Supreme Court saves WWI cross but muddies the Establishment Clause waters

On June 20, by a 7-2 majority, the U.S. Supreme Court reversed a decision by the U.S. Court of Appeals for the Fourth Circuit that held that a century-old World War I memorial located in Prince George's County, Maryland violates the Establishment Clause of the First Amendment.  

The memorial, a 40-foot-tall structure bearing the names of 49 fallen local veterans of the Great War, had drawn the ire of the American Humanist Association, an organization that bills itself as "advocating progressive values and equality for humanists, atheists, and freethinkers."  The problem?  The memorial resembled a Latin cross — a symbol shared by Christianity.

The lower court, relying on an unwieldy legal test first established in Lemon v. Kurtzman in 1971, found that the cross had a "principal or primary effect that advances, inhibits, or endorses religion" and fostered "an excessive entanglement between government and religion."

The Supreme Court saw it differently.  In an opinion authored by Associate Justice Samuel Alito, the Court held that the cross does not violate the Establishment Clause, but instead carries "special significance in commemorating World War I" and has taken on "added secular meaning" since its construction.

The most interesting part of Justice Alito's opinion is its treatment of the Lemon test.  Those favoring the cross's continued existence (like me) may be cheering this case's outcome, but if Establishment Clause law was confusing before, it is now downright baffling.

To start, the Court did not expressly overturn Lemon.  It did, however, render it toothless, with Alito describing how the test has routinely been "ignored" by the Court in previous cases.  "As Establishment Clause cases involving a great array of laws and practices came to the Court," wrote Alito, "it became more and more apparent that the Lemon test could not resolve them."  Yet the Court handed down no legal rule to replace the freshly torpefied Lemon.

Indeed, it's a safe bet that the Court will never be able to produce a workable juridical precept to consistently and accurately interpret the Establishment Clause.  Banal exhortations about "separation of church and state" notwithstanding, the Constitution is entrenched in religion and God.  After all, "right" and "wrong" cannot exist in any meaningful sense unless an authority supreme to all humans (lest all men be not created equal) tells us they exist.  Yet the Framers were also students of the Enlightenment and viewed positivism — often the antithesis of religion — as equally instrumental to human flourishing.

The result is an existential crisis of national proportions.  Where God necessarily informs our moral compass, and therefore our laws, the sovereign recognizes this fundamental truth at its own peril, as doing so is unavoidably hostile to others' unalienable, Creator-endowed rights.

Some, like Patrick J. Deneen, author of the 2018 book Why Liberalism Failed, view this tension as proof that the American experiment was never meant to work, with liberalism having failed "not because it fell short, but because it was true to itself.  It has failed because it has succeeded."

Perhaps I'm insufficiently cynical, but I'm not ready to conclude that the American experiment has "failed" or will fail.  In our nation's short history, we've seen unprecedented human prosperity.  The rule of law reigns supreme.  Our cultural norms and values, although in flux at the fringe (as they admittedly always are), remain overwhelmingly intact.  Although reason alone may not prove adequate to completely understand this success, the fact remains that the American experiment has been successful.

Perhaps one might compare the conflict at the heart of the American experiment to the Constitution's concept of separation of powers.  Any legal scholar worth his salt can conjure countless examples of ways the Constitution steps on its own toes and could, hypothetically, allow the total breakdown of our system of government.  Yet, for the most part, we're still here, as strong as ever.

Similarly, the push-and-pull over the Establishment Clause might be inevitably destructive, as people like Deneen suggest.  But it might also have an anchoring effect.  Perhaps this is what the Court's mystifying opinion reflects.  Unable to formulate a master rule, the Court narrowly resolved the case at hand but left the larger debate open, rejecting the natural impulse toward cognitive resolution and allowing competing interests to act as a natural check on any excesses inimical to classical liberalism.

The result will likely be as cyclical and as checkered as is the rest of Establishment Clause case law.  In each case, pundits will lament the march to theocratic tyranny or Orwellian secularism, depending on which faction happens to prevail in that particular round.  History will show that either has yet to happen in the United States, and not for a lack of effort.  Fate will almost certainly vindicate history, and each subsequent generation, "regarding the past as irrelevant," to quote Deneen, will find its world brave and new.

Thomas Wheatley is an attorney and writer in Kansas.  He was a 2016 Publius Fellow at the Claremont Institute.  Follow him on Twitter at @TNWheatley.  The views expressed here are his own.

Image: Maryland GovPics via Flickr.

On June 20, by a 7-2 majority, the U.S. Supreme Court reversed a decision by the U.S. Court of Appeals for the Fourth Circuit that held that a century-old World War I memorial located in Prince George's County, Maryland violates the Establishment Clause of the First Amendment.  

The memorial, a 40-foot-tall structure bearing the names of 49 fallen local veterans of the Great War, had drawn the ire of the American Humanist Association, an organization that bills itself as "advocating progressive values and equality for humanists, atheists, and freethinkers."  The problem?  The memorial resembled a Latin cross — a symbol shared by Christianity.

The lower court, relying on an unwieldy legal test first established in Lemon v. Kurtzman in 1971, found that the cross had a "principal or primary effect that advances, inhibits, or endorses religion" and fostered "an excessive entanglement between government and religion."

The Supreme Court saw it differently.  In an opinion authored by Associate Justice Samuel Alito, the Court held that the cross does not violate the Establishment Clause, but instead carries "special significance in commemorating World War I" and has taken on "added secular meaning" since its construction.

The most interesting part of Justice Alito's opinion is its treatment of the Lemon test.  Those favoring the cross's continued existence (like me) may be cheering this case's outcome, but if Establishment Clause law was confusing before, it is now downright baffling.

To start, the Court did not expressly overturn Lemon.  It did, however, render it toothless, with Alito describing how the test has routinely been "ignored" by the Court in previous cases.  "As Establishment Clause cases involving a great array of laws and practices came to the Court," wrote Alito, "it became more and more apparent that the Lemon test could not resolve them."  Yet the Court handed down no legal rule to replace the freshly torpefied Lemon.

Indeed, it's a safe bet that the Court will never be able to produce a workable juridical precept to consistently and accurately interpret the Establishment Clause.  Banal exhortations about "separation of church and state" notwithstanding, the Constitution is entrenched in religion and God.  After all, "right" and "wrong" cannot exist in any meaningful sense unless an authority supreme to all humans (lest all men be not created equal) tells us they exist.  Yet the Framers were also students of the Enlightenment and viewed positivism — often the antithesis of religion — as equally instrumental to human flourishing.

The result is an existential crisis of national proportions.  Where God necessarily informs our moral compass, and therefore our laws, the sovereign recognizes this fundamental truth at its own peril, as doing so is unavoidably hostile to others' unalienable, Creator-endowed rights.

Some, like Patrick J. Deneen, author of the 2018 book Why Liberalism Failed, view this tension as proof that the American experiment was never meant to work, with liberalism having failed "not because it fell short, but because it was true to itself.  It has failed because it has succeeded."

Perhaps I'm insufficiently cynical, but I'm not ready to conclude that the American experiment has "failed" or will fail.  In our nation's short history, we've seen unprecedented human prosperity.  The rule of law reigns supreme.  Our cultural norms and values, although in flux at the fringe (as they admittedly always are), remain overwhelmingly intact.  Although reason alone may not prove adequate to completely understand this success, the fact remains that the American experiment has been successful.

Perhaps one might compare the conflict at the heart of the American experiment to the Constitution's concept of separation of powers.  Any legal scholar worth his salt can conjure countless examples of ways the Constitution steps on its own toes and could, hypothetically, allow the total breakdown of our system of government.  Yet, for the most part, we're still here, as strong as ever.

Similarly, the push-and-pull over the Establishment Clause might be inevitably destructive, as people like Deneen suggest.  But it might also have an anchoring effect.  Perhaps this is what the Court's mystifying opinion reflects.  Unable to formulate a master rule, the Court narrowly resolved the case at hand but left the larger debate open, rejecting the natural impulse toward cognitive resolution and allowing competing interests to act as a natural check on any excesses inimical to classical liberalism.

The result will likely be as cyclical and as checkered as is the rest of Establishment Clause case law.  In each case, pundits will lament the march to theocratic tyranny or Orwellian secularism, depending on which faction happens to prevail in that particular round.  History will show that either has yet to happen in the United States, and not for a lack of effort.  Fate will almost certainly vindicate history, and each subsequent generation, "regarding the past as irrelevant," to quote Deneen, will find its world brave and new.

Thomas Wheatley is an attorney and writer in Kansas.  He was a 2016 Publius Fellow at the Claremont Institute.  Follow him on Twitter at @TNWheatley.  The views expressed here are his own.

Image: Maryland GovPics via Flickr.