Russell Shaw The Court and the Cross

Feb 26, 2019

Two years after his death, the late Supreme Court Justice Antonin Scalia is missed for many reasons, not least among them his colorful writing style. In one notable opinion, Scalia said this: "Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence."

"Lemon" here is Lemon v. Kurtzman, the name of a case decided by the Supreme Court in 1971. Chief Justice Warren Burger, writing for the court, therein proposed a new way of settling the question of whether something that the government says or does that touches on religion amounts to a religious "establishment" in violation of the Constitution's First Amendment.

The Lemon test has three parts – "prongs," Burger styled them – any one of them capable of rendering a church-state interaction unconstitutional: a "legitimate secular purpose," a primary effect that "neither advances nor inhibits" religion, and no "excessive entanglement" between government and religion.    

Using this test, the Burger court ruled that state laws in Pennsylvania and Rhode Island that provided modest salary supplements for nonpublic school teachers teaching secular subjects (and, in Pennsylvania, using state-supplied secular textbooks) were an unconstitutional establishment of religion inasmuch as most of the schools were Catholic ones and Catholic schools further the Church's religious mission

Since then, applying this test to other factual situations – from opening legislative sessions with prayer (allowed) to barring immigration from certain Muslim-majority countries under an executive order by President Trump (not allowed) – has produced a hodgepodge of decisions regarding what and is not permitted. The result, says Justice Clarence Thomas, is best described as a "shambles." Others have called it "incoherent," "schizoid," and "chaotic."

Now the Supreme Court is trying again to establish order to a notably confused area of its jurisprudence.

On February 27 it will hear arguments in a case involving a 40-foot tall granite and cement cross that stands on the median of a busy highway in a Washington, D.C. suburb. The cross was placed there in 1925 by the American Legion as a memorial to 49 local men who lost their lives in military service in World War I. In 1961, largely for reasons of traffic safety, it and the land it stands on were taken over by the local park commission, a public body. The commission up to now has spent $117,000 for its upkeep, with another hundred thousand in reserve for restoration.

The Peace Cross, as it is generally called, apparently troubled no one until 2014, when the American Humanist Association and three people alleging "unwelcome contact" with a religious symbol sued the park commission, claiming that the cross was an unconstitutional religious "establishment."

A federal district court ruled in favor of the cross in 2015, but a divided three-judge panel of the 4th Circuit U.S. Court of Appeals ruled against it, and the full court voted 8-6 not to reconsider. One judge suggested removing the arms of the cross to make it acceptable. It is not recorded whether he was being humorous.

Whatever anyone thinks of Lemon v. Kurtzman, using it as a legal tool against the Peace Cross reflects hostility toward anything government might do to give public recognition – not endorsement and certainly not establishment, but simply recognition – to religion's role in the lives of many Americans. It is understandable why the American Humanist Association wants rid the landscape of the Peace Cross. It will be incomprehensible if the Supreme Court chooses to oblige.