July 1, 2019
Conservatives breathed a refreshing sigh of relief upon hearing the Supreme Court’s ruling to protect the Bladensburg cross-shaped memorial last month in American Legion v. American Humanist Association. In defending the memorial, the Court not only resolved this case’s controversy but helped shed light on religion’s place in the public square entirely. This case may prove to be a greater victory than many suppose as it looks towards the original intentions of our Founding Fathers, measuring the memorial’s legality with the Constitution rather than tests the Court has conjured up in the past.
Though the Court has had to determine how the Constitution is to be interpreted, some of the ways chosen to do so have greatly deviated from the Constitution’s plain original meaning. One of the worst interpretations of the Constitution’s Establishment Clause—the Lemon test—has played a significant role in the Court’s decisions since Lemon v. Kurtzman was decided in 1971. The Lemon test instated a three-pronged set of requirements intended to drive a wedge between Church and State—something that the Establishment Clause never envisioned, supported, or made accommodations for.
Though the Lemon test has daunted cases of religious freedom for decades, the Court’s decision to protect the Bladensburg cross-shaped memorial gives one hope for a future full reversal of Lemon. Having produced a strong 7-2 ruling in favor of the memorial, the Court once again highlighted the futility of the test. Even though the Court did not throw out Lemon entirely, their ruling greatly crippled the test, increasingly marginalizing it and making clear it is simply unhelpful. In his concurring opinion, Justice Kavanaugh highlighted its obvious flaws and increasing uselessness, as he surveyed the Court’s Establishment Clause cases to show that Lemon has not been applied in many of them.
Kavanaugh pointed out Lemon’s grave flaws by showing that many normal religious practices would be prohibited by the test. As Lemon doesn’t allow the government to act in any way that could advance or endorse religion, any form of government-granted religious accommodations and exemptions—practices that have always been fundamental within the United States—would be entirely forbidden. Kavanaugh lays out that many religious practices intertwined with daily life “’by definition’ have the effect of advancing or endorsing religion to some extent.”
Along with other justices, Justice Kavanaugh urges that a test as hostile towards religious imagery as the Lemon test is dangerously unconstitutional and should hold no place within our judicial system. Kavanaugh concurred, “The Court’s decision in this case [The American Legion v. American Humanist Association] again makes clear that the Lemon test does not apply to the Establishment Clause…”
Rather than choosing to interpret the cross as a secular symbol, Kavanaugh drives home the significance of preserving religious imagery in the public square, stating, “I fully understand the deeply religious nature of the cross. It would demean both believers and nonbelievers to say that the cross is not religious, or not all that religious.” Kavanaugh summarized and solidified the cross’s validity, choosing to understand it for what it is—the universally chosen icon to represent Christ’s death and sacrifice on Calvary.
Justice Kavanaugh, along with others, shed light on the clear truth that it is impossible to separate religion from the public square, being that the public square is comprised of religious individuals. For those that prize religious freedom as a core principle of this country, the Bladensburg memorial stands as a testimony to the Constitution’s provisions for religious freedom. This case helps illuminate how religion is not only inseparable from but also necessary for public life to flourish, something that FRC’s amicus brief highlights. In a culture that appears to be continuously straying from biblical values, it is comforting for Supreme Court Justices to stand on and for the truths that this country was founded upon.
Nicolas Reynolds is an intern at Family Research Council.