The constitutional law of the United States forbids government—state as well as federal—to “establish” religion. There is widespread agreement, both among the justices of the U.S. Supreme Court and among constitutional scholars, that under the antiestablishment prohibition, government may not treat a particular church—or a particular range of theologically kindred churches, such as “the Christian church”—as the, or an, official church of the political community (nation, state, county, municipality, township, etc.), nor may government treat one or more religious doctrines or practices of a particular church as official doctrines or practices of the political community. However, there is ongoing controversy, both among the justices and among constitutional scholars, about what sorts of government action, beyond the sorts that fit the foregoing profile, “establish” religion and are therefore unconstitutional.

The government action at issue in American Legion v. American Humanist Association concerned a 94-year-old, 32-foot-high “Peace Cross” on a pedestal atop a busy intersection near Bladensburg, Maryland. The Peace Cross was erected by private groups in 1925 as a memorial to the 49 citizens of Prince George’s County, Maryland, who died in World War I. The State of Maryland took ownership of the site in 1961 and has maintained it with public funds ever since. In 2014, the American Humanist Association and others sued, claiming Maryland’s action violated the antiestablishment prohibition. The Supreme Court, by a vote of 7-2, ruled in favor of Maryland. 

A bare majority of the Supreme Court—five justices—ruled that Maryland’s action did not “establish” religion within the meaning of the antiestablishment prohibition. In an opinion written by Justice Alito and joined by Chief Justice Roberts, and Justices Breyer, Kagan, and Kavanagh, the majority worried aloud that “[a] government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion.” The majority concluded 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.” As Justice Breyer explained in a concurring opinion, joined by Justice Kagan: “The case would be different if there were evidence that the organizers [of the post-World War I effort to erect the Peace Cross] had ‘deliberately disrespected’ members of minority faiths or if the Cross had been erected only recently, rather than in the aftermath of World War I. But those are not the circumstances presented to us here, and I see no reason to order this cross torn down simply because other crosses would raise constitutional issues.” 

Justice Thomas concurred in the judgment of the majority but not in its rationale. As he had done in earlier cases, Justice Thomas rejected the position that the antiestablishment applies to state government. In another opinion concurring in the majority’s judgment but not in its rationale, Justice Gorsuch, joined by Justice Thomas, rejected the position that the American Humanist Association had standing to bring the case.

Justice Ginsburg, in the words of University of Baltimore law professor Garrett Epps, writing in The Atlantic the day after the court’s decision was handed down, “wrote an impassioned old-fashioned separationist dissent.” In her opinion, Justice Ginsburg, joined by Justice Sotomayor, explained that, as Professor Epps put it: 

It is noteworthy that the five justices for whom the majority opinion speaks include two “liberal” justices as well as three “conservative” justices. Readers who would like to delve into this case more deeply—or into the ongoing controversy both among the justices and among constitutional scholars about the antiestablishment prohibition—should email me at mjperry@emory.edu.

—Michael J. Perry
Robert W. Woodruff Professor of Law