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By Mark Satta[1]

On June 20, in a 7-2 decision, the Supreme Court ruled that the presence of a ninety-year-old World War I memorial in the form of a 32-foot Latin cross on public land in Maryland does not violate the constitutional prohibition against governmental establishment of religion. The Court’s decision in American Legion v. American Humanist Association joins a long line of cases decided in the past thirty years concerning when a religious symbol on public land constitutes impermissible endorsement of religion.[2]

A notable feature of the Court’s opinion, written by Justice Samuel Alito, was the explicit decision not to apply the so-called “Lemon test” to determine if the continued presence of the cross on public land was constitutional.[3] The Lemon test is a controversial three-part test first articulated in the 1971 case of Lemon v. Kurtzman for determining when government action violates the Establishment clause of the Constitution’s First Amendment.[4] Alito’s opinion did not overturn the Lemon test, but it did narrow the circumstances under which the test should be applied.[5]

By foregoing application of the Lemon test, the Court was left with the challenge of determining on what grounds the constitutionality of the cross monument should be settled. As evidenced by the four concurring opinions and the dissenting opinion filed in the case, the Justices disagree over the proper method to fill Lemon’s absence in cases like American Legion.

At many points Justice Alito sensibly fell back on a longstanding part of the Court’s religious freedom jurisprudence: namely that government action should be neutral toward religion, as opposed to favoring or showing hostility toward particular religious or non-religious views.[6] Determining what constitutes neutral behavior toward religion in a pluralistic society is a hard task because what appears to constitute neutral treatment of religion to some may look like unfair treatment to others and vice versa.

Justice Alito’s choice to consider the monument’s potential neutrality or non-neutrality was a wise move in theory. However, Justice Alito’s neutrality analysis exhibits an all-too-predictable bias in which only a privileged and familiar slice of the population’s perspectives from within our pluralistic society is given significant consideration.

Early on in his opinion, Justice Alito writes that “removal or radical alteration” of the cross “would be seen by many not as a neutral act but as the manifestation of a hostility toward religion that has no place in our Establishment Claus traditions.”[7] Justice Alito is likely correct that this is how many would see the act. But it is just as likely that many see the use of public funds to maintain a Latin cross on public lands as a non-neutral act manifesting hostility toward non-Christian religions and non-religious people. Yet Alito only mentions the former perspective.

Later in the opinion, Alito returns to this theme writing that one of the “strong presumptions of constitutionality” for the public cross is that “when time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance, removing it may no longer appear neutral [to religion], especially to the local community for which it has taken on particular meaning.”[8] This too is likely true, but given the lawsuit filed by local residents and the American Humanist Association (and supported by multiple amicus briefs from other interested parties) long-term maintenance of this “religiously expressive monument” on public land appears to others to be hostile to their non-Christian faith or non-religious worldview.[9] Once again, Justice Alito focuses only on the one side.

These one-sided refrains continue to appear in Justice Alito’s opinion. According to Justice Alito, requiring the removal of religious World War I memorials “would not be viewed by many as a neutral act,” alterations to the monument “would be seen by many as profoundly disrespectful,” and destroying “items with religious associations may evidence hostility to religion.”[10] This is all very likely true, but on the other hand, keeping such World War I memorials is viewed by many as a non-neutral act favoring Christianity, failing to remove or alter public religious symbols is seen by many as profoundly disrespectful of their own non-majority religious or non-religious views, and retaining and maintaining items with religious associations on public land may evidence hostility to other religions or non-religious worldviews. These alternative perspectives are consistently overlooked and underplayed in Alito’s analysis.

Concerning questions about the permissibility of historical, religiously expressive symbols on government land, there are many people who hold strong but contradictory views on both side of such issues. Thus, the fact that “many” “may” view an act as non-neutral cannot on its own be determinative. Such a principle, if followed faithfully, would lead to contradictory outcomes whenever many people would find keeping a monument up non-neutral toward religion while many others would find the same monument being taken down non-neutral toward religion. The question of what to do with the Bladensburg Peace Cross seems to be one such situation.

The alternative is for the concern over what “many” would find non-neutral to religion to track only the perspective of some. This is what happened in Justice Alito’s opinion. But neutrality toward religion requires neutral attention to the perspective of Christians and non-Christians alike.

For all its flaws, one of the strengths of the Lemon test is that it pushes courts to look at the “principal or primary effect” of the state’s action.[11] The very nature of the task of determining a principal and primary effect requires an ordering and ranking of the significance of effects. That the removal of the Peace Cross “would not be viewed by many as a neutral act” is an effect worth paying attention to. But within the broader context of the Lemon test, it is harder to let this effect play an undue role to the exclusion of other relevant effects and reactions.

Justice Kagan noted this kind of value in the Lemon test, writing that, “[a]lthough I agree that rigid application of the Lemon test does not solve every Establishment Clause problem, I think that test’s focus on purposes and effects is crucial in evaluating government action in this sphere—as this very suit shows.”[12]

While the Lemon test is no panacea for difficult Establishment Clause questions, its charge to make sure that the principal or primary effect neither advances nor inhibits religion requires that courts determine what the primary effect is. This, in theory, should provide a check against courts focusing disproportionately on the effect of how a particular group of the population would perceive a state action. While the interests of “many” were represented in the Court’s American Legion opinion, the goal should be to balance the interests of us all.

[1] Mark Satta has a JD from Harvard Law School and a PhD in Philosophy from Purdue University. He is currently studying for the New York bar and will begin work as an associate at Harter Secrest & Emery in September 2019. Mark is a former Online Editor for the Harvard Law & Policy Review.

[2] American Legion v. American Humanist Ass’n, 588 U. S. ____ (2019); See, e.g. Lynch v. Donnelly, 465 U. S. 668 (1984); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 592 (1989); Van Orden v. Perry, 545 U. S. 677 (2005).

[3] American Legion, 588 U.S. at *15–16.

[4] See generally, Lemon v. Kurtzman, 403 U. S. 602 (1971).

[5] American Legion, 588 U.S. at *16.

[6] Id. at *20, *24, *31.

[7] Id. at *2.

[8] Id. at *20–21.

[9] The American Humanist Association has compiled links to the amicus briefs filed in support of their position at https://americanhumanist.org/honorthemall/#amici.

[10] American Legion, 588 U.S. at *24.

[11] Lemon, 403 U. S. at 412.

[12] American Legion, 588 U.S. at *1 (Kagan concurring).

By Mark Satta*

Last month, Aaron and Melissa Klein, a couple who owned a bakery in Oregon, asked the Supreme Court to review a ruling from the Court of Appeals of the State of Oregon, which held that the Kleins had violated Oregon state law by discriminating based on sexual orientation when they refused to bake a custom cake for a same-sex wedding. The Kleins, like the baker in the Masterpiece Cakeshop case, argue that such a ruling violates their First Amendment rights.

The Supreme Court’s narrow ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission this past June avoided answering any substantive questions about whether a baker can refuse to bake a cake for a same-sex wedding when doing so would violate the baker’s sincerely held religious beliefs. Given that the Masterpiece decision left unanswered the most contentious questions about how to balance preservation of LGBT civil rights with potential infringement on religious free exercise and free speech rights in situations like this, it is unsurprising that the Court has been asked again to rule on this issue.

This request has been made of a very different Supreme Court now that the opinion writer in Masterpiece, Justice Anthony Kennedy, has since retired and been replaced. Given the new composition of the Court, now is a good time to review what happened in Masterpiece and to think about what the impact the new composition of the Supreme Court might be should the Court choose to hear the Klein’s case.

Upon reading headlines this past June that the Supreme Court sided with baker, Jack Phillips, over the gay couple denied a wedding cake in the Masterpiece Cakeshop case, I was discouraged. But after reading the Court’s opinion, my discouragement faded given the narrowness of the ruling and the substantial amount of common-sense reasoning the Court expressed about balancing gay civil rights with religious freedom rights. Yet I fear that much of that common-sense agreement could be undone if the Supreme Court finds itself without a swing vote.

Because some LGBT civil rights advocates saw Masterpiece as a loss for LGBT civil rights, my optimism about the role Masterpiece may play in the development of LGBT civil rights requiring some unpacking. Here are three reasons why I think the Masterpiece decision allows for cautious optimism.

First, the Court didn’t take a position on the merits of Phillips’ religious freedom and free speech violation claims. Rather, the Court concluded that during the process of reviewing Phillips’ claims, some of the members of the Colorado Civil Rights Commission made statements that “cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.” In short, the Court chose to toss out the ruling of the Commission because of religious bias on the part of some of the Commissioners. Reasonable minds can disagree over whether there really was improper bias. I’m not convinced there was myself. But the issue of whether a statement about the historic use of freedom of religion to justify discrimination is an example of impermissible bias deals more directly with First Amendment jurisprudence, and less directly about LGBTQ civil rights.

Second, the Court’s ruling treated Obergefell v. Hodges—the 2015 Supreme Court case that recognized the right to same-sex marriage—as settled law both in the majority opinion and in Thomas’ concurring opinion. (Although in the case of Thomas this came along with predictions of future conflict between LGBTQ civil rights and religious freedom rights and reason to think he is inclined to favor the latter.)

Third, and most importantly, the Court treated several related issues as settled; and settled in an appropriate way. For example, Justice Kennedy, writing for the Court, stated that “any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose a serious stigma on gay persons.”

If the Court sticks to this sort of position, even if the Court were erroneously to determine at a later date that bakers like Phillips could refuse to make cakes for same-sex marriages, such a ruling would not allow for a slippery slope in which gay people could be denied their right to purchase a variety of other items for their weddings, much less denied their right to service more generally.

On the other side, Kennedy also wrote that “[w]hen it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion.” If the Court sticks to this position, even if they were to properly determine that bakers who sell wedding cakes can’t refuse service to same-sex couples, such a ruling would correctly not allow for a slippery slope in which clergy, whose profession is typically intimately tied up with religious conviction, would be forced to conduct a ceremony that violated their religious convictions.

With issues like these treated as settled on either side of the issue presented in Masterpiece, I think what we’re seeing in Masterpiece is the Court grappling to determine where the precise line should be drawn in seeking to maximize and preserve both the civil rights of LGBT people and religious freedom rights. Given our current cultural context, I think Masterpiece sits squarely in the center of an unavoidable point of tension between these two kinds of rights. A Court that is struggling with exact boundary lines is one that is often more or less in the right place. It’s important to note that while I think the Court is in the proper area concerning this particular LGB civil rights question, that the Supreme Court, and federal government generally, is still woefully behind in recognizing LGB, and especially Trans, civil rights in other domains.

However, it is hard to tell how much of the Court’s balance this past June was the product of Kennedy as a swing vote sympathetic to LGBT civil rights. While Kavanaugh’s judicial record on LGBT civil rights is scant, by taking a look at those who are endorsing him along with his unartful dodges of Senator Cory Booker’s questions related to gay civil rights during his confirmation hearings, it seems reasonable to worry that Kavanaugh could upset this balance. Kavanaugh could join with the four conservative to give the Court a five-member majority. Justice Thomas, though his concurrence treated Obergefell as settled law, was prescient in identifying that the LGBTQ and religious liberty concerns would “inevitabl[y] . . . come into conflict with religious liberty.” With Kennedy removed and Kavanaugh now on the bench, this conflict’s borders have been called into question. The rising case could reach a Court that is willing to halt, or perhaps even undo, progress in LGBT civil rights.

*Mark Satta is a 3L at Harvard Law School and the Executive Online Editor for the Harvard Law & Policy Review.

Featured image supplied by Ted Eytan.