Religious Symbols in the Modern Age: Evaluating History’s Role in the Establishment Clause

A crisis exists in the jurisprudence of the Establishment Clause—a key component of the First Amendment that outlines the separation of church and state. The clause states that the government cannot establish an official religion or make any laws that favor either a particular religion, religion over non-religion, or non-religion over religion. [1] However, the religious influence in social and legal matters has been inescapable throughout American history, and this is something that the courts still must come to terms with today. 

Recently, this conflict has emerged in disputes over religious monuments that have been constructed on public lands. Some courts approach these cases with a particular focus on the religious messages that a monument may impart, while others look towards initial intent and historical basis to determine constitutionality. In June 2019, the Supreme Court reversed a decision made by the Fourth Circuit Court regarding the constitutionality of a forty-foot tall World War I memorial in the shape of a Latin cross, a prominent symbol of Christianity. In the case, The American Legion v. American Humanist Association, the plaintiff argued that the Peace Cross was constitutional due to its passive, rather than coercive, religious nature. The Fourth Circuit ruled against the cross after applying the Lemon Test, a popular three-pronged test derived from the Supreme Court case Lemon v. Kurtzman that tests for secularity. Using the Lemon Test, the Fourth Circuit found that the cross unduly endorsed Christianity and therefore must be removed from public grounds. However, the Supreme Court’s recent reversal justifies the Peace Cross’s continued existence on public lands by explicating its dual meaning as a historical symbol that honors the sacrifices of World War I soldiers rather than focusing on its religious symbolism.

Any religious symbol is inherently non-secular, but such a symbol can—in some cases—serve a dual purpose. While the Supreme Court has previously decided that a religious monument on public grounds can be constitutional due to its historical background, legal precedent does not account for the passage of time in another sense: American religion and society have been fundamentally shaped by cultural dynamics, pluralism, and nonbelief. [2][3] Interpretations of freedom of religion that fail to acknowledge the “post-Christian cultural milieu in which there has been a shift from an order” result in jurisprudence that is controversial and oftentimes contradictory. [4] Simultaneously, the freedom of expression lies in the courts’ ability to recognize the deep-rooted role that religion plays in American identity within its interpretation of the Establishment Clause and its deliberation on the constitutionality of religious symbols in public places. [5] Despite the fact that the Supreme Court ruled that the Peace Cross does not pose a threat to the values espoused in the Establishment Clause, any future precedent regarding history’s place in the interpretation of the Clause in future disputes poses the risk of neglecting the country’s pluralism and the First Amendment’s fundamental values of inclusivity and neutrality. 

The Fourth Circuit’s application of the Lemon Test in American Legion was denounced in the Supreme Court’s decision, which argued in favor of tests evaluating history and tradition in order to determine secularity, stating that the “passage of time gives rise to a strong presumption of constitutionality.” [6] The Lemon Test has previously been heavily criticized by several justices, including the late Justice Antonin Scalia in McCreary County v. Americal Civil Liberties Union of Ky., who commented on the test’s malleability and propensity to cause confusion in courts of law. [7][8] 

In American Legion, the Court contextualized the initial secular intent of the Peace Cross and derived the monument’s constitutionality through its lack of religious coercion. In addition, the Supreme Court’s decision does not necessarily ensure the existence of the cross; rather, it affirms its constitutionality but does not require the state to maintain the cross on public land. [9] Instead, the state wields the power to determine the fate of the Peace Cross. In light of this circumstance, the ruling made in American Legion refrains from explicitly favoring a specific religion, although it cannot be ignored that no other religion has a history comparable to that of Christianity in the United States. 

Similarly, the act of presuming constitutionality based on history is reminiscent of discriminatory practices such as the Grandfather Clause, which posed significant enfranchisement barriers for individuals whose grandparents did not reside in the United States. [10] Unsurprisingly, the only monuments that would harbor the history that Justice Alito requires are those that favor the Protestant, Eurocentric religions upon which the United States was founded. Therefore, tests relying solely on history and tradition threaten the very premise of the Establishment Clause and freedom of religion more generally. It is necessary to oppose broad statements regarding history’s role in subsequent analyses of the Establishment Clause in order to achieve jurisprudence that values the inclusivity expressed in the First Amendment.

The implications of the Court’s decision draw upon the effectiveness of the Establishment Clause in the modern age. There is incongruity surrounding the definition of secularism, a struggle that the Supreme Court’s contradictory rulings continue to heighten. [11] For instance, the majority opinion in Van Orden v. Perry defined the Establishment Clause as having binary faces after deciding to uphold a display of the Ten Commandments on the grounds of the Texas State Capitol. [12] Justice William Rehnquist described two faces: one in which the Supreme Court respects and takes heed of the Nation’s history, which has been irrevocably influenced by religious traditions, and the other where government interference in any religious matter poses a threat to religious freedom. [13] Yet in McCreary, the Court declared a display of the Ten Commandments in a courthouse to be unconstitutional. [14] The defining aspect of the decision in McCreary was the adoption of a stricter form of the Lemon Test in which the requirement for a secular purpose was transformed into a requirement for a “predominantly secular purpose.” [15] [16] Such is the inherent problem in the Lemon Test and a test like the one proposed in ruling on the Peace Cross that utilizes history and tradition to determine the matrices of freedom of religion—the tests’ interpretation varies greatly based on the court administering its application.

Defining the jurisprudence of the Establishment Clause has long troubled the courts, and legal precedent reflects uncertainty over the standards of the Clause. In American Legion, the Court upheld the Peace Cross for its secular objective of honoring fallen American soldiers. The Court found that the cross served a dual meaning and did not seek to exclude other religious groups; however, any initiative by the Court to associate history and tradition with constitutionality must be proceeded with caution and with the knowledge that religious equality cannot be obtained through religious censorship. 

In an effort to protect religious freedoms for Americans of all religious backgrounds, it may be tempting to restrict the disproportionate influence that Christianity currently holds within American society. While maintaining separation of church and state is imperative, the courts’ continual intervention, such as the Fourth Circuit’s decision in American Legion, constructs a potentially dangerous precedent for the freedom of any and all religions. 

[1] Devendorf, Lauren, and Tyler Schmitt. "The American Legion v. American Humanist Association." Cornell Legal Information Institute. February 21, 2019. Accessed August 18, 2019.

[2] Van Orden v. Perry, 545 U.S. 677 (2005).

[3] Zachary R. Calo, “Higher Law Secularism: Religious Symbols, Contested Secularisms, and the Limits of the Establishment Clause,” 87 Chicago-Kent Law Review 3, 825 (2012).

[4] id at 829

[5] id at 825

[6] The American Legion v. American Humanist Association, 17-1717 U.S. 21 (2019).

[7] The American Legion v. American Humanist Association (United States Court of Appeals for the Fourth Circuit October 18, 2017).

[8] McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844 (2005)

[9] Liptak, Adam. "Supreme Court Allows 40-Foot Peace Cross on State Property." The New York Times. June 20, 2019. Accessed July 22, 2019.

[10] "Grandfather Clause." Legal Information Institute. June 22, 2015. Accessed July 16, 2019.

[11] Baker, Hunter. The End of Secularism. Wheaton, IL: Crossway Books, 2009.

[12] Van Orden v. Perry, 545 U.S. 677 (2005).

[13] Ibid. 

[14] McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844 (2005)

[15] Zachary R. Calo, “Higher Law Secularism: Religious Symbols, Contested Secularisms, and the Limits of the Establishment Clause,” 87 Chicago-Kent Law Review 3, 824 (2012).

[16] Sekulow, Jay A. and Francis J. Manion. 2005. “The Supreme Court and the Ten Commandments: Compounding the Establishment Clause Confusion.” The William and Mary Bill of Rights Journal 14 (1): 33-50.