American Legion v. Am. Humanist Ass'n

• Decision Date: 20 June 2019
• Docket Number: 18–18,Nos. 17–1717,s. 17–1717
• Citation: 139 S.Ct. 2067,204 L.Ed.2d 452
• Parties: 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.
• Court: U.S. Supreme Court

139 S.Ct. 2067

204 L.Ed.2d 452

The AMERICAN LEGION, et al., Petitioners

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

v.American Humanist Association, et al.

Nos. 17–1717

18–18

Supreme Court of the United States.

Argued February 27, 2019

Decided June 20, 2019

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. Miller, Washington, D.C., for the respondents.

Kelly J. Shackelford, Hiram S. Sasser, III, Michael D. Berry, Kenneth A. Klukowski, Roger L. Byron, First Liberty Institute, Plano, TX, Michael A. Carvin, Christopher DiPompeo, Brett A. Swearingen, Kaytlin L. Roholt, Daniel D. Benson, Chris Pagliarella, Caleb P. Redmond, Admitted only in Georgia; supervised by listed D.C. bar members, Jones Day, Washington, DC, for petitioners The American Legion, The American Legion Department of Maryland, and The American Legion Colmar Manor Post 131, for the American Legion, Petitioners.

Adrian R. Gardner, William C. Dickerson, Tracey A. Harvin, Maryland-National, Capital Park and, Planning Commission, Riverdale, MD, Neal Kumar Katyal, Mitchell P. Reich, Benjamin A. Field, HOGAN LOVELLS US LLP, Washington, D.C., for petitioner Maryland-National Capital Park and Planning Commission.

Monica L. Miller, American Humanist Association, Washington, D.C., for respondents.

Justice ALITO announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B, II–C, III, and IV, and an opinion with respect to Parts II–A and II–D, in which THE CHIEF JUSTICE, Justice BREYER, and Justice KAVANAUGH join.

Since 1925, the Bladensburg Peace Cross (Cross) has stood as a tribute to 49 area soldiers who gave their lives in the First World War. Eighty-nine years after the dedication of the Cross, respondents filed this lawsuit, claiming that they are offended by the sight of the memorial on public land and that its presence there and the expenditure of public funds to maintain it violate the Establishment Clause of the First Amendment. To remedy this violation, they asked a federal court to order the relocation or demolition of the Cross or at least the removal of its arms. The Court of Appeals for the Fourth Circuit agreed that the memorial is unconstitutional and remanded for a determination of the proper remedy. We now reverse.

Although the cross has long been a preeminent Christian symbol, its use in the Bladensburg memorial has a special significance. After the First World War, the picture of row after row of plain white crosses marking the overseas graves of soldiers who had lost their lives in that horrible conflict was emblazoned on the minds of Americans at home, and the adoption of the cross as the Bladensburg memorial must be viewed in that historical context. For nearly a century, the Bladensburg Cross has expressed the community’s grief at the loss of the young men who perished, its thanks for their sacrifice, and its dedication to the ideals for which they fought. It has become a prominent community landmark, and its removal or radical alteration at this date would be seen by many not as a neutral act but as the manifestation of "a hostility toward religion that has no place in our Establishment Clause traditions." Van Orden v. Perry , 545 U.S. 677, 704, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (BREYER, J., concurring in judgment). And contrary to respondents’ intimations, there is no evidence of discriminatory intent in the selection of the design of the memorial or the decision of a Maryland commission to maintain it. The Religion Clauses of the Constitution aim to foster a society in which people of all beliefs can live together harmoniously, and the presence of the Bladensburg Cross on the land where it has stood for so many years is fully consistent with that aim.

I

A

The cross came into widespread use as a symbol of Christianity by the fourth century,¹ and it retains that meaning today. But there are many contexts in which the symbol has also taken on a secular meaning. Indeed, there are instances in which its message is now almost entirely secular.

A cross appears as part of many registered trademarks held by businesses and secular organizations, including Blue Cross Blue Shield, the Bayer Group, and some Johnson & Johnson products.² Many of these marks relate to health care, and it is likely that the association of the cross with healing had a religious origin. But the current use of these marks is indisputably secular.

The familiar symbol of the Red Cross—a red cross on a white background—shows how the meaning of a symbol that was originally religious can be transformed. The International Committee of the Red Cross (ICRC) selected that symbol in 1863 because it was thought to call to mind the flag of Switzerland, a country widely known for its neutrality.³ The Swiss flag consists of a white cross on a red background. In an effort to invoke the message associated with that flag, the ICRC copied its design with the colors inverted. Thus, the ICRC selected this symbol for an essentially secular reason, and the current secular message of the symbol is shown by its use today in nations with only tiny Christian populations.⁴ But the cross was originally chosen for the Swiss flag for religious reasons.⁵ So an image that began as an expression of faith was transformed.

The image used in the Bladensburg memorial—a plain Latin cross⁶ —also took on new meaning after World War I. "During and immediately after the war, the army marked soldiers’ graves with temporary wooden crosses or Stars of David"—a departure from the prior practice of marking graves in American military cemeteries with uniform rectangular slabs. G. Piehler, Remembering War the American Way 101 (1995); App. 1146. The vast majority of these grave markers consisted of crosses,⁷ and thus when Americans saw photographs of these cemeteries, what struck them were rows and rows of plain white crosses. As a result, the image of a simple white cross "developed into a ‘central symbol’ " of the conflict. Ibid . Contemporary literature, poetry, and art reflected this powerful imagery. See Brief for Veterans of Foreign Wars of the United States et al. as Amici Curiae 10–16. Perhaps most famously, John McCrae’s poem, In Flanders Fields, began with these memorable lines:

"In Flanders fields the poppies blowBetween the crosses, row on row."

In Flanders Fields and Other Poems 3 (G. P. Putnam’s Sons ed. 1919). The poem was enormously popular. See P. Fussell, The Great War and Modern Memory 248–249 (1975). A 1921 New York Times article quoted a description of McCrae’s composition as " ‘the poem of the army’ " and " ‘of all those who understand the meaning of the great conflict.’ "⁸ The image of "the crosses, row on row," stuck in people’s minds, and even today for those who view World War I cemeteries in Europe, the image is arresting.⁹

After the 1918 armistice, the War Department announced plans to replace the wooden crosses and Stars of David with uniform marble slabs like those previously used in American military cemeteries. App. 1146. But the public outcry against that proposal was swift and fierce. Many organizations, including the American War Mothers, a nonsectarian group founded in 1917, urged the Department to retain the design of the temporary markers. Id. , at 1146–1147. When the American Battle Monuments Commission took over the project of designing the headstones, it responded to this public sentiment by opting to replace the wooden crosses and Stars of David with marble versions of those symbols. Id. , at 1144. A Member of Congress likewise introduced a resolution noting that "these wooden symbols have, during and since the World War, been regarded as emblematic of the great sacrifices which that war entailed, have been so treated by poets and artists and have become peculiarly and inseparably associated in the thought of surviving relatives and comrades and of the Nation with these World War graves." H. Res. 15, 68th Cong., 1 (1924), App. 1163–1164. This national debate and its outcome confirmed the cross’s widespread resonance as a symbol of sacrifice in the war.

B

Recognition of the cross’s symbolism extended to local communities across the country. In late 1918, residents of Prince George’s County, Maryland, formed a committee for the purpose of erecting a memorial for the county’s fallen soldiers. App. 988–989, 1014. Among the committee’s members were the mothers of 10 deceased soldiers. Id., at 989. The committee decided that the memorial should be a cross and hired sculptor and architect John Joseph Earley to design it. Although we do not know precisely why the committee chose the cross, it is unsurprising that the committee—and many others commemorating World War I¹⁰ —adopted a symbol so widely associated with that wrenching event.

After selecting the design, the committee turned to the task of financing the project. The committee held fundraising events in the community and invited donations, no matter the size, with a form that read:

"We, the citizens of Maryland, trusting in God, the Supreme Ruler of the Universe, Pledge Faith in our Brothers who gave their all in the World War to make [the] World Safe for Democracy. Their Mortal Bodies have turned to dust, but their spirit Lives to guide us through Life in the way of Godliness, Justice and Liberty.

"With our Motto, ‘One God, One Country, and One Flag’ We contribute to this Memorial Cross Commemorating the Memory of those who have not Died in Vain." Id ., at. 1251.

Many of those who responded were local residents who gave small amounts: Donations of 25 cents to 1 dollar were the most common. Id. , at 1014. Local businesses and political leaders assisted in this effort. Id., at 1014, 1243. In...