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.”