American Legion v. Am. Humanist Ass'n

Justice Breyer, joined by Justice Kagan, agreed that the cross may remain but rejected any single formula for Establishment Clause cases. In his view, courts must examine each dispute in light of the Religion Clauses’ central purposes: protecting religious liberty and tolerance, avoiding religious conflict, and preserving a separation of church and state that allows both institutions to flourish.

The particular facts showed no real threat to those purposes. The cross was tied to World War I commemoration, had a secular memorial purpose, bore patriotic inscriptions, stood with other memorials, and had generated no evidence of exclusionary intent or community conflict. A newer cross or a monument erected to disrespect minority faiths could present a very different case.

Justice Breyer cautioned that the Court should not be read to authorize every new religious memorial on public land. History may guide the inquiry, but a recent display erected in a different social setting may be divisive in a way that a longstanding memorial is not.

Justice Kavanaugh joined the Court’s opinion in full and read it as applying a history-and-tradition approach. He argued that the Court’s Establishment Clause cases have already moved away from Lemon, including cases involving religious displays, legislative prayer, religious accommodations, government benefits, school prayer, and private religious speech in public forums.

In his view, the governing principles are that a noncoercive practice ordinarily does not violate the Establishment Clause if it is rooted in history and tradition, treats religious and secular persons or organizations equally, or constitutes a permissible religious accommodation. The longstanding practice of displaying war memorials with religious imagery satisfies those principles.

Justice Kavanaugh also acknowledged the sincere alienation that non-Christians may feel when encountering a cross on public property. But a constitutional holding that Maryland may retain the cross does not require Maryland to retain it. State and local political processes may provide greater protections or choose to remove or relocate the memorial.

Justice Kagan agreed that the Peace Cross may remain and joined the portions of the Court’s opinion explaining its historical context and applying that analysis to uphold the monument. She also joined Justice Breyer’s contextual concurrence.

She did not join the plurality’s broader discussion of Lemon or its broader statements about history’s role. Although Lemon cannot be rigidly applied to every Establishment Clause dispute, she maintained that attention to governmental purpose and effect remains essential in this area, including in this case.

Justice Thomas concurred only in the judgment. He reiterated his view that the Establishment Clause should not have been incorporated against the States through the Fourteenth Amendment. By its text, he reasoned, the Clause restrains Congress from making laws respecting an establishment of religion, not state and local governments from maintaining monuments.

Even assuming an incorporated individual right applies to Maryland, Justice Thomas would require actual legal coercion comparable to historical establishments of religion. Such establishments compelled religious conformity, financial support, attendance, or other religious conduct through law and penalty. Mere exposure to a religious symbol on public property is not that kind of coercion.

Justice Thomas agreed that Lemon is unsound and should be overruled in every context, not merely set aside for religious monuments. He could not join the Court’s opinion because he believed it did not sufficiently clarify the proper general Establishment Clause standard.

Justice Gorsuch, joined by Justice Thomas, concurred only in the judgment because he would have dismissed the case for lack of Article III standing. In his view, an individual’s offense at encountering a religious display is not a concrete and particularized injury that permits a federal court to order the display removed.

He argued that “offended observer” standing is incompatible with ordinary standing doctrine. Personal disagreement with government action, however sincere, does not itself amount to an invasion of a legally protected interest. Allowing offense alone to suffice would turn courts into forums for generalized grievances and permit them to displace political decisionmaking.

Justice Gorsuch linked the lower courts’ standing rule to Lemon and its endorsement test: once courts asked whether a reasonable observer would perceive endorsement, lower courts assumed an offended observer could sue. With Lemon no longer controlling in this setting, he urged lower courts to return to ordinary standing requirements. Plaintiffs subject to actual coercion or unequal treatment would still have standing to bring genuine Establishment Clause claims.

Justice Ginsburg, joined by Justice Sotomayor, concluded that Maryland’s maintenance of the Peace Cross violates the Establishment Clause’s command of neutrality among religions and between religion and nonreligion. A large Latin cross on government property, she reasoned, naturally communicates official endorsement of Christianity and tells non-Christians that they are outsiders in the political community.

The cross cannot be secularized merely because it commemorates war dead. The Latin cross is Christianity’s central symbol, expressing the theological claims of Christ’s crucifixion, resurrection, and salvation. Its use as a grave marker honors Christian soldiers precisely because of that religious meaning; it is not a universal symbol appropriate for veterans of all faiths or of no faith.

Justice Ginsburg disputed the assertion that the cross was a generally accepted World War I memorial symbol. During and after the war, the military used crosses for Christian graves and Stars of David for Jewish graves, reflecting the understanding that the symbols were sectarian. Most World War I memorials did not take the form of a Latin cross.

She also rejected the suggestion that finding a constitutional violation would require destroying religious objects or suppressing all public religious expression. Context-sensitive remedies, such as transfer or relocation to private land, could avoid governmental endorsement while preserving the memorial.