Friday, June 21, 2019

Supreme Court upholds constitutionality of war memorial cross on public property

The Supreme Court has held that a huge war memorial in the form of a cross does not violate the Establishment Clause. In the course of its ruling, the 7-2 majority adjusts its jurisprudence in the area of church-state separation.

The case is American Legion v. American Humanist Association, issued on June 20. The memorial was built in 1925 in the aftermath of World War II. This legal challenge came nearly 90 years later. If you've been following Supreme Court cases in this area over the years, you know the Court has devised a variety of tests in assessing whether certain governmental action violates the Establishment Clause. We have the Lemon test from 1971, which asks whether the display (1) has a secular purpose, (2) has a principal or primary effect that neither advances nor inhibits religion, and (3) whether it fosters an excessive governmental entanglement with religion. What the Court has learned over the years is that the Lemon test is difficult to apply in certain cases, and the Court sometimes does not invoke it all in religion cases.

The majority confirms again in this case that Lemon is not an all-purpose test, particularly when someone attacks the constitutionality of an existing memorial that has religious overtones. For starters, it is difficult if not impossible to know what the original purpose of the monument was, as the relevant witnesses died long ago and there may not be records on the issue. Also, the "message" of the monument may change over time, such as with the Statue of Liberty, which began as a monument to our relationship with France and only decades later came to be seen as a "beacon welcoming immigrants to a land of freedom," Justice Alito writes. So, the Court says, when dealing with the constitutionality of established memorials, monuments, symbols and practices, "the passage of time gives rise to a strong presumption of constitutionality." In plain English, older memorials and symbols are more likely to pass constitutional muster than new ones. This is a new concept for the Court.

That presumption can be overcome, but not in this case. The large cross is constitutional because "the image of simple wooden crosses that originally marked the graves of American soldiers killed in the war" became an image of their sacrifice, and over time, monument has acquired historical significance to the community. Finally, "it is surely relevant that the monument commemorates the death of particular individuals. It is natural and appropriate for those seeking to honor the deceased to invoke teh symbols that signify what death meant for those who are memorialized. In some circumstances, the exclusion of any such recognition would make a memorial incomplete," such as a Holocaust memorial that includes the Star of David or other symbols of Judaism.

In the end, while a cross is surely a Christian symbol, under the new standard set forth in this ruling, over the dissents of Justices Ginsburg and Sotomayor, it does not violate the Constitution.

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