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SCOTUS to hear important case about religious “establishment”

It is understandable why the American Humanist Association wants rid the landscape of the Peace Cross. It will be incomprehensible if the Supreme Court chooses to oblige.

The Peace Cross is a World War I memorial l in Bladensburg, Maryland. [Ben Jacobson/Wikipedia]

Two years after his death, the late Supreme Court Justice Antonin Scalia is missed for many reasons, not least among them his colorful writing style. In one notable opinion, Scalia said this: “Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence.”

Lemon” here is Lemon v. Kurtzman, the name of a case decided by the Supreme Court in 1971. Chief Justice Warren Burger, writing for the court, therein proposed a new way of settling the question of whether something that the government says or does that touches on religion amounts to a religious “establishment” in violation of the Constitution’s First Amendment.

The Lemon test has three parts—“prongs,” Burger styled them—any one of them capable of rendering a church-state interaction unconstitutional: a “legitimate secular purpose,” a primary effect that “neither advances nor inhibits” religion, and no “excessive entanglement” between government and religion.

Using this test, the Burger court ruled that state laws in Pennsylvania and Rhode Island that provided modest salary supplements for nonpublic school teachers teaching secular subjects (and, in Pennsylvania, using state-supplied secular textbooks) were an unconstitutional establishment of religion inasmuch as most of the schools were Catholic ones and Catholic schools further the Church’s religious mission

Since then, applying this test to other factual situations—from opening legislative sessions with prayer (allowed) to barring immigration from certain Muslim-majority countries under an executive order by President Trump (not allowed)—has produced a hodgepodge of decisions regarding what and is not permitted. The result, says Justice Clarence Thomas, is best described as a “shambles.” Others have called it “incoherent,” “schizoid,” and “chaotic.”

Now the Supreme Court is trying again to establish order to a notably confused area of its jurisprudence.

On February 27 it will hear arguments in a case involving a 40-foot tall granite and cement cross that stands on the median of a busy highway in a Washington, D.C. suburb. The cross was placed there in 1925 by the American Legion as a memorial to 49 local men who lost their lives in military service in World War I. In 1961, largely for reasons of traffic safety, it and the land it stands on were taken over by the local park commission, a public body. The commission up to now has spent $117,000 for its upkeep, with another hundred thousand in reserve for restoration.

The Peace Cross, as it is generally called, apparently troubled no one until 2014, when the American Humanist Association and three people alleging “unwelcome contact” with a religious symbol sued the park commission, claiming that the cross was an unconstitutional religious “establishment.”

A federal district court ruled in favor of the cross in 2015, but a divided three-judge panel of the 4th Circuit U.S. Court of Appeals ruled against it, and the full court voted 8-6 not to reconsider. One judge suggested removing the arms of the cross to make it acceptable. It is not recorded whether he was being humorous.

Whatever anyone thinks of Lemon v. Kurtzman, using it as a legal tool against the Peace Cross reflects hostility toward anything government might do to give public recognition—not endorsement and certainly not establishment, but simply recognition—to religion’s role in the lives of many Americans. It is understandable why the American Humanist Association wants rid the landscape of the Peace Cross. It will be incomprehensible if the Supreme Court chooses to oblige.

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About Russell Shaw 282 Articles
Russell Shaw was secretary for public affairs of the National Conference of Catholic Bishops/United States Catholic Conference from 1969 to 1987. He is the author of 20 books, including Nothing to Hide, American Church: The Remarkable Rise, Meteoric Fall, and Uncertain Future of Catholicism in America, Eight Popes and the Crisis of Modernity, and, most recently, The Life of Jesus Christ (Our Sunday Visitor, 2021).


  1. The Lemon prongs are a cross in and of themselves. They are nowhere in the Constitution and have become over time an institutional attempt to amend the first amendment as it applies to Religious freedom. Not all religious expression is individual or on secular. Much of it is supplementary as in a reminder of the glory that is found in peace.
    Americans want and need symbols and reminds of their best natures. Some of them have religious roots and spiritual truths. We cannot run away from, who are people think they are just because someone else says no. Freedom floats so people may vote and be heard in many different ways. To try and control belief and micro manage its images is political worship on its own. Thomas P Greerty

  2. The humanists say “Where is your god?” Their pagan French god “Liberte” stands in New York harbor. She has eyes that don’t see, ears that don’t hear, a nose that can’t smell, a mouth that can’t shape words, a throat that cannot make noises. hands that cannot open and close, with feet frozen in place.

    But our God is the God of the living and dwells at the foundation of the universe. Praise Him Christians; praise Him Jews; praise Him Muslims. Praise Him all the peoples of the Earth, in the worlds of the World without end. Amen, Alleluia.

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