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American Legion wins Supreme Court "Peace Cross" case

Clients American Legion, The

On June 20, 2019, the U.S. Supreme Court ruled (7-2) in favor of Jones Day client The American Legion by upholding the constitutionality of a government-maintained cross on public land.

The Bladensburg Peace Cross ("Cross") was built more than 90 years ago as a tribute to local soldiers who gave their lives during World War I. Offended by the sight of the Cross on public land, the American Humanist Association ("AHA") filed suit seeking to have it relocated or demolished. AHA claimed that the presence of the Cross on public land and the use of public funds to maintain the Cross violate the First Amendment's Establishment Clause.

A divided panel of the United States Court of Appeals for the Fourth Circuit agreed with AHA. The majority found that the government's association with the Cross ran afoul of the Supreme Court's Lemon test. Specifically, the majority held that the Cross had the prohibited effect of advancing religion because a reasonable observer would view the government's ownership and maintenance of the monument as an endorsement of Christianity.

In reversing the Fourth Circuit's judgment, the Supreme Court chose a history-based analysis over the Lemon/endorsement approach. For "religiously expressive monuments, symbols, and practices," the Court held that the "passage of time gives rise to a strong presumption of constitutionality." Applying that presumption, the Court upheld Bladensburg's long-standing Cross. "The cross is undoubtedly a Christian symbol," the Court explained, "but that fact should not blind us to everything else that the Bladensburg Cross has come to represent." The Court's approach follows Town of Greece, a case upholding local legislative prayer based on historical practice. In both cases, the Court followed tradition and history rather than Lemon.

A plurality opinion authored by Justice Alito criticized Lemon's "short-comings." The plurality viewed Lemon as creating "particularly daunting problems" for cases involving "the use . . . of words or symbols with religious associations." Several separate opinions echoed the plurality's distaste for Lemon. For example, Justice Gorsuch, who concurred in the judgment, characterized Lemon as "shelved," explaining that the plurality's "message for our lower court colleagues seems unmistakable: Whether a monument, symbol, or practice is old or new, apply Town of Greece, not Lemon."

The American Legion, et al. v. American Humanist Association, et al., Nos. 17-1717, 18-0018 (U.S.); American Humanist Association v. Maryland-National Capitol Park & Planning Commission, No. 15-2597 (4th Cir.); No. 14-cv-00550 (D. Md.)

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