Over the past few weeks, my American Religious History class has been grappling with the question “was America founded as a Christian nation?” We have thought about whether the founders envisioned a Christian country, why people have argued about this question for the past 200 years, and why it matters.
The question is fascinating for many reasons (and I’ve included a few links to books on the subject at the end of the post) particularly because the it has a lot of relevance to judicial decisions. The first Supreme Court case to tackle the relationship between church and state was Reynolds vs. U.S. in 1878, but even before this Americans wrestled with whether the post office could (or should) deliver mail on Sundays or if the president could declare a day of fasting and prayer.
Earlier this week, the Supreme Court heard testimony on another church/state case–The American Legion vs. American Humanist Association. This case, sometimes also called the Bladensburg Cross case, looks at whether a war memorial in suburban Washington D.C. should be maintained by a public entity. The Maryland–National Capital Park and Planning Commission has maintained and displayed this 40 foot tall cross monument since 1961 although the cross was constructed in 1918.
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There have been a number of court cases involving memorials, statues, and other pieces of art or public memory. For example, Van Orden v. Perry in 2005 examined whether the 10 commandments could be displayed on a statue on Texas state grounds as did McCreary County v. the ACLU of Kentucky.
In general, the court holds these courts up to the “Lemon test” established in the Lemon v. Kurtzman case in 1971. The Lemon test asks whether the object (or practice or law) 1. has a religious or secular purpose 2. is designed to enhance or inhibit religion or 3. endorses a particular religious system.
The problem is that the Lemon test struggles to take into account historical realities. For example, in this most recent case, the Bladensburg memorial is a war memorial and was conventional by the standards of its day–it was not intended to make a religious statement then. But, it certainly makes one today. How should the court system account for changes in understanding symbolism?
Another problem, as Justice Gorsuch notes, is that part of the problem with the Bladensburg memorial is “taste” and location. If the memorial was a small cross it would be less likely to attract attention.
The American Legion attorneys have argued for scrapping the Lemon Test in favor of a more sweeping test that would only restrict religious symbols meant to “proselytize.” This quest for a new test has been ongoing for years but the court has yet to find a more universal way of deciding such cases.
Like the town of Greece v. Galloway case in 2014, the American Legion v. American Humanist Association challenges us to think about how America handles tradition and public memory. What do we do when public displays no longer reflect “the public?”
If you want to learn more about this case and others here are a few good sources:
https://www.scotusblog.com/2019/02/argument-analysis-peace-cross-appears-safe-if-not-stable/
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