Last week the Supreme Court released a 7-2 opinion that not only protected a 94-year-old World War I war memorial that is in the shape of a Cross, but it also took major steps to secure religious freedom for all.
As a way of memorializing those who died defending freedom in World War I, a 40-foot Latin Cross was erected in Bladensburg, Maryland in 1925. The Cross stood relatively unmolested until several years ago when a group of atheists decided that merely viewing the Cross was offensive.
The Fourth Circuit ruled that the cross was an unconstitutional means of “government establishing a preferred religion” under an arbitrary legal test known as the Lemon test. The arbitrary nature of this test was highlighted in 2005 when the Supreme Court issued rulings on two different sets of religious monuments or displays on the same day and came to opposite conclusions.
What did the Court say?
In last week’s opinion, the Supreme Court not only reversed the decision of the Fourth Circuit in order to save the Bladensburg Cross, but it also took a hard look at the Lemon test. The Court spent the majority of its opinion discussing all the problems with the test itself. Justice Gorsuch further pointed out in his concurring opinion how it hasn’t been useful in deciding anything having to do with deciding whether government is “establishing a state religion” – not when it comes to religious displays, mottos, monuments, religious accommodations, religious subsidies or tax exemptions, religious expression in public schools, regulations of religious speech, or interference in internal church affairs.
So how would the Court have us deal with these sorts of challenges going forward?
Essentially, the Court will presume the constitutionality of long-standing monuments and traditions based on our history. This is a much simpler and much clearer way to deal with these issues.
Justice Gorsuch eloquently extended and clarified the Court’s rule this way:
“What matters when it comes to assessing a monument, symbol, or practice isn’t its age but its compliance with ageless principles. The Constitution’s meaning is fixed, not some good-for-this-day-only coupon, and a practice consistent with our nation’s traditions is just as permissible whether undertaken today or 94 years ago.”
What does this mean going forward?
It opens a lot of doors to proactively advance legislation that protects our timeless history and beliefs. Prior to the Court’s recent ruling, when we worked on religious liberty legislation, we were inevitably asked about the Lemon test – which was normally just a way to try to kill whatever bill we were working on.
Now Lemon can’t be used as a threat to your religious liberties. We can work on laws that protect student and educator rights in schools, doctors’ religious conscience beliefs, tax exemptions for religious organizations, religious displays, and internal church decisions without the threat that the Court will arbitrarily use Lemon against the expression of our faith in these realms.
This decision could spell the beginning of the end of ridiculous lawsuits that certain groups who are bent on removing any reminder of God from our culture bring against many small towns or groups they view as vulnerable.
We are thankful for the Court protecting religious freedom in this case, and we look forward to working with state legislators and allies to advance policies that allow religious freedom to flourish for all.
Standing for religious freedom,