The American Legion v. American Humanist Association - Post-Decision Podcast

On June 20, 2019, the Supreme Court decided The American Legion v. American Humanist Association, a case considering whether state funding of a war memorial in the form of a religious symbol is in violation of the Establishment Clause of the First Amendment. 

In 1925, the American Legion erected a memorial cross (Peace Cross) in Bladensburg, MD, to honor 49 soldiers who died fighting in World War I. In 1961, the Maryland-National Capital Park and Planning Commission (Commission) acquired the land and has maintained the memorial using public funding. In 2014, the American Humanist Association (AHA) and other civil associations filed suit in District Court, alleging that the presence and publicly-funded maintenance of the Peace Cross violated the Establishment Clause of the First Amendment. AHA sought relocation, demolition, or removal of the cross’s arms. The district court ruled in favor of the American Legion, applying the Supreme Court precedents Lemon v. Kurtzman (1971) and Van Orden v. Perry (2005), concluding that the Peace Cross did not violate the Establishment Clause.

A divided panel of the U.S. Court of Appeals for the Fourth Circuit reversed that judgment, applying the same precedents as the district court--but concluding that the Peace Cross conveyed to a reasonable observer the impression of state endorsement of Christianity, and excessively entangled the Commission with religion.  The Supreme Court granted certiorari to address the Establishment Clause issue.

By a vote of 7-2, the Supreme Court reversed the judgment of the Fourth Circuit and remanded the case.  In an opinion delivered by Justice Alito, the Court held that “[t]he Bladensburg Cross does not violate the Establishment Clause.” Justice Alito delivered the opinion of the Court with respect to Parts I, II–B, II–C, III, and IV, joined by Chief Justice Roberts and Justices Breyer, Kagan, and Kavanaugh.  Justice Alito’s opinion with respect to Parts II–A and II–D was also joined by Chief Justice Roberts and Justices Breyer and Kavanaugh, but not Justice Kagan.  A concurring opinion was filed by Justice Breyer in which Justice Kagan joined. Justice Kavanaugh filed a concurring opinion and Justice Kagan filed an opinion concurring in part. Justice Thomas filed an opinion concurring in the judgment. Justice Gorsuch filed an opinion concurring in the judgment, in which Justice Thomas joined. Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined.

To discuss the case, we have Christopher DiPompeo, Partner at Jones Day.