Content Regulation / Censorship, Religious Expression
Otto-Preminger-Institut v. Austria
Closed Mixed Outcome
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The U.S. Supreme Court, in a 7-2 decision, ruled that a Christian cross shaped war memorial on public land and maintained with public funds did not violate the First Amendment’s Establishment Clause, which prohibits government endorsement of religion. The Cross was erected in 1925 as a WWI memorial and now sits in the middle of an urban traffic circle. In a complex decision including seven opinions, the majority argued that there was a “presumption of constitutionality” for historical monuments featuring religious symbolism on the ground that they take on secular meaning over time and become part of the cultural heritage. Four judges proposed a history and tradition test for religious symbolism cases as more appropriate than the Lemon test which evaluates the purpose, effects and level of government entanglement with religion. Justice Ginsberg and Sotomayor dissented, finding that the majority opinion erodes government commitment to religious neutrality.
The Bladensburg Cross (Cross), also referred to as the Peace Cross or the Memorial Cross, is a World War I memorial which stands at the center of a busy traffic circle. The Cross is part of an area known as the Veterans Memorial Park where there are numerous monuments recognizing veterans of other conflicts such as the war of 1812, World War II, Korea and Vietnam. None of the other memorials are crosses.
The Cross was first erected in Prince George’s County, Maryland in 1925. The planning committee in 1918 decided on a Latin Cross for the memorial seeing it as a well-known symbol of the war, referencing the seemingly endless rows of small white crosses used to temporarily mark the graves of fallen soldiers overseas. The committee eventually ran out of funds at which time the American Legion took over and completed the project. The finished cross stands 32 feet tall and bears a plaque listing the names of 49 American soldiers who died during the war. The names are of both black and white soldiers and there is no evidence that soldiers of other denominations were discriminated against in the design, i.e., that non-Christian soldiers were intentionally left off the plaque or included without authorization of their families. The dedication ceremony for the memorial was led by a Catholic priest as well as a Baptist pastor which the defendants claim is a sign that the cross is accepted by many denominations.
In 1961 the Maryland-National Capital Park Planning Commission (Commission) assumed ownership of the property and has been maintaining it with public funds ever since. The County has spent $117,000 of public finds to maintain the Cross and in 2008 it set aside $100,000 for repairs which have been put on hold pending the resolution of the lawsuit.
In 2014, the American Humanist Association (AHA) and others brought an action claiming that the Bladensburg Peace Cross, a war memorial in the form of a Latin cross on public land and maintained with public funds, violated the establishment Clause of the First Amendment. The Establishment Clause states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
The AHA suggested that the Cross be moved to another less central location on private land, or be redesigned into a “non-religious slab or obelisk.”
The American Legion, a U.S. war veterans association, which helped build the memorial, was the defendant in the case.
The District Court found that the Cross satisfied both the Lemon test as set out in Lemon v. Kurtzman, 403 U.S. 602 and the opinion of the Supreme Court in Van Orden v. Perry, 545 U.S. 677. The three-pronged Lemon test established that any action or statute under scrutiny must 1) have a secular legislative purpose; 2) its principal or primary effect must be one that neither advances nor inhibits religion; and 3) must not foster “an excessive government entanglement with religion.” The Supreme Court in Van Orden held that the Ten Commandments monument on the grounds of Texas’ state capitol building did not violate the Establishment Clause. The Court reasoned that the monument took on historical meaning over time and that “simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the establishment clause.”
The Court of Appeals for the Fourth Circuit reversed, finding that the monument failed the “effects” prong of the Lemon test because a reasonable observer would find the ownership and the maintenance of the Cross with public funds to be an endorsement of Christianity. The appellate court rejected the claim based on Van Orden that the Cross’ 90-year history outweighed its Christian symbolism.
There were three primary questions before the Court. First, whether the use of public funds to maintain the memorial constituted a government endorsement of or entanglement with religion? Second, whether the Lemon test was the proper legal test for a long-established memorial? Third, whether the display of a religious symbol on public land was constitutional?
There were a total of seven opinions among the 9 justices. Justice Alito delivered the very slim majority opinion (Opinion) of the Court which was joined by Chief Justice Roberts and Justices Breyer, Alito, Kagan, and Kavanaugh. Justice Kagan did not join two parts of the Opinion. Justices Gorsuch and Thomas concurred with the overall Judgment of the Court, but not the majority opinion. Justices Ginsberg and Sotomayor dissented.
Did the use of public funds to maintain the memorial constituted a government endorsement of or entanglement with religion?
In answering the above question, the majority opinion discussed the history of the cross. The majority argued that crosses and other religious symbols can take on secular meanings over time (i.e., trademarks for BlueCross Blue Shield and Bayer Aspirin), and that the Bladensburg cross too has taken on a secular meaning after WWI.
When the Cross was first designed, the image of fields of white crosses had come to be a “central symbol” of WWI and one that has been invoked in literature and art. The opinion further states that plans after WWI to replace the temporary wooden cross grave markers with non-denominational granite slabs were rejected due to public opinion that the crosses were a collective symbol of the sacrifices made during the war effort.
The majority stressed that to date there was no evidence that the design of the Cross was discriminatory and that the Cross stood for nearly 90 years before the AHA lodged their complaint.
Whether the Lemon test was the proper legal test for a long-established memorial?
The Opinion explains that the Court has faced many challenges interpreting the Establishment Clause, and Lemon has not served its purpose. The Lemon test was created in 1971 to “bring order and predictability to Establishment Clause decision making.” It “called on courts to examine the purpose and effects of a challenged government action, as well as any entanglement with religion that i[t] might entail.” The test for the “effects” prong was whether “a ‘reasonable observer’ would conclude that that the action constituted an ‘endorsement’ of religion.” [p. 10]
The Opinion cites a range of case law to demonstrate the “shortcomings” of the Lemon test and how it was more often ignored or rejected than utilized. The Court in Marsh v. Chambers, 463 U. S. 783, 787–792, 795 (1983) when determining whether prayer before legislative sessions was constitutional, also avoided Lemon in favor of the 200-year history of the practice in Nebraska, among other states. Acknowledging that prayer is clearly a religious act, the Marsh Court “teaches instead that the Establishment Clause must be interpreted ‘by reference to historical practices and understandings’ and that the decision of the First Congress to ‘provid[e] for the appointment of chaplains only days after approving the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion’s role in society.” [p. 25] Therefore, religious practices can be seen as neutral, if they are inclusive and recognize religious diversity.
The Court presented four reasons for why Lemon was not useful in many cases on religious symbolism, including the one at hand:
Accordingly, the preservation of historical monuments requires different considerations than the erection of new ones and that “[t]he passage of time gives rise to a strong presumption of constitutionality.”
The Opinion found AHA’s arguments linking the Blandensburg cross with anti-Semitism or the Klu Klux Klan to be strained and lacking evidentiary basis on the grounds that the plaque lists names of both White and Black soldiers and the cross invokes a symbol “that signifies what death meant for those who are memorialized.” [p. 30]
Whether the display of a religious symbol on public land was constitutional?
The Court held that Cross did not violate the Establishment Clause because there was no evidence that it was discriminatory or coercive. Further it has taken on secular meaning and historical importance over time and become “a part of the community.”
The Court summed up their reasoning finding,
[t]he cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent. For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark. For many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment. For all these reasons, the Cross does not offend the Constitution. [p. 31]
Accordingly, the Court reversed the judgment of the Court of Appeals for the Fourth Circuit and remanded the cases for further proceedings.
Justice Breyer, concurring. Kagan joins.
Justice Breyer explained that there was not one perfect test for Establishment Clause cases and therefore Courts must look at the unique circumstances of each case as they relate to the goals of the Clause, namely to assure “religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its ‘separate sphere.’” He agreed that the Cross has stood for 94 years without any issues and there was no evidence that it created divisions. Therefore it posed no threat to the purposes of the Clause. He disagreed with the need to develop a “history and tradition test” per se but supports looking to history and circumstances to “distinguish between real threats and mere shadow.” [para. 42]
Justice Kavanaugh, concurring.
Justice Kavanaugh joined the majority opinion in full but wrote to make two points. Kavanaugh first affirmed the Court’s decision not to follow Lemon in favor of a “history and tradition test. To underscore that decision, he enumerated five categories of Establishment Clause cases and related case law to demonstrate that Lemon was inapplicable and hence “not good law.” Kavanaugh presented the framework for a new Establishment Clause test that accounts for history, tradition and precedent:
If the challenged government practice is not coercive and if it (i) is rooted in history and tradition; or (ii) treats religious people organizations, speech, or activity equally to comparable secular people, organizations, speech or activity; or (3) represents a permissible legislative accommodation or exemption from a generally applicable law, then there ordinarily is no Establishment Clause violation. [para. 43]
Kavanaugh next recognized that while the Bladensburg Cross was rooted in history and not coercive, such cases were difficult as they “represent[ed] a clash of genuine and important issues.” He pointed out that States have recourse as they “possess the authority to safeguard individual rights above and beyond the U.S Constitution.” [p. 5] In the present case, Maryland could have removed the cross removed, sold the land, or amended the state laws. [p. 4]
Justice Kagan, concurring in part.
Justice Kagan, while concurring with Alito’s and Breyer’s opinions, did not refute Lemon. She acknowledged the limitations of Lemon, but found its “focus on purpose and effects…crucial in evaluating government action in this sphere.” While the majority opinion “show[ed] sensitivity to and respect for this Nation’s pluralism, and the values of neutrality and inclusion that the First Amendment demands,” she believed history and tradition must be evaluated on a case by case basis rather than form the framework for a new Establishment Clause test.
Justice Thomas, concurring in the Judgment but not the majority opinion.
Thomas agreed that the Cross was constitutional as it did not result in any legal or financial coercion, but he further argued that the Establishment Clause did not apply to states and local governments. He refused to join the majority opinion on the ground that it did not “adequately clarify the appropriate standard for Establishment Clause cases.” He agreed with the majority opinion that Lemon was not applicable to cases involving religious imagery and would further overrule Lemon as it had “no basis in the original meaning of the Constitution.” He found that Lemon has caused confusion in the lower courts, been used to manipulate outcomes and should be called “bad law.”
Justice Gorsuch, with whom Justice Thomas joins, concurring in the Judgment but not the majority opinion.
Justice Gorsuch argued that the present case, and any factually similar ones based on offense, should be dismissed. He found the “offended observer” theory to have no basis in law on the grounds that the AHA could not prove (1) injury-in-fact, (2) causation, and (3) redressability. He maintained, as did the Court, that mere offense did not qualify as a “concrete and particularized injury.” To give standing to such cases could turn Courts into “legislatures, responding to social pressures rather than remedying concrete harms…” He further argued that the offended observer standing was an outgrowth of lower courts’ misconstruing of Lemon, leading them to believe that the government should be prohibited from doing anything a ‘“reasonable observer” might perceive as ‘endorsing’ religion.”
Gorsuch found that Lemon’s attempt to create a “grand unified theory” of the Establishment Clause only created a “mess” of conflicting rulings based on varying interpretations of imprecise scopes of purpose, effect and entanglement. He agreed that the history and tradition of the country are important considerations, but that age alone is insufficient to presume constitutionality. He argued that in deciding constitutionality of a symbol or practice, its “compliance” with “ageless principles” must be evaluated. [p. 9]
Justice Ginsberg, with whom Justice Sotomayor joined, dissenting.
Justice Ginsberg found that the majority opinion eroded government commitment to religious neutrality by “diminishing precedent designed to preserve individual liberty and civic harmony in favor of a “presumption of constitutionality for longstanding monuments, symbols and practices.” [p. 2]
According to established case law, the Court must evaluate the “pertinent facts and circumstances surrounding the symbol and its placement,” to determine whether it endorses religion. Ginsberg argued that the Cross as a “foremost symbol of the Christian faith,” carries a sectarian message and one that appears “elevated” over other faiths or non-religion by the government if it is on public land, despite the passage of time. The dissent points out that the design of war memorials using religious symbolism caused great controversy in 1919, even as it does now, and “[t]he cross was never perceived as an appropriate headstone or memorial for Jewish Soldiers and others who did not adhere to Christianity.” [p. 11] Moreover, the Peace Cross was an “aberration” then and that “less than 1% of the total number of monuments to World War I” in the US are crosses. [p. 15]
Relying on Salazar v. Buono, 559 U.S. 700 (2010) at 747, Ginsberg further reminded the Court that “[e]very Court of Appeals to confront the question has held that “[m]aking a . . . Latin cross a war memorial does not make the cross secular,” it “makes the war memorial sectarian.” [p. 10]
The setting of the monument can overcome a presumption of endorsement. For instance, if it were in a cemetery, it would be more appropriate and be seen to represent the beliefs of the fallen, rather than the government. However, a Christian symbol in the middle of a public traffic circle is a different environment and sends a different message. Ginsburg suggests It could simply be moved or its ownership transferred to private property to remedy the problem.
Recalling history, Ginsberg quotes Jefferson’s justification for the Establishment Clause, to “buil[d] a wall of separation between church and state.” Ginsberg concludes that “ ‘[i]f the aim of the Establishment Clause is genuinely to uncouple government from church,’ the Clause does ‘not permit…a display of th[e] character’ of Bladensberg’s Peace Cross.” [p. 18]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Since the decision was splintered among the 9 judges and the majority ruling was quite narrow, it will create challenges for lower courts to interpret the ruling and to establish any precedent. On the one hand, the majority opinion expanded expression by allowing a long-standing monument with religious symbolism to remain unaltered. However, the more conservative judges refuted the Lemon test which provides a more nuanced evaluation of Establishment Clause cases taking into consideration the purpose, effect and level of religious entanglement of any government action or statute, than the proposed ‘history and tradition test.’
Justice Kagan for instance agreed with the proposition that monuments and symbols can take on alternate meanings over time, but was careful to remind the Court that just because something has been around for a longtime, does not make it right. She preferred that actions be evaluated on a case-by-case basis and that there are other questions pertaining to the purpose and effects of a symbol or practice which should be taken into consideration. Justice Ginsberg was the only Judge to forcefully address the concern that a Christian cross is not a neutral symbol to non-Christians, even after the passage of time. Justice Ginsberg and Sotomayor warned that the judgment could erode established case law which upholds government neutrality towards religion.
The seven different opinions on the issues raised provide a very interesting window into the philosophical divisions among the individual justices and the split between the more conservative and liberal wings of the Court which represent the ideological fault lines now so present in American society.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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