Does a World War I Memorial Violate the Establishment Clause?

In the American Legion v. American Humanist Association, the Supreme Court will weigh in on whether a state’s maintenance of a 93-year-old World War I memorial that includes a 40-foot cross is an “establishment of religion” in violation of the First Amendment.

While the Constitution’s command that “Congress shall make no law respecting an establishment of religion” is straightforward, the Supreme Court’s establishment clause jurisprudence is anything but clear.

To determine whether a government action runs afoul of the First Amendment, the Supreme Court has developed a number of tests, looking for “excessive entanglement” of government with religion, an endorsement or disparagement of a particular faith tradition, or government coercion, while also weighing the history and context of the challenged religious practice or display.

The Supreme Court has applied these tests inconsistently, giving the lower courts little guidance about how and when to apply the various tests. All this leads to unpredictable results.

In a dissent from the Supreme Court’s refusal to hear Rowan County v. Lund last term, Justice Clarence Thomas wrote: “[t]his court’s establishment clause jurisprudence is in disarray.”

The fact that the Supreme Court took up the American Legion case might be a signal that a majority of the justices agree with Thomas.

In the case at hand, the U.S. Court of Appeals for the 4th Circuit held that the war memorial, the Peace Cross in Bladensburg, Maryland, violates the establishment clause, concluding that the size and prominence of the cross convey government endorsement of Christianity and that the state’s maintenance of the cross is an excessive entanglement with religion.

The veterans group contends that the Supreme Court should clarify what the appropriate test is for judging establishment clause claims, urging the justices to adopt the coercion test (asking whether the government used its power to force particular religious beliefs or practices on its citizens, or to require financial support for a particular religion) and to jettison the others.

SOURCE