139 S. Ct. 2067 (2019)
In 1918, residents of Prince George’s County, Maryland, formed a committee to erect a memorial for the county’s soldiers who fell in World War I.1 The committee chose a Latin cross design for the memorial, which was to stand at the terminus of the National Defense Highway connecting Washington to Annapolis.2 When the committee ran out of funds, the local American Legion post took over the project and completed the 32-foot concrete cross in 1925.3 The finished memorial displayed the American Legion emblem at its center and rested on a large pedestal bearing a bronze plaque that listed the names of 49 local soldiers who died in the war, along with the words Valor, Endurance, Courage, and Devotion.4 At the dedication ceremony, a Catholic priest offered an invocation and a Baptist pastor delivered a benediction.5
Since its dedication, the Bladensburg Cross has served as the site of patriotic events honoring veterans on Veterans Day, Memorial Day, and Independence Day.6 Over the following decades, additional monuments honoring veterans of later wars were added in the surrounding area, which became known as Veterans Memorial Park.7 As the area around the cross developed, the monument came to stand at the center of a busy intersection.8 In 1961, the Maryland-National Capital Park and Planning Commission acquired the cross and the land on which it sits to preserve the monument and address traffic-safety concerns, and the Commission has since spent public funds to maintain the memorial.9
In 2014, the American Humanist Association and several individual plaintiffs filed suit in the United States District Court for the District of Maryland against the Commission.10 The plaintiffs alleged that the cross’s presence on public land and the Commission’s maintenance of the memorial violated the Establishment Clause of the First Amendment.11 The American Legion intervened to defend the cross.12 The District Court granted summary judgment for the Commission and the American Legion.13
The United States Court of Appeals for the Fourth Circuit reversed the District Court’s decision.14 The Supreme Court granted certiorari, heard argument on February 27, 2019, and issued its decision on June 20, 2019.15
Whether the Bladensburg Peace Cross on public land violates the Establishment Clause of the First Amendment?16
The Establishment Clause of the First Amendment prohibits government actions that establish religion, yet the Court has long recognized that the analysis of longstanding religiously expressive monuments, symbols, and practices differs from the evaluation of new ones because identifying original purpose grows difficult, purposes multiply, messages evolve, and removal may appear nonneutral.17
No. Applying the historical approach to these facts, the Bladensburg Peace Cross originated as a symbol of World War I sacrifice.18 It has acquired additional secular meaning through nearly a century of community use.19 The Commission maintains the memorial for historic preservation and traffic safety, confirming the absence of religious endorsement.20
The Bladensburg Peace Cross does not violate the Establishment Clause.21
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Joined by Justice Sotomayor And In Part By Justice Kagan
Justice Ginsburg dissented, joined by Justice Sotomayor and in part by Justice Kagan.22 She maintained that the Latin cross remains the preeminent symbol of Christianity.23 Its prominent display on public land endorses religion in violation of the Establishment Clause.24
Ginsburg argued that the majority abandoned the Lemon test for a vague history and tradition approach that permits government religious displays merely because they have existed for a long time, contrary to the required neutrality between religion and nonreligion.25 She noted the cross’s dedication with religious ceremonies and the American Legion’s involvement as further evidence of endorsement rather than mere commemoration.26 Ginsburg warned that the decision would lead to more division by allowing longstanding religious symbols to remain without regard to their sectarian character.27
Justice Thomas concurred in the judgment.28 He wrote separately to emphasize that the Establishment Clause should not be incorporated against the states because the text and history of the Clause suggest it was meant only to prevent a national establishment by Congress.29 Even if the Clause applied to state and local governments, the cross involves no actual legal coercion of the sort that characterized historical establishments of religion.30
Thomas stated that the mere presence of the monument does not coerce anyone and that religious displays need not be limited to nonsectarian expressions.31 He would overrule the Lemon test entirely because it has no basis in the original meaning of the Constitution and has caused confusion in the lower courts.32
Justice Kavanaugh concurred in the judgment and joined the Court’s opinion in full.33 He stressed that the decision aligns with the principle that government may not coerce religious belief or practice.34 The Bladensburg Cross involves no coercion of any kind.35
Kavanaugh also highlighted the role of history and tradition in Establishment Clause analysis, noting that the cross has become a symbol of sacrifice in war rather than an attempt to establish religion.36 He explained that the Court’s precedents across multiple categories of Establishment Clause cases rest on history, tradition, and precedent rather than the Lemon test, and that the Bladensburg Cross fits comfortably within the tradition of displaying religious war memorials without coercion.37
Whether the Lemon test governs analysis of a longstanding religious monument erected as a war memorial?38
The Lemon test, which examines purpose, effect, and entanglement, does not provide the sole or controlling framework for Establishment Clause claims involving longstanding monuments, symbols, and practices; instead, courts look to history and tradition for guidance in such cases.39
No. The Lemon test does not govern as the sole framework here.40 The Court has repeatedly declined to apply Lemon in cases involving religious references in public monuments and symbols.41 The test has proved unworkable and has been criticized by members of the Court.42 In this case the Bladensburg Cross is a longstanding war memorial whose meaning has evolved over time, making the historical approach appropriate.43
The Lemon test does not govern analysis of the Bladensburg Peace Cross.44
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Justice Kavanaugh wrote separately to emphasize that the Court no longer applies the Lemon test in Establishment Clause cases involving religious symbols on government property.45 He explained that each category of Establishment Clause cases has its own principles based on history, tradition, and precedent rather than any single formula.46 The Bladensburg Cross fits within the tradition of displaying religious memorials without coercion.47
Kavanaugh noted that if Lemon had guided the Court’s decisions over the last forty-eight years, many established precedents would have come out differently, confirming that the test is not good law in any category of cases.48
Joined by Justice Kagan
Justice Breyer concurred in the judgment, joined by Justice Kagan.49 He reiterated his view that no single formula resolves all Establishment Clause challenges.50 Each case must be considered in light of the Religion Clauses’ purposes of assuring religious liberty, avoiding social conflict, and maintaining separation.51
Breyer agreed that the Peace Cross poses no threat to those ends given its historical context and long-standing place in the community.52 He cautioned that a newer memorial erected under different circumstances might raise different concerns, but the particular circumstances here supported constitutionality.53
Justice Kagan concurred in part, joining Parts I, II–B, II–C, III, and IV of the opinion as well as Justice Breyer’s concurrence.54 She agreed that rigid application of Lemon does not solve every Establishment Clause problem.55 The test’s focus on purposes and effects remains crucial in evaluating government action, while preferring a case-by-case historical approach for now.56
Kagan praised the opinion’s sensitivity to the Nation’s pluralism and the values of neutrality and inclusion that the First Amendment demands.57
Whether the passage of time and historical context can render a religious symbol constitutional when used in a veterans memorial?58
The passage of time can imbue a religiously expressive monument with historical significance and a presumption of constitutionality when the monument has become part of the community’s identity and its removal would no longer appear neutral.59
Yes. The passage of time and historical context render the Bladensburg Cross constitutional.60 Erected in 1925 as a World War I memorial using a symbol then associated with the war’s sacrifices, the cross has stood for nearly a century without challenge.61 It now serves as a prominent community landmark among other veterans memorials.62
The Commission maintains it for historic preservation and traffic safety.63 These factors, combined with the cross’s evolution from a symbol of Christian sacrifice to one of secular commemoration, support its constitutionality under a history-and-tradition analysis.64
The passage of time and historical context render the Bladensburg Peace Cross constitutional.65
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Joined by Justice Kagan
Justice Breyer concurred, noting that the case would be different if the cross had been erected only recently or if there were evidence of deliberate disrespect to minority faiths.66 He emphasized that ordering removal at this late date would signal hostility toward religion inconsistent with Establishment Clause traditions.67 Breyer stressed that the cross’s secular values, its place among other memorials, and the absence of any climate of intimidation supported upholding the monument.68
He agreed that the particular historical context and long-held place in the community made the display constitutional.69
Justice Kagan joined the relevant parts of the opinion and Justice Breyer’s concurrence.70 She praised the opinion’s emphasis on whether longstanding monuments reflect respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans.71 Kagan preferred to proceed case by case when looking to history rather than adopting broader statements about history’s role, but she found much to admire in the opinion’s approach to the Bladensburg Cross and its sensitivity to the Nation’s pluralism.
Whether offended observers have standing to challenge a religious display on public property?72
Article III standing requires a concrete and particularized injury-in-fact; mere offense at a government display does not satisfy this requirement because it amounts to a generalized grievance insufficient to invoke federal judicial power.73
No. Offended observers do not have standing to challenge the Bladensburg Cross.74 The American Humanist Association claimed its members suffered unwelcome contact with the cross while driving through the area.75 Offense alone does not constitute the concrete, particularized injury required for standing.76 Allowing such suits would permit federal courts to adjudicate abstract disagreements.77
It would undermine separation-of-powers principles by turning generalized grievances into justiciable cases.78 The proper plaintiffs for Establishment Clause violations are those actually coerced or denied benefits, not merely those who find a display offensive.79
Offended observers lack standing to challenge the Bladensburg Peace Cross.80
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Joined by Justice Thomas
Justice Gorsuch concurred in the judgment, joined by Justice Thomas.81 He argued that the case should have been dismissed for lack of standing because the offended-observer theory has no basis in Article III.82 Standing requires a concrete and particularized injury-in-fact that is actual or imminent, not conjectural or hypothetical.83
Gorsuch explained that the theory was invented by lower courts in response to Lemon and is deeply inconsistent with longstanding limits on Article III standing, including the bar on generalized grievances and the rule against asserting third-party rights.84 Abandoning this theory will return courts to the usual demands of a real controversy affecting real persons, while proper plaintiffs remain available for genuine violations such as students compelled to recite prayers.85
Justice Thomas joined Justice Gorsuch’s opinion on standing.86 He separately noted that the Establishment Clause claim fails even on the merits because no actual legal coercion exists.87 The sine qua non of an establishment of religion is actual legal coercion of the sort that characterized historical establishments.88
Thomas reiterated that the text and history of the Clause suggest it should not be incorporated against the states, and that even if it applied, the mere presence of the monument involves no coercion of the sort that characterized historical establishments of religion.89