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The American Legion v. American Humanist Association

United States Supreme Court

June 20, 2019

THE AMERICAN LEGION, ET AL., PETITIONERS
v.
AMERICAN HUMANIST ASSOCIATION, ET AL.; AND MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, PETITIONER
v.
AMERICAN HUMANIST ASSOCIATION, ET AL.

          Argued February 27, 2019

          ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

         In 1918, residents of Prince George's County, Maryland, formed a committee for the purpose of erecting a memorial for the county's soldiers who fell in World War I. The committee decided that the memorial should be a cross, which was not surprising since the plain Latin cross had become a central symbol of the war. The image of row after row of plain white crosses marking the overseas graves of soldiers was emblazoned on the minds of Americans at home. The memorial would stand at the terminus of another World War I memorial-the National Defense Highway connecting Washington to Annapolis. When the committee ran out of funds, the local American Legion took over the project, completing the memorial in 1925. The 32-foot tall Latin cross displays the American Legion's emblem at its center and sits on a large pedestal bearing, inter alia, a bronze plaque that lists the names of the 49 county soldiers who had fallen in the war. At the dedication ceremony, a Catholic priest offered an invocation and a Baptist pastor offered a benediction. The Bladensburg Cross (Cross) has since been the site of patriotic events honoring veterans on, e.g., Veterans Day, Memorial Day, and Independence Day. Monuments honoring the veterans of other conflicts have been added in a park near the Cross. As the area around the Cross developed, the monument came to be at the center of a busy intersection. In 1961, the Maryland-National Capital Park and Planning Commission (Commission) acquired the Cross and the land where it sits, but the American Legion reserved the right to continue using the site for ceremonies. The Commission has used public funds to maintain the monument ever since.

         In 2014, the American Humanist Association (AHA) and others filed suit in District Court, alleging that the Cross's presence on public land and the Commission's maintenance of the memorial violate the First Amendment's Establishment Clause. The American Legion intervened to defend the Cross. The District Court granted summary judgment for the Commission and the American Legion, concluding that the Cross satisfies both the test announced in Lemon v. Kurtz-man, 403 U.S. 602, and the analysis applied by JUSTICE BREYER in upholding a Ten Commandments monument in Van Orden v. Perry, 545 U.S. 677. The Fourth Circuit reversed.

         Held: The judgment is reversed and remanded. 874 F.3d 195, reversed and remanded.

         JUSTICE Alito delivered the opinion of the Court with respect to Parts I, II-B, II-C, III, and IV, concluding that the Bladensburg Cross does not violate the Establishment Clause. Pp. 16-24, 28-31.

         (a) At least four considerations show that retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones. First, these cases often concern monuments, symbols, or practices that were first established long ago, and thus, identifying their original purpose or purposes may be especially difficult. See Salazar v. Buono, 559 U.S. 700. Second, as time goes by, the purposes associated with an established monument, symbol, or practice often multiply, as in the Ten Commandments monuments addressed in Van Orden and McCreary County v. American Civil Liberties Union of Ky., 545 U.S. 844. Even if the monument's original purpose was infused with religion, the passage of time may obscure that sentiment and the monument may be retained for the sake of its historical significance or its place in a common cultural heritage. Third, the message of a monument, symbol, or practice may evolve, Pleasant Grove City v. Summum, 555 U.S. 460, 477, as is the case with a city name like Bethlehem, Pennsylvania; Arizona's motto "Ditat Deus" ("God enriches"), adopted in 1864; or Maryland's flag, which has included two crosses since 1904. Familiarity itself can become a reason for preservation. Fourth, 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, especially to the local community. The passage of time thus gives rise to a strong presumption of constitutionality. Pp.16-21.

         (b) The cross is a symbol closely linked to World War I. The United States adopted it as part of its military honors, establishing the Distinguished Service Cross and the Navy Cross in 1918 and 1919, respectively. And the fallen soldiers' final resting places abroad were marked by white crosses or Stars of David, a solemn image that became inextricably linked with and symbolic of the ultimate price paid by 116, 000 soldiers. This relationship between the cross and the war may not have been the sole or dominant motivation for the design of the many war memorials that sprang up across the Nation, but that is all but impossible to determine today. The passage of time means that testimony from the decisionmakers may not be available. And regardless of the original purposes for erecting the monument, a community may wish to preserve it for very different reasons, such as the historic preservation and traffic-safety concerns noted here. The area surrounding a monument like the Bladensburg Cross may also have been altered in ways that change its meaning and provide new reasons for its preservation. Even the AHA recognizes that the monument's surroundings are important, as it concedes that the presence of a cross monument in a cemetery is unobjectionable. But a memorial's placement in a cemetery is not necessary to create the connection to those it honors. Memorials took the place of gravestones for those parents and other relatives who lacked the means to travel to Europe to visit the graves of their war dead and for those soldiers whose bodies were never recovered. Similarly, memorials and monuments honoring important historical figures e.g., Dr. Martin Luther King, Jr., often include a symbol of the faith that was important to the persons whose lives are commemorated. Finally, as World War I monuments have endured through the years and become a familiar part of the physical and cultural landscape, requiring their removal or alteration would not be viewed by many as a neutral act. Few would say that California is attempting to convey a religious message by retaining the many city names, like Los Angeles and San Diego, given by the original Spanish settlers. But it would be something else entirely if the State undertook to change those names. Much the same is true about monuments to soldiers who sacrificed their lives for this country more than a century ago. Pp. 21-24.

         (c) Applying these principles here, the Bladensburg Cross does not violate the Establishment Clause. The image of the simple wooden cross that originally marked the graves of American soldiers killed in World War I became a symbol of their sacrifice, and the design of the Bladensburg Cross must be understood in light of that background. That the cross originated as a Christian symbol and retains that meaning in many contexts does not change the fact that the symbol took on an added secular meaning when used in World War I memorials. The Cross has also acquired historical importance with the passage of time, reminding the townspeople of the deeds and sacrifices of their predecessors as it stands among memorials to veterans of later wars. It has thus become part of the community. It would not serve that role had its design deliberately disrespected area soldiers, but there is no evidence that the names of any area Jewish soldiers were either intentionally left off the memorial's list or included against the wishes of their families. The AHA tries to connect the Cross and the American Legion with anti-Semitism and the Ku Klux Klan, but the monument, which was dedicated during a period of heightened racial and religious animosity, includes the names of both Black and White soldiers; and both Catholic and Baptist clergy participated in the dedication. It is also natural and appropriate for a monument commemorating the death of particular individuals to invoke the symbols that signify what death meant for those who are memorialized. Excluding those symbols could make the memorial seem incomplete. This explains why Holocaust memorials invariably feature a Star of David or other symbols of Judaism and why the memorial at issue features the same symbol that marks the graves of so many soldiers near the battlefields where they fell. Pp. 28-30.

         (d) The fact that the cross is undoubtedly a Christian symbol should not blind one to everything else that the Bladensburg Cross has come to represent: a symbolic resting place for ancestors who never returned home, a place for the community to gather and honor all veterans and their sacrifices for this Nation, and a historical landmark. For many, destroying or defacing the Cross would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment. P. 31.

          Justice Alito, joined by The Chief Justice, Justice Breyer, and JUSTICE Kavanaugh, concluded in Parts II-A and II-D:

         (a) Lemon ambitiously attempted to fashion a test for all Establishment Clause cases. The test called on courts to examine the purposes and effects of a challenged government action, as well as any entanglement with religion that it might entail. The expectation of a ready framework has not been met, and the Court has many times either expressly declined to apply the test or simply ignored it. See, e.g., Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1; Town of Greece v. Galloway, 572 U.S. 565. Pp. 12-16.

         (b) The Lemon Court ambitiously attempted to find a grand unified theory of the Establishment Clause, but the Court has since taken a more modest approach that focuses on the particular issue at hand and looks to history for guidance. The cases involving prayer before legislative sessions are illustrative. In Marsh v. Chambers, 463 U.S. 783, the Court upheld a State Legislature's practice of beginning each session with a prayer by an official chaplain, finding it highly persuasive that Congress for over 200 years had opened its sessions with a prayer and that many state legislatures had followed suit. And the Court in Town of Greece reasoned that the historical practice of having, since the First Congress, chaplains in Congress showed "that the Framers considered legislative prayer a benign acknowledgment of religion's role in society." 572 U.S., at 576. Where monuments, symbols, and practices with a longstanding history follow in the tradition of the First Congress in respecting and tolerating different views, endeavoring to achieve inclusivity and nondiscrimination, and recognizing the important role religion plays in the lives of many Americans, they are likewise constitutional. Pp. 24-28.

          JUSTICE Thomas, agreeing that the Bladensburg Cross is constitutional, concluded:

         (a) The text and history of the Clause-which reads "Congress shall make no law respecting an establishment of religion"-suggest that it should not be incorporated against the States. When the Court incorporated the Clause in Everson v. Board of Ed. of Ewing, 330 U.S. 1, 15, it apparently did not consider that an incorporated Establishment Clause would prohibit exactly what the text of the Clause seeks to protect: state establishments of religion. The appropriate question is whether any longstanding right of citizenship restrains the States in the establishment context. Further confounding the incorporation question is the fact that the First Amendment by its terms applies only to "law[s]" enacted by "Congress." Pp. 1-3.

         (b) Even if the Clause applied to state and local governments in some fashion, "[t]he mere presence of the monument along [respondents'] path involves no [actual legal] coercion," the sine qua non of an establishment of religion. Van Orden v. Perry, 545 U.S. 677, 694 (opinion of THOMAS, J.). The plaintiff claiming an unconstitutional establishment of religion must demonstrate that he was actually coerced by government conduct that shares the characteristics of an establishment as understood at the founding. Respondents have not demonstrated that maintaining a religious display on public property shares any of the historical characteristics of an establishment of religion. Town of Greece v. Galloway, 572 U.S. 565, 608 (same). The Bladensburg Cross is constitutional even though the cross has religious significance. Religious displays or speech need not be limited to those considered nonsectarian. Insisting otherwise is inconsistent with this Nation's history and traditions, id., at 578-580 (majority opinion), and would force the courts "to act as supervisors and censors of religious speech," id., at 581. Pp. 3-5.

         (c) The plurality rightly rejects the relevance of the test set forth in Lemon v. Kurtzman, 403 U.S. 602, 612-613, to claims like this one, which involve religiously expressive monuments, symbols, displays, and similar practices, but JUSTICE THOMAS would take the logical next step and overrule the Lemon test in all contexts. The test has no basis in the original meaning of the Constitution; it has "been manipulated to fit whatever result the Court aimed to achieve," McCreary County v. American Civil Liberties Union of Ky., 545 U.S. 844, 900 (Scalia, J., dissenting); and it continues to cause enormous confusion in the States and the lower courts. Pp. 6-7.

          Justice Gorsuch, joined by Justice Thomas, concludes that a suit like this one should be dismissed for lack of standing. Pp. 1-11.

         (a) The American Humanist Association claims that its members come into regular, unwelcome contact with the Bladensburg Cross when they drive through the area, but this "offended observer" theory of standing has no basis in law. To establish standing to sue consistent with the Constitution, a plaintiff must show: (1) injury-in-fact, (2) causation, and (3) redressability. And the injury-in-fact must be "concrete and particularized." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560. This Court has already rejected the notion that offense alone qualifies as a "concrete and particularized" injury sufficient to confer standing, Diamonds. Charles, A1Q U.S. 54, 62, and it has done so in the context of the Establishment Clause itself, see Valley Forge Christian College v. Americans United for the Separation of Church and State, 454 U.S. 464. Offended observer standing is deeply inconsistent, too, with many other longstanding principles and precedents, including the rule that" 'generalized grievances' about the conduct of Government" are insufficient to confer standing to sue, Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217, and "the rule that a party 'generally must assert his own legal rights and interests, '" not those" 'of third parties, '" Kowalski v. Tesmer, 543 U.S. 125, 129. Pp. 1-6.

         (b) Lower courts invented offended observer standing for Establishment Clause cases in response to Lemon v. Kurtzman, 403 U.S. 602, reasoning that if the Establishment Clause forbids anything that a reasonable observer would view as an endorsement of religion, then such an observer must be able to sue. Lemon, however, was a misadventure, and the Court today relies on a more modest, historically sensitive approach, interpreting the Establishment Clause with reference to historical practices and understandings. The monument here is clearly constitutional in light of the nation's traditions. Although the plurality does not say it in as many words, the message of today's decision for the lower courts must be this: whether a monument, symbol, or practice is old or new, apply Town of Greece v. Galloway, 572 U.S. 565, not Lemon, because what matters when it comes to assessing a monument, symbol, or practice is not its age but its compliance with ageless principles. Pp. 6-9.

         (c) With Lemon now shelved, little excuse will remain for the anomaly of offended observer standing, and the gaping hole it tore in standing doctrine in the courts of appeals should now begin to close. Abandoning offended observer standing will mean only a return to the usual demands of Article III, requiring a real controversy with real impact on real persons to make a federal case out of it. Pp. 9-11.

          Alito, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-B, II-C, III, and IV, in which Roberts, C. J., and Breyer, Kagan, and Kavanaugh, JJ., joined, and an opinion with respect to Parts II-A and II-D, in which ROBERTS, C. J., and Breyer and Kavanaugh, JJ., joined. Breyer, J., filed a concurring opinion, in which Kagan, J., joined. KAVANAUGH, J., filed a concurring opinion. Kagan, J., filed an opinion concurring in part. THOMAS, J., filed an opinion concurring in the judgment. GoRSUCH, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. GlNSBURG, J., filed a dissenting opinion, in which SoTOMAYOR, J., joined.

          OPINION

          ALITO JUSTICE.

         Since 1925, the Bladensburg Peace Cross (Cross) has stood as a tribute to 49 area soldiers who gave their lives in the First World War. Eighty-nine years after the dedication of the Cross, respondents filed this lawsuit, claiming that they are offended by the sight of the memorial on public land and that its presence there and the expenditure of public funds to maintain it violate the Establishment Clause of the First Amendment. To remedy this violation, they asked a federal court to order the relocation or demolition of the Cross or at least the removal of its arms. The Court of Appeals for the Fourth Circuit agreed that the memorial is unconstitutional and remanded for a determination of the proper remedy. We now reverse.

         Although the cross has long been a preeminent Christian symbol, its use in the Bladensburg memorial has a special significance. After the First World War, the picture of row after row of plain white crosses marking the overseas graves of soldiers who had lost their lives in that horrible conflict was emblazoned on the minds of Americans at home, and the adoption of the cross as the Bladensburg memorial must be viewed in that historical context. For nearly a century, the Bladensburg Cross has expressed the community's grief at the loss of the young men who perished, its thanks for their sacrifice, and its dedication to the ideals for which they fought. It has become a prominent community landmark, and its removal or radical alteration at this date 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 Clause traditions." Van Orden v. Perry, 545 U.S. 677, 704 (2005) (BREYER, J., concurring in judgment). And contrary to respondents' intimations, there is no evidence of discriminatory intent in the selection of the design of the memorial or the decision of a Maryland commission to maintain it. The Religion Clauses of the Constitution aim to foster a society in which people of all beliefs can live together harmoniously, and the presence of the Bladensburg Cross on the land where it has stood for so many years is fully consistent with that aim.

         I

         A

         The cross came into widespread use as a symbol of Christianity by the fourth century, [1] and it retains that meaning today. But there are many contexts in which the symbol has also taken on a secular meaning. Indeed, there are instances in which its message is now almost entirely secular.

         A cross appears as part of many registered trademarks held by businesses and secular organizations, including Blue Cross Blue Shield, the Bayer Group, and some Johnson & Johnson products.[2] Many of these marks relate to health care, and it is likely that the association of the cross with healing had a religious origin. But the current use of these marks is indisputably secular.

         The familiar symbol of the Red Cross-a red cross on a white background-shows how the meaning of a symbol that was originally religious can be transformed. The International Committee of the Red Cross (ICRC) selected that symbol in 1863 because it was thought to call to mind the flag of Switzerland, a country widely known for its neutrality.[3] The Swiss flag consists of a white cross on a red background. In an effort to invoke the message associated with that flag, the ICRC copied its design with the colors inverted. Thus, the ICRC selected this symbol for an essentially secular reason, and the current secular message of the symbol is shown by its use today in nations with only tiny Christian populations.[4] But the cross was originally chosen for the Swiss flag for religious reasons.[5] So an image that began as an expression of faith was transformed.

         The image used in the Bladensburg memorial-a plain Latin cross[6]-also took on new meaning after World War I. "During and immediately after the war, the army marked soldiers' graves with temporary wooden crosses or Stars of David"-a departure from the prior practice of marking graves in American military cemeteries with uniform rectangular slabs. G. Piehler, Remembering War the American Way 101 (1995); App. 1146. The vast majority of these grave markers consisted of crosses, [7] and thus when Americans saw photographs of these cemeteries, what struck them were rows and rows of plain white crosses. As a result, the image of a simple white cross "developed into a 'central symbol'" of the conflict. Ibid. Contemporary literature, poetry, and art reflected this powerful imagery. See Brief for Veterans of Foreign Wars of the United States et al. as Amici Curiae 10-16. Perhaps most famously, John McCrae's poem, In Flanders Fields, began with these memorable lines:

"In Flanders fields the poppies blow Between the crosses, row on row."

         In Flanders Fields and Other Poems 3 (G. P. Putnam's Sons ed. 1919). The poem was enormously popular. See P. Fussell, The Great War and Modern Memory 248-249 (1975). A 1921 New York Times article quoted a description of McCrae's composition as "'the poem of the army'" and" 'of all those who understand the meaning of the great conflict.'"[8] The image of "the crosses, row on row," stuck in people's minds, and even today for those who view World War I cemeteries in Europe, the image is arresting.[9]

         After the 1918 armistice, the War Department announced plans to replace the wooden crosses and Stars of David with uniform marble slabs like those previously used in American military cemeteries. App. 1146. But the public outcry against that proposal was swift and fierce. Many organizations, including the American War Mothers, a nonsectarian group founded in 1917, urged the Department to retain the design of the temporary markers. Id., at 1146-1147. When the American Battle Monuments Commission took over the project of designing the headstones, it responded to this public sentiment by opting to replace the wooden crosses and Stars of David with marble versions of those symbols. Id., at 1144. A Member of Congress likewise introduced a resolution noting that "these wooden symbols have, during and since the World War, been regarded as emblematic of the great sacrifices which that war entailed, have been so treated by poets and artists and have become peculiarly and inseparably associated in the thought of surviving relatives and comrades and of the Nation with these World War graves." H. Res. 15, 68th Cong., 1 (1924), App. 1163-1164. This national debate and its outcome confirmed the cross's widespread resonance as a symbol of sacrifice in the war.

         B

         Recognition of the cross's symbolism extended to local communities across the country. In late 1918, residents of Prince George's County, Maryland, formed a committee for the purpose of erecting a memorial for the county's fallen soldiers. App. 988-989, 1014. Among the committee's members were the mothers of 10 deceased soldiers. Id., at 989. The committee decided that the memorial should be a cross and hired sculptor and architect John Joseph Earley to design it. Although we do not know precisely why the committee chose the cross, it is unsurprising that the committee-and many others commemorating World War I[10]-adopted a symbol so widely associated with that wrenching event.

         After selecting the design, the committee turned to the task of financing the project. The committee held fund-raising events in the community and invited donations, no matter the size, with a form that read:

"We, the citizens of Maryland, trusting in God, the Supreme Ruler of the Universe, Pledge Faith in our Brothers who gave their all in the World War to make [the] World Safe for Democracy. Their Mortal Bodies have turned to dust, but their spirit Lives to guide us through Life in the way of Godliness, Justice and Liberty.
"With our Motto, 'One God, One Country, and One Flag' We contribute to this Memorial Cross Commemorating the Memory of those who have not Died in Vain." Id., at. 1251.

         Many of those who responded were local residents who gave small amounts: Donations of 25 cents to 1 dollar were the most common. Id., at 1014. Local businesses and political leaders assisted in this effort. Id., at 1014, 1243. In writing to thank United States Senator John Walter Smith for his donation, committee treasurer Mrs. Martin Redman explained that "[t]he chief reason I feel as deeply in this matter [is that], my son, [Wm.] F. Redman, lost his life in France and because of that I feel that our memorial cross is, in a way, his grave stone." Id., at 1244.

         The Cross was to stand at the terminus of another World War I memorial-the National Defense Highway, which connects Washington to Annapolis. The community gathered for a joint groundbreaking ceremony for both memorials on September 28, 1919; the mother of the first Prince George's County resident killed in France broke ground for the Cross. Id., at 910. By 1922, however, the committee had run out of funds, and progress on the Cross had stalled. The local post of the American Legion took over the project, and the monument was finished in 1925.

         The completed monument is a 32-foot tall Latin cross that sits on a large pedestal. The American Legion's emblem is displayed at its center, and the words "Valor," "Endurance," "Courage," and "Devotion" are inscribed at its base, one on each of the four faces. The pedestal also features a 9- by 2.5-foot bronze plaque explaining that the monument is "Dedicated to the heroes of Prince George's County, Maryland who lost their lives in the Great War for the liberty of the world." Id., at 915 (capitalization omitted). The plaque lists the names of 49 local men, both Black and White, who died in the war. It identifies the dates of American involvement, and quotes President Woodrow Wilson's request for a declaration of war: "The right is more precious than peace. We shall fight for the things we have always carried nearest our hearts. To such a task we dedicate our lives." Ibid.

         At the dedication ceremony, a local Catholic priest offered an invocation. Id., at 217-218. United States Representative Stephen W. Gambrill delivered the keynote address, honoring the '"men of Prince George's County'" who "'fought for the sacred right of all to live in peace and security.'" Id., at 1372. He encouraged the community to look to the '"token of this cross, symbolic of Calvary, '" to "'keep fresh the memory of our boys who died for a righteous cause.'" Ibid. The ceremony closed with a benediction offered by a Baptist pastor.

         Since its dedication, the Cross has served as the site of patriotic events honoring veterans, including gatherings on Veterans Day, Memorial Day, and Independence Day. Like the dedication itself, these events have typically included an invocation, a keynote speaker, and a benediction. Id., at 182, 319-323. Over the years, memorials honoring the veterans of other conflicts have been added to the surrounding area, which is now known as Veterans Memorial Park. These include a World War II Honor Scroll; a Pearl Harbor memorial; a Korea-Vietnam veterans memorial; a September 11 garden; a War of 1812 memorial; and two recently added 38-foot-tall markers depicting British and American soldiers in the Battle of Bladensburg. Id., at 891-903, 1530. Because the Cross is located on a traffic island with limited space, the closest of these other monuments is about 200 feet away in a park across the road. Id., at 36, 44.

         As the area around the Cross developed, the monument came to be at the center of a busy intersection. In 1961, the Maryland-National Capital Park and Planning Commission (Commission) acquired the Cross and the land on which it sits in order to preserve the monument and address traffic-safety concerns.[11] Id., at 420-421, 1384-1387. The American Legion reserved the right to continue using the memorial to host a variety of ceremonies, including events in memory of departed veterans. Id., at 1387. Over the next five decades, the Commission spent approximately $117, 000 to maintain and preserve the monument. In 2008, it budgeted an additional $100, 000 for renovations and repairs to the Cross.[12]

         C

         In 2012, nearly 90 years after the Cross was dedicated and more than 50 years after the Commission acquired it, the American Humanist Association (AHA) lodged a complaint with the Commission. The complaint alleged that the Cross's presence on public land and the Commission's maintenance of the memorial violate the Establishment Clause of the First Amendment. Id., at 1443-1451. The AHA, along with three residents of Washington, D. C, and Maryland, also sued the Commission in the District Court for the District of Maryland, making the same claim. The AHA sought declaratory and injunctive relief requiring "removal or demolition of the Cross, or removal of the arms from the Cross to form a non-religious slab or obelisk." 874 F.3d 195, 202, n. 7 (CA4 2017) (internal quotation marks omitted). The American Legion intervened to defend the Cross.

         The District Court granted summary judgment for the Commission and the American Legion. The Cross, the District Court held, satisfies both the three-pronged test announced in Lemon v. Kurtzman, 403 U.S. 602 (1971), and the analysis applied by JUSTICE BREYER in upholding the Ten Commandments monument at issue in Van Orden v. Perry, 545 U.S. 677. Under the Lemon test, a court must ask whether a challenged government action (1) has a secular purpose; (2) has a "principal or primary effect" that "neither advances nor inhibits religion"; and (3) does not foster "an excessive government entanglement with religion," 403 U.S., at 612-613 (internal quotation marks omitted). Applying that test, the District Court determined that the Commission had secular purposes for acquiring and maintaining the Cross-namely, to commemorate World War I and to ensure traffic safety. The court also found that a reasonable observer aware of the Cross's history, setting, and secular elements "would not view the Monument as having the effect of impermissibly endorsing religion." 147 F.Supp.3d 373, 387 (Md. 2015). Nor, according to the court, did the Commission's maintenance of the memorial create the kind of "continued and repeated government involvement with religion" that would constitute an excessive entanglement. Ibid, (internal quotation marks and emphasis omitted). Finally, in light of the factors that informed its analysis of Lemons "effects" prong, the court concluded that the Cross is constitutional under JUSTICE BREYER's approach in Van Orden. 147 F.Supp.3d, at 388-390.

         A divided panel of the Court of Appeals for the Fourth Circuit reversed. The majority relied primarily on the Lemon test but also took cognizance of JUSTICE BREYER's Van Orden concurrence. While recognizing that the Commission acted for a secular purpose, the court held that the Bladensburg Cross failed Lemons "effects" prong because a reasonable observer would view the Commission's ownership and maintenance of the monument as an endorsement of Christianity. The court emphasized the cross's "inherent religious meaning" as the "'preeminent symbol of Christianity.'" 874 F.3d, at 206-207. Although conceding that the monument had several "secular elements," the court asserted that they were "overshad-ow[ed]" by the Cross's size and Christian connection- especially because the Cross's location and condition would make it difficult for "passers-by" to "read" or otherwise "examine" the plaque and American Legion emblem. Id., at 209-210. The court rejected as "too simplistic" an argument defending the Cross's constitutionality on the basis of its 90-year history, suggesting that "[p]erhaps the longer a violation persists, the greater the affront to those offended." Id., at 208. In the alternative, the court concluded, the Commission had become excessively entangled with religion by keeping a display that "aggrandizes the Latin cross" and by spending more than de minimis public funds to maintain it. Id., at 211-212.

         Chief Judge Gregory dissented in relevant part, contending that the majority misapplied the "effects" test by failing to give adequate consideration to the Cross's "physical setting, history, and usage." Id., at 218 (opinion concurring in part and dissenting in part). He also disputed the majority's excessive-entanglement analysis, noting that the Commission's maintenance of the Cross was not the kind of "comprehensive, discriminating, and continuing state surveillance" of religion that Lemon was concerned to rule out. 874 F.3d, at 221 (internal quotation marks omitted).

         The Fourth Circuit denied rehearing en banc over dissents by Chief Judge Gregory, Judge Wilkinson, and Judge Niemeyer. 891 F.3d 117 (2018). The Commission and the American Legion each petitioned for certiorari. We granted the petitions and consolidated them for argument. 586 U.S. ___ (2016).

         II

         A

         The Establishment Clause of the First Amendment provides that "Congress shall make no law respecting an establishment of religion." While the concept of a formally established church is straightforward, pinning down the meaning of a "law respecting an establishment of religion" has proved to be a vexing problem. Prior to the Court's decision in Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947), the Establishment Clause was applied only to the Federal Government, and few cases involving this provision came before the Court. After Everson recognized the incorporation of the Clause, however, the Court faced a steady stream of difficult and controversial Establishment Clause issues, ranging from Bible reading and prayer in the public schools, Engel v. Vitale, 370 U.S. 421 (1962); School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963), to Sunday closing laws, McGowan v. Maryland, 366 U.S. 420 (1961), to state subsidies for church-related schools or the parents of students attending those schools, Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U.S. 236 (1968); Everson, supra. After grappling with such cases for more than 20 years, Lemon ambitiously attempted to distill from the Court's existing case law a test that would bring order and predictability to Establishment Clause decisionmaking. That test, as noted, called on courts to examine the purposes and effects of a challenged government action, as well as any entanglement with religion that it might entail. Lemon, 403 U.S., at 612-613. The Court later elaborated that the "effect[s]" of a challenged action should be assessed by asking whether a "reasonable observer" would conclude that the action constituted an "endorsement" of religion. County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 592 (1989); id., at 630 (O'Connor, J., concurring in part and concurring in judgment).

         If the Lemon Court thought that its test would provide a framework for all future Establishment Clause decisions, its expectation has not been met. In many cases, this Court has either expressly declined to apply the test or has simply ignored it. See Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993); Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687 (1994); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995); Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995); Good News Club v. Mil-ford Central School, 533 U.S. 98 (2001); Zelman v. Simmons-Harris, 536 U.S. 639 (2002); Cutter v. Wilkinson, 544 U.S. 709 (2005); Van Orden, 545 U.S. 677; Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012); Town of Greece v. Galloway, 572 U.S. 565 (2014); Trump v. Hawaii, 585 U.S. ___ (2018).

         This pattern is a testament to the Lemon test's shortcomings. As Establishment Clause cases involving a great array of laws and practices came to the Court, it became more and more apparent that the Lemon test could not resolve them. It could not "explain the Establishment Clause's tolerance, for example, of the prayers that open legislative meetings, . . . certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving." Van Or den, supra, at 699 (opinion of BREYER, J.). The test has been harshly criticized by Members of this Court, [13] lamented by lower court judges, [14] and questioned by a diverse roster of scholars.[15]

         For at least four reasons, the Lemon test presents particularly daunting problems in cases, including the one now before us, that involve the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations.[16] Together, these considerations counsel against efforts to evaluate such cases under Lemon and toward application of a presumption of constitutionality for longstanding monuments, symbols, and practices.

         B

         First, these cases often concern monuments, symbols, or practices that were first established long ago, and in such cases, identifying their original purpose or purposes may be especially difficult. In Salazar v. Buono, 559 U.S. 700 (2010), for example, we dealt with a cross that a small group of World War I veterans had put up at a remote spot in the Mojave Desert more than seven decades earlier. The record contained virtually no direct evidence regarding the specific motivations of these men. We knew that they had selected a plain white cross, and there was some evidence that the man who looked after the monument for many years-"a miner who had served as a medic and had thus presumably witnessed the carnage of the war firsthand"-was said not to have been "particularly religious." Id., at 724 (ALITO, J., concurring in part and concurring in judgment).

         Without better evidence about the purpose of the monument, different Justices drew different inferences. The plurality thought that this particular cross was meant "to commemorate American servicemen who had died in World War I" and was not intended "to promote a Christian message." Id., at 715. The dissent, by contrast, "presume[d]" that the cross's purpose "was a Christian one, at least in part, for the simple reason that those who erected the cross chose to commemorate American veterans in an explicitly Christian manner." Id., at 752 (opinion of Stevens, J.). The truth is that 70 years after the fact, there was no way to be certain about the motivations of the men who were responsible for the creation of the monument. And this is often the case with old monuments, symbols, and practices. Yet it would be inappropriate for courts to compel their removal or termination based on supposition.

         Second, as time goes by, the purposes associated with an established monument, symbol, or practice often multiply. Take the example of Ten Commandments monuments, the subject we addressed in Van Orden, 545 U.S. 677, and McCreary County v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005). For believing Jews and Christians, the Ten Commandments are the word of God handed down to Moses on Mount Sinai, but the image of the Ten Commandments has also been used to convey other meanings. They have historical significance as one of the foundations of our legal system, and for largely that reason, they are depicted in the marble frieze in our courtroom and in other prominent public buildings in our Nation's capital. See Van Orden, supra, at 688-690. In Van Orden and McCreary, no Member of the Court thought that these depictions are unconstitutional. 545 U.S., at 688-690; id., at 701 (opinion of BREYER, J.); id., at 740 (Souter, J., dissenting).

         Just as depictions of the Ten Commandments in these public buildings were intended to serve secular purposes, the litigation in Van Orden and McCreary showed that secular motivations played a part in the proliferation of Ten Commandments monuments in the 1950s. In 1946, Minnesota Judge E. J. Ruegemer proposed that the Ten Commandments be widely disseminated as a way of combating juvenile delinquency.[17] With this prompting, the Fraternal Order of the Eagles began distributing paper copies of the Ten Commandments to churches, school groups, courts, and government offices. The Eagles, "while interested in the religious aspect of the Ten Commandments, sought to highlight the Commandments' role in shaping civic morality." Van Or den, supra, at 701 (opinion of BREYER, J.). At the same time, Cecil B. DeMille was filming The Ten Commandments.[18] He learned of Judge Ruegemer's campaign, and the two collaborated, deciding that the Commandments should be carved on stone tablets and that DeMille would make arrangements with the Eagles to help pay for them, thus simultaneously promoting his film and public awareness of the Decalogue. Not only did DeMille and Judge Ruege-mer have different purposes, but the motivations of those who accepted the monuments and those responsible for maintaining them may also have differed. As we noted in Pleasant Grove City v. Summum, 555 U.S. 460, 476 (2009), "the thoughts or sentiments expressed by a government entity that accepts and displays [a monument] may be quite different from those of either its creator or its donor."

         The existence of multiple purposes is not exclusive to longstanding monuments, symbols, or practices, but this phenomenon is more likely to occur in such cases. Even if the original purpose of a monument was infused with religion, the passage of time may obscure that sentiment. As our society becomes more and more religiously diverse, a community may preserve such monuments, symbols, and practices for the sake of their historical significance or their place in a common cultural heritage. Cf. Schempp, 374 U.S., at 264-265 (Brennan, J., concurring) ("[The] government may originally have decreed a Sunday day of rest for the impermissible purpose of supporting religion but abandoned that purpose and retained the laws for the permissible purpose of furthering overwhelmingly secular ends").

         Third, just as the purpose for maintaining a monument, symbol, or practice may evolve, "[t]he 'message' conveyed . . . may change over time." Summum, 555 U.S., at 477. Consider, for example, the message of the Statue of Liberty, which began as a monument to the solidarity and friendship between France and the United States and only decades later came to be seen "as a beacon welcoming immigrants to a land of freedom." Ibid.

         With sufficient time, religiously expressive monuments, symbols, and practices can become embedded features of a community's landscape and identity. The community may come to value them without necessarily embracing their religious roots. The recent tragic fire at Notre Dame in Paris provides a striking example. Although the French Republic rigorously enforces a secular public square, [19] the cathedral remains a symbol of national importance to the religious and nonreligious alike. Notre Dame is fundamentally a place of worship and retains great religious importance, but its meaning has broadened. For many, it is inextricably linked with the very idea of Paris and France.[20] Speaking to the nation shortly after the fire, President Macron said that Notre Dame "'is our history, our literature, our imagination. The place where we survived epidemics, wars, liberation. It has been the epicenter of our lives.'"[21]

         In the same way, consider the many cities and towns across the United States that bear religious names. Religion undoubtedly motivated those who named Bethlehem, Pennsylvania; Las Cruces, New Mexico; Providence, Rhode Island; Corpus Christi, Texas; Nephi, Utah, and the countless other places in our country with names that are rooted in religion. Yet few would argue that this history requires that these names be erased from the map. Or take a motto like Arizona's, "Ditat Deus" ("God enriches"), which was adopted in 1864, [22] or a flag like Maryland's, which has included two crosses since 1904.[23] Familiarity itself can become a reason for preservation.

         Fourth, 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, especially to the local community for which it has taken on particular meaning. 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. Militantly secular regimes have carried out such projects in the past, [24] and for those with a knowledge of history, the image of monuments being taken down will be evocative, disturbing, and divisive. Cf. Van Or den, 545 U.S., at 704 (opinion of BREYER, J.) ("[D]isputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation . . . could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid").

         These four considerations show 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.

         C

         The role of the cross in World War I memorials is illustrative of each of the four preceding considerations. Immediately following the war, "[c]ommunities across America built memorials to commemorate those who had served the nation in the struggle to make the world safe for democracy." G. Piehler, The American Memory of War, App. 1124. Although not all of these communities included a cross in their memorials, the cross had become a symbol closely linked to the war. "[T]he First World War witnessed a dramatic change in . . . the symbols used to commemorate th[e] service" of the fallen soldiers. Id., at 1123. In the wake of the war, the United States adopted the cross as part of its military honors, establishing the Distinguished Service Cross and the Navy Cross in 1918 and 1919, respectively. See id., at 147-148. And as already noted, the fallen soldiers' final resting places abroad were marked by white crosses or Stars of David. The solemn image of endless rows of white crosses became inextricably linked with and symbolic of the ultimate price paid by 116, 000 soldiers. And this relationship between the cross and the war undoubtedly influenced the design of the many war memorials that sprang up across the Nation.

         This is not to say that the cross's association with the war was the sole or dominant motivation for the inclusion of the symbol in every World War I memorial that features it. But today, it is all but impossible to tell whether that was so. The passage of time means that testimony from those actually involved in the decisionmaking process is generally unavailable, and attempting to uncover their motivations invites rampant speculation. And no matter what the original purposes for the erection of a monument, a community may wish to preserve it for very different reasons, such as the historic preservation and traffic-safety concerns the Commission has pressed here.

         In addition, the passage of time may have altered the area surrounding a monument in ways that change its meaning and provide new reasons for its preservation. Such changes are relevant here, since the Bladensburg Cross now sits at a busy traffic intersection, and numerous additional monuments are located nearby.

         Even the AHA recognizes that there are instances in which a war memorial in the form of a cross is unobjectionable. The AHA is not offended by the sight of the Argonne Cross or the Canadian Cross of Sacrifice, both Latin crosses commemorating World War I that rest on public grounds in Arlington National Cemetery. The difference, according to the AHA, is that their location in a cemetery gives them a closer association with individual gravestones and interred soldiers. See Brief for Respondents 96; Tr. of Oral Arg. 52.

         But a memorial's placement in a cemetery is not necessary to create such a connection. The parents and other relatives of many of the war dead lacked the means to travel to Europe to visit their graves, and the bodies of approximately 4, 400 American soldiers were either never found or never identified.[25] Thus, for many grieving relatives and friends, memorials took the place of gravestones. Recall that the mother of one of the young men memorialized by the Bladensburg Cross thought of the memorial as, "in a way, his grave stone." App. 1244. Whether in a cemetery or a city park, a World War I cross remains a memorial to the fallen.

         Similar reasoning applies to other memorials and monuments honoring important figures in our Nation's history. When faith was important to the person whose life is commemorated, it is natural to include a symbolic reference to faith in the design of the memorial. For example, many memorials for Dr. Martin Luther King, Jr., make reference to his faith. Take the Martin Luther King, Jr. Civil Rights Memorial Park in Seattle, which contains a sculpture in three segments representing "both the Christian Trinity and the union of the family."[26] In Atlanta, the Ebenezer Baptist Church sits on the grounds of the Martin Luther King, Jr. National Historical Park. National Statuary Hall in the Capitol honors a variety of religious figures: for example, Mother Joseph Pariseau kneeling in prayer; Po'Pay, a Pueblo religious leader with symbols of the Pueblo religion; Brigham Young, president of the Church of Jesus Christ of Latter-day Saints; and Father Eusebio Kino with a crucifix around his neck and his hand raised in blessing.[27] These monuments honor men and women who have played an important role in the history of our country, and where religious symbols are included in the monuments, their presence acknowledges the cen-trality of faith to those whose lives are commemorated.

         Finally, as World War I monuments have endured through the years and become a familiar part of the physical and cultural landscape, requiring their removal would not be viewed by many as a neutral act. And an alteration like the one entertained by the Fourth Circuit- amputating the arms of the Cross, see 874 F.3d, at 202, n. 7-would be seen by many as profoundly disrespectful. One member of the majority below viewed this objection as inconsistent with the claim that the Bladensburg Cross serves secular purposes, see 891 F.3d, at 121 (Wynn, J., concurring in denial of en banc), but this argument misunderstands the complexity of monuments. A monument may express many purposes and convey many different messages, both secular and religious. Cf. Van Orden, 545 U.S., at 690 (plurality opinion) (describing simultaneous religious and secular meaning of the Ten Commandments display). Thus, a campaign to obliterate items with religious associations may evidence hostility to religion even if those religious associations are no longer in the forefront.

         For example, few would say that the State of California is attempting to convey a religious message by retaining the names given to many of the State's cities by their original Spanish settlers-San Diego, Los Angeles, Santa Barbara, San Jose, San Francisco, etc. But it would be something else entirely if the State undertook to change all those names. Much the same is true about monuments to soldiers who sacrificed their lives for this country more than a century ago.

         D

         While the Lemon Court ambitiously attempted to find a grand unified theory of the Establishment Clause, in later cases, we have taken a more modest approach that focuses on the particular issue at hand and looks to history for guidance. Our cases involving prayer before a legislative session are an example.

         In Marsh v. Chambers, 463 U.S. 783 (1983), the Court upheld the Nebraska Legislature's practice of beginning each session with a prayer by an official chaplain, and in so holding, the Court conspicuously ignored Lemon and did not respond to Justice Brennan's argument in dissent that the legislature's practice could not satisfy the Lemon test. Id., at 797-801. Instead, the Court found it highly persuasive that Congress for more than 200 years had opened its sessions with a prayer and that many state legislatures had followed suit. Id., at 787-788. We took a similar approach more recently in Town of Greece, 572 U.S., at 577.

         We reached these results even though it was clear, as stressed by the Marsh dissent, that prayer is by definition religious. See Marsh, supra, at 797-798 (opinion of Bren-nan, J.). As the Court put it in Town of Greece: "Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation." 572 U.S., at 576. "The case teaches instead that the Establishment Clause must be interpreted 'by reference to historical practices and understandings'" and that the decision of the First Congress to "provid[e] for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion's role in society." Ibid.

         The prevalence of this philosophy at the time of the founding is reflected in other prominent actions taken by the First Congress. It requested-and President Washington proclaimed-a national day of prayer, see 1 J. Richardson, Messages and Papers of the Presidents, 1789-1897, p. 64 (1897) (President Washington's Thanksgiving Proclamation), and it reenacted the Northwest Territory Ordinance, which provided that "[r]eligion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged," 1 Stat. 52, n. (a). President Washington echoed this sentiment in his Farewell Address, calling religion and morality "indispensable supports" to "political prosperity." Farewell Address (1796), in 35 The Writings of George Washington 229 (J. Fitzpat-rick ed. 1940). See also P. Hamburger, Separation of Church and State 66 (2002). The First Congress looked to these "supports" when it chose to begin its sessions with a prayer. This practice was designed to solemnize congressional meetings, unifying those in attendance as they pursued a common goal of good governance.

         To achieve that purpose, legislative prayer needed to be inclusive rather than divisive, and that required a determined effort even in a society that was much more religiously homogeneous than ours today. Although the United States at the time was overwhelmingly Christian and Protestant, [28] there was considerable friction between Protestant denominations. See M. Noll, America's God: From Jonathan Edwards to Abraham Lincoln 228 (2002). Thus, when an Episcopal clergyman was nominated as chaplain, some Congregationalist Members of Congress objected due to the "'diversity of religious sentiments represented in Congress.'" D. Davis, Religion and the Continental Congress 74 (2000). Nevertheless, Samuel Adams, a staunch Congregationalist, spoke in favor of ...


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