Does a 94-year-old, publicly maintained World War I memorial in the form of a Latin cross violate the Establishment Clause of the First Amendment?

In 1918, residents of Prince George's County, Maryland formed a committee to erect a memorial to the county's soldiers who died in World War I. The committee chose a cross, a symbol widely associated with the war because of the rows of plain white crosses marking American soldiers' graves overseas. When the committee ran out of funds, the local American Legion post completed the project in 1925. The 32-foot Latin cross sits on a pedestal bearing the Legion's emblem, the words Valor, Endurance, Courage, and Devotion, and a plaque listing the names of 49 local soldiers, both Black and White, who died in the war. A Catholic priest gave the invocation and a Baptist pastor gave the benediction at the dedication. The Cross stands on a traffic island at a busy intersection and has been the site of patriotic ceremonies. In 1961, the Maryland-National Capital Park and Planning Commission acquired the Cross and its land to preserve it and address traffic safety, and it has spent public funds on maintenance since. In 2012, the American Humanist Association, along with three individuals, challenged the Cross as an unconstitutional establishment of religion, seeking its removal, demolition, or alteration into a non-religious slab or obelisk.

The AHA complained to the Commission in 2012 and then sued the Commission in the U.S. District Court for the District of Maryland, seeking declaratory and injunctive relief. The American Legion intervened to defend the Cross. The District Court granted summary judgment for the Commission and the Legion, holding that the Cross satisfied the Lemon v. Kurtzman test and Justice Breyer's analysis in Van Orden v. Perry. A divided panel of the Fourth Circuit reversed, holding that the Cross failed Lemon's effects prong and also created excessive entanglement, and remanded for a determination of the remedy. The Fourth Circuit denied rehearing en banc over three dissents. The Supreme Court granted certiorari on petitions from the Legion and the Commission and consolidated the cases.

(Alito, J.)

No. The Bladensburg Cross does not violate the Establishment Clause. The Court's opinion on this holding (Parts I, II-B, II-C, III, and IV) was joined by five Justices. Parts II-A and II-D were joined by only four Justices, so their reasoning is a plurality's.

Majority reasoning: Retaining long-established, religiously expressive monuments, symbols, and practices differs from erecting new ones, for four reasons. First, original purposes are hard to identify decades later, as in Salazar v. Buono, 559 U.S. 700 (2010), and removal cannot rest on supposition. Second, as time passes the purposes served by a monument multiply, as with the Ten Commandments monuments in Van Orden v. Perry, 545 U.S. 677 (2005), and McCreary County v. ACLU of Ky., 545 U.S. 844 (2005). Third, the message of a monument can evolve, as with place names like Bethlehem, Pennsylvania, or state mottos and flags. Fourth, once a monument is familiar and historically significant, removing it no longer looks neutral and can appear hostile to religion. The passage of time therefore creates a strong presumption of constitutionality.

The Cross fits that presumption. The cross became a central symbol of World War I because of the plain white crosses over soldiers' graves, so its use here took on a secular meaning of sacrifice. The monument has acquired additional historical significance and stands among memorials to later wars. There is no evidence the memorial disrespected Jewish soldiers or was tied to the Klan; it lists both Black and White soldiers, and Catholic and Baptist clergy took part in its dedication. Commemorative monuments naturally use symbols that signify what death meant to those honored, as Holocaust memorials use the Star of David. Destroying or defacing the Cross would not be neutral.

Plurality reasoning (Alito, J., joined by Roberts, C.J., Breyer, J., and Kavanaugh, J.): Lemon's purpose, effect, and entanglement test cannot resolve cases involving religious monuments, symbols, and practices, as the Court has often declined to apply it. The Court should instead look to historical practices and understandings, as in Marsh v. Chambers, 463 U.S. 783 (1983), and Town of Greece v. Galloway, 572 U.S. 565 (2014). Longstanding monuments that follow the First Congress's tradition of tolerance and inclusivity are constitutional.

Concurrence (Breyer, J., joined by Kagan, J.) No single formula resolves Establishment Clause cases; each must be judged by the purposes of the Religion Clauses: religious liberty, avoiding religiously based social conflict, and separation of church and state. The Latin cross is uniquely associated with World War I dead, the organizers had a secular motive, no evidence shows disparagement of any group, the Cross has stood for 94 years without controversy, and removal would signal hostility to religion. The case would differ if there were evidence of deliberate disrespect toward minority faiths or if the Cross were recent. The Court does not adopt a history-and-tradition test that would permit newly built religious memorials.

Concurrence (Kavanaugh, J.) The Court no longer applies Lemon, which cannot explain its decisions in any of five categories of Establishment Clause cases: religious symbols and speech, accommodations and exemptions, government benefits, school prayer, and private religious speech in public forums. Each category has its own principles grounded in history, tradition, and precedent. A non-coercive practice rooted in history and tradition, treating religious and secular activity equally, or amounting to a permissible accommodation ordinarily raises no Establishment Clause violation. The objections of those offended by the Cross are sincere, and Maryland's legislature and executive, or its constitution, may offer other avenues of relief.

Concurring in part (Kagan, J.) Lemon's focus on purposes and effects remains crucial in evaluating government action in this sphere, so Part II-A is not joined. Part II-D is not joined out of caution, since history should be consulted case by case. The opinion's emphasis on respect, tolerance, inclusivity, and nondiscrimination is admirable.

Concurring in the judgment (Thomas, J.) The Establishment Clause should not be incorporated against the States, and a memorial is not a "law" made by "Congress." Even if the Clause applied, the Cross involves none of the actual legal coercion that marked historical establishments. Lemon should be overruled in all contexts because it lacks a basis in the Constitution's original meaning, has been manipulated to reach desired results, and causes confusion.

Concurring in the judgment (Gorsuch, J., joined by Thomas, J.) The case should be dismissed for lack of standing because "offended observer" standing has no basis in Article III. Offense alone is not a concrete and particularized injury, and the doctrine conflicts with Valley Forge, the bar on generalized grievances, and limits on third-party standing. The doctrine arose from Lemon, which the Court has now shelved, and the Town of Greece historical approach should govern whether a monument is old or new.

Dissent (Ginsburg, J., joined by Sotomayor, J.) The Establishment Clause demands neutrality among religions and between religion and nonreligion. The Latin cross is the foremost symbol of Christianity, and displaying it on public property conveys government endorsement and tells non-Christians they are outsiders. Using a cross as a war memorial makes the memorial sectarian rather than secular, as every Court of Appeals to address the question has held. The cross was never seen as appropriate for Jewish and other non-Christian soldiers, which is why overseas cemeteries used Stars of David. The Court's presumption of constitutionality for longstanding monuments erodes the neutrality commitment, and the Cross should be relocated or transferred to private ownership.