The American Legion v. American Humanist Association

USING THE COERECION STANDARD FOR ESTABLISHMENT CLAUSE CLAIMS

The American Legion contends that—in light of the Supreme Court’s decision in Town of Greece v. Galloway, which upheld a town’s practice of praying before legislative sessions—there is no clear Establishment Clause standard to govern the resolution of this case. Although the Fourth Circuit applied the “endorsement test” derived from Lemon v. Kurtzman—which “asks whether a ‘reasonable observer’ would perceive the challenged government action to have the purpose or effect of ‘endorsing’ religion”—the American Legion argues that Town of Greece undermines that test for two reasons.

First, the American Legion asserts that Town of Greece made clear that the Establishment Clause must be interpreted in accordance with history. The American Legion also indicates that the history of the Establishment Clause shows that it was aimed at preventing religious coercion, and thus argues that the Supreme Court should adopt the Town of Greece coercion standard for Establishment Clause claims. Second, the American Legion reasons that because Town of Greece upheld religious government speech in the absence of coercion—that is, the absence of the government compelling citizens to participate in the religious speech—then other forms of religious government speech, like passive displays, should also be upheld in the absence of coercion.

The American Legion further argues that the text of the First Amendment supports coercion standard because the Lemon endorsement test creates tension between the Amendment’s Free Exercise and Free Speech Clauses. According to the American Legion, the endorsement test allows for a “heckler’s veto”—that is, the endorsement test, upon a complaint by anyone who feels that a particular instance of religious government speech is underinclusive, requires courts to censor that government speech simply because it reflects the religious beliefs of only some members of the community. This “heckler’s veto,” the American Legion asserts, causes tension within the First Amendment because, as illustrated here, if the Commission had maintained only those memorials without religious symbols in Veterans Memorial Park, it would have committed religious discrimination. Similarly, had the Commission allowed only monuments without religious symbols into the park, it would have violated free speech rights. Thus, the American Legion argues for a coercion standard because such a standard would not condemn the government’s attempts to accommodate the free exercise of religion, nor would it condemn government speech that merely offends without any tangible harm.

Under a coercion standard, the American Legion argues that the Peace Cross does not violate the Establishment Clause because it is merely a passive display. They make the analogy that, if sectarian prayers were found noncoercive in Town of Greece, then surely passive displays are noncoercive.

The American Humanist Association counters that, although the Court did not apply the Lemon endorsement test in Town of Greece, neither did the Court overturn it. In fact, according to the Association, the Court has consistently applied the Lemon endorsement test to religious display cases. Furthermore, the Association states that the Court has, on numerous occasions, struck down historical practices for violating the Establishment Clause. Indeed, the Association points out that the Court in Town of Greece specifically stated that its decision should not be read to permit a constitutional violation just because a practice has a historical foundation.

The Association further argues that the Supreme Court has consistently rejected coercion as a necessary element in Establishment Clause claims. Instead, the Association asserts, the Establishment Clause is meant to stop the government from conveying that it favors a particular religion. Although the Association agrees that coercion is certainly not permissible, it contends that a coercion-only standard is not compatible with history and would violate the touchstone of Establishment Clause jurisprudence: religious neutrality. The Association also maintains that a coercion-only standard itself would render the Establishment Clause redundant because practices that coerce individuals to participate in any religion also violate their Free Exercise Clause rights. In other words, because compelling nonadherents to participate in a particular religion would prevent them from being able to choose their own religion—the right protected by the Free Exercise Clause—the Association argues that the Establishment Clause standard logically must be something other than coercion.

The Association additionally asserts that the Peace Cross would violate the Establishment Clause even if the Court uses the coercion standard because the Peace Cross is extraordinary, standing 40-feet tall and displayed year-round. Also, the Association notes that the Peace Cross has been used as “the centerpiece for annual Town-sponsored events that include Christian prayer.” Moreover, the Association contends that the Peace Cross has coerced financial support from the Commission, including using $117,000 of taxpayer money for upkeep and renovation as well as earmarking an additional $100,000 for future renovations.

THE PEACE CROSS’S PURPOSE, MEANING, AND LONGEVITY

The Commission asserts that there are two independently sufficient grounds for finding passive governmental displays of religious constitutional under Establishment Clause. First, the Commission contends that if the purpose and objective of a government display are secular when considering the display’s full context—not just the display’s religious context—the display does not violate the Clause. Here, the Commission argues that the Peace Cross is secular in purpose and meaning for several reasons. For one, the Commission asserts that when the Latin cross is used in association with World War I, it holds a secular commemorative meaning. The Commission finds further support for its position in the Peace Cross’s “Valor Endurance Courage Devotion”, placement around other secular war memorials, recognition as a historic landmark, and lack of controversy over an extended period of time dating back to 1919.

The Commission additionally maintains that, although history and tradition are not dispositive, displays with considerable longevity and a lack of controversy pose no “meaningful threat of religious establishment.” The Commission claims that crosses have not only been used to commemorate sacrifice and military valor for over 200 years, but after World War I, “the cross became the central symbol of wartime sacrifice and loss.” Furthermore, the Commission states that Congress has tried to preserve cross monuments by classifying them as national monuments. Thus, the Commission argues that the Establishment Clause should be interpreted with the longstanding tradition surrounding cross memorials in mind.

The Association counters that in multiple cases, Supreme Court justices have stated that large, permanent sectarian monuments—in particular, large Latin crosses—would run afoul of the Establishment Clause. Further, the Association argues that simply because the Latin cross is common does not mean that it is not secular. As such, the Association asserts that using the Latin cross not only fails to honor non-Christian veterans but also signals that their sacrifices are less important.

Additionally, the Association submits that the Peace Cross’s donors’ intended to model the memorial after the biblical Cross of Calvary, suggesting its religious purpose. The Association also contends that, although there are other monuments around the Peace Cross, the Peace Cross was built in isolation and stood in isolation for much of its existence, and that it is clearly the most prominent monument. Likewise, the Association argues that the Peace Cross’s lack of controversy is immaterial because religious minorities have many reasons to “not want to be the face of a challenge to a popular Christian monument.”

APPLYING THE LEMON ENDORSEMENT TEST

Both the American Legion and the Commission argue that, even if the Supreme Court decides to apply the Lemon endorsement test in this case, the Peace Cross still does not violate the Establishment Clause. Under the Lemon endorsement test, a monument such as the Peace Cross is constitutional if it has a secular purpose, does not have the primary effect of advancing nor inhibiting religion, and does not excessively entangle the government with religion.

As the Commission argues, its purpose for acquiring the Peace Cross was to assure traffic safety and preserve a historic landmark honoring World War I soldiers. The Commission and American Legion further argue that the Peace Cross has a secular effect because a reasonable observer, fully informed of the history and context of the monument, would conclude that the monument is solely a World War I memorial based on the history of crosses and the war, the inscription on the monument, its use in commemorative events, and the other surrounding secular monuments. The Commission lastly asserts that its upkeep of the Peace Cross does not excessively entangle government with religion because excessive entanglement requires a continuous, comprehensive surveillance that was lacking here.

The Association argues that the Supreme Court should reaffirm and apply the Lemon endorsement test, stating that the American Legion’s “attack on Lemon is an attack on the entire history of Establishment Clause jurisprudence.” In contrast to the American Legion and the Commission’s views, the Association believes that the Peace Cross is clearly unconstitutional under the Lemon test. Principally, the Association claims that the Peace Cross fails the effect prong of the Lemon test because it is a cross, which the Association asserts is not embraced by non-Christians and discriminates against soldiers that are not Christian.

Additionally, the Association contends that the Peace Cross’s permanence and prominence and the Commission’s use of funds to restore it add to its effect of endorsing Christianity. The Association also argues that the magnitude of the Commission’s funding excessively entangles the government in religion.