This morning, the Supreme Court ruled in American Legion v. American Humanist Association that a 100-year-old cross WWI memorial in Bladensburg, Maryland, doesn’t “establish” religion. That’s the correct result (read Cato’s brief), but the mish-mash of opinions – it took a paragraph to explain which justice was joining which aspect of the decision – leaves Establishment Clause jurisprudence in the muddled state it’s been for decades.
That is, much like in the Ten Commandments cases in 2005, the cross here survived largely because it’s really, really old. Justice Alito’s majority opinion does well not to apply the much-ballyhooed Lemon test – looking to purpose and effects of government action, as well as “entanglement” with religion – but lost votes when he began to squeeze it. Still, with Justice Gorsuch (joined by Justice Thomas) saying that Lemon is now “shelved” and Justice Kavanaugh noting that “the Court no longer applies the old test articulated by Lemon,” it’s pretty clear that this nearly 50-year-old case is pretty much obsolete, at least in cases involving religious symbols (and probably in all Establishment Clause cases, as Justice Kavanaugh describes).
Then why not go further and scrap it explicitly? This area of law has long been plagued with judicial hand-waving at nebulous standards, producing results good for a particular case but without real guidance about the kinds of actions regarding religion that governments can take (or allow to be taken on government property).
James Madison, arguably the most influential framer of the Constitution, strongly opposed state religion because colonial Virginia was teeming with religious persecution. Preachers were jailed for simply publishing their religious views, and the official state religion was integrated with many parts of the government. This had a profound effect on Madison. When he wrote his draft of the First Amendment, Madison envisioned the Establishment Clause as the culmination of his philosophy on religion and government, with liberty of conscience as the centerpiece. His purpose was to ensure that people could exercise their faith free from compulsion. The Establishment Clause, thus, was a shield to defend “individual liberty of conscience.”
As Justices Thomas and Gorsuch explain in their concurrences, the Court in future should return to the original public meaning of the Establishment Clause, which ensures liberty of conscience and protects people from truly “established” state religions that coerce belief and support. A non-coercive, harmless monument – a cross memorial, or a Star of David, or any other religious symbol – is not an establishment of religion. As seven justices correctly found here, tearing down an old war memorial instead establishes an anti-religious orthodoxy, with a mandate that religious symbols be eradicated from public life.
The Framers did not intend for that to happen, but maybe the fact that we’re fighting over things like this is a good indication that nobody in America is really trying to establish religion any more – compelling religious worship, on penalty of state law – that the danger to the freedom of conscience comes more from government mandates and regulations that infringe on the free exercise of systems of belief, religious and secular alike.