In a second religion-related decision this week, the U.S. Supreme Court ruled that a public World War I memorial to war dead in Maryland – which included a cross – need not be removed. The case did not involve the more familiar question about religious freedom (the subject of Sutherland’s most recent publication), but rather the U.S. Constitution’s Establishment Clause. The argument was that including a cross in a public memorial endorsed Christianity. Ryan Neuhaus, an intern at Sutherland, and I wrote about this case in Newsmax in March.

In Thursday’s decision, a 7-2 majority of the Supreme Court ruled in American Legion v. American Humanist Association that the cross should be allowed to stay. Only Justices Ruth Bader Ginsburg and Sonia Sotomayor believed the monument unconstitutionally endorsed Christianity. The majority opinion, by Justice Samuel Alito, held that “retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones. The passage of time gives rise to a strong presumption of constitutionality.” The court concluded that for many people, “destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment. 

Added to this core holding were interesting discussions among a number of the justices on related issues. For instance, four justices (Alito, Chief Justice John Roberts, and Justices Stephen Breyer and Brett Kavanaugh) questioned whether a previous rule adopted by the court in 1971 (the Lemon test) was really workable. Justice Clarence Thomas made a broader claim that the Lemon test should be abandoned and replaced with the test of whether a person is religiously coerced by a government action. Kavanaugh also suggested coercion was the relevant question. Thomas also argued that the Establishment Clause does not apply to state and local governments. Justices Neil Gorsuch and Thomas argued that being offended by seeing a religious display did not constitute an injury that violated the Constitution.