
observer standing is necessary and proper).
4 This inquiry has been described by some Members of the Court as
the “reasonable observer” standard. See, e.g., Capitol Square Review
and Advisory Bd . v. Pinette, 515 U. S. 753, 806 (1995) (Stevens, J.,
dissenting); County of Allegheny, 492 U. S., at 630– 631 (O’Connor, J.,
concurring in part and concurring in judgment).
6 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
GINSBURG, J., dissenting
State’s choice to display the cross on public buildings or
spaces conveys a message of exclusion: It tells them they
“are outsiders, not full members of the political commu -
nity,” County of Allegheny, 492 U. S., at 625 (O’Connor, J.,
concurring in part and concurring in judgment) (internal
quotation marks omitted). Cf. Van Orden, 545 U. S., at
708 (Stevens, J., dissenting) (“The adornment of our public
spaces with displays of religious symbols” risks “
‘of-
fend[ing] nonmembers of the faith being advertised as well
as adherents who consider the particular advertisement
disrespectful.’
” (quoting County of Allegheny, 492 U. S., at
651 (Stevens, J., concurring in part and dissenting in
part))).
5
A presumption of endorsement, of course, may be over-
come. See Buono , 559 U. S., at 718 (plurality opinion)
(“The goal of avoiding governmental endorsement does not
require eradication of all religious symbols in the public
realm.”). A display does not run afoul of the neutrality
principle if its “setting . . . plausibly indicates” that the
government has not sought “either to adopt [a] religious
message or to urge its acceptance by others.” Van Orden,
545 U. S., at 737 (Souter, J., dissenting). The “typical
museum setting,” for example, “though not neutralizing
the religious content of a religious painting, negates any
message of endorsement of that content.” Lynch v. Don-
nelly, 465 U. S. 668, 692 (1984) (O’Connor, J., concurring).
Similarly, when a public school history teacher discusses
the Protestant Reformation, the setting makes clear that
——————
5 See also Jews and Christians Discussion Group in the Central
Committee of German Catholics, A Convent and Cross in Auschwitz, in
The Continuing Agony: From the Carmelite Convent t o the Crosses at
Auschwitz 231 –232 (A. Berger, H. Cargas, & S. Nowak eds. 2004) (“We
Christians must appreciate [that] [t]hroughout history many non -
Christians, especially Jews, have experienced the Cross as a symbol of
persecution, through the Crusades, the Inquisition and the compulsory
baptisms.”).
Cite as: 588 U. S. ____ (2019) 7
GINSBURG, J., dissenting
the teacher’s purpose is to educate, not to proselytize. The
Peace Cross, however, is not of that genre.
II
A
“For nearly two millennia,” the Latin cross has been the
“defining symbol” of Christianity, R. Jensen, The Cross:
History, Art, and Controversy ix (2017), evoking the foun-
dational claims of that faith. Christianity teaches that
Jesus Christ was “a divine Savior” who “illuminate[d] a
path toward salvation and redemption.” Lynch, 465 U. S.,
at 708 (Brennan, J., dissenting). Central to the religion
are the beliefs that “the son of God,” Jesus Christ, “died on
the cross,” that “he rose from the dead,” and that “his
death and resurrection offer the possibility of eternal life.”
Brief for Amici Christian and Jewish Organizations 7.
6
“From its earliest times,” Christianity was known as
“religio crucis—the religion of the cross.” R. Viladesau,
The Beauty of the Cross: The Passion of Christ in Theol -
ogy and the Arts, From the Catacombs to the Eve of the
Renaissance 7 (2006). Christians wear crosses, not as an
ecumenical symbol, but to proclaim their adherence to
Christianity.
An exclusively Christian symbol, the Latin cross is not
emblematic of an y other faith. Buono , 559 U. S., at 747
(Stevens, J., dissenting); Viladesau, supra, at 7 (“[T]he
cross and its meaning . . . set Christianity apart from
other world religions.”).
7 The principal symbol of Christ i-
——————
6 Under “one widespread reading of Christian scriptures,” non -
Christians are barred from eternal life and, instead, are condemned to
hell. Brief for Amici Christian and Jewish Organizations 2. On this
reading, the Latin cross symbolizes both the promise of salvation and
the threat of damnation by “divid[ing] the world between the saved and
the damned.” Id., at 12.
7 Christianity comprises numerous denominations. The term is here
used to distinguish Christian sects from religions that do not embrace
the defining tenets of Christianity.
8 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
GINSBURG, J., dissenting
anity around the world should not loom over public tho r-
oughfares, suggesting official recognition of that religion’s
paramountcy.
B
The Commission urges in defense of its monument that
the Latin cross “is not merely a reaffirmation of Christian
beliefs”; rather, “when used in the context of a war memo-
rial,” the cross becomes “a universal symbol of the sacrifices
of those who fought and died.” Brief for Petitioner
Maryland-National Capital Park and Planning Commi s-
sion 34– 35 (Brief for Planning Commission) (internal
quotation marks omitted). See also Brief for United States
as Amicus Curiae 25 (The Latin cross is “a Christian
symbol . . . [b]ut it is also ‘a symbol often used to honor
and respect [soldiers’] heroic acts.’
” (quoting Buono, 559
U. S., at 721 (plurality opinion); some internal quotat ion
marks omitted)).
The Commission’s “[a]ttempts to secularize what is
unquestionably a sacred [symbol] defy credibility and
disserve people of faith.” Van Orden, 545 U. S., at 717
(Stevens, J., dissenting). See, e.g., Brief for Amici Chris-
tian and Jew ish Organizations 7 (“For Christians who
think seriously about the events and message that the
cross represents, [the Commission’s] claims are deeply
offensive.”). The asserted commemorative meaning of the
cross rests on —and is inseparable from —its Christ ian
meaning: “the crucifixion of Jesus Christ and the redeem-
ing benefits of his passion and death,” specifically, “the
salvation of man.” American Civil Liberties Union of
Illinois v. St. Charles , 794 F. 2d 265, 273 (CA7 1986)
(internal quotation marks omitted).
Because of its sacred meaning, the Latin cross has been
used to mark Christian deaths since at least the fourth
century. See Jensen, supra, at 68–69. The cross on a
grave “says that a Christian is buried here,” Brief for
Cite as: 588 U. S. ____ (2019) 9
GINSBURG, J., dissenting
Amici Christian and Jewi sh Organizations 8, and “co m-
memorates [that person’s death] by evoking a conception
of salvation and eternal life reserved for Christians,” Brief
for Amicus Jewish War Veterans 7. As a commemorative
symbol, the Latin cross simply “makes no sense apart from
the crucifixion, the resurrection, and Christianity’s prom-
ise of eternal life.” Brief for Amici Christian and Jewish
Organizations 8.8
The cross affirms that, thanks to the soldier’s embrace
of Christianity, he will be rewarded with eternal life. Id.,
at 8–9. “To say that the cross honors the Christian war
dead does not identify a secular meaning of the cross; it
merely identifies a common application of the religious
meaning.” Id., at 8. Scarcely “a universal symbol of sacri-
fice,” the cross is “the symbol of one particular sacrifice.”
Buono, 559 U. S., at 748, n. 8 (Stevens, J., dissenting).
9
——————
8 The Court sets out familiar uses of the Greek cross, including the
Red Cross and the Navy Cross, ante, at 3, 22, and maintains that,
today, they carry no religious message. But because the Latin cross has
never shed its Christian character, its commemorative meaning is
exclusive to Christians. The Court recognizes as much in suggesting
that the Peace Cross features the Latin cross for the same reason “why
Holocaust memorials invariably include Stars of David”: those sectarian
“symbols . . . signify what death meant for those who are memoria l-
ized.” Ante, at 30.
9 Christian soldiers have drawn parallels between their experiences
in war and Jesus’s suffering and sacrifice. See , e.g., C. Dawson, Living
Bayonets: A Record of the Last Push 19 –20 (1919) (upon finding a
crucifix strewn among rubble, a soldier serving in World War I wrote
home that Jesus Christ “seem[ed] so like ourselves in His lonely and
unhallowed suffering”). This comparison has been portrayed by artists,
see, e.g., 7 Encyclopedia of Religion 4348 (2d ed. 2005) (painter George
Rouault’s 1926 Miserere series “compares Christ’s suffering with
twentieth-century experiences of human sufferings in war”), and
documented by historians, see, e.g. , R. Schweitzer, The Cross and the
Trenches: Religious Faith and Doubt Among British and American
Great War Soldiers 28 –29 (2003) (given the horrors of trench warfare,
“[t]he parallels that soldiers saw between their suffering and Christ’s
make their identification with Jesus both understandable and revea l-
10 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
GINSBURG, J., dissenting
Every Court of Appeals to confront the question has
held that “[m]aking a . . . Latin cross a war memorial does
not make the cross secular,” it “makes the war memorial
sectarian.” Id., at 747.10 See also Separation of Church
——————
ing”); Lemay, Politics in the Art of War: The American War Cemeteries,
38 Int’l J. Mil. History & Historiography 223, 225 (2018) (“[T]he [cross]
grave markers assert the absolute valour and Christ-like heroism of the
American dead . . . .”).
10 See 874 F. 3d 195, 207 (CA4 2017) (case below) (“Even in the m e-
morial context, a Latin cross serves not . . . as a generic symbol of
death, but rather a Christian symbol of the death of Jesus Christ.”);
American Atheists, Inc. v. Davenport, 637 F. 3d 1095, 1122 (CA10 2010)
(“[A] memorial cross is not a generic symbol of death; it is a Christian
symbol of death that signifies or memorializes the death of a Chris-
tian.”); Trunk v. San Diego, 629 F. 3d 1099, 1102 (CA9 2011) (“Resu r-
rection of this Cross as a war memorial does not transform it into a
secular monument.”); Separation of Church and State Comm. v. Eu-
gene, 93 F. 3d 617, 619 (CA9 1996) ( per curiam) (“[T]he City urges that
the cross is no l onger a religious symbol but a war memorial. This
argument . . . fails to withstand Establishment Clause analysis.”);
Gonzales v. North Twp. of Lake Cty. , 4 F. 3d 1412, 1418 (CA7 1993)
(“[W]e are masters of the obvious, and we know that . . . the Latin cross
. . . is ‘[the] unmistakable symbol of Christianity as practiced in this
country today.’
” (quoting Harris v. Zion, 927 F. 2d 1401, 1403 (CA7
1991)). See also Jewish War Veterans of the United States v. United
States, 695 F. Supp. 3, 11 (DC 1988) (“[D ]efendants are unable to cite a
single federal case where a cross such as the one at issue here has
survived Establishment Clause scrutiny.”).
The Courts of Appeals have similarly concluded that the Latin cross
remains a Christian symbol when used for oth er purposes. See, e.g. ,
Robinson v. Edmond, 68 F. 3d 1226, 1232 (CA10 1995) (city seal depic t-
ing the cross) (“The religious significance and meaning of the Latin or
Christian cross are unmistakable.”); Carpenter v. City and County of
San Francisco, 93 F. 3d 627, 630 (CA9 1996) (103-foot cross in public
park) (“The Latin cross . . . [‘]represents with relative clarity and
simplicity the Christian message of the crucifixion and resurrection of
Jesus Christ, a doctrine at the heart of Christianity.’
”); American Civil
Liberties Union of Ill. v. St. Charles, 794 F. 2d 265, 272– 273 (CA7 1986)
(35-foot cross displayed atop a fire house during the Christmas season)
(“The cross . . . is ‘the principal symbol of the Christian religion, re-
calling the crucifixion of Jesus Christ and the redeeming benefits of his
passion and death.’
”); Friedman v. Board of Cty. Comm’rs of Bernalillo
Cite as: 588 U. S. ____ (2019) 11
GINSBURG, J., dissenting
and State Comm. v. Eugene, 93 F. 3d 617, 626 (CA9 1996)
(O’Scannlain, J., concurring in result) (“[T]he City’s use of
a cross to memorialize the war dead may lead observers to
believe that the City has chosen to honor only Christian
veterans.”).
The Peace Cross is no exception. That was evident from
the start. At the dedication ceremony, the keynote speaker
analogized the sacrifice of the honored soldiers to that
of Jesus Christ, calling the Peace Cross “symbolic of Ca l-
vary,” App. 449, where Jesus was crucified. Local report-
ers vari ously described the monument as “[a] mammoth
cross, a likeness of the Cross of Calvary, as described in
the Bible,” id., at 428; “a monster [C]alvary cross,” id., at
431; and “a huge sacrifice cross,” id., at 439. The charac-
ter of the monument has not changed with the passage of
time.
C
The Commission nonetheless urges that the Latin cross
is a “well-established” secular symbol commemorating, in
particular, “military valor and sacrifice [in] World War I.”
Brief for Planning Commission 21. Calling up ima ges of
United States cemeteries overseas showing row upon row
of cross-shaped gravemarkers, id., at 4–8; see ante, at 4–5,
21–22; Brief for United States as Amicus Curiae 26, the
Commission overlooks this reality: The cross was never
perceived as an appropriate headstone or memorial
for Jewish soldiers and others who did not adhere to
Christianity.
1
A page of history is worth retelling. On November 11,
1918, the Great War ended. Bereaved families of Amer i-
——————
Cty., 781 F. 2d 777, 782 (CA10 1985) (county seal depicting Latin cross)
(“[T]he seal . . . conveys a strong impression to the average obs erver
that Christianity is being endorsed.”).
12 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
GINSBURG, J., dissenting
can soldiers killed in the war sought to locate the bodies of
their loved ones, and then to decide what to do with their
remains. Once a soldier’s body was identified, families
could choose to have the remains repatriated to the United
States or buried overseas in one of several American mili-
tary cemet eries, yet to be established. Eventually, the
remains of 46,000 soldiers were repatriated, and those of
30,000 soldiers were laid to rest in Europe. American
Battle Monuments Commission, Annual Report to the
President of the United States Fiscal Year 192 5, p. 5
(1926) (ABMC Report).
While overseas cemeteries were under development, the
graves of American soldiers in Europe were identified by
one of two temporary wooden markers painted white.
Christian soldiers were buried beneath the cross; the
graves o f Jewish soldiers were marked by the Star of
David. See L. Budreau, Bodies of War: World War I and
the Politics of Commemoration in America, 1919–1933, p.
120 (2010). The remains of soldiers who were neither
Christian nor Jewish could be repatriated to t he United
States for burial under an appropriate headstone.
11
When the War Department began preparing designs for
permanent headstones in 1919, “no topic managed to stir
more controversy than the use of religious symbolism.”
Id., at 121–122. Everyone inv olved in the dispute, how -
ever, saw the Latin cross as a Christian symbol, not as a
universal or secular one. To achieve uniformity, the War
Department initially recommended replacing the temp o-
——————
11 For unidentified soldiers buried overseas, the American Battle
Monuments Commission (ABMC) used the cross and the Star of David
markers “in ‘proportion of known Jewish dead to know[n] Christians.’ ”
App. 164 . The ABMC later decided that “all unidentified graves would
be marked with a [c]ross.” Id., at 164, n. 21. This change was prompted
by “fear [that] a Star of David would be placed over an [u]nknown
Christian,” not by the belief that the cross had become a universal
symbol. Ibid.
Cite as: 588 U. S. ____ (2019) 13
GINSBURG, J., dissenting
rary sectarian markers with plain marble slabs rese m-
bling “those designed for the national cemeteries in the
United States.” Van Duyne, Erection of Permanent
Headstones in the American Military Cemeteries in
Europe, The Quartermaster Review (1930) (Quartermaster
Report).
The War Department’s recommendation angered promi-
nent civil organizations, including the American Legion
and the Gold Star associations: the United States, they
urged, ought to retain both the cross and Star of David.
See ibid.; Budreau, supra, at 123. In supporting sectarian
markers, these groups were joined by the American Battle
Monuments Commission (ABMC), a newly created ind e-
pendent agency charged with supervising the establis h-
ment of overseas cemeteries. ABMC Report 57. Congress
weighed in by directing the War Department to erect
headstones “of such design and material as may be agreed
upon by the Secretary of War and the American Battle
Monuments Commission.” Ibid. (internal quotation marks
omitted). In 1924, the War Department approved the
ABMC’s “designs for a Cross and Star of David .” Quar-
termaster Report; ABMC Report 57.
12
Throughout the headstone debate, no one doubted that
the Latin cross and the Star of David were sectarian
gravemarkers, and therefore appropriate only for soldiers
who adhered to those faiths. A committee convened by the
War Department composed of representatives from “seven
prominent war -time organizations” as well as “religious
bodies, Protestant, Jewish, [and] Catholic” agreed “una n-
imous[ly] . . . that marble crosses be placed on the graves
of all Christian American dead buried abroad, and that
the graves of the Jewish American dead be marked by the
six-pointed star.” Durable Markers in the Form of Crosses
——————
12 A photograph depicting the two headstones is reproduced in the
Appendix, infra, at 21.
14 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
GINSBURG, J., dissenting
for Graves of American Soldiers in Europe, Hearings
before the Committee on Military Affairs of the House of
Representatives, 68th Cong., 1st Sess., 24 (1924) (empha-
sis added). The Executive Director of the Jewish Welfare
Board stated that “if any religious symbol is erected over
the graves, then Judaism should have its symbol over the
graves of its dead.” Id., at 19. Others expressing views
described the Latin cross as the appropriate symbol to
“mar[k] the graves of the Christian heroes of the American
forces.” Id., at 24 (emphasis added). As stated by the
National Catholic War Council, “the sentiment and desires
of all Americans, Christians and Jews alike, are one”:
“They who served us in life should be honored, as they
would have wished, in death.” Ibid.
13
Far more crosses than Stars of David, as one would
expect, line the grounds of American cemeteries overseas,
for Jews composed only 3% of the United States popul a-
tion in 1917. J. Fredman & L. Falk, Jews in American
Wars 100 (5th ed. 1954). Jews accounted for nearly 6% of
U. S. forces in World War I (in numbers, 250,000), and
3,500 Jewish soldiers di ed in that war. Ibid. Even in
Flanders Field, with its “ ‘crosses, row on row,’ ” ante, at 5
(quoting J. McCrae, In Flanders Fields, In Flanders Fields
and Other Poems 3 (G. P. Putnam’s Sons ed. 1919)), “Stars
of David mark the graves of [eight American soldiers] of
Jewish faith,” American Battle Monuments Commission,
Flanders Field American Cemetery and Memorial Visitor
Booklet 11.
14
——————
13 As noted, supra, at 12, the bodies of soldiers who were neither
Christian nor Jewish could be repatriated to the United States and
buried in a national cemetery (with a slab headstone), Quartermaster
Report, or in a private cemetery (with a headstone of the family’s
choosing).
14 Available at https://www.abmc.gov/sites/default/files/publications/
FlandersField_Booklet.pdf (all Internet materials as last visited June
18, 2019). For the respective numbers of cross and Star of David
Cite as: 588 U. S. ____ (2019) 15
GINSBURG, J., dissenting
2
Reiterating its argument that the Latin cross is a “un i-
versal symbol” of World War I sacrifice, the Commission
states th at “40 World War I monuments . . . built in the
United States . . . bear the shape of a cross.” Brief for
Planning Commission 8 (citing App. 1130). This figure
includes memorials that merely “incorporat[e]” a cross.
App. 1130.
15 Moreover, the 40 monuments compose only
4% of the “948 outdoor sculptures commemorating the
First World War.” Ibid. The Court lists just seven fre e-
standing cross memorials, ante, at 6, n. 10, less than 1% of
the total number of monuments to World War I in the
United States, see App. 1130. Cross memorials, in short,
are outliers. The overwhelming majority of World War I
memorials contain no Latin cross.
In fact, the “most popular and enduring memorial of the
[post-World War I] decade” was “[t]he mass -produced
Spirit of the American Doughboy statue.” Budreau, Bodies
of War, at 139. That statue, depicting a U. S. infantry-
man, “met with widespread approval throughout Amer i-
can comm unities.” Ibid. Indeed, the first memorial to
World War I erected in Prince George’s County “depict[s] a
doughboy.” App. 110–111. The Peace Cross, as Plaintiffs’
expert historian observed, was an “aberration . . . even in
the era [in which] it was built and dedicated.” Id., at 123.
Like cities and towns across the country, the United
States military comprehended the importance of “pay[ing]
equal respect to all members of the Armed Forces who
perished in the service of our country,” Buono, 559 U. S.,
at 759 (Stevens, J., dissenting), and therefore avoided
——————
headstones, see ABMC, Flanders Field American Cemetery and Mem o-
rial Brochure 2, available at https://www.abmc.gov/sites/default/
files/publications/Flanders%20Fiel d_Brochure_Mar2018.pdf.
15 No other monument in Bladensburg’s V eterans Memorial Park
displays the Latin cross. For examples of monuments in the Park, see
the Appendix, infra, at 20–21.
16 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
GINSBURG, J., dissenting
incorporating the Latin cross into memorials. The con-
struction of the Tomb of the Unknown Soldier is illustr a-
tive. When a proposal to place a cross on the Tomb was
advanced, the Jewish Welfare Board objected; no cross
appears on the Tomb. See App. 167. In sum, “[t]here is
simply ‘no evidence . . . that the cross has been widely
embraced by’ —or even applied to—‘non-Christians as a
secular symbol of death’ or of sacrifice in military service”
in World War I or otherwise. Trunk v. San Diego, 629 F.
3d 1099, 1116 (CA9 2011).
D
Holding the Commission’s display of the Peace Cross
unconstitutional would not, as the Commission fears,
“inevitably require the destruction of other cross -shaped
memorials throu ghout the country.” Brief for Planning
Commission 52. When a religious symbol appears in a
public cemetery —on a headstone, or as the headstone
itself, or perhaps integrated into a larger memorial —the
setting counters the inference that the government seeks
“either to adopt the religious message or to urge its a c-
ceptance by others.” Van Orden, 545 U. S., at 737 (Souter,
J., dissenting). In a cemetery, the “privately selected re-
ligious symbols on individual graves are best understood as
the private speech of each veteran.” Laycock, Government-
Sponsored Religious Displays: Transparent Rational -
izations and Expedient Post -Modernism, 61 Case W.
Res. L. Rev. 1211, 1242 (2011). See also Summum, 555
U. S., at 487 (Souter, J., concurring in judgment) (“[T]here
are circumstances in which government maintenance of
monuments does not look like government speech at all.
Sectarian identifications on markers in Arlington Cem e-
tery come to mind.”). Such displays are “linked to, and
sho[w] respect for, the individual honoree’s faith and
beliefs.” Buono , 559 U. S., at 749, n. 8 (Stevens, J., di s-
senting). They do not suggest governmental endorsement
Cite as: 588 U. S. ____ (2019) 17
GINSBURG, J., dissenting
of those faith and beliefs. 16
Recognizing that a Latin cross does not belong on a
public highway or building does not mean the monument
must be “torn down.” Ante, at 2 (BREYER, J., concurring);
ante, at 1 ( GORSUCH, J., concurring in judgment). 17
“[L]ike the determination of the violation itself,” the
“proper remedy . . . is necessarily context specific.” Buono,
559 U. S., at 755, n. 11 (Stevens, J., dissenting). In some
instances, the violation may be cured by relocating the
monument to private land or by transferring ownership of
the land and monument to a private party.
* * *
In 1790, President Washington visited Newport, Rhode
Island, “a longtime bastion of religious liberty and the
home of one of the first communities of American Jews.”
Town of Greece v. Galloway, 572 U. S. 565, 636 (2014)
(K
AGAN, J., dissenting). In a letter thanking the congrega-
tion for its war m welcome, Washington praised “[t]he
citizens of the United States of America” for “giv[ing] to
mankind . . . a policy worthy of imitation”: “All possess
alike liberty of conscience and immunities of citizenship.”
Letter to Newport Hebrew Congregation (Au g. 18, 1790),
in 6 Papers of George Washington 284, 285 (D. Twohig ed.
1996). As Washington and his contemporaries were
——————
16 As to the Argonne Cross Memorial and the Canadian Cross of Sa c-
rifice in Arlington National Cemetery, visitors to the cemetery “expec[t]
to view religious symbols, whether on individual headstones or as
standalone monuments.” Brief for Amicus Jewish War Veterans 17.
17 The Court asserts that the Court of Appeals “ente rtained” the pos-
sibility of “amputating the arms of the cross.” Ante, at 24. The appeals
court, however, merely reported Plaintiffs’ “desired injunctive relief,”
namely, “removal or demolition of the Cross, or removal of the arms
from the Cross ‘to form a non -religious slab or obelisk.’
” 874 F. 3d, at
202, n. 7. See also id., at 212, n. 19 (noting that the parties remained
“free to explore alternative arrangements that would not offend the
Constitution”).
18 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
GINSBURG, J., dissenting
aware, “some of them from bitter personal experience,”
Engel, 370 U. S., at 429, religion is “too personal, too
sacred, too holy, to permit its ‘unhallowed perversion’ by a
civil magistrate,” id., at 432 (quoting Memorial and R e-
monstrance). The Establishment Clause, which preserves
the integrity of both church and state, guarantees that
“however . . . individuals worship, they will count as full
and equal American citizens.” Town of Greece, 572 U. S.,
at 615 ( KAGAN, J., dissenting). “If the aim of the Esta b-
lishment Clause is genuinely to uncouple government
from church,” the Clause does “not permit . . . a display of
th[e] character” of Bladensburg’s Peace Cross. Capitol
Square Review and Advisory Bd. v. Pinette, 515 U. S. 753,
817 (1995) (GINSBURG, J., dissenting).
Cite as: 588 U. S. ____ (2019) 19
APPENDIX
The Bladensburg Peace Cross. App. 887.
Map showing the location of the Peace Cross. App. 1533.
Appendix to opinion of GINSBURG, J.
20 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.
The World War II Memorial in
Veterans Memorial Park. App. 891.
Plaque of the World War II Memorial. App. 891.
Appendix to opinion of GINSBURG, J.
Cite as: 588 U. S. ____ (2019) 21
The Korea-Vietnam Veterans Memorial in
Veterans Memorial Park. App. 894.
Headstones in the Henri -Chappelle American
Cemetery and Memorial in Belgium. American
Battle Monuments Commission, Henri -Chappelle
American Cemetery and Memorial 16 (1986).
Appendix to opinion of GINSBURG, J.
Retrieval chunks
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#1
(Slip Opinion) OCTOBER TERM, 2018 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of t he Court but has been prepared by the Reporter of Decisions for …
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#2
the American Legion reserved the right to continue using the site for ceremonies. The Commission has used public funds to maintain the monument ever since. In 2014, the American Humanist Association (AHA) and others filed suit in District Court, alleging that the Cross’s presence on pub- lic land and the Commis…
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#3
symbol, or practice with this kind of familiarity and historical signif i- cance, removing it may no longer appear neutral, especially to the l o- cal community. The passage of time thus gives rise to a strong pr e- sumption of constitutionality. Pp. 16–21. (b) The cross is a symbol closely linked to World War I…
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#4
by retaining the many city names, like Los Angeles and San Diego, given by the original Spanish settlers . But it would be something else entirely if the State undertook to change those names. Much the same is true about monuments to soldiers who sacrificed their lives for this country more than a century ago. …
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#5
has come to represent : a symbolic resting place for ancestors who never returned home, a place for the community to gather and honor all veter ans and their sacrifices for this Nation, and a historical landmark. For many, destroying or defacing the Cross would not be neutral and would not further the ideals of …
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#6
shall make no law respecting an establishment of religion” —suggest that it should not be incorporated against the States. When the Court incorporated the Clause in Everson v. Board of Ed. of Ewing , 330 U. S. 1, 15, it apparently did not consider that an incorporated Establishment Clause would prohibit exactly…
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#7
844, 900 (Scalia, J., dissenting); and it continues to cause enormous confusion in the States and the lower courts. Pp. 6–7. J USTICE GORSUCH, joined by JUSTICE THOMAS, concludes that a suit like this one should be dismissed for lack of standing. Pp. 1–11. (a) The American Humanist Associat ion claims that its m…
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#8
loway, 572 U. S. 565, not Lemon, because what matters when it comes to assessing a monument, symbol, or practice is not its age but its compliance with ageless principles. Pp. 6–9. (c) With Lemon now shelved, little excuse will remain for the Cite as: 588 U. S. ____ (2019) 7 Syllabus anomaly of offended observe…
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#9
JUSTICE, JUSTICE BREYER, and JUSTICE KAVANAUGH join. Since 1925, the Bladensburg Peace Cross (Cross) has stood as a tribute to 49 area soldiers who gave their lives in the First World War. Eighty -nine years after the ded i- cation of the Cross, respondents filed this lawsuit, clai m- ing that they are offended…
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#10
1 and it retains that meaning today. But there are many contexts in which the symbol —————— 1 B. Longenecker, The Cross Before Constantine: The Early Life of a Christian Symbol 2 (2015). Cite as: 588 U. S. ____ (2019) 3 Opinion of the Court has also taken on a secular meaning. Indeed, there are instances in …
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#11
4 AMERICAN LEGION v. AMERICAN HUMANIST ASSN. Opinion of the Court So an image that began as an expression of faith was transformed. The image used in the Bladensburg memorial —a plain Latin cross6—also took on new meaning after World War I. “During and immediately after the war, the army marked soldiers’ graves…
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#12
In Flanders Fields and Other Poems 3 (G. P. Putnam’s Sons ed. 1919). The poem was enormously popular. See P. Fussell, The Great War and Modern Memory 248– 249 (1975). A 1921 New York Times article quoted a descri p- tion of McCrae’s composition as “ ‘the poem of the army’ ” and “ ‘of all those who understa…
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#13
a cross and hired sculptor and architect John Joseph Earley to design it. Although we do not know precisely why the committee chose the cross, it is unsurprising that the committee—and many others commemorating World War I 10—adopted a symbol so widely associated with that wrenching event. After selecting the…
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#14
ground for the Cross. Id., at 910. By 1922, however, the committee had run out of funds, and progress on the Cross had stalled. The local post of the American Legion took over the project, and the monument was finished in 1925. The completed monument is a 32 -foot tall Latin cross that sits on a large pedestal…
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#15
depicting British and American s oldiers in the Battle of Bladensburg. Id., at 891–903, 1530. Because the Cross is located on a traffic island with limited space, the closest of these other monuments is about 200 feet away in a park across the road. Id., at 36, 44. As the area around the Cross developed, the m…
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#16
Commission in 1960. Id., at 1380, 1382. To resolve any ambiguities, in 1961, the local American Legion post “transfer[ed] and assign[ed] to [the Commission] all its right, title and interest in and to the Peace Cross, also originally known as the Memorial Cross, and the tract upon which it is located.” Id., at …
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#17
repeated government involvement with reli gion” that would constitute an excessive entanglement. Ibid. (inter- nal quotation marks and emphasis omitted). Finally, in light of the factors that informed its analysis of Lemon ’s “effects” prong, the c ourt concluded that the Cross is Cite as: 588 U. S. ____ (201…
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#18
cerned to rule out. 874 F. 3d, at 221 (internal quotation marks omitted). The Fourth Circuit denied rehearing en banc over dis- sents by Chief Judge Grego ry, Judge Wilkinson, and Judge Niemeyer. 891 F. 3d 117 (2018). The Commission and the American Legion each petitioned for certiorari. We granted the peti…
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#19
If the Lemon Court thought that its test would provide a framework for all future Establishment Clause decisions, its expectation has not been met. In many cases, this Court has either expressly declined to apply the test or has simply i gnored it. See Zobrest v. Catalina Foothills School Dist., 509 U. S. 1 (1…
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#20
(CA10 2009) (Kelly, J., dissenting from denial of rehearing en banc) (discussing the “judicial morass resul ting from the Supreme Court’s opinions”); Cooper v. United States Postal Service, 577 F. 3d 479, 494 (CA2 2009) (“ Lemon is difficult to apply and not a particularly useful test”); Roark v. South Iron R–1 …
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#21
involving “ ‘deeply ingrained practices’ ” as “not readily susceptible to analysis under the ordinar y Lemon approach”); Choper, The Endors e- ment Test: Its Status and Desirability, 18 J. L. & Pol itics 499 (2002) (criticizing both Lemon and the endorsement gloss) ; Paulsen, Religion, Equality, and the Consti…
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#22
tions counsel against efforts to evaluate such cases under Lemon and toward application of a presumption of consti- tutionality for longstanding monuments, symbols, and practices. B First, these cases often concern monuments, symbols, or practices that were first established long ago, and in such cases, identif…
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#23
subject we add ressed in Van Orden , 545 U. S. 677, and McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844 (2005). For believing Jews and Christians, the Ten Commandments are the word of God handed down to Moses on Mount Sinai, but the image of the T en Commandments has also been used to…
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#24
Pleasant Grove City v. Summum, 555 U. S. 460, 476 (2009), “the thoughts or sentiments expressed by a go v- ernment entity that accepts and displays [a monument] may be quite different from those of either its creator or its donor.” The existence of multiple purposes is not exclusive to longstanding monuments…
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#25
our literature, our imagination. The place where we su r- vived epidemics, wars, liberation. It has been the epicen- ter of our lives.’ ”21 In the same way, consider the many cities and towns —————— 19 See French Constitution, Art. 1 (proclaiming that France is a “secu- lar . . . Republic”). 20 See Erlanger,…
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#26
1959 and taken from Matthew 19:26); id., at 22 (South Dakota motto: “Under God the People Rule,” adopted in 1885); id., at 23 (American Samoa motto: “Samoa—Muamua le Atua” (“Samoa—Let God Be First”), adopted in 1975). 23 The current flag was known and used since at least October 1880, and was officially adopted …
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#27
tionary Experience , in Religion, Society and Politics in France Since 1789, pp. 1–2 (F. Tallett & N. Atkin eds. 1991). 22 AMERICAN LEGION v. AMERICAN HUMANIST ASSN. Opinion of the Court 1919, respectively. See id. , at 147–148. And as already noted, the fallen soldiers’ final resting places abroad were marke…
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#28
approximately 4,400 American soldiers were either never found or never identified. 25 Thus, for many grieving rel a- tives and friends, memorials took the place of gravestones. Recall that the mother of one of the young men memoria l- ized by the Bladensburg Cross thought of the memorial as, “in a way, his grave…
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#29
n. 7—would be seen by many as profoundly disrespectful. One member of the majority below viewed this objection as inconsistent with the claim that the Bladensburg Cross serves secular purposes, see 891 F. 3d, at 121 (Wynn, J., concurring in denial of en banc), but this argument mi s- understands the complexity o…
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#30
nan, J. ). As the Court put it in Town of Greece : “Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation.” 572 U. S., at 576. “The case teaches instead that the Es tablishment Clause must be interpreted ‘by reference to hist…
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#31
objected due to t he “ ‘diversity of religiou s sentiments represented in Congress.’ ” D. Davis, Religion and the Continental Congress 74 (2000). Nevertheless, Samuel Adams, a staunch Congregationalist, spoke in favor of the motion: “ ‘I am no bigot. I can hear a prayer from a man of piety and virtue, who is…
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#32
Annual, No. 2, pp. 95, 96 (1950). 31 See Lund, The Congressional Chaplaincies, 17 Wm. & Mary Bill of Rights J. 1171, 1204– 1205 (2009). See also 160 Cong. Rec. 3853 (2014) (prayer by the Dalai Lama). Opinion of ALITO, J. 28 AMERICAN LEGION v. AMERICAN HUMANIST ASSN. Opinion of the Court Id., at 577 (opinion of…
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#33
in World War I. More than 3,500 Jewish soldiers gave their lives for the United States in that conflict, 32 and some have wondered whether the names of any Jewish soldiers from the area were deliberately left off the list on the memorial or whether the names of any Jewish soldiers were included on the Cross a…
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#34
ral and ap propriate for those seeking to honor the d e- ceased to invoke the symbols that signify what death meant for those who are memorialized. In some circu m- stances, the exclusion of any such recognition would make a memorial incomplete. This well explains why Holocaust memorials invariably include Star…
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#35
AMERICAN HUMANIST ASSOCIATION, ET AL.; AND MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, PETITIONER 18–18 v. AMERICAN HUMANIST ASSOCIATION, ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [June 20, 2019] J USTICE BREYER, with whom J USTICE KAGAN joins, conc…
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#36
members of mino rity faiths or if the Cross had been erected only recently, rather than in the aftermath of World War I. See ante, at 29; see also Van Orden, 545 U. S., at 703 (opinion of B REYER, J.) (explaining that, in light of the greater religious diversity today, “a more contemporary state effort” to put…
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#37
full. I write separately to emphasize two points. I Consistent with the Court’s case law, the Court today applies a history and tradition test in examining and upholding the constitutionality of the Bladensburg Cross. See Marsh v. Chambers, 463 U. S. 783, 787–792, 795 (1983); Van Orden v. Perry, 545 U. S. 677,…
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#38
concurring in judgment) (quotation altered). Lemon, fairly applied, does not justify those decisions. I n the third category of cases, the Court likewise has upheld government benefits and tax exemptions that go to religious organizations, even though those policies have the effect of advancing or endorsing reli…
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#39
KAVANAUGH, J., concurring cases has its own principles based on history, tradition, and precedent. And the cases together lead to an over- arching set of principles: If the challenged government practice is not coercive and if it (i) is rooted in history and tradition; or (ii) treats religious people, organizati…
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#40
cross on public land. The Maryland Legislature could enact new laws requiring removal of the cross or transfer of the land. The Maryland Governor or other state or local executive officers may have authority to do so under cu r- rent Maryland law. And if not, the legislature could enact new laws to authorize s…
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#41
for guidance,” ante, at 25 (plurality opinion), I prefer at least for now to do so case- by-case, rather than to sign on to any broader statements about history’s role i n Esta b- lishment Clause analysis. But I find much to admire in this section of the opinion —particularly, its emphasis on whether longstandin…
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#42
U. S. 677, 692–693 (2005) (concurring opinion); Zelman v. Simmons-Harris, 536 U. S. 639, 677– 680 (2002) (same). In Everson v. Board of Ed. of Ewing , 330 U. S. 1, 15 (1947), the Court “casually” incorporated the Clause with a declaration that because the Free Exercise Clause had been incorporated, “ ‘[t]here …
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#43
qua non of an establishment of religion is “ ‘actual legal coercion. ’ ” Id., at 693. At the founding, “[t]he coercion that was a hallmark of historical establishments of rel i- gion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty .” Lee v. Weisman, 505 U. S.…
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#44
Lacking any characteristics of “the coercive state esta b- lishments that existed at the founding,” Town of Greece, 572 U. S., at 608 (opinion of T HOMAS, J.), the Bladensburg Cross is constitutional. The Blade nsburg Cross is constitutional even though the cross has religious significance as a central symbol of…
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#45
hostility to the Catholic Church and to Catholics in general, and it was an open secret that ‘sectarian’ was code for ‘Cathol ic.’ ” Ibid. This anti- Catholic hostility may well have played a role in the Court’s later decisions. Everson v. Board of Ed . of Ewing, 330 U. S. 1 (1947), for example, was written …
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#46
McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844, 900 (2005) (S calia, J., dissenting); see Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 398– 399 (1993) (Scalia, J., concurring in judgment). Third, it continues to cause enormous conf u- sion in the States and …
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#47
rial because its members are offended. Today, the Court explains that the plaintiffs are not entitled to demand the destruction of longstanding monuments, and I find much of its opinion compelling. In my judgment, however, it follows from the Court’s analysis that suits like this one should be dismissed for lac…
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#48
Fourth Amendment. Suppose an advocacy organization whose members were distressed by a State’s decision to deny someone else a civil jury trial sought to complain under the Seventh Amendment. Or envision a religious group upset about the application of the death penalty trying to sue to stop it. Does anyone dou…
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#49
Take Allen v. Wright, 468 U. S. 737 (1984), whe re the parents of African-American schoolchildren sued to compel 4 AMERICAN LEGION v. AMERICAN HUMANIST ASSN. GORSUCH, J., concurring in judgment the Internal Revenue Service to deny tax-exempt status to schools that discriminated on the basis of race. The pa r- …
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#50
property from the federal government to a religious col- lege, an action they had learned about through a news release. T his Court had little trouble concluding that the plaintiffs lacked standing to challenge the transfer , e x- plaining that “t he psychological consequence presumably produced by observation o…
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#51
for appointing appellate counsel, and the third party in Whitmore could have just said he was offended (as he surely was) by the impending execution. None of this Court’s limits on third-party standing would really matter. * Offended observer standing cannot be squared with this Court’s longstanding teachings a…
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#52
lowed)? What does the “entanglement” test add to these inquiries? Even beyond all that, how “reasonable” must our “reasonable observer” be, and what exactly qualifies as impermissible “endorsement” of religion in a country where “In God We Trust” appears on the coinage, the eye of God appears in its Great Seal,…
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#53
and indeterminate three- part test; what matters, the plurality reminds us, is whether the challenged practice fits “ ‘within the tradition’ ” of this country. Ante, at 27 (citing Town of Greece, 572 U. S., at 577). I agree with all this and don’t doubt that the monument before us is constitutional in light of…
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#54
missible whether undertaken today or 94 years ago. * With Lemon now shelved, little excuse will remain for the anomaly of offended observer standing, and the gaping hole it tore in standing doctrine in the courts of appeals should now begin to close. Nor does this development mean colorable Establishment Clause…
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#55
sources of offense and federal litigation Lemon invited, for what about the display of the Ten Commandments on the Cite as: 588 U. S. ____ (2019) 11 GORSUCH, J., concurring in judgment frieze in our own courtroom or on the doors leading into it? Or the statues of Moses and the Apostle Paul next door in the Libra…
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#56
most prominent symbol” was rededicated in 1985 and is now said to honor “the sacrifices made [in] all wars,” id., at 868 (internal quotation marks omitted), by “all veterans,” id., at 195. Both the Peace Cross and the traffic island are owned and maintained by the Maryland-National Capital Park and Planning Comm…
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#57
monument [would] n ot.’ ”). I read the Court’s opinion to mean what it says: “[R]etaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones,” ante, at 21, and, consequently, only “longstanding monumen ts, symbols, and practices” enjoy “a pr…
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#58
Engel v. Vitale, 370 U. S. 421, 429 (1962), that can occur when “the government weighs in on one side of religious debate,” McCreary County , 545 U. S., at 876. And while the “union of government and religion tends to destroy government and to degrade religion,” separating the two preserves the legitimacy of eac…
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#59
As I see it, when a cross is displayed on public property, the government may be presumed to endorse its religious content. The venue is surely associated with the State; the symbol and its meaning are just as surely associated exclusively with Christianity. “It certainly is not common for property owners to op…
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#60
as adherents who consider the particular advertisement disrespectful.’ ” (quoting County of Allegheny, 492 U. S., at 651 (Stevens, J., concurring in part and dissenting in part))). 5 A presumption of endorsement, of course, may be over- come. See Buono , 559 U. S., at 718 (plurality opinion) (“The goal of av…
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#61
“religio crucis—the religion of the cross.” R. Viladesau, The Beauty of the Cross: The Passion of Christ in Theol - ogy and the Arts, From the Catacombs to the Eve of the Renaissance 7 (2006). Christians wear crosses, not as an ecumenical symbol, but to proclaim their adherence to Christianity. An exclusively …
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#62
offensive.”). The asserted commemorative meaning of the cross rests on —and is inseparable from —its Christ ian meaning: “the crucifixion of Jesus Christ and the redeem- ing benefits of his passion and death,” specifically, “the salvation of man.” American Civil Liberties Union of Illinois v. St. Charles , 794…
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#63
home that Jesus Christ “seem[ed] so like ourselves in His lonely and unhallowed suffering”). This comparison has been portrayed by artists, see, e.g., 7 Encyclopedia of Religion 4348 (2d ed. 2005) (painter George Rouault’s 1926 Miserere series “compares Christ’s suffering with twentieth-century experiences of hum…
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#64
States, 695 F. Supp. 3, 11 (DC 1988) (“[D ]efendants are unable to cite a single federal case where a cross such as the one at issue here has survived Establishment Clause scrutiny.”). The Courts of Appeals have similarly concluded that the Latin cross remains a Christian symbol when used for oth er purposes. See…
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#65
21–22; Brief for United States as Amicus Curiae 26, the Commission overlooks this reality: The cross was never perceived as an appropriate headstone or memorial for Jewish soldiers and others who did not adhere to Christianity. 1 A page of history is worth retelling. On November 11, 1918, the Great War ended. …
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#66
be marked with a [c]ross.” Id., at 164, n. 21. This change was prompted by “fear [that] a Star of David would be placed over an [u]nknown Christian,” not by the belief that the cross had become a universal symbol. Ibid. Cite as: 588 U. S. ____ (2019) 13 GINSBURG, J., dissenting rary sectarian markers with pla…
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#67
Board stated that “if any religious symbol is erected over the graves, then Judaism should have its symbol over the graves of its dead.” Id., at 19. Others expressing views described the Latin cross as the appropriate symbol to “mar[k] the graves of the Christian heroes of the American forces.” Id., at 24 (emp…
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#68
the total number of monuments to World War I in the United States, see App. 1130. Cross memorials, in short, are outliers. The overwhelming majority of World War I memorials contain no Latin cross. In fact, the “most popular and enduring memorial of the [post-World War I] decade” was “[t]he mass -produced Spir…
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#69
setting counters the inference that the government seeks “either to adopt the religious message or to urge its a c- ceptance by others.” Van Orden, 545 U. S., at 737 (Souter, J., dissenting). In a cemetery, the “privately selected re- ligious symbols on individual graves are best understood as the private speec…
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#70
to view religious symbols, whether on individual headstones or as standalone monuments.” Brief for Amicus Jewish War Veterans 17. 17 The Court asserts that the Court of Appeals “ente rtained” the pos- sibility of “amputating the arms of the cross.” Ante, at 24. The appeals court, however, merely reported Plaint…