For decades, the law surrounding the constitutionality of monuments and memorials has been in disarray, primarily as a result of the application, or, as it turns out, misapplication of the Supreme Court’s 1971 decision in Lemon v. Kurtzman. On June 20, 2019, the United States Supreme Court held in The American Legion v. American Humanist Association, a 7-2 decision that included a variety of concurring and dissenting opinions, that the 94-year-old Bladensburg World War I Veterans Memorial, or Peace Cross, is constitutional. Even apart from the ruling on the Peace Cross itself, one of the most long-lasting impacts of the decision may lie in Part II-A which, though it did not garner a majority of votes, essentially announced the end of the application of Lemon in Establishment Clause challenges to monuments and memorials. Christopher DiPompeo, of Jones Day, who represented The American Legion, joins us to discuss why that is so and other implications of the case.
Christopher DiPompeo, Partner, Jones Day
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Operator: Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Religious Liberties Practice Group, was recorded on Monday, June 24, 2019, during a live teleforum conference call held exclusively for Federalist Society members.
Wesley Hodges: Welcome to The Federalist Society's teleforum conference call. This afternoon’s topic is a Courthouse Steps decision discussion on The American Legion v. American Humanist Association, otherwise known as the Peace Cross case. My name is Wesley Hodges, and I'm the Associate Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the expert on today's call.
Today we are very fortunate to have with us Mr. Christopher DiPompeo, who is Partner at Jones Day. After our speaker gives his opening remarks, we will move to an audience Q&A, so please keep in mind what questions you have for this case or for our speaker. Thank you so much for sharing with us today. Chris, the floor is yours.
Christopher DiPompeo: Great. Thank you, Wes. Thanks for having me. As Wes said, my name is Chris DiPompeo. I’m a partner here at Jones Day and have been co-lead counsel with Mike Carvin representing the American Legion in this case since the beginning, since 2014, along with our excellent co-counsel at First Liberty: Kelly Shackelford, Hiram Sasser, Ken Klukowski, Roger Byron. I’m happy to share thoughts on the American Legion decision with you today, which we’re very excited about and are happy about. It’s a great result to a long and hard fought case. There’s a lot to cover here so I’ll try to hit the highlights in the next 25 minutes or so, and then we’ll leave time for questions, and [I] look forward to answering them.
So as Wes said, the American Legion decision concerns the Peace Cross. The Peace Cross – a 32-foot tall cross-shaped World War I memorial. It was built between 1918 and 1925 by the American Legion and by a committee of mothers whose sons had died in World War I. And it was built to commemorate the 49 men from Prince George’s County, Maryland who died in that war. Their names are actually listed on the plaque on the memorial individually.
Originally, the memorial was built at the end of the National Defense Highway, but over time, the roads around the area grew. So now the memorial actually stands in the middle, essentially, of a traffic circle in Bladensburg, Maryland. The Legion owned the land until 1961 when the state government acquired the memorial after deciding that it was no longer safe, and really never was safe, to allow private groups to own land in the medians of roadways. So at that point, the memorial went into the possession of the Maryland National Capital Park and Planning Commission, which was the original defendant in this case.
Over time, the community has responded to the memorial by building other war memorials around the Peace Cross. There’s now six or seven of those memorials and the area has come to be known as Veteran’s Memorial Park. And Memorial Day and Veteran’s Day events are hosted each year by the American Legion in that area.
The Peace Cross actually stood without controversy from 1925 when it was completed until 2014. But then in 2014, the American Humanist Association filed a lawsuit challenging the Peace Cross against the Commission, alleging an Establishment Clause violation. We at Jones Day and our colleagues at First Liberty immediately moved to intervene, to defend the memorial on behalf of the American Legion, which we’re allowed to do. Eventually, the district court, after a long and extensive discovery, granted summary judgment to the defendants, to us, concluding that the Peace Cross was constitutional.
The AHA appealed and the Fourth Circuit reversed. Judge Thacker wrote the opinion and was joined by Judge Wynn and Chief Justice Gregory dissented. The Fourth Circuit’s opinion applied the test articulated by the Supreme Court in 1971 in Lemon v. Kurtzman as it was subsequently modified in the Supreme Court Allegheny County decision. This Lemon test, or Lemon-Allegheny test, essentially requires courts to determine if a monument has: one, the purpose of endorsing religion; two, the effect of endorsing religion; or three, excessively entangles the government with religion. If any one of those elements is present under the Lemon test, the memorial is struck down. These questions are all supposed to be assessed, or I should say were all supposed to be assessed, from the perspective of a, quote/unquote, “reasonable observer” who is presumed to know all of the pertinent facts and circumstances of the case. It’s a hypothetical person.
There’s a lot in the Fourth Circuit’s decision, but it essentially came down to the conclusion that because the Latin cross is the preeminent symbol of Christianity, there’s essentially no amount of secular history, secular context, secular elements, etc. that could overcome the message of endorsement conveyed by displaying a cross on public land. We like to refer to that as essentially a per se rule. And, really, I think it was. I think the Court recognized -- the Supreme Court recognized that the Fourth Circuit had essentially applied a per se rule that says crosses simply cannot be on public lands.
The Fourth Circuit’s decision actually followed a long line of precedent that had developed in the courts of appeals that went against our position in this case. Actually, until the Supreme Court’s decision in American Legion, no court had ever upheld a cross-shaped war memorial of any size. Every one had been struck down. And dozens of cases in other contexts, seal cases, etc. had gone against crosses. So the Fourth Circuit’s decision was certainly within a line of precedent that the Supreme Court has now addressed.
We and the Commission petitioned for review at the Supreme Court. We and First Liberty continued to represent the Legion. The Commissioned hired Neal Katyal at Hogan to represent it at that point. I think this turned out to be helpful. For one, Mike Carvin—who’s counsel of record for the Legion in this case—and Neal Katyal at don’t agree on much. So it was notable that both were aligned here. I think that was an important consideration for the Court. And second, because we knew that the Hogan team would do an excellent job defending the Peace Cross on the facts, our team was a little more free to use our space to articulate what we thought would be the best conception of the law and the legal test.
So our briefs for the Legion really focused on what we thought was the original meaning of the Establishment Clause. And that is that the Establishment Clause prohibits the government from coercing religious belief, practice, or support. And that the endorsement test that had developed in Lemon and Allegheny County was ahistorical and wrong. We urged the Court to specifically reject Lemon, specifically reject the endorsement test, and really move towards the kind of coercion test that the Court had developed in a separate line of cases, most notably and most recently in Town of Greece, which involves legislative prayer. That test looks to historical principles and practices and understandings and tries to evaluate practices for whether or not they are coercive.
The argument at the Supreme Court went well. It was clear that there was a strong majority in favor of upholding the memorial. It was left clear as to how exactly the Court would do that. As I mentioned, the Commission was pressing a more narrow approach, which essentially urged the Court to decide this case but no others. We were urging the Court to adopt a more comprehensive solution, which moves towards Town of Greece and rejects Lemon altogether.
Ultimately, the Supreme Court issued its decision on June 20, 2019, so last Thursday. The decision was 7-2 in favor of the constitutionality of the Peace Cross. Justice Alito wrote the opinion, which was joined in full by the Chief Justice and Justices Breyer and Kavanaugh. Justice Kagan joined all but two sections of the opinion, which we’ll come back to. Justices Thomas and Gorsuch did not join the opinion but issued opinions concurring in the judgment. Justice Ginsburg wrote a dissenting opinion which was joined by Justice Sotomayor.
Justice Alito’s opinion opened in, I think, an interesting way by discussing the ways in which crosses, though certainly still the preeminent symbol of Christianity and certainly still retaining religious significance in that context, how they’ve also over time acquired secular meanings and connotations in other contexts that courts can’t simply ignore, specifically in the context of grave markers and memorials for war dead. I mention that because it was in Part I, which is the fact section, and it’s easy to overlook. But as I mentioned, that notion that crosses are so inherently religious that they simply can never be constitutional was the underpinning of certainly the Fourth Circuit’s opinion in this case but of a lot of the decisions rejecting crosses and cross-shaped memorials. So it’s a really important part of the opinion, and it was nice to see that Justice Alito recognized what we’ve been arguing for many years: that a cross certainly retains its religious significance but also when used in other contexts can be used in a way that does not actually establish a religion.
But turning to more of the meat of Justice Alito’s decision, Part II analyzes the law. Part II–A opens by criticizing the Lemon test, saying that although it was intended to be a grand unifying theory of Establishment Clause jurisprudence, it’s essentially failed to achieve its goals. Notably, this is one of the two sections that Justice Kagan did not join in the opinion. So this is a four-justice plurality making these points. But Justice Alito’s opinion at this point specifically says that the Lemon test is not useful, particularly for longstanding memorials that are consistent with tradition.
Justice Alito identifies four reasons why the Lemon test, in his words, presents particularly daunting problems in cases that involve the use of ceremonial or commemorative words or symbols with religious associations. Number one, the monuments were often established long ago, so it’s often not possible to identify the original purpose, which is the first prong of Lemon. Second, as time goes by, the original purpose may change or multiply. Third, the message conveyed by a monument may change. The symbol might also become part of the community or landscape, in which it acquires a historical character and importance as well. Justice Alito cites the example of Notre Dame, for example, where even in very rigorously-enforced secular France there’s certainly an appreciation and support for Notre Dame Cathedral as a symbol of the country. I think Justice Alito actually says on page 20, “Familiarity itself can become a reason for preservation.”
And then, fourth, removing longstanding monuments may ultimately be more religiously divisive than simply letting those monuments stand. Because of this, Justice Alito says that retaining an established monuments is “different from erecting or adopting new ones,” and therefore “the passage of time gives rise to a strong presumption of constitutionality.” That’s on page 21 of his opinion.
Later in the opinion in Part II–D, Justice Alito provides kind of -- now that Lemon has been rejected, provides the new way of approaching these questions. He says that because of the problems associated with Lemon and applying it in these monument contexts, he notes that the Court’s more recent cases have not applied Lemon but have, quote, “taken a more modest approach that focuses on the particular issue at hand and looks to history for guidance.” He then discusses the Court’s legislative prayer cases. So Marsh and Town of Greece. And he concludes by noting that those decisions recognize that legislative prayer is an example of respect and tolerance for different views and endeavor to achieve inclusivity and non-discrimination, and a recognition of the important role that religion plays in the lives of many Americans. And Justice Alito says, “Where categories of monuments, symbols, and practices with a longstanding history follow in that tradition, they are likewise constitutional.” So, again, we’re looking at the category of monuments that are within that tradition and that are, like legislative prayer, consistent with what the country has done over time. Those are going to be constitutional.
Part II–D, again, which is this section, is also one that Justice Kagan did not join. So, again, we have a four-justice plurality. As we’ll see later, Justice Thomas and Justice Gorsuch, although they did not join these parts of the opinion, certainly endorsed the Court’s decisions in this respect, and, if anything, urged the Court to go further. So, ultimately, although you only have four justices signing onto this language, you certainly have six votes to eliminate Lemon and to move to the kind of analysis that was applied in Town of Greece.
So after discussing the law, Part III of Justice Alito’s opinion applies the decision -- applies the new conception here to the facts of this case. That turns out to be very easy. The Peace Cross originally commemorated World War I and has also acquired a historical significance since then. There’s no evidence that the Peace Cross was intended or has been used to discriminate or disparage other faiths. And Justice Alito notes that it’s significant that the Peace Cross commemorates the death of particular individuals because it’s natural and appropriate for those seeking to honor the deceased to invoke symbols that signify what death meant for those who are memorialized. So after all of that, Justice Alito for the Court concludes that the memorial is constitutional.
There was several separate opinions. Justice Breyer wrote again. Again, Justice Breyer joined Justice Alito’s opinion in full, but he wrote separately to emphasize a few points. Number one, he notes that he has “long maintained”—this is a quote—“long maintained that there is no single formula for resolving Establishment Clause challenges.” Justice Breyer is referring back to his separate opinion in the Van Orden case from 2005, where he essentially said Lemon really can’t provide the answer in these kinds of cases. He’s reiterated that here.
He then identifies two facts that, if different, would’ve presumably changed his view of this case. Number one, if the original builders has deliberately disrespected members of minority faiths. Again, that’s very prominent in the majority opinion; certainly if there’s evidence that a symbol is being exploited to disparage or exclude, something along those lines, that the memorial may not be constitutional. That analysis actually comes from Town of Greece. Town of Greece is also very explicit that while the prayer practice at issue is generally going to be constitutional, the one exception where it might not be is if evidence was presented that the practice was being used or exploited, in Town of Greece’s words, to disparage. So this is a way in which the Court is applying Town of Greece to the monument context.
And then number two, for Justice Breyer, the decision might have been different if the cross has been erected only recently rather than in the immediate aftermath of World War I. That’s a little less clear in the majority opinion, although there are certainly elements of the opinion that suggests that longstanding monuments are going to have a greater presumption of constitutionality. Justice Breyer at least thinks that’s very significant to his decision in this case.
Justice Kavanaugh wrote an excellent concurrence that I recommend highly. He begins by emphasizing that this case again demonstrates the Court simply no longer applies Lemon. There’s simply no way to say that what the Court was doing and the majority decision of American Legion was applying Lemon. Justice Kavanaugh then goes through various categories of Establishment Clause cases and says that Lemon simply doesn’t explain the Court’s decisions in any context.
Justice Kavanaugh attempts to kind of derive “an overarching set of principles,” He would say, “If the challenge to government practice is not coercive and . . . is either rooted in history or tradition; or treats religious people . . . comparable to secular people, organizations, speech, or activity; or represents a permissible legislative accommodation . . . then there[‘s] ordinarily [not going to be an] Establishment Clause violation.” Which I’m hopeful will be a helpful way for courts to kind of start to look at this decision and put some parameters on exactly how the Establishment Clause applies in these kind of contexts.
Justice Kavanaugh then notes the important point that the Constitution sets only a floor, and so those who disagree with government actions or speech or monuments always have recourse in the legislative process. I think that’s an important point that often gets lost in these kind of cases; that ultimately, the Constitution is setting a floor. The solution for every perceived slight or offense does not need to be at the courthouse; it’s often at the ballot box.
Justice Kagan wrote a short but important concurrence where she explained here decision not to join Parts II–A and II–D of Justice Alito’s opinion. She says that “Although [she] agree[s],”—this is a quote—“agree[s] that rigid application of the Lemon test does not solve every Establishment Clause problem,” Justice Kagan thought that the “test’s focus on purposes and effects is crucial in evaluating government action in this sphere,” presumably cases involving government speech or symbols.
With respect to Part II–D, the Town of Greece section, Justice Kagan says that she admires much in that section. And she believes the Court should look to history for guidance, but she did not join out of “an excess of caution,” in her words, because she did not want to sign on at this point to broader statements about the role of history in the Court’s analysis.
Justice Thomas concurred in the judgment. As I mentioned, he did that to reiterate his views that the Establishment Clause should not have been incorporated, but even if incorporated it should really only applies to laws not mere speech or memorials, like are at issue here. And even if the clause did apply, only actual legal coercion would violate the Constitution. Again, Justice Thomas would certainly go further than the majority opinion went.
Justice Gorsuch also concurred in the judgment. His opinion was joined by Justice Thomas. Justice Gorsuch focused on the notion of offended observer standing. He really took issue with that whole concept, essentially arguing that nothing in the Court’s Article III precedent support the notion that offense can give rise to standing to assert a constitutional claim. I think Justice Gorsuch rightly identified the Court’s decisions in Lemon and Allegheny as kind of the genesis of offended observer standing. He notes that courts of appeals essentially reasoned that if it was a constitutional violation under the endorsement test for the government to make a reasonable observer feel like an outsider, then pleading to the government action made the plaintiff feel like an outsider must give rise to standing.
He cites Judge Wilkinson decision for the Fourth Circuit in the Suhre case, S-u-h-r-e, as kind of an example of this. If you're interested in this, I recommend that decision. Judge Wilkinson wrote it. It was joined by Judge Luttig and Judge Wilkins, I believe. And they essentially concluded essentially this: that as long as the endorsement test is the law, you kind of can’t get away from offended observer standing.
But for Justice Gorsuch he sees some basis for hope in the American Legion decision because Justice Gorsuch had said -- applauds the Court for abandoning Lemon and Allegheny. He says, “The message for the lowers courts is unmistakable: Whether a monument, symbol, or practice is old or new, apply Town of Greece, not Lemon.” That’s what you do. The new test now is Town of Greece. It’s not Lemon. And American Legion is clear on that point according to Justice Gorsuch.
And Justice Gorsuch says that because that’s now the law, that’s there’s no longer an endorsement test. Lemon no longer applies. There’s now no longer any need or basis for retaining offended observer standing because, again, recall that Town of Greece specifically ruled that mere offense does not equal coercion, which is the standard for the Establishment Clause claim under the Town of Greece approach. So because of this, Justice Gorsuch would have not only ruled the way the Court ruled on the Peace Cross but also issued orders to the district court to dismiss the case for lack of standing.
Justice Ginsburg, as I said, dissented. She was joined by Justice Sotomayor. Justice Ginsburg essentially applies the endorsement standard of Lemon and Allegheny. She says that “when a cross is displayed on public property, the government may be presumed to endorse its religious content.” That’s a quote. She also says that because a cross is the preeminent symbol of Christianity and is used on graves to represent theological conclusions, it essentially never has, and really never could, acquire any secular significance.
What I think is most notable, to me, of Justice Ginsburg’s decision is that it really does read like the dozens of court decisions that have accumulated over the last 30 years that have analyzed crosses under the Establishment Clause. And I’ve read a lot of these cases over the years that we’ve been doing this litigation, and they all read like Justice Ginsburg’s dissent. So the fact we now have a 7-2 majority going against that position is really astounding. It’s really a major change in the law from where we were.
So before turning it over for questions, let me give you a couple things that I see as main takeaways of this decision. First is what I really just said. This is obviously a big win. Like I said, until this decision no court had ever upheld the constitutionality of a cross-shaped war memorial of any size. Crosses in general have not done well. There are dozens of cases striking done crosses under Lemon and only a few upholding them. I can, off the top of my head, think of three. Those cases are few and far between. Now we have a 7-2 Supreme Court decision upholding a 32-foot cross-shaped memorial in the center of a roadway. I mean, that’s a big deal.
We also have a presumption of constitutionality for at least anything with any sort of significant history. And we have an opinion that recognizes that symbols can be religious. Crosses can be religious and have religious meaning. But that there’s nothing so inherently religious about a cross or really any other symbol. That means it can never survive Establishment Clause scrutiny. There’s a recognition that acknowledging and recognizing the religious values of the populous, even on government property, is a good and normal thing to do, and as long as no one is disparaging any other faith that that’s something that should be respected and upheld. I think, though, that set of considerations and that set of facts probably eliminate 80 percent of the cases that are out there now, just by making clear that there’s nothing special about crosses.
Until now, so many courts had looked at Van Orden, which involved the Ten Commandments, and said, “Well, Van Orden was about the Ten Commandments, and the Ten Commandments have a history of association with our legal system and separate principles.” But crosses are so inherently religious they simply cannot acquire that meaning. With the American Legion decision, that line of reasoning is now gone.
I think it’ll also provide local governments a lot of ability to resist demand letters, particularly for any sort of longstanding monument that’s been up and has been a part of the community for a while. I think American Legion will provide great fodder for local governments to resist efforts to have those monuments removed.
Second, if it wasn’t clear before, I think it should be clear now that Lemon no longer applies in cases involving government speech, symbols, etc. Although Part II–A and D of Justice Alito’s decision were only joined by four justices, both Justice Thomas and Justice Gorsuch expressly agreed with the section, and if anything, would’ve said the Court should’ve gone further.
I think to disagree with the conclusion -- I think to apply Lemon now after American Legion is very difficult. It was difficult after Van Orden. It was difficult after Town of Greece. I think it’s very difficult now.
But third, I think there is still work to be done in the courts of appeals. I think precedent is going to have to develop over the next couple of years that specifically holds that Lemon doesn’t apply and that applies Town of Greece in these kind of cases. The Court’s opinion does not read like the last word on some of these issues. But it’s more of an important first word. It’s a word that eliminates the kind of background test and the precedent had accumulated under Lemon. It gets rid of that. But I think there are still decisions that need to be made, and the courts of appeals have work to do to figure out exactly how does American Legion, how does Town of Greece apply to monuments moving forward.
So in some ways, this decision reads like the beginning of a new, hopefully, correct line of precedent that we’ll see develop over the years. So I think in general this decision is what we hoped it would be. It’s an important step back towards restoring the original meaning of the Establishment Clause, and we’re very happy for the results.
Wesley Hodges: Thank you very so, Chris. Are you ready for our first caller?
Christopher DiPompeo: I am.
Wesley Hodges: Fantastic. Caller, you are up.
David Wilson: Thanks so much. It’s David Wilson in Colorado. Could you comment on what you think is next for offended observer standing and whether there are other justices who are likely to share Justice Gorsuch’s view on that?
Christopher DiPompeo: I think it’s certainly possible. What I think is next, and what I think Justice Gorsuch thinks is next, is that now that the Court has more clearly swept away Lemon and endorsement, I think Justice Gorsuch is hopeful that courts will now take the cue to say, “Well, wait a minute. Now that we don’t have to keep this in place because endorsement’s no longer the test, we should apply regular Article III standing requirements and figure out whether there really would be standing in these kind of cases.” So I think Justice Gorsuch is hopeful that that will happen in the court of appeals. And then gradually, you’ll have court of appeals determining that there is no standing in some of these cases.
I doubt that all of the courts of appeals -- I doubt very strongly that all of the courts of appeals are going to reach that conclusion, which might mean that we end up with a split, which the Court will actually have to resolve at some point in the future. I think if a couple years go by and the standing question specifically comes back to the Court, I think it’s possible that some justices will agree with Justice Gorsuch that there should be no standing. The modern Court is generally not looking to expand standing doctrine. They tend to go the opposite way and be a little more conservative about who can make a claim to come to court. Obviously, they didn’t do that in this case.
But I think also there is some concern, I think, with the justices, based on some of the questions they asked at argument, just the way that they’ve thought about these issues, about what it would mean to fully eliminate standing. I think there is concern about what governments might try to do if the brakes were fully taken off. And it might take some time for the Court to see that after Town of Greece, after American Legion local governments, state governments are not thinking up new and creative ways to promote religion before the Court will be able to say, “Yes, there really shouldn’t be standing in this unique context as opposed to someplace else.”
I think another challenge to this is what Justice Ginsburg pointed out in her dissent, that we do have a long line of cases, while not specifically saying there is standing in these kind of cases, but they are analyzing these questions as if there was standing. And presumably, if there is any thought in the Court’s mind that there wasn’t standing, they might have said something. Those kind of drive-by jurisdictional rulings are typically not conclusive. But it is a pretty strong fact that I think many courts of appeals are going to pick up on.
Wesley Hodges: Thank you, Chris, and thank you, caller, for your question. We do have one more question in the queue. Here’s our second caller.
Caller 2: According to the dissent which upheld the Fourth Circuit, is it really a per se rule that any cross is unconstitutional? Even the cross that is at the individual graves in military cemeteries? And also I believe that the dissent said that crosses favor religion over non-religion. Does that mean that they're saying that crosses favor Hinduism and Islam over atheism? Is there some sort of logic to that?
Christopher DiPompeo: I missed the initial part of your question, but I think your question was—and correct me if I’m wrong—was number one, if the Supreme Court had upheld the Fourth Circuit, could any cross have survived. And then number two, is there anything to Justice Ginsburg’s notion that crosses favor religion over non-religion. Is that right?
Caller 2: Yeah.
Christopher DiPompeo: So I think on point one, I don't think so. I mean, we certainly pitched this, the Fourth Circuit’s decision, to the Supreme Court in our petition as essentially a per se rule that says if a cross is on public land it simply can’t survive. I think we had very strong basis -- I mean, Chief Judge Gregory, who dissented in the Fourth Circuit, certainly believed that that was the case; that that was the impact of the Fourth Circuit’s decision.
And I think that’s right. The record in this case is particularly clear. I have always thought that this was one of the easier cases that I’ve seen on the facts. And the notion that the Fourth Circuit ruled against it suggests that there’s not a lot on the other side of this memorial. But particularly the reasoning that they applied. The reason the way the Fourth Circuit ruled that the memorial was unconstitutional was because it was in the shape of a cross. And according to the Fourth Circuit, the cross was just so inherently religious—that’s the words they used—that there’s simply nothing that could ever eliminate that message of endorsement that displaying a cross would bring.
And Justice Ginsburg really picks up on some of that too. She calls it more of a presumption. But she essentially says because a cross is the preeminent symbol of Christianity, if you display a cross on government land, you should be presumed to be endorsing a religion.
I actually think, and I know this is going a little bit away from your question, but I actually think that highlights the problem with the endorsement test in that that might not be wrong. If endorsement really is the standard, I mean, we all know that when LeBron James wears a Nike shirt or something that he is endorsing Nike. That’s a common meaning and understanding of the word endorsement. And so I think there’s a temptation -- and I think a lot of judges looking at this have looked at situations where a government has, across on public land or in some sort of official seal or something else, has said, “Well, merely displaying the symbol of a particular faith is endorsing that belief, and therefore has to be unconstitutional.” And you end up -- I think that’s one of the main reasons why so many decisions have gone the other way until American Legion.
So now that that’s cleared out, I think hopefully there’s room to recognize that crosses certainly retain their religious significance but also in certain contexts can acquire a secular significance that reflects the history associated with that symbol or the traditions of the community in which it was created.
On the second point, I don't think Justice Ginsburg would suggest that ‘across’ represents Hindus or any other religion. In fact, I think the tenor of her opinion was very much to the contrary. That the reason the cross cannot stand here, cannot be allowed on public land is because it doesn’t represent other faiths. The Court has for, many years, had in its jurisprudence the notion that the Establishment Clause both prohibits favoring one religion over another religion or one faith over another faith, but also that the Establishment Clause prevents and prohibits government from favoring religion over non-religion. So I think she was just kind of reiterating that notion, essentially, putting a cross up might suggest that governments favoring both Christianity relative to other faiths but also Christianity relative to non-religion.
Again, I think this came out a little bit because our adversaries—the plaintiffs in this case—were an atheist group. So they were coming at it from the perspective of religion versus non-religion.
Wesley Hodges: Thank you, caller. By my count, we have four more questions in the queue. Thank you so much for participating. Let’s go to our next caller.
Caller 3: Good afternoon. Can we now use American Legion to allow menorahs?
Christopher DiPompeo: I mean, I think so. I hope so. I think it depends on the context for sure. I think the same kind of questions will have to be asked: Is it longstanding? Is it part of the community? Is it being used to represent the religious faiths of some of the members of the community, which is a good thing, or is it being used to disparage other faiths, which presumably it wouldn’t. But I don’t see any reason -- I don't think American Legion—maybe this gets more to the heart of the question—I don't think American Legion is a decision about crosses. I think it’s a decision about religious symbols. And I don't think a menorah is any more inherently religious.
I think that’s one of the important parts about American Legion, whereas with the Ten Commandments -- there’s a lot that had developed in the law and was said in Van Orden, which lower courts after Van Orden read to say, “Well, the Ten Commandments is significant because it underpins a lot of our legal system. And so that is, in some way, unique among religious symbols. But that symbols that don’t have that connection like a cross, presumably like a menorah, like other religious symbols would not be able to meet that same kind of standard.”
I think American Legion does away with that. So now there’s not going to be the argument that a cross or a menorah or anything else, a Star of David, or whatever, is so inherently religious that its display on government land per se violates the Establishment Clause. Which has been the argument. That argument is gone. It’s now going to be accepting that that this could be permissible. Is the use of a symbol enough within the traditions of the country to allow that?
I actually think that where this might come up is in the holiday display context. So before you had Allegheny and Lynch kind of governing what governments can do in the holiday display context. And it was a very contextual evaluation of how far is the menorah from the jumbo candy cane--
Caller 3: Two reindeer tests.
Christopher DiPompeo: Right. Exactly. Or how many reindeer and wishing wells are present. I don't think that analysis needs to be done anymore. I think what should happen is a court should look at that and say, “Is it consistent with our traditions to display a menorah around Hanukkah? Or display a Christmas tree around Christmas?” And I think courts will reasonably, and common sensibly, say, “Yes, it is, and I think it should be upheld on that basis.”
Wesley Hodges: Thank you, caller. We do have three more questions in the queue. Next caller, you are up.
Caller 4: Yes, thanks. I just wanted to say, first, on the LeBron James Nike shirt test, if I see most celebrity athletes or performers wearing a Latin cross, the last thing I think of is an endorsement of religion.
Christopher DiPompeo: Fair point.
Caller 4: But I just wanted to say thanks for taking on this case, Jones Day. Thanks to you, Liberty, American Legion, and also to Parks and Planning for not caving in. I think that could’ve happened in the beginning. But I really, really think it’s a wonderful thing.
Chief Judge Gregory’s dissent in the Fourth Circuit – I read it, and that thing was on fire. And I’m just wondering is that normal for a Fourth Circuit panel. And secondly, is there anything that can be said larger on the per se rule on matters of conscience in the Fourth Circuit?
Christopher DiPompeo: You know, I don't know. I mean, I did clerk at the Fourth Circuit, but it was ten years ago or so. So it’s certainly a different court than when I was there. It’s a very collegial court in general. I think they tend to prefer -- they have good relationships among themselves. I think they like to maintain that collegiality in their opinions. They have been going en banc more, particularly in these kind of questions recently than they were in the past. So I think Chief Judge Gregory was not writing on a blank slate. There have been a lot of Establishment and Free Exercise Clause decisions coming out of the Fourth Circuit in the last couple of years.
I think what’s maybe most notable is that it was Chief Judge Gregory, who is usually on the other side of these questions from where ultimately the court came out. I think that also probably said a lot to the Court, that this is not a one-side-of-the-aisle issue; that you had three democratic presidential appointed court of appeals judges—and actually our district court judge was appointed by President Clinton—and they had split 2-2. Chief Judge Gregory obviously wrote a wonderful and very powerful dissent.
So I think a lot of that ultimately did feed into the Court granting cert, which we’re very, very thankful for. And I thought he did a great job.
On the Fourth Circuit generally, I don't know. It’s hard to know. Like I said, a lot of decisions have come out of that court recently. This is -- I’d like to say this is a decision that has kind of recognized -- that has made the Court recognize the importance of religious liberties and preserving traditions. I don't know. Often Judge Wilkinson is also on the other side. Judge Wilkinson also wrote a very great concurrence -- or a great dissent from the denial of en banc review in this case. Frankly, I was a little surprised that the Fourth Circuit didn’t grant en banc review because I think most of the judges would probably agree with us in this case, but I don't know.
Wesley Hodges: Thank you, caller. Next caller, you are up.
Caller 5: Good afternoon. I’m calling from Washington D.C. I want to thank you for your comments. They're very informative. I have a two-part question. In the United States, we have hundreds of cities and towns that are named after Christian saints. We even have one city in Texas, Corpus Christi, which means ‘the body of Christ.’ So my two-part question is have there ever been any challenges against the naming of these cities and towns? And two, would such a challenge, more or less, be in vain now after this decision?
Christopher DiPompeo: So on one, I’m not aware of any challenges to city names. There are a lot of challenges to city seals, which involve crosses or other religious imagery. So, for example, there’s a city in New Mexico called Las Cruces, which means ‘the crosses.’ And the reason it’s called Las Cruces is because it was at the site of a cemetery where there was a bunch of crosses after I think an Apache attack, some sort of attack on settlers, that happened at the site of the city. They built a cemetery there. There were crosses. The city grew up around it, and they took on the name Las Cruces. So for probably obvious reasons, the city put in their seal, when they were designing their city seal, three crosses because that’s the name of their city.
So no one that I’m aware of has ever challenged the city’s name. Plaintiffs did challenge the use of crosses in the seal. And that’s actually one of the very few cases that rejected that kind of challenge. The Tenth Circuit essentially ruled -- there’s an obvious historical reason for using crosses in that context.
Beyond that, I don't know of any challenges to names. I do think that at this point it’s probably in vain to make those challenges. The Court was actually pretty clear—I think it’s maybe in that Part I–A; I don’t remember exactly where it was—but the Court actually discusses this issue, and says, “Look, there’s a lot of elements of our country that retain older -- that retain religious names of places.” I think they actually mention Corpus Christi. They talk about the flag of Maryland has two crosses on it, and the Court essentially blesses all of that and says, “If it’s old and it’s been done before, it’s okay.” It might be different if tomorrow the city of -- I keep thinking Los Angeles, San Antonio, both of those are saintly names so that doesn’t quite matter. But if tomorrow the city of Miami decided to rename itself Corpus Christi, or something, maybe at that point you’d have more questions about why that’s being done. But certainly Corpus Christi, Texas, and everyone who lives there can rest easy after American Legion.
Wesley Hodges: Thank you, caller. We appreciate the question. Next caller, you're up.
Richard Douglas: Hi. My name is Richard Douglas in Washington. I’m also a former submarine sailor. And the nuclear submarine USS City of Corpus Christi was originally named the USS Corpus Christi when it was commissioned in 1983. But there were objections by Catholic members of Congress to naming a nuclear submarine after the body of Christ. So they added the City. A small historical fact. [Laughter]
Christopher DiPompeo: That’s funny. That’s interesting. Thanks, Richard.
Wesley Hodges: Wonderful. Thank you, caller. Next question, you are up.
Caller 7: Could you restate specifically, or generally now, what the Lemon test is why it has been so problematic for the courts to deal with?
Christopher DiPompeo: Sure. So as originally formulated, Lemon said, an action by the government is unconstitutional if it has the purpose of advancing religion -- advancing or inhibiting religion, the effect of advancing or inhibiting religion, or entangles government with religion. So in other words, requires government to make kind of -- to supervise religious matters or make decisions about religious issues, those kind of things. That was 1971. For the next 20 years, people rightly pointed out that the standard simply can’t be “Does something advance religion” because the Free Exercise Clause advances religion in that it says religious people and religious practices need to be protected from government restrictions.
And so that was pervasive and very persuasive criticism for many years. Then in 1989, the Court decided Allegheny County which involved various Christmas displays. Justice Blackman, writing for the Court there, said essentially the Lemon test and the standard of advancing religion has been very strongly criticized, and it really doesn’t work. So instead we’re going to adopt Justice O’Connor’s suggested approach, which is to change the standard to endorsing religion.
So after Allegheny, what people call the Lemon test is now the following: a government action violates the Constitution if it has the purpose of endorsing religion, has the effect of endorsing religion, or if it entangles government and religion. And so the standard became endorsement. But the three-part test still applied. And as I said, when you analyze that, particularly, the effect prong but also some what the purpose prong, you're supposed to look at that question from the perspective of a hypothetical, reasonable observer who is a person that kind of essentially knows all of the fact and circumstances surrounding the display or whatever’s being challenged – the government action. And then you make the evaluation as to what would the reasonable observer think was the purpose? What would the reasonable observer think is the effect, the message conveyed by the symbol? And is there any entanglement.
So there’s a couple of problems with that. Number one, and just as a kind of procedural matter, generally when a government takes action and you're doing constitutional litigation, you would at least start with the assumption that the government is not acting unconstitutionally. Usually the plaintiff has the burden of showing that the government has done something unconstitutional. Normally, you trust the government. Lemon flips that and says the government essentially has to show that it survives all three prongs of Lemon or else the action is struck down. So that, just from a procedural matter, puts these cases on a bad footing from the beginning.
The purpose prong is tended not to be too substantial. There’s really only one case of the Supreme Court that’s really ever dealt with purpose. That’s the McCreary County issue. A lot of problems have come from the effects prong. And the reason is that number one, the effects prong assumes that the court can determine that there is one predominant meaning. And so I think there’s a lot in American Legion, particularly in that first section I–A, that kind of rejects this whole notion: the court could ever really figure out what is the predominant meaning of a symbol. There’s a lot of discussion in Justice Alito’s decision about how meanings can change, purposes can change, people can look at a symbol and reach different conclusions. And so, to me, American Legion -- just the whole process of decision really does reject the whole notion of the reasonable observer and the idea that you could ever discern what a purpose actually is. Lemon just doesn’t work with that kind of background.
But the other thing that’s been particularly difficult for courts is -- well, two more points. One is that the Supreme Court’s never been clear and no one’s ever quite been able to figure out what the reasonable observer actually knows or is. And it’s incredibly malleable. So in some cases the reasonable observer is very studious and is the person who knows everything about the symbol. Other times it’s a person passing by on the road at 55 miles an hour. In our case, surprisingly, the Fourth Circuit’s reasonable observer knew the thousands of years of history of the cross and global history and its role, but was never able to get out of the car to go up and read the plaque on the front of the memorial that explains what this particular memorial is there for. So it becomes very selective, and courts over time have often used the reasonable observer to reach whatever conclusion they think should be reached in that case.
And then the last thing, and maybe the biggest problem with Lemon, is that the Court has just never applied it. The Supreme Court has the freedom “apply Lemon or not apply Lemon,” and more often than not, it has not applied Lemon in the past 25 years. Unfortunately, lower courts, until American Legion, just have not felt free to do that because it’s been very unclear as to whether Lemon is still the appropriate test or not. And so a lot of the confusing and bad precedence is coming from lower courts are really struggling with the fact that they don’t know if Lemon was still the test. They look at the Supreme Court’s decisions and they just can’t be reconciled with the reasonable observer and with Lemon and with endorsement, and they have to sort all of this out. So that’s why there’s so much -- and Justice Alito’s opinion kind of refers to this, a lot of urging from lower courts and from commentators for the Supreme Court to finally take a case and resolve whether Lemon applies or not.
So, again, we’re very happy that the Court in American Legion does seem to have said that at least when you're dealing with speech and symbols and those kind of things, symbolic uses of religious imagery, Lemon is not the test. I think that will go a very, very long way to clarifying and giving lower courts more to deal with when they actually are confronted with these cases.
Wesley Hodges: Thank you, caller. We do have one more question in the queue. This is likely our last question of the day. So, caller, thank you so much for calling. You are up.
Caller 8: Thanks again. What advice would you give to a mayor today who wants to build a similar cross?
Christopher DiPompeo: That’s a great question. I would say you should think about, and look at, what other communities are doing, what other communities are -- you know, the more your symbol and your memorial looks like others that have been done, particularly ours and others around the country, the more it’s going to look consistent with the traditions of the nation and the more likely it is to be upheld.
So think about legislative prayer, right? If a town tomorrow said we’d like to start the practice of legislative prayer, there’s nothing in the Court’s decision in Town of Greece or anything else that would suggest that that’s a wrong decision to make. The important thing is going to be is the practice that you're adopting consistent with the kind of practices that have been used in the nation’s tradition, both at Congress or at the town level. Is it similar to the kind of non-discriminatory prayer practice that was available in Town of Greece? Those kind of things.
I think the same analysis applies here. I don't think American Legion suggests that there’s anything wrong with putting up a cross-shaped memorial. I think what it suggests is that when courts evaluate the new memorials, they're going to be looking to see whether that practice of honoring soldiers with a cross is consistent with the other kind of memorials that have been put up around the country and have been used in the past.
And then, obviously, of course the American Legion decision is very clear that the symbol, whether it’s a cross or any other sort of religious imagery, can’t be used to disparage or denigrate other faiths or members of other faiths. If it is, if there’s any evidence of that, that’s going to be enormously problematic and is probably going to be struck down. And so just as legislative prayer has to be inclusive and non-discriminatory, I think monuments or any sort of memorials that use religious imagery are also going to have to be that.
Wesley Hodges: Wonderful. Well, caller, thank you so much for your question. And audience, thank you so much for participating today. Chris, looking at the time, we’ve just got a couple minutes left on the call. I’d like to turn the mic back to you for any closing thoughts or sentiments.
Christopher DiPompeo: Thanks, Wes. I just want to say thank you to you The Federalist Society for setting this up. And thank you to all the callers and questioners. It was a good hour. We’re very happy with the decision. We’re thankful to all the amici who supported us. We went into the Court with 39, or so, amicus briefs supporting our position. I think that was really meaningful and powerful for the Court. So we’re very grateful for that.
Thanks for our team at Jones Day. Thanks to the First Liberty team: again, Kelly and Hiram and Ken and Roger. And we think this is a big win. We think it’s a great moment, both for the Peace Cross certainly, but also for the law generally. And like I said, we think it’s a great and important step toward really returning this area of the law to the original meaning.
Wesley Hodges: Well, very good, Chris. Well, on behalf of The Federalist Society, I would like to thank Chris for the benefit of his valuable time and expertise today. We welcome all listener feedback by email at email@example.com. Thank you all for joining us for the call. This call is now adjourned.
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