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The Supreme Court’s position on the Establishment Clause remains a mess

The 7-2 ruling leaves the memorial cross standing, but church-state jurisprudence is no clearer than it was before the June 20 decision and could even be a tad more obscure.

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

As between winning and losing, winning is usually preferable. But that’s about as much as you can say right now for the Supreme Court’s Peace Cross decision and its impact on religion. The 7-2 ruling leaves the memorial cross standing, but church-state jurisprudence is no clearer than it was before the June 20 decision and could even be a tad more obscure.

To be sure, that isn’t the universally held assessment of what the Supreme Court did. The contrary view is that in saying the cross can stand where it has stood for 94 years, the court laid the groundwork for eventual repudiation of a widely scorned rationale that has guided–or, as many would say, confused–its reasoning on relations between church and state since 1971.

One can only hope that’s so. Meantime the court’s position on the Establishment Clause remains, as Justice Neil Gorsuch eloquently put it in his concurring opinion—“a mess.”

Here a little background may help.

The Supreme Court’s new decision, in a case called American Legion v. American Humanist Association, concerned a 40-foot granite and cement Latin cross that since 1925 has stood on the median of a busy highway in the Washington, D.C. suburb of Bladensburg, Md. The cross was placed there as a private initiative and paid for with private funds as a wat if honoring 49 local men who died in World War I.

The local park and planning commission, largely for traffic safety reasons, took ownership of the cross and the land it stands on in 1961. Since then, it has spent $117,000 in public money on upkeep, with another $100,000 in reserve for what is said to be badly needed restoration work.

Prior to 2014 there was no indication that the cross bothered anyone. Then, however, the Humanist Association and three individuals declaring themselves offended by “unwelcome contact” with a religious symbol sued the park and planning body. The American Legion entered the case to defend the cross.

A federal district court ruled for the Peace Cross in 2015, but a divided three-judge panel of the Fourth Circuit U.S. Court of Appeals ruled against, and the full appeals court last year voted 8-6 to uphold that decision.

The three-judge panel’s ruling was based the doctrine set out by the Supreme Court in 1971 in a case called Lemon v. Kurtzman.

The court at that time was on something of a no-establishment roll, handing down a string of decisions overturning various forms of largely unremarkable interaction between church and state. In Lemon it overturned a Pennsylvania program providing modest salary supplements for teachers of secular subjects in church-related schools. It also provided a three-part test that any church-state interaction henceforth would be required to pass: secular purpose, no endorsement of religion, and no “excessive entanglement” of the two.

Nearly half a century later, the Lemon test is widely regarded as unworkable. Thus there was hope that in ruling on the Peace Cross–an easy candidate to pass constitutional muster—the court would come up with something better. But even though a comfortable majority found no reason to object to the cross, the justices were all over the lot, serving up a judicial stew of concurrences, dissents, and concurring-in-part, dissenting-in-part opinions. Only Justices Ginsburg and Sotomayor dissented in full.

Two facts nevertheless did stand out. First, the Peace Cross can stay where it is. Second, most of the court’s present members have no interest in the Lemon test. That’s progress, I guess.

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About Russell Shaw 296 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 Establishment Clause must be scrutinized as to intent [often referenced as Constructionist interpretation] of the Founding Fathers. “The First Amendment’s Establishment Clause prohibits the government from making any law ‘respecting an establishment of religion.’ This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another” (Wex Legal Dict Cornell Ed).
    That is a fair, commonly held interpretation of what was written in context of the primacy of the Church of England and its dominant juridical position in Britain and the English New World settlers Anabaptist, Congregational, Puritan, and Catholic [Lord Calvert and Maryland] seeking freedom from the Church of England. To be free to express their own religious beliefs. Certainly not a statute intended to Prohibit freedom of religious expression. The cross in question does not pose a threat to other religions nor does it indicate favoring Christianity. Rather Atheism [a religious posture] or Judaism, Islam if opposed to a public Christian symbol are in fact favoring their own rel beliefs over Christianity. Our difficulty today is not really one religion seeking favor over another. It is Secularism, an ideology that by nature suppresses any and all freedom of religious expression. Justices that are infected with this moral disease should be quarantined from the judicial bench.

    • “The cross in question does not pose a threat to other religions nor does it indicate favoring Christianity”

      But Peter (Fr Peter Morello) it does offend many none believers, as it confronts evil in bearing witness to the Truth, the essence of ‘love’ of neighbour, and in doing so often antagonizes the sensibilities of innate knowledge known within the human heart. While symbols of other religions by comparison do not.

      The Cross a symbol of Jesus Christ for us Christians (As you are aware) is far more than a symbol of ‘love’ as it symbolizes His Love given in obedience to His and our Fathers Will, in the serving of the Truth. The serving of the Truth (In all situations) is Love, and to know Jesus Christ, this must be truly understood.

      kevin your brother
      In Christ

      • That is the other side of the coin. Then Simeon blessed them and said to His mother Mary: Behold, this Child is destined to cause the rise and fall of many in Israel, and to be a sign of contradiction, that the thoughts of many hearts will be revealed (Lk 2:35). The truth of the Word is revealed to all including the non believer in the Crucifixion, since that capacity is inherent in the human soul. We believe [or condemn ourselves by refusal] because God has spoken in his Son.

          • You’re insight Kevin “innate knowledge known within the human heart” is a vital not widely known truth that is held by Saint Thomas Aquinas. Aquinas described this inherent capacity as prescient knowledge that becomes evident to the intellect upon apprehension of first principles. For Man, we by nature learn truth progressively, step by step [discursively] until the intellect apprehends truth. For example knowledge of a First Principle, God is arrived at discursively within study of Nature and causality as alluded to by The Apostle in Rm 1. Paul faulted the Romans for not believing what is evident in Nature. However knowledge of Christ, as the unique Son of God is not acquired knowledge [science or discursive knowledge]. Rather it is apprehended in consequence by the prescient grace God gives us. By Faith. Faith then is described by The Apostle as evidence of what we hold true and hope for. That is why Christ teaches those who refuse to believe in Him condemn themselves and why the Church teaches in the Catechism that we believe [in Christ] not because of reasoned argument [which follows that assent of faith] rather because God has spoken in his Son. The gift of grace [prescient] leads us to the assent [or for many refusal of what the gift imparts] of this truth, that the Nature of God, which is Love revealed in the Crucifixion and Resurrection is the Ultimate Truth.

          • Kevin please see my correction below. Prescient grace [although Aquinas calls it a kind of interior grace] should read Prevenient grace.

  2. Simple. If the cross offends them, just don’t look at it. I thought this country was founded as a republic and not a communist regime.

  3. Actually, the First Amendment Establishment Clause has NOT—effectively—prohibited the “government” from making a law “respecting an establishment of religion.”

    The Amendment restricts, literally, only “the Congress.” Little did it occur to the still-reasonable minds of our nation’s Founding Fathers that an activist Supreme Court (a different branch of government) would take it upon itself to “establish” and enforce a de facto national religion of Secular Humanism (together with its Orwellian culture of intolerant “tolerance”).

    Roe v. Wade (1973) and now Obergefell v. Hodges (2015)—first a sweeping and mandatory submission to an arguably Aztec mentality with regard to pre-born children, and then the compulsory mainstreaming of oxymoronic gay “marriage,” whereby the openly public defense of marital fatherhood, itself, is branded as a punishable “hate crime” against the new dispensation. (And whereby the next-generation children of incorrigible/intolerable mothers and fathers are subjected to gender-theory brainwashing at the earliest public-school age.)

    The First Amendment restrains “Congress”, but the founders never even guessed at the need to restrain the other two branches of “government” (nor public/government schools) in a society gone off the rails (railroads also came later!).

    Time to wake up, the day is far spent. No wonder the Court–in examining its own diapers–is a mess.

  4. A correction to my response to Kevin. Prescient grace should instead read Prevenient grace, that initial grace that moves us toward the good. Man possesses the inherent capacity, Prescient knowledge that becomes evident in apprehension. For example in the capacity to know the truth of Christ. However since the Fall and Original Sin Man requires prevenient grace to consent to what his conscience tells him is true regarding Christ. That consent is an act of Faith. It is not based on reasoned inquiry.

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