Andrew Graham of the First Liberty Institute speaks to a full house about a recent Supreme Court case on reli­gious freedom. Courtesy | Madeline Peltzer

A traffic circle in Maryland isn’t the typical focal point of a reli­gious liberty legal battle — unless it’s home to a 40-foot-tall Peace Cross. 

That was the topic of the Fed­er­alist Society’s first event of the semester, which fea­tured Andrew Graham, deputy general counsel for the First Liberty Institute, a non­profit legal orga­ni­zation ded­i­cated to defending reli­gious freedom. In his lecture on Wednesday, Sept. 25, Graham laid out the facts and high­lighted the sig­nif­i­cance of this summer’s Supreme Court decision, The American Legion v. American Humanist Asso­ci­ation.

For context, Graham explained the history of the Peace Cross, located in Bladensburg, Maryland, just outside of Wash­ington, D.C. Con­structed between 1919 and 1925 by the newly-formed American Legion, the Bladensburg World War I Memorial was erected to rec­ognize the lives lost in the war. The American Legion funded the project through private dona­tions and built the cross on private land, which was handed over to a local gov­ernment agency in 1961.

The cross stood uncon­tested for almost 90 years until 2014, when the American Humanist Society filed a lawsuit. The plaintiff claimed the cross’s presence vio­lated the estab­lishment clause in the Constitution’s First Amendment.

As the case made its way up to the Supreme Court, Graham said it res­ur­rected a question that has haunted the estab­lishment clause for almost 50 years: the Lemon Test. The test, which gets its name from the 1971 Supreme Court case Lemon v. Kurtzman, has long been treated as the con­trolling standard for reli­gious liberty cases. But in the Bladensburg case, the Lemon Test’s ambiguous rubric and incon­sistent appli­cation left the court with “such a highly frac­tured opinion it’s like reading a Rubik’s cube,” Graham said.

While the American Legion won the case with a 7 – 2 majority this summer, Graham said the ruling left many ques­tions unan­swered.   

“The big takeaway from the plu­rality opinion is it creates a pre­sumption of con­sti­tu­tion­ality for long-standing objects like mon­u­ments, symbols, and prac­tices,” he said. “For instance, they made a big deal about how old this cross is and said, ‘When some­thing is really old and it’s been here for a long time, we’re going to presume the con­sti­tu­tion­ality of it under the estab­lishment clause regardless of almost any set of facts.’ And that’s about as pro­found as the plu­rality opinion gets.”

Nonetheless, while the ruling failed to set a clear precedent for future cases, Graham added that the majority opinion included some important lan­guage that has been over­looked in many analyses of the case. He cited a quote from Asso­ciate Justice Samuel Alito’s opinion for example. 

“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,” Alito wrote. “Mil­i­tantly secular regimes have carried out such projects in the past.”

“What he’s essen­tially saying is that we’re an inher­ently reli­gious people — quit trying to pretend we’re not,” Graham said. ‘I think the most pro­found thing in the opinion is rec­og­nizing that his­tor­i­cally and jurispru­den­tially we have very dif­ferent views on religion in the public square than our friends in Europe.”

Graham also out­lined the other jus­tices’ con­curring and dis­senting opinions, high­lighting deep dis­agreement over nuances within the majority opinion.

However, the opinion that is truly the “jewel in the crown,” as Graham put it, comes from Justice Clarence Thomas. In his opinion, Thomas points out that the court only incor­po­rated the estab­lishment clause against the state in 1947, some­thing he chal­lenges as a poor ruling.   

“The purpose of the estab­lishment clause was to prevent a national church,” Graham said. “The Con­sti­tution says ‘Con­gress shall make no law.’ It doesn’t say local and state gov­ern­ments shall make no law. The estab­lishment clause was there to protect states that had estab­lished churches, like Mass­a­chu­setts which had a state church until 1833. Thomas says it vio­lates both text and prin­ciple to say to local gov­ern­ments that the purpose of the estab­lishment clause is to protect the states from religion. They’ve gotten it pre­cisely back­wards.”    

Graham con­cluded by empha­sizing the legal sig­nif­i­cance of the Bladensburg Cross case.

“This is going to be the case that people will be looking to for years to come to under­stand what the estab­lishment clause means,” he said.

Junior Caleb Lam­brecht attended the lecture and said he was taken aback by just how high-profile the Bladensburg Cross case is in the legal field.  

“These are cases that will be replacing the reli­gious liberty cases we cur­rently have in our con­sti­tu­tional law text­books and the cases the court will be looking to for guidance,” Lam­brecht said. “I thought that was really cool and unex­pected.”

Senior Hadiah Ritchey worked with Graham as an intern for the First Liberty Institute this past summer. While she became familiar with the case over the course of her time at the institute, she appre­ciated hearing the details laid out suc­cinctly. 

“It’s exciting to realize how active and alive American jurispru­dence is,” Ritchey said. “I’ve realized the impor­tance of staying involved at least on the surface level and knowing what’s going on because these cases do affect your daily rights — espe­cially in the free exercise of religion.”