Supreme Court Limits Test for Establishment Clause Violation


July 26th, 2019

In a recent decision with significance for public schools, the United States Supreme Court ruled that certain longstanding com­munity monuments, symbols, and practices may have a presump­tion of constitutionality, even if they include some religious symbolism. American Legion v American Humanist Ass’n, No. 17-1717 (June 20, 2019). The American Humanist Association chal­lenged the display of a 32-foot Latin cross erected by private citizens in 1925 to honor World War I veterans. The cross now sits in the middle of an intersection, and since 1961 has been owned and main­tained by the local park and planning commission. The lawsuit al­leged that the local commission paying for the cross’s display, maintenance, and repair violated the U.S. Constitution’s Establishment Clause.

Since 1971, courts have used the “Lemon test” to determine whether a religious display violates the Establishment Clause by considering whether a display: (1) has a legitimate secular purpose; (2) has the primary effect of advancing or inhibiting religion; and (3) fosters an excessive entanglement of government and religion. Over the last few years, however, the Supreme Court has limited the Lemon test.

Rather than relying on the Lemon test, the Court in American Legion established for the first time a presumption of constitution­ality for longstanding historical monuments, symbols, or practices. In establishing this presumption, the Court noted that:

  1. identifying the original purpose of a historical monument, symbol, or practice is difficult, and courts should not com­pel the removal of those monuments based only on supposition;
  2. an established monument, symbol, or practice can amass multiple purposes over the years, and a community may preserve monuments, symbols, and practices for their his­torical significance or place in common cultural heritage;
  3. the message conveyed by a monument, symbol, or practice may also evolve over time and even religiously expressive monuments, symbols, and practices can be­come embedded features of a community’s landscape and identity; and
  4. when a local community has implied a particular meaning to a monument, symbol, or practice, removing it may not ap­pear neutral and, instead, give the appearance that the government is acting “aggressively hostile to religion.”

The Court distinguished between retaining established religiously expressive monuments, symbols, and practices and building or adopting new ones.

Applying the above considerations, the Court ruled that the local government’s display, maintenance, and repair of the cross did not violate the Establishment Clause. Based on the cross’s secular inscriptions, loca­tion in an area with a number of other war memorials, and its use to memorialize local veterans, the Court found that the cross had a distinctly secular purpose connected with World War I.

Although this decision provides further insight into how courts may analyze historical monuments, sym­bols, and practices that include religious symbols, deci­sions in Establishment Clause cases are always highly nuanced and fact-based. It remains to be seen how this decision will affect school displays or practices that include religious elements.

To date, the U.S. Supreme Court has not squarely addressed the issue of religiously themed holiday dis­plays or programs in a public school. Lower court decisions suggest, however, that a public school’s use of religious symbols in holiday displays is highly suspect. The Supreme Court has held that displaying explicitly reli­gious symbols (e.g., the Ten Commandments) on a public school classroom wall is unconstitutional. The Supreme Court also has emphasized that students are a particularly impressionable audience. These consider­ations often lead to a stricter interpretation of the Establishment Clause in school cases.

School officials should continue to exercise caution with any school display, practice, symbol, or monument that appears to endorse religion or religious view­points, excessively entangles the school with religion, or coerces religious behavior, like prayer.