In permitting a large state-sponsored Latin cross as a memorial to soldiers who died in World War I in American Legion v. American Humanist Association (2019), the U.S. Supreme Court could have done considerable damage to First Amendment principles of religious freedom and equality. The actual decision does some such damage but avoids much of it. And it includes signals that the Court recognizes the need to protect religious liberty for all faiths.
Among the seven justices who allowed the cross, five focused on the fact that it was erected in 1925; they held that “longstanding” displays have a “presumption of constitutionality.” Two liberals, Stephen Breyer and Elena Kagan, joined this majority but also wrote separately to make explicit what Justice Samuel Alito’s lead opinion had suggested: Newly erected displays should not enjoy the same presumption.
Two justices, Clarence Thomas and Neil Gorsuch, took a far broader position: that courts should stop hearing challenges to government symbols or practices that impose no coercion to practice religion. They would let the state endorse, non-coercively, any religious position no matter how specific or disputed. That would have been disastrous for equality among religions, which the Court has called “the clearest command of the Establishment Clause.” Coercion is the worst but not the only evil of an established religion. England has an established church although it coerces no one. Even Justice Antonin Scalia, who read the Establishment Clause narrowly, said it prohibits explicit statements of preference among monotheistic religions.
Explicit government preference for one disputed religious position creates several evils. As Justice Sandra Day O’Connor used to argue, it sends a message to non-adherents that their deep identity is less respected than that of the majority. In American Legion, a Jewish veterans’ organization filed a brief explaining that the cross was alienating and could not represent non-Christians among the war dead.
The majority answered that long-standing symbols, even those unique to one faith, do not necessarily send a message of preference. Erected in earlier times of Christian dominance, they may acquire additional meanings over the decades. And ordering them to be removed or altered can suggest “hostility” to religion, causing more alienation than retaining them does.
Those points have some force. Allowing long-standing displays is less damaging than allowing new ones, which in today’s world of far greater religious diversity is more likely to be perceived as taking sides. But grandfathering old displays also allows the effects of earlier religious homogeneity to persist today.
Official religious endorsements can also domesticate religion for government’s purposes, especially if courts uphold displays by saying they’ve lost their religious meaning. American Legion was careful to say that the war cross still symbolized Christ’s death while also memorializing soldiers. But the decision almost inevitably makes the former message secondary.
We should ask what signals American Legion sends to judges considering similar cases involving the key free exercise rights of religious believers, including rights in public settings. Symbols can be important, but many other cases involve concrete, material restrictions on religious persons and organizations—whether they are Muslims and other religious minorities subjected to discriminatory, burdensome policies, or religious schools and social services facing conflict between their sincere tenets and certain nondiscrimination laws.
In some ways, religious displays by government might reinforce broad rights of religious speech and exercise. They communicate that religion is not confined narrowly to worship services or the home; rather, it has public relevance and “plays an important role . . . in the lives of many Americans.”
But government-sponsored displays also stand in tension with vigorous free exercise rights. Special protection for the religious activity of private persons also suggests special limits on government’s promotion of its favored religious view. In both contexts, religion is a constitutionally sensitive matter; government should not impose the majority’s views except for very good reasons.
The question in future symbols cases is whether the Court will rubber-stamp majoritarianism or lean toward respecting religious equality. For one thing, American Legion left unclear how old a display must be to be “longstanding.” For another, it said a display would be unsuitable if its design “deliberately disrespected” other faiths: how receptive will courts be to such an objection? The majority found no evidence that the cross or its creation specifically disrespected non-Christian soldiers. Unfortunately, the Court has sometimes ignored strong evidence. It upheld clergy-led prayers opening a town council’s meetings even though the prayers were overwhelmingly Christian and neighboring non-Christian clergy were not invited. It upheld President Donald Trump’s travel ban even though it seemed clear the order would not exist but for Trump’s promise to institute “a total and complete ban on Muslims entering the United States.”
Still, American Legion gives signs the U.S. Supreme Court may show a decent respect for religious equality in future cases involving symbols and other issues. One sign is the separate opinion of Justice Brett Kavanaugh, whose vote may be crucial going forward. He acknowledged that displays could be alienating to other faiths, and he took pains to emphasize a “bedrock principle” that should influence every religion case: “All citizens are equally American, no matter what religion they are, or if they have no religion at all.”
Thomas C. Berg is the James L. Oberstar Professor of Law and Public Policy and directs students in the Religious Liberty Appellate Clinic at the University of St. Thomas School of Law in Minnesota. He is a religious freedom scholar whose numerous publications include approximately 60 briefs in the U.S. Supreme Court and lower courts.
