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This case is a First Amendment challenge to a large cross on public land next to a major highway near Washington, DC. The controversy led the Court to reconsider the standards for recognizing a violation of the establishment of religion: on one side, the size or conspicuousness of the display the appearance of state endorsement, and the entanglement of state funding, and on the other side, the secular purpose and historical significance of the monument. The American Humanist Association asked the Court to mandate the removal of the monument, while the American Legion asked the Court to replace the more complex and subjective Lemon test with a simpler standard grounded in the presence or absence of state coercion.
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492 U.S. 573 (1989)
U.S. Constitution, Amendment I (“Congress shall make no law respecting an establishment of religion…”).
403 U.S. 602 (1971)
American Legion decision, page 7.
Ibid., page 2.
Ibid., page 21.
Ibid., page 28.
For further discussion, see Ronald Kahn, “Chapter Four: Constituting the Separation of Church and State,” in The Supreme Court & Constitutional Theory, 1953– 1993 (Lawrence, KS: University Press of Kansas, 1994), pages 107–138; and Ronald Kahn, “God Save Us from the Coercion Test: Constitutive Decision-Making, Polity Principles, and Religious Freedom,” 43 Case- Western Reserve Law Review 983–1020 (Spring 1993).
For example, Justices Breyer and Kagan voted with the five “conservative” Justices in Trinity Lutheran Church of Columbia, Inc. v. Comer in 2017 and Masterpiece Cakeshop v. Colorado Civil Rights Commission in 2018, both Free Exercise Clause cases. (See Chapter 6 in SCOTUS 2018, “ Masterpiece Cakeshop on Gay Rights Versus Religious Liberty,” by Stephen Engel.)
American Legion Breyer concurrence, page 1.
American Legion Kagan concurrence, page 1.
Ibid., page 2.
American Legion Kavanaugh concurrence, page 4.
American Legion Thomas concurrence, page 3.
American Legion Gorsuch concurrence, pages 9–10.
American Legion Ginsburg dissent, page 3.
Ibid., pages 7–8.
545 U.S. 667 (2005)
Lynch v. Donnelly, 465 U.S. 668 (1984) at 693–94.
See Ronald Kahn, “Supreme Court Decision-Making and the Social Construction Process: Continuity in a Polarized Age,” 4 Constitutional Studies 155–187 (2019); Ronald Kahn and Gerard Michael D’Emilio, “The Jurisprudence of Justice Scalia: Common-Law Judging Behind an Originalist Façade,” in The Conservative Revolution of Antonin Scalia, eds. David A. Schultz and Howard Schweber (Lanham, MD: Lexington Books, 2018), pages 219–244; and Ronald Kahn, “Social Constructions, Supreme Court Reversals, and American Political Development: Lochner, Plessy, Bowers, but Not Roe,” in The Supreme Court and American Political Development, eds. Ronald Kahn and Ken I. Kersch (Lawrence, KS: University Press of Kansas, 2006), pages 67–113.
Lynch, 465 U.S. at 687–88.
Justice Alito’s footnote on a taxonomy of Establishment Clause cases seems to imply that the Court should take an eclectic, rather than homogenous, approach to these issues. See American Legion decision, page 15 note 16.
- American Legion v. American Humanist on Religious Monuments Under the First Amendment
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