Rather than continuing to apply the Lemon Test the Court should rely on an accurate account of the founders’ understanding of the Establishment Clause.
In American Legion v. American Humanist Association (2019), justices of the Supreme Court held by a 7 to 2 vote that an “immense Latin cross [that] stands on a traffic island at the center of a busy three-way intersection in Bladensburg, Maryland” did not violate the First Amendment. The memorial, known as the Peace Cross, was erected in 1925. A few weeks after the June 20 decision, the United States Court of Appeals for the Third Circuit rejected a Freedom from Religion Foundation challenge to a seal featuring a Latin cross that was adopted by Lehigh County, Pennsylvania in 1944.
Those who would remove religion from the public square have suggested that these monuments are, in the words of Garrett Epps, “Fine Now—If They’re Old.” Put another way, if a religious symbol, image, or inscription on public property has been there for a long time, it is constitutional; if was adopted recently, it is not. Such an approach may be reasonably attributed to Justice Stephen Breyer, who stated in the Peace Cross oral arguments that: “History counts. And so, yes, okay, but no more.” His concurring opinion in the case, which was joined by Justice Elena Kagan, suggests that this may well be the position of both justices.
Where Are We to Draw the Chronological Line?
There are several problems with this proposed rule of law. First, how old does a monument need to be? Must it have reached the age of 90? Or would it be 50? Or maybe 20? Or perhaps only future uses of religious symbols on public property are prohibited?
Note that any of these possibilities would favor Christianity over other faiths. In the late 18th century, approximately 98 percent of white Americans were Protestants, 2 percent were Roman Catholics, and there were approximately 2,000 Jews in a handful of cities. By the early 20th century, the percentage of Catholics and Jews had grown significantly, but at least 95 percent of Americans still identified themselves as Christians. Governments regularly utilized Christian symbols, language, and images in public buildings and monuments. The Peace Cross is far from the only public monument to utilize this profoundly Christian symbol.
(I agree that symbols can have multiple meanings, or take on new meanings, but there is merit in Justices Ruth Bader Ginsburg and Sonia Sotomayor’s observation that “The Latin cross is the foremost symbol of the Christian faith, embodying the ‘central theological claim of Christianity: that the son of God died on the cross, that he rose from the dead, and that his death and resurrection offer the possibility of eternal life.’”)
It was not until after the First World War that the tombstones of Jewish soldiers buried in national cemeteries could include a Star of David rather than a Latin Cross. Today, the grave-markers of Muslim military members can include the Crescent and Star, those of Baha’i military members can include that faith’s Enneagram (nine-pointed star), and so on. Few activist groups challenge the use of religious symbols in this context.
But when communities choose to adopt religious symbols, images, and inscriptions in other public settings, they can run into trouble. In 2012, for instance, the state of Ohio approved a Holocaust and Liberators Memorial, a central feature of which is a fractured Star of David. Before it was dedicated, the Freedom From Religion Foundation sent a letter to the head of the state’s Holocaust Memorial Committee objecting to erecting a “religious symbol on government property.” The organization had no problem with the memorial per se, merely the inclusion of a “readily identifiable Jewish symbol.” Despite the foundation’s complaint, Ohio dedicated the memorial on June 2, 2014.
The Holocaust memorial in Columbia, the capital of South Carolina (dedicated in 2001), features the Star of David prominently, as does a memorial in New Orleans (2003). Charleston, South Carolina’s memorial (1999) contains as its “central element” a “lonely discarded tallit, the Jewish prayer shawl used by men in the synagogue and also in which for some it was customary to be wrapped for burial.”
The United States Holocaust Memorial Museum in Washington, D.C. (1993) was built on land donated by the federal government and receives annual appropriations from Congress. Its Hall of Remembrance can be interpreted as referencing the Star of David, and passages from the Hebrew Scriptures are inscribed on the building’s walls, including: “What have you done? Hark, thy brother’s blood cries out to me from the ground!” (Genesis 4:10); “Only guard yourself and guard your soul carefully, lest you forget the things your eyes saw, and lest these things depart your heart all the days of your life, and you shall make them known to your children, and to your children’s children” (Deuteronomy 4:9); and “You are my witnesses” (Isaiah 43:10).
Similarly, Idaho’s Anne Frank Human Rights Memorial (2002) contains numerous inscriptions from different religious leaders, including: “Let my people go” (Moses); “Let justice roll down like waters, and righteousness like an ever-flowing stream” (Amos); “What you do not want done to yourself, do not do to others” (Confucius); “Not in the sky, nor in mid-ocean, in a mountain cave, is found that place on earth where abiding one may escape from the consequences of one’s evil deed” (Buddha).
The Varieties of Religious Symbolism
As America becomes more diverse, the range of religious images and language used in public places is bound to continue to expand. In 2001, New York City dedicated a tree and plaque to commemorate “the founding of the Hare Krishna religion in the United States.” And, as Justice Samuel Alito noted in his opinion in the Peace Cross case, “a new memorial to Native American veterans in Washington, D.C., will portray a steel circle to represent ‘the hole in the sky where the creator lives.’”
By most definitions, the buildings and monuments in the preceding paragraphs are new, not old. To hold that the Establishment Clause protects old monuments but not new ones would have the perverse (and almost certainly unintended) consequence of permitting the Peace Cross to remain in place while requiring the removal of, for instance, the Star of David in the Ohio Memorial. Surely the Constitution does not mandate such a result.
What if governments were merely proscribed from any future use of religious symbols, images, or language in the building of memorials or other such structures? If so, the still-in-the-works Native American War Memorial would have to be redesigned to remove such references, and civic authorities would be prohibited from utilizing heretofore neglected symbols and language from other minority faiths.
As I show in my recently published Did America Have a Christian Founding?, an originalist understanding of the Establishment Clause does not require governments to scrub religion from public spaces. The erection of building and monuments containing religious language, images, and symbols is, to borrow from Chief Justices Warren Burger’s opinion in Marsh v. Chambers, “deeply embedded in the history and tradition of this country.” When buildings and monuments are erected should not be, from an Establishment Clause perspective, decisive.
Civic friendship and prudence should inform decisions about the use of religious symbols today. America is far more diverse than it was 100 years ago, so it would be inappropriate for a government to erect a massive cross to honor U.S. military members from different faiths. On the other hand, it is both constitutional and fitting to include crosses, stars of David, and other religious symbols in the 9/11 Memorial. The Establishment Clause does not require a religion-free public square, no matter how many times the Freedom From Religion Foundation insists that it does.