Exploring American Legion: What Shelving Lemon Could Mean for Monuments Litigation

In 2015, the Arkansas legislature authorized placement of a privately-donated Ten Commandments monument on the Arkansas Capitol grounds.[1] The monument, which was placed on the capitol grounds in 2018, is virtually identical to the Texas Capitol’s Ten Commandments monument that the Supreme Court of the United States upheld in its 2005 decision, Van Orden v. Perry.[2]

Like its Texas counterpart, the Arkansas monument stands among a wide variety of monuments and memorials, such as a sculptural tribute to the Little Rock Nine, a commemorative Liberty Bell replica, and memorials honoring Arkansas citizens who gave their lives on battlefields throughout history.[3] And like the Texas monument upheld almost fifteen years ago,[4] the Arkansas monument also faces a legal challenge from individuals whom the monument’s religious content offends.[5]

Fortunately, however, the Supreme Court recently simplified its approach to evaluating monuments cases. In its landmark decision this year in The American Legion v. American Humanist Association,[6] the Court mercifully put to rest in relevant part the Lemon[7] test, a notoriously confounding Establishment Clause doctrine that the late Justice Scalia once colorfully compared to a “ghoul in a late-night horror film.”[8] Instead, the Court established that religious monuments, symbols, and practices rooted in history and tradition enjoy “a presumption of constitutionality.”[9]

To demonstrate, the Court specifically pointed to Ten Commandments monuments and imagery, explaining that “[t]hey have historical significance as one of the foundations of our legal system” and have been featured in a variety of public buildings and places across the country as a result.[10] Under The American Legion’s framework, the Lemon test no longer applies to such cases.[11] Consequently, the Arkansas Ten Commandments case presents an early opportunity to explore what Establishment Clause analysis will look like outside of Lemon’s shadow.

However, Justice Gorsuch’s concurring opinion presents another possibility—that American Legion will lead to reshaping Establishment Clause standing doctrine in a way that eliminates this kind of case altogether. Monument challenges have been possible because of the development of “offended observer” standing, which allows a passer-by to assert First Amendment injury after simply seeing a monument with religious symbolism on public land.[12] Justice Gorsuch highlighted that the Establishment Clause is the only context in which such offense has been sufficient to establish standing.[13] This curious aberration from normal standing requirements, he explained, traces back to the “reasonable observer” analysis that developed under Lemon, which asks whether a reasonable observer would find the challenged practice to endorse religion.[14] “With Lemon now shelved,” Gorsuch reasoned, “little excuse will remain for the anomaly of offended observer standing, and the gaping hole it tore in standing doctrine in the courts of appeals should now begin to close.”[15] As the plaintiffs in the Arkansas Ten Commandments case rely on offended observer standing, the case presents an opportunity for lower courts to test Justice Gorsuch’s hypothesis. If it holds true, monuments challenges like these could virtually disappear from federal dockets.[16]

Ultimately, whether they focus on procedure or on the merits, the courts determining the fate of the Arkansas Capitol’s Ten Commandments monument have the opportunity to develop a new Establishment Clause landscape.

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Lea Patterson is Counsel at First Liberty Institute, a nationwide religious liberty law firm dedicated to protecting religious liberty for all. Learn more at FirstLiberty.org.