__ U.S. __, 17-1717 and 18-18, American Legion v. American Humanist Association

Docket Nº:17-1717, 18-18
Citation:__ U.S. __, 139 S.Ct. 2067, 204 L.Ed.2d 452, 27 Fla.L.Weekly Fed. S 970
Opinion Judge:ALITO, Justice.
Party Name:The AMERICAN LEGION, et al., Petitioners v. AMERICAN HUMANIST ASSOCIATION, et al.; and Maryland-National Capital Park and Planning Commission, Petitioner v. American Humanist Association, et al.
Attorney:Neal K. Katyal, Washington, D.C., for the petitioner in No. 18-18. Michael A. Carvin, Washington, D.C., for the petitioners in No. 17-1717. Acting Solicitor General Jeffrey B. Wall for the United States as amicus curiae, by special leave of the Court, in support of the petitioners. Monica L. Mill...
Judge Panel:Justice ALITO, joined by THE CHIEF JUSTICE, Justice BREYER, and Justice KAVANAUGH, concluded in Parts II-A and II-D: Justice THOMAS, agreeing that the Bladensburg Cross is constitutional, concluded: Justice GORSUCH, joined by Justice THOMAS, concludes that a suit like this one should be dismissed...
Case Date:June 20, 2019
Court:United States Supreme Court

Page __

__ U.S. __

139 S.Ct. 2067, 204 L.Ed.2d 452, 27 Fla.L.Weekly Fed. S 970

The AMERICAN LEGION, et al., Petitioners


AMERICAN HUMANIST ASSOCIATION, et al.; and Maryland-National Capital Park and Planning Commission, Petitioner


American Humanist Association, et al.

Nos. 17-1717, 18-18

United States Supreme Court

June 20, 2019

Argued February 27, 2019.



In 1918, residents of Prince George’s County, Maryland, formed a committee for the purpose of erecting a memorial for the county’s soldiers who fell in World War I. The committee decided that the memorial should be a cross, which was not surprising since the plain Latin cross had become a central symbol of the war. The image of row after row of plain 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 memorial— 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 benediction. The Bladensburg Cross (Cross) has since been the site of patriotic events honoring veterans on, e.g., Veterans 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 developed, the monument came to be at the center of a busy intersection. In 1961, the Maryland-National Capital Park and Planning Commission (Commission) acquired the Cross and the land where it sits, but 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 public land and the Commission’s maintenance of the memorial violate 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. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745, and the analysis applied by Justice BREYER in upholding a Ten Commandments monument in Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607. The Fourth Circuit reversed.

Held : The judgment is reversed and remanded.

874 F.3d 195, reversed and remanded.

Justice 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. 2080 - 2087, 2089 - 2090.

(a) At least four considerations show that retaining established, religiously expressive monuments, symbols, and practices is quite different 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, 130 S.Ct. 1803, 176 L.Ed.2d 634. Second, as time goes by, the purposes associated with an established monument, symbol, or practice often multiply, as in the Ten Commandments monuments addressed in Van Orden and McCreary County v. American Civil Liberties Union of Ky., 545 U.S. 844, 125 S.Ct. 2722, 162 L.Ed.2d 729. 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, symbol, or practice may evolve, Pleasant Grove City v. Summum, 555 U.S. 460, 477, 129 S.Ct. 1125, 172 L.Ed.2d 853, as is the case with a city name like Bethlehem, Pennsylvania; 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 monument, symbol, or practice with this kind of familiarity and historical significance, removing it may no longer appear neutral, especially to the local community. The passage of time thus gives rise to a strong presumption of constitutionality. Pp. 2080 - 2085.

(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 Distinguished Service Cross and the Navy Cross in 1918 and 1919, respectively. And the fallen soldiers’ final resting places abroad were marked by white crosses or Stars of David, a solemn image that became inextricably linked with and symbolic of the ultimate price paid 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 also have been altered in ways that change its meaning and provide new reasons for its preservation. Even the AHA recognizes that the monument’s surroundings are important, as it concedes that the presence of a cross monument in a cemetery is unobjectionable. But a memorial’s placement in a cemetery is not necessary to create the connection 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 monuments 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 physical 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. 2085 - 2087.

(c) Applying these principles here, the Bladensburg Cross does not violate the Establishment Clause. The image of the simple wooden 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 symbol 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 memorials. The Cross has also acquired historical importance with the passage of time, reminding the townspeople of the deeds and sacrifices 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 evidence 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 participated in the dedication. It is also natural and appropriate for a monument commemorating the death of particular individuals to invoke 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 battlefields where they fell. Pp. 2089 - 2090.

(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 veterans 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 embodied in the First Amendment. P. 2090.

Justice ALITO, joined by THE CHIEF JUSTICE, Justice BREYER, and Justice KAVANAUGH, concluded in Parts II-A and II-D:

(a) Lemon ambitiously attempted to fashion a test for all Establishment Clause cases. The test called on courts to examine the purposes...

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