Are there any recent freedom of religion cases of note?
September 1, 2019 | View PDF
Yes, decided on June 20 of this year in the United States Supreme Court, the case of American Legion, et al. v American Humanist Assn., et al. Prince George’s County, Maryland erected in 1918 a memorial for the dead from their county during World War I. Because the plain Latin cross had become a symbol of that War in that one could see pictures of rows of white crosses where dead soldiers were buried. The decision was made to place the memorial in a prominent place and when the County Commission ran out of funds the American Legion stepped in. Dubbed the Bladensburg Cross, it is thirty two feet tall and has been the site of many patriotic events through the years. Additional monuments for other wars and conflicts have been added to the area.
In 2014 the American Humanist Association and others filed suit saying the memorial violated the Establishment Clause of the United States Constitution. Applying the Lemon v Kurtzman test the District Court granted summary judgment for the Commission and American Legion but was reversed on appeal to the Fourth Circuit. On appeal to the United States Supreme Court the decision of the Fourth Circuit was reversed and remanded. Being such a contentious issue not only was Justice Alito assigned to write the majority opinion but there were other concurring opinions and well as other minority opinions.
Justice Alito pointed out (1) that older monuments are sometimes difficult to establish their original purpose(s), and (2) that as time passes the purpose of a historical monument may become infused with religion, and (3) the message of the monument may evolve and become a reason for preservation, and (4) as time passes a monument may give to a community a strong presumption of constitutionality. The cross symbols provided a substitute of sorts for those unable to travel to Europe to visit the graves of their loved ones. Though Justice Alito admitted the cross a religious symbol he also saw it in the secular meaning as a WW I memorial.
Justice Alito, Justice Breyer, Justice Kavanaugh and Chief Justice Roberts additionally concurred in that the Lemon test failed to link the cross as a violation of the Establishment Clause. Though Justice Thomas concurred in the opinion and wrote his own, it was not because he agreed entirely with the opinion of Justice Alito and others. Justice Gorsuch concurred with the majority saying, “ In a large and diverse country, offense can be easily found. No doubt, too, that offense can be sincere, sometimes well taken, even wise. But recourse for disagreement and offense does not lie in federal litigation. Instead, in a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an “offended viewer” may “avert his eyes”, Erznoznik v. Jacksonville, 422 U.S. 205, 212 (1975), or pursue a political solution.”
Only in dissent were Justices Ginsburg and Sotomayor; Justice Ginsburg
submitting her opinions. It was Justice Ginsburg’s opinion that using a Christian cross as a war memorial does not transform it into a secular symbol. She goes on to make her point that the cross does not represent the sacrifice of Jewish soldiers or those of other faiths. It was therefore her feeling that the cross on public property elevated Christianity over other religions and religion over non-religion, thus endorsing such.
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