Last week’s cross decision was a major case for religious liberty. Perhaps it even spells the death knell of the so-called Lemon Test…an aptly-named decision from the early 1970s that has often been used against any religious expression in the public square.
The Supreme Court ruled that a 40-foot memorial cross in the state of Maryland was not unconstitutional. The cross was built beginning in 1919 to commemorate many soldiers from Prince George’s County who died in service to their country in World War I.
The American Humanist Association (AHA) sued to have the cross torn down. The 4th Circuit Court of Appeals (out of Richmond, Virginia) agreed with the AHA, and the cross had a sentence of death hanging over it. First Liberty Institute, which fights for religious liberty (including many military-oriented cases), fought to save the cross, on behalf of the American Legion. Perhaps surprisingly, the Supreme Court decided by a comfortable 7-2 margin.
The author of the decision was Justice Samuel Alito, who wrote, “A government 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.”
Writing for the dissenting minority—just herself and Justice Sonia Sotomayor—Justice Ruth Bader Ginsberg argued: “the principal symbol of Christianity around the world should not loom over public thoroughfares, suggesting official recognition of that religion’s paramountcy.”
After the victory, I interviewed constitutional attorney Jeremy Dys for a radio segment. Dys serves as the Deputy General Counsel for First Liberty, the legal organization that helped procure the victory on behalf of the American Legion.
Dys told me, “It’s a landmark victory for religious freedom….Whatever detractors are saying, they no longer have a tool in their arsenal so they can twist the establishment clause of the Constitution to render memorials like this Bladensburg World War I veterans memorial obsolete and then take a wrecking ball to it.”
The establishment clause, of course, is the first part of the First Amendment to the Constitution: “Congress shall make no law respecting an establishment of religion…” For the last several decades, the establishment clause has been invoked to censor out virtually any religious content in the public arena.
With this decision, he says, the Supreme Court is now protecting religious monuments: “That area of the law is kind of settled at this point, and we’re grateful that the Supreme Court has seen fit to protect what was the vision of some mothers back in 1919 as a way to remember their sons for serving in our armed forces.”
Dys continues: “The day and age when [they] can weaponize the establishment clause to bulldoze memorials just because they are religious [and are] on public property are over.”
Dys feels that this decision effectively replaces the Lemon test with something he calls “the American Legion Test” (after the organization that built the monument and fought for it in the Supreme Court case). According to that test, if a religious symbol has longstanding significance in America’s history and tradition, it has the “presumption of constitutionality.” He notes that there are now six justices saying that the Lemon Test is bad law.
That is very significant going forward. Through this decision, things like “In God We Trust” on our money or displayed on our walls in public buildings would also be protected.
Dys also notes that the American Legion deserves a lot of credit in this case: “We have been working with them for about 15-20 years now, protecting monuments that have religious imagery in them….These war heroes have been working with us for years to preserve these monuments. And if you’re one of those guys or gals from the American Legion…I just want to say: Mission Accomplished.”
This new victory would have allowed another World War I cross to stand, without having to change ownership of where it stands. In that case from a few years ago, First Liberty worked to save a memorial on public land in the Mojave Desert. A judge ruled that that cross must be covered up with a canvas bag which was padlocked and then later covered up by a plywood box. “Why?” one might ask. So the spiders and snakes and occasional hikers could not see it? It was in the middle of nowhere. That cross ultimately was allowed to stay only because the land it stood on became privatized through a land-swap.
Just as Dracula flees from the cross, so there are many atheistic legal groups in America (like the American Humanists Association) that fight the cross at every turn—even when it is a symbol of those who paid the ultimate price for our country. Thank God the cross in the crosshairs still stands.