RFIA - Public Displays of Religion

public displays of religion

American Legion v. American Humanist Association

139 S.Ct. 2067 (2019)

Justice ALITO 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, and an opinion with respect to Parts II–A and II–D, in which THE CHIEF JUSTICE, Justice BREYER, and Justice KAVANAUGH join.

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, (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, 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. 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. 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. But the cross was originally chosen for the Swiss flag for religious reasons. So an image that began as an expression of faith was transformed.

The image used in the Bladensburg memorial—a plain Latin cross—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. The vast majority of these grave markers consisted of crosses, [Footnote 7: Of the roughly 116,000 casualties the United States suffered in World War I, some 3,500 were Jewish soldiers. In the congressional hearings involving the appropriate grave markers for those buried abroad, one Representative stated that approximately 1,600 of these Jewish soldiers were buried in overseas graves marked by Stars of David. That would constitute about 5.2% of the 30,973 graves in American World War I cemeteries abroad.”] 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. Contemporary literature, poetry, and art reflected this powerful imagery. 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.”

The poem was enormously popular. 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.’” 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.

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. 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. 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. 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.” This national debate and its outcome confirmed the cross’s widespread resonance as a symbol of sacrifice in the war.

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. Among the committee’s members were the mothers of 10 deceased soldiers. 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—adopted a symbol so widely associated with that wrenching event. . . .

Many of those who responded were local residents who gave small amounts: Donations of 25 cents to 1 dollar were the most common. Local businesses and political leaders assisted in this effort. . . . 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.” 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.”

At the dedication ceremony, a local Catholic priest offered an invocation. 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.’” 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.’” 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. 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. 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.

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. The American Legion reserved the right to continue using the memorial to host a variety of ceremonies, including events in memory of departed veterans. 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.

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. 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.” 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, and the analysis applied by Justice Breyer in upholding the Ten Commandments monument at issue in Van Orden v. Perry. . . . Applying [Lemon], 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.” 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. Finally, in light of the factors that informed its analysis of Lemon’s “effects” prong, the court concluded that the Cross is constitutional under Justice Breyer’s approach in Van Orden.

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 Lemon’s “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.’” Although conceding that the monument had several “secular elements,” the court asserted that they were “overshadow[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. 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.” 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.

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.” 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. . . .

II.

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, 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, to Sunday closing laws, to state subsidies for church-related schools or the parents of students attending those schools. 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. 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 (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.

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.” The test has been harshly criticized by Members of this Court, lamented by lower court judges, and questioned by a diverse roster of scholars.

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. [Footnote 16: “While we do not attempt to provide an authoritative taxonomy of the dozens of Establishment Clause cases that the Court has decided since Everson, most can be divided into six rough categories: (1) religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies, e.g., Lynch v. Donnelly (1984); Van Orden v. Perry (2005); (2) religious accommodations and exemptions from generally applicable laws, e.g., Cutter v. Wilkinson (2005); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos (1987); (3) subsidies and tax exemptions, e.g., Walz v. Tax Comm’n of City of New York, (1970); Zelman v. Simmons-Harris (2002); (4) religious expression in public schools, e.g., School Dist. of Abington Township v. Schempp (1963); Lee v. Weisman (1992); (5) regulation of private religious speech, e.g., Capitol Square Review and Advisory Bd. v. Pinette (1995); and (6) state interference with internal church affairs, e.g., Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012). A final, miscellaneous category, including cases involving such issues as Sunday closing laws, see McGowan, v. Maryland (1961), and church involvement in governmental decisionmaking, see Larkin v. Grendel’s Den, Inc. (1982); Board of Ed. of Kiryas Joel Village School Dist. v. Grumet (1994), might be added. We deal here with an issue that falls into the first category.”]. 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.

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 (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.”

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.” . 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.” 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 and McCreary. 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. In Van Orden and McCreary, no Member of the Court thought that these depictions are unconstitutional.

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. . . .

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 (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.” 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.”

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. . . .

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, or a flag like Maryland’s, 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 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, and for those with a knowledge of history, the image of monuments being taken down will be evocative, disturbing, and divisive.

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. . . .

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, 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. 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. We took a similar approach more recently in Town of Greece.

We reached these results even though it was clear, as stressed by the Marsh dissent, that prayer is by definition religious. 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.” “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.” . . .

In Town of Greece, which concerned prayer before a town council meeting, there was disagreement about the inclusiveness of the town’s practice. But there was no disagreement that the Establishment Clause permits a nondiscriminatory practice of prayer at the beginning of a town council session. Of course, the specific practice challenged in Town of Greece lacked the very direct connection, via the First Congress, to the thinking of those who were responsible for framing the First Amendment. But what mattered was that the town’s practice “fi[t] within the tradition long followed in Congress and the state legislatures.”

The practice begun by the First Congress stands out as an example of respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans. Where categories of monuments, symbols, and practices with a longstanding history follow in that tradition, they are likewise constitutional.

III

Applying these principles, we conclude that the Bladensburg Cross does not violate the Establishment Clause.

As we have explained, the Bladensburg Cross carries special significance in commemorating World War I. Due in large part to the image of the simple wooden crosses that originally marked the graves of American soldiers killed in the war, the cross 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.

Not only did the Bladensburg Cross begin with this meaning, but with the passage of time, it has acquired historical importance. It reminds the people of Bladensburg and surrounding areas of the deeds of their predecessors and of the sacrifices they made in a war fought in the name of democracy. As long as it is retained in its original place and form, it speaks as well of the community that erected the monument nearly a century ago and has maintained it ever since. The memorial represents what the relatives, friends, and neighbors of the fallen soldiers felt at the time and how they chose to express their sentiments. And the monument has acquired additional layers of historical meaning in subsequent years. The Cross now stands among memorials to veterans of later wars. It has become part of the community.

The monument would not serve that role if its design had deliberately disrespected area soldiers who perished in World War I. More than 3,500 Jewish soldiers gave their lives for the United States in that conflict, and some have wondered whether the names of any Jewish soldiers from the area were deliberately left off the list on the memorial or whether the names of any Jewish soldiers were included on the Cross against the wishes of their families. There is no evidence that either thing was done, and we do know that one of the local American Legion leaders responsible for the Cross’s construction was a Jewish veteran.

The AHA’s brief strains to connect the Bladensburg Cross and even the American Legion with anti-Semitism and the Ku Klux Klan, but the AHA’s disparaging intimations have no evidentiary support. And when the events surrounding the erection of the Cross are viewed in historical context, a very different picture may perhaps be discerned. The monument was dedicated on July 12, 1925, during a period when the country was experiencing heightened racial and religious animosity. Membership in the Ku Klux Klan, which preached hatred of Blacks, Catholics, and Jews, was at its height. On August 8, 1925, just two weeks after the dedication of the Bladensburg Cross and less than 10 miles away, some 30,000 robed Klansmen marched down Pennsylvania Avenue in the Nation’s Capital. But the Bladensburg Cross memorial included the names of both Black and White soldiers who had given their lives in the war; and despite the fact that Catholics and Baptists at that time were not exactly in the habit of participating together in ecumenical services, the ceremony dedicating the Cross began with an invocation by a Catholic priest and ended with a benediction by a Baptist pastor. We can never know for certain what was in the minds of those responsible for the memorial, but in light of what we know about this ceremony, we can perhaps make out a picture of a community that, at least for the moment, was united by grief and patriotism and rose above the divisions of the day.

Finally, it is surely relevant that the monument commemorates the death of particular individuals. It is natural and appropriate for those seeking to honor the deceased to invoke the symbols that signify what death meant for those who are memorialized. In some circumstances, the exclusion of any such recognition would make a memorial incomplete. This well explains why Holocaust memorials invariably include Stars of David or other symbols of Judaism. It explains why a new memorial to Native American veterans in Washington, D. C., will portray a steel circle to represent “‘the hole in the sky where the creator lives.’” And this is why the memorial for soldiers from the Bladensburg community features the cross—the same symbol that marks the graves of so many of their comrades near the battlefields where they fell.

IV.

The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent. For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark. For many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment. For all these reasons, the Cross does not offend the Constitution.

We reverse the judgment of the Court of Appeals for the Fourth Circuit and remand the cases for further proceedings.

Justice BREYER, with whom Justice KAGAN joins, concurring.

I have long maintained that there is no single formula for resolving Establishment Clause challenges. The Court must instead consider each case in light of the basic purposes that the Religion Clauses were meant to serve: assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its “separate sphere.”

I agree with the Court that allowing the State of Maryland to display and maintain the Peace Cross poses no threat to those ends. The Court’s opinion eloquently explains why that is so: The Latin cross is uniquely associated with the fallen soldiers of World War I; the organizers of the Peace Cross acted with the undeniably secular motive of commemorating local soldiers; no evidence suggests that they sought to disparage or exclude any religious group; the secular values inscribed on the Cross and its place among other memorials strengthen its message of patriotism and commemoration; and, finally, the Cross has stood on the same land for 94 years, generating no controversy in the community until this lawsuit was filed. Nothing in the record suggests that the lack of public outcry “was due to a climate of intimidation.” In light of all these circumstances, the Peace Cross cannot reasonably be understood as “a government effort to favor a particular religious sect” or to “promote religion over nonreligion.” And, as the Court explains, ordering its removal or alteration at this late date would signal “a hostility toward religion that has no place in our Establishment Clause traditions.”

The case would be different, in my view, if there were evidence that the organizers had “deliberately disrespected” members of minority faiths or if the Cross had been erected only recently, rather than in the aftermath of World War I. But those are not the circumstances presented to us here, and I see no reason to order this cross torn down simply because other crosses would raise constitutional concerns.

Nor do I understand the Court’s opinion today to adopt a “history and tradition test” that would permit any newly constructed religious memorial on public land. The Court appropriately “looks to history for guidance,” but it upholds the constitutionality of the Peace Cross only after considering its particular historical context and its long-held place in the community. A newer memorial, erected under different circumstances, would not necessarily be permissible under this approach.

As I have previously explained, “where the Establishment Clause is at issue,” the Court must “‘distinguish between real threat and mere shadow.’” In light of all the circumstances here, I agree with the Court that the Peace Cross poses no real threat to the values that the Establishment Clause serves.

Justice KAVANAUGH, concurring.

I join the Court’s eloquent and persuasive opinion in full. I write separately to emphasize two points.

Consistent with the Court’s case law, the Court today applies a history and tradition test in examining and upholding the constitutionality of the Bladensburg Cross.

As this case again demonstrates, this Court no longer applies the old test articulated in Lemon v. Kurtzman. The Lemon test examined, among other things, whether the challenged government action had a primary effect of advancing or endorsing religion. If Lemon guided this Court’s understanding of the Establishment Clause, then many of the Court’s Establishment Clause cases over the last 48 years would have been decided differently, as I will explain.

The opinion identifies five relevant categories of Establishment Clause cases: (1) religious symbols on government property and religious speech at government events; (2) religious accommodations and exemptions from generally applicable laws; (3) government benefits and tax exemptions for religious organizations; (4) religious expression in public schools; and (5) regulation of private religious speech in public forums.

The Lemon test does not explain the Court’s decisions in any of those five categories.

In the first category of cases, the Court has relied on history and tradition and upheld various religious symbols on government property and religious speech at government events. The Court does so again today. Lemon does not account for the results in these cases.

In the second category of cases, this Court has allowed legislative accommodations for religious activity and upheld legislatively granted religious exemptions from generally applicable laws. But accommodations and exemptions “by definition” have the effect of advancing or endorsing religion to some extent. Lemon, fairly applied, does not justify those decisions.

In the third category of cases, the Court likewise has upheld government benefits and tax exemptions that go to religious organizations, even though those policies have the effect of advancing or endorsing religion. Those outcomes are not easily reconciled with Lemon.

In the fourth category of cases, the Court has proscribed government-sponsored prayer in public schools. The Court has done so not because of Lemon, but because the Court concluded that government-sponsored prayer in public schools posed a risk of coercion of students. The Court’s most prominent modern case on that subject, Lee v. Weisman, did not rely on Lemon. In short, Lemon was not necessary to the Court’s decisions holding government-sponsored school prayers unconstitutional.

In the fifth category, the Court has allowed private religious speech in public forums on an equal basis with secular speech. That practice does not violate the Establishment Clause, the Court has ruled. Lemon does not explain those cases.

Today, the Court declines to apply Lemon in a case in the religious symbols and religious speech category, just as the Court declined to apply Lemon in Town of Greece v. Galloway, Van Orden v. Perry, and Marsh v. Chambers. The Court’s decision in this case again makes clear that the Lemon test does not apply to Establishment Clause cases in that category. And the Court’s decisions over the span of several decades demonstrate that the Lemon test is not good law and does not apply to Establishment Clause cases in any of the five categories.

On the contrary, each category of Establishment Clause cases has its own principles based on history, tradition, and precedent. And the cases together lead to an overarching set of principles: If the challenged government practice is not coercive and if it (i) is rooted in history and tradition; or (ii) treats religious people, organizations, speech, or activity equally to comparable secular people, organizations, speech, or activity; or (iii) represents a permissible legislative accommodation or exemption from a generally applicable law, then there ordinarily is no Establishment Clause violation.

The practice of displaying religious memorials, particularly religious war memorials, on public land is not coercive and is rooted in history and tradition. The Bladensburg Cross does not violate the Establishment Clause. . . .

II.

The Bladensburg Cross commemorates soldiers who gave their lives for America in World War I. I agree with the Court that the Bladensburg Cross is constitutional. At the same time, I have deep respect for the plaintiffs’ sincere objections to seeing the cross on public land. I have great respect for the Jewish war veterans who in an amicus brief say that the cross on public land sends a message of exclusion. I recognize their sense of distress and alienation. Moreover, I fully understand the deeply religious nature of the cross. It would demean both believers and nonbelievers to say that the cross is not religious, or not all that religious. A case like this is difficult because it represents a clash of genuine and important interests. Applying our precedents, we uphold the constitutionality of the cross. In doing so, it is appropriate to also restate this bedrock constitutional principle: All citizens are equally American, no matter what religion they are, or if they have no religion at all.

The conclusion that the cross does not violate the Establishment Clause does not necessarily mean that those who object to it have no other recourse. The Court’s ruling allows the State to maintain the cross on public land. The Court’s ruling does not require the State to maintain the cross on public land. The Maryland Legislature could enact new laws requiring removal of the cross or transfer of the land. The Maryland Governor or other state or local executive officers may have authority to do so under current Maryland law. And if not, the legislature could enact new laws to authorize such executive action. The Maryland Constitution, as interpreted by the Maryland Court of Appeals, may speak to this question. And if not, the people of Maryland can amend the State Constitution.

Those alternative avenues of relief illustrate a fundamental feature of our constitutional structure: This Court is not the only guardian of individual rights in America. This Court fiercely protects the individual rights secured by the U. S. Constitution. But the Constitution sets a floor for the protection of individual rights. The constitutional floor is sturdy and often high, but it is a floor. Other federal, state, and local government entities generally possess authority to safeguard individual rights above and beyond the rights secured by the U. S. Constitution.

Justice KAGAN, concurring in part.

I fully agree with the Court’s reasons for allowing the Bladensburg Peace Cross to remain as it is, and so join Parts I, II–B, II–C, III, and IV of its opinion, as well as Justice Breyer’s concurrence. Although 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. I therefore do not join Part II–A. I do not join Part II–D out of perhaps an excess of caution. Although I too “look[ ] to history for guidance,” I prefer at least for now to do so case-by-case, rather than to sign on to any broader statements about history’s role in Establishment Clause analysis. But I find much to admire in this section of the opinion—particularly, its emphasis on whether longstanding monuments, symbols, and practices reflect “respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans.” Here, as elsewhere, the opinion shows sensitivity to and respect for this Nation’s pluralism, and the values of neutrality and inclusion that the First Amendment demands.

Justice THOMAS, concurring in the judgment.

The Establishment Clause states that “Congress shall make no law respecting an establishment of religion.” The text and history of this Clause suggest that it should not be incorporated against the States. Even if the Clause expresses an individual right enforceable against the States, it is limited by its text to “law[s]” enacted by a legislature, so it is unclear whether the Bladensburg Cross would implicate any incorporated right. And even if it did, this religious display does not involve the type of actual legal coercion that was a hallmark of historical establishments of religion. Therefore, the Cross is clearly constitutional. . .

III.

As to the long-discredited test set forth in Lemon v. Kurtzman and reiterated in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, the plurality rightly rejects its relevance to claims, like this one, involving “religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.” I agree with that aspect of its opinion. I would take the logical next step and overrule the Lemon test in all contexts. First, that test has no basis in the original meaning of the Constitution. Second, “since its inception,” it has “been manipulated to fit whatever result the Court aimed to achieve.” Third, it continues to cause enormous confusion in the States and the lower courts. In recent decades, the Court has tellingly refused to apply Lemon in the very cases where it purports to be most useful. The obvious explanation is that Lemon does not provide a sound basis for judging Establishment Clause claims. However, the court below “s[aw] fit to apply Lemon.” It is our job to say what the law is, and because the Lemon test is not good law, we ought to say so. . . .

Justice GORSUCH, with whom Justice THOMAS joins, concurring in the judgment.

The American Humanist Association wants a federal court to order the destruction of a 94 year-old war memorial because its members are offended. Today, the Court explains that the plaintiffs are not entitled to demand the destruction of longstanding monuments, and I find much of its opinion compelling. In my judgment, however, it follows from the Court’s analysis that suits like this one should be dismissed for lack of standing. Accordingly, while I concur in the judgment to reverse and remand the court of appeals’ decision, I would do so with additional instructions to dismiss the case.

The Association claims that its members “regularly” come into “unwelcome direct contact” with a World War I memorial cross in Bladensburg, Maryland “while driving in the area.” And this, the Association suggests, is enough to allow it to insist on a federal judicial decree ordering the memorial’s removal. Maybe, the Association concedes, others who are less offended lack standing to sue. Maybe others still who are equally affected but who come into contact with the memorial too infrequently lack standing as well. But, the Association assures us, its members are offended enough—and with sufficient frequency—that they may sue.

This “offended observer” theory of standing has no basis in law. Federal courts may decide only those cases and controversies that the Constitution and Congress have authorized them to hear. And to establish standing to sue consistent with the Constitution, a plaintiff must show: (1) injury-in-fact, (2) causation, and (3) redressability. The injury-in-fact test requires a plaintiff to prove “an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife.

Unsurprisingly, this Court has already rejected the notion that offense alone qualifies as a “concrete and particularized” injury sufficient to confer standing. We could hardly have been clearer: “The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. III’s requirements.” Imagine if a bystander disturbed by a police stop tried to sue under the Fourth Amendment. Suppose an advocacy organization whose members were distressed by a State’s decision to deny someone else a civil jury trial sought to complain under the Seventh Amendment. Or envision a religious group upset about the application of the death penalty trying to sue to stop it. Does anyone doubt those cases would be rapidly dispatched for lack of standing?

It’s not hard to see why this Court has refused suits like these. If individuals and groups could invoke the authority of a federal court to forbid what they dislike for no more reason than they dislike it, we would risk exceeding the judiciary’s limited constitutional mandate and infringing on powers committed to other branches of government. Courts would start to look more like legislatures, responding to social pressures rather than remedying concrete harms, in the process supplanting the right of the people and their elected representatives to govern themselves.

Proceeding on these principles, this Court has held offense alone insufficient to convey standing in analogous—and arguably more sympathetic—circumstances. Take Allen v. Wright, where the parents of African-American schoolchildren sued to compel the Internal Revenue Service to deny tax-exempt status to schools that discriminated on the basis of race. The parents claimed that their children suffered a “stigmatic injury, or denigration” when the government supported racially discriminatory institutions. But this Court refused to entertain the case, reasoning that standing extends “only to those persons who are personally denied equal treatment by the challenged discriminatory conduct.” Now put the teachings there alongside the Association’s standing theory here and you get this utterly unjustifiable result: An African-American offended by a Confederate flag atop a state capitol would lack standing to sue under the Equal Protection Clause, but an atheist who is offended by the cross on the same flag could sue under the Establishment Clause. Who really thinks that could be the law?

Consider, as well, the Free Exercise Clause. In Harris v. McRae, this Court denied standing to a religious group that raised a free exercise challenge to federal restrictions on abortion funding because “the plaintiffs had ‘not contended that the [statute in question] in any way coerce[d] them as individuals in the practice of their religion.’” Instead, the Court has held, a free exercise plaintiff generally must “show that his good-faith religious beliefs are hampered before he acquires standing to attack a statute under the Free-Exercise Clause.” And if standing doctrine has such bite under the Free Exercise Clause, it’s difficult to see how it could be as toothless as plaintiffs suppose under the neighboring Establishment Clause.

In fact, this Court has already expressly rejected “offended observer” standing under the Establishment Clause itself. In Valley Forge Christian College v. Americans United for Separation of Church and State, the plaintiffs objected to a transfer of property from the federal government to a religious college, an action they had learned about through a news release. This Court had little trouble concluding that the plaintiffs lacked standing to challenge the transfer, explaining that “the psychological consequence presumably produced by observation of conduct with which one disagrees” is not an injury-in-fact “sufficient to confer standing under Art. III.” To be sure, this Court has sometimes resolved Establishment Clause challenges to religious displays on the merits without first addressing standing. But as this Court has held, its own failure to consider standing cannot be mistaken as an endorsement of it: “[D]rive-by jurisdictional rulings of this sort” carry “no precedential effect.” . . .

Offended observer standing cannot be squared with this Court’s longstanding teachings about the limits of Article III. Not even today’s dissent seriously attempts to defend it. So at this point you might wonder: How did the lower courts in this case indulge the plaintiffs’ “offended observer” theory of standing? And why have other lower courts done similarly in other cases?

The truth is, the fault lies here. Lower courts invented offended observer standing for Establishment Clause cases in the 1970s in response to this Court’s decision in Lemon v. Kurtzman. Lemon held that whether governmental action violates the Establishment Clause depends on its (1) purpose, (2) effect, and (3) potential to “excessively entangle” church and state, a standard this Court came to understand as prohibiting the government from doing anything that a “‘reasonable observer’” might perceive as “endorsing” religion. And lower courts reasoned that, if the Establishment Clause forbids anything a reasonable observer would view as an endorsement of religion, then such an observer must be able to sue. Here alone, lower courts concluded, though never with this Court’s approval, an observer’s offense must “suffice to make an Establishment Clause claim justiciable.”

As today’s plurality rightly indicates in Part II–A, however, Lemon was a misadventure. It sought a “grand unified theory” of the Establishment Clause but left us only a mess. How much “purpose” to promote religion is too much (are Sunday closing laws that bear multiple purposes, religious and secular, problematic)? How much “effect” of advancing religion is tolerable (are even incidental effects disallowed)? What does the “entanglement” test add to these inquiries? Even beyond all that, how “reasonable” must our “reasonable observer” be, and what exactly qualifies as impermissible “endorsement” of religion in a country where “In God We Trust” appears on the coinage, the eye of God appears in its Great Seal, and we celebrate Thanksgiving as a national holiday (“to Whom are thanks being given”)? Nearly half a century after Lemon and, the truth is, no one has any idea about the answers to these questions. As the plurality documents, our “doctrine [is] in such chaos” that lower courts have been “free to reach almost any result in almost any case.” Scores of judges have pleaded with us to retire Lemon, scholars of all stripes have criticized the doctrine, and a majority of this Court has long done the same. Today, not a single Member of the Court even tries to defend Lemon against these criticisms—and they don’t because they can’t. As Justice Kennedy explained, Lemon is “flawed in its fundamentals,” has proved “unworkable in practice,” and is “inconsistent with our history and our precedents.”

In place of Lemon, Part II–D of the plurality opinion relies on a more modest, historically sensitive approach, recognizing that “the Establishment Clause must be interpreted by reference to historical practices and understandings.” So, by way of example, the plurality explains that a state legislature may permissibly begin each session with a prayer by an official chaplain because “Congress for more than 200 years had opened its sessions with a prayer and . . . many state legislatures had followed suit.” The constitutionality of a practice doesn’t depend on some artificial and indeterminate three-part test; what matters, the plurality reminds us, is whether the challenged practice fits “‘within the tradition’” of this country.

I agree with all this and don’t doubt that the monument before us is constitutional in light of the nation’s traditions. But then the plurality continues on to suggest that “longstanding monuments, symbols, and practices” are “presumpt[ively]” constitutional. And about that, it’s hard not to wonder: How old must a monument, symbol, or practice be to qualify for this new presumption? It seems 94 years is enough, but what about the Star of David monument erected in South Carolina in 2001 to commemorate victims of the Holocaust, or the cross that marines in California placed in 2004 to honor their comrades who fell during the War on Terror? And where exactly in the Constitution does this presumption come from? The plurality does not say, nor does it even explain what work its presumption does. To the contrary, the plurality proceeds to analyze the “presumptively” constitutional memorial in this case for its consistency with “ ‘historical practices and understandings’ ” under Marsh and Town of Greece—exactly the same approach that the plurality, quoting Town of Greece, recognizes “‘must be’” used whenever we interpret the Establishment Clause. Though the plurality does not say so in as many words, the message for our lower court colleagues seems unmistakable: Whether a monument, symbol, or practice is old or new, apply Town of Greece, not Lemon. Indeed, some of our colleagues recognize this implication and blanch at its prospect. But if that’s the real message of the plurality’s opinion, it seems to me exactly right—because 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. . . .

In a large and diverse country, offense can be easily found. Really, most every governmental action probably offends somebody. No doubt, too, that offense can be sincere, sometimes well taken, even wise. But recourse for disagreement and offense does not lie in federal litigation. Instead, in a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an “offended viewer” may “avert his eyes,” or pursue a political solution. Today’s decision represents a welcome step toward restoring this Court’s recognition of these truths, and I respectfully concur in the judgment.

Justice GINSBURG, with whom Justice SOTOMAYOR joins, dissenting.

An immense Latin cross stands on a traffic island at the center of a busy three-way intersection in Bladensburg, Maryland. “[M]onumental, clear, and bold” by day, the cross looms even larger illuminated against the night-time sky. Known as the Peace Cross, the monument was erected by private citizens in 1925 to honor local soldiers who lost their lives in World War I. “[T]he town’s most prominent symbol” was rededicated in 1985 and is now said to honor “the sacrifices made [in] all wars,” by “all veterans.” Both the Peace Cross and the traffic island are owned and maintained by the Maryland-National Capital Park and Planning Commission (Commission), an agency of the State of Maryland.

Decades ago, this Court recognized that the Establishment Clause of the First Amendment to the Constitution demands governmental neutrality among religious faiths, and between religion and nonreligion. Numerous times since, the Court has reaffirmed the Constitution’s commitment to neutrality. Today the Court erodes that neutrality commitment, diminishing precedent designed to preserve individual liberty and civic harmony in favor of a “presumption of constitutionality for longstanding monuments, symbols, and practices.”

The Latin cross is the foremost symbol of the Christian faith, embodying the “central theological claim of Christianity: that the son of God died on the cross, that he rose from the dead, and that his death and resurrection offer the possibility of eternal life.” Precisely because the cross symbolizes these sectarian beliefs, it is a common marker for the graves of Christian soldiers. For the same reason, using the cross as a war memorial does not transform it into a secular symbol, as the Courts of Appeals have uniformly recognized. Just as a Star of David is not suitable to honor Christians who died serving their country, so a cross is not suitable to honor those of other faiths who died defending their nation. Soldiers of all faiths “are united by their love of country, but they are not united by the cross.” Brief for Jewish War Veterans of the United States of America, Inc., as Amicus Curiae.

By maintaining the Peace Cross on a public highway, the Commission elevates Christianity over other faiths, and religion over nonreligion. Memorializing the service of American soldiers is an “admirable and unquestionably secular” objective. But the Commission does not serve that objective by displaying a symbol that bears “a starkly sectarian message.” . . .

In cases challenging the government’s display of a religious symbol, the Court has tested fidelity to the principle of neutrality by asking whether the display has the “effect of ‘endorsing’ religion.” The display fails this requirement if it objectively “convey[s] a message that religion or a particular religious belief is favored or preferred.” [Footnote 3: “Justice Gorsuch’s “no standing” opinion is startling in view of the many religious-display cases this Court has resolved on the merits. And, if Justice Gorsuch is right, three Members of the Court were out of line when they recognized that “[t]he [Establishment] Clause forbids a city to permit the permanent erection of a large Latin cross on the roof of city hall,” Buono (opinion of Kennedy, J., joined by Roberts, C.J., and Alito, J.), for no one, according to Justice Gorsuch, should be heard to complain about such a thing.”]. To make that determination, a court must consider “the pertinent facts and circumstances surrounding the symbol and its placement.”

As I see it, when a cross is displayed on public property, the government may be presumed to endorse its religious content. The venue is surely associated with the State; the symbol and its meaning are just as surely associated exclusively with Christianity. “It certainly is not common for property owners to open up their property [to] monuments that convey a message with which they do not wish to be associated.” To non-Christians, nearly 30% of the population of the United States, Pew Research Center, America’s Changing Religious Landscape 4 (2015), the State’s choice to display the cross on public buildings or spaces conveys a message of exclusion: It tells them they “are outsiders, not full members of the political community.”

A presumption of endorsement, of course, may be overcome. A display does not run afoul of the neutrality principle if its “setting ... plausibly indicates” that the government has not sought “either to adopt [a] religious message or to urge its acceptance by others.” The “typical museum setting,” for example, “though not neutralizing the religious content of a religious painting, negates any message of endorsement of that content.” Similarly, when a public school history teacher discusses the Protestant Reformation, the setting makes clear that the teacher’s purpose is to educate, not to proselytize. The Peace Cross, however, is not of that genre.

II.
A

“For nearly two millennia,” the Latin cross has been the “defining symbol” of Christianity, evoking the foundational claims of that faith. Christianity teaches that Jesus Christ was “a divine Savior” who “illuminate[d] a path toward salvation and redemption.” Central to the religion are the beliefs that “the son of God,” Jesus Christ, “died on the cross,” that “he rose from the dead,” and that “his death and resurrection offer the possibility of eternal life.” “From its earliest times,” Christianity was known as “religio crucis—the religion of the cross.” Christians wear crosses, not as an ecumenical symbol, but to proclaim their adherence to Christianity.

An exclusively Christian symbol, the Latin cross is not emblematic of any other faith. The principal symbol of Christianity around the world should not loom over public thoroughfares, suggesting official recognition of that religion’s paramountcy.

The Commission urges in defense of its monument that the Latin cross “is not merely a reaffirmation of Christian beliefs”; rather, “when used in the context of a war memorial,” the cross becomes “a universal symbol of the sacrifices of those who fought and died.”

The Commission’s “[a]ttempts to secularize what is unquestionably a sacred [symbol] defy credibility and disserve people of faith.” See, e.g., Brief for Amici Christian and Jewish Organizations (“For Christians who think seriously about the events and message that the cross represents, [the Commission’s] claims are deeply offensive.”). The asserted commemorative meaning of the cross rests on—and is inseparable from—its Christian meaning: “the crucifixion of Jesus Christ and the redeeming benefits of his passion and death,” specifically, “the salvation of man.”

Because of its sacred meaning, the Latin cross has been used to mark Christian deaths since at least the fourth century. The cross on a grave “says that a Christian is buried here,” and “commemorates [that person’s death] by evoking a conception of salvation and eternal life reserved for Christians,” As a commemorative symbol, the Latin cross simply “makes no sense apart from the crucifixion, the resurrection, and Christianity’s promise of eternal life.”

The cross affirms that, thanks to the soldier’s embrace of Christianity, he will be rewarded with eternal life. “To say that the cross honors the Christian war dead does not identify a secular meaning of the cross; it merely identifies a common application of the religious meaning.” Scarcely “a universal symbol of sacrifice,” the cross is “the symbol of one particular sacrifice.” . . .

The Commission nonetheless urges that the Latin cross is a “well-established” secular symbol commemorating, in particular, “military valor and sacrifice [in] World War I.” Calling up images of United States cemeteries overseas showing row upon row of cross-shaped gravemarkers, the Commission overlooks this reality: The cross was never perceived as an appropriate headstone or memorial for Jewish soldiers and others who did not adhere to Christianity.

A page of history is worth retelling. On November 11, 1918, the Great War ended. Bereaved families of American soldiers killed in the war sought to locate the bodies of their loved ones, and then to decide what to do with their remains. Once a soldier’s body was identified, families could choose to have the remains repatriated to the United States or buried overseas in one of several American military cemeteries, yet to be established. Eventually, the remains of 46,000 soldiers were repatriated, and those of 30,000 soldiers were laid to rest in Europe.

While overseas cemeteries were under development, the graves of American soldiers in Europe were identified by one of two temporary wooden markers painted white. Christian soldiers were buried beneath the cross; the graves of Jewish soldiers were marked by the Star of David. The remains of soldiers who were neither Christian nor Jewish could be repatriated to the United States for burial under an appropriate headstone.

When the War Department began preparing designs for permanent headstones in 1919, “no topic managed to stir more controversy than the use of religious symbolism.” Everyone involved in the dispute, however, saw the Latin cross as a Christian symbol, not as a universal or secular one. To achieve uniformity, the War Department initially recommended replacing the temporary sectarian markers with plain marble slabs resembling “those designed for the national cemeteries in the United States.”

The War Department’s recommendation angered prominent civil organizations, including the American Legion and the Gold Star associations: the United States, they urged, ought to retain both the cross and Star of David. In supporting sectarian markers, these groups were joined by the American Battle Monuments Commission (ABMC), a newly created independent agency charged with supervising the establishment of overseas cemeteries. Congress weighed in by directing the War Department to erect headstones “of such design and material as may be agreed upon by the Secretary of War and the American Battle Monuments Commission.”

Throughout the headstone debate, no one doubted that the Latin cross and the Star of David were sectarian gravemarkers, and therefore appropriate only for soldiers who adhered to those faiths. . . .

Reiterating its argument that the Latin cross is a “universal symbol” of World War I sacrifice, the Commission states that “40 World War I monuments ... built in the United States ... bear the shape of a cross.” This figure includes memorials that merely “incorporat[e]” a cross. Moreover, the 40 monuments compose only 4% of the “948 outdoor sculptures commemorating the First World War.” The Court lists just seven freestanding cross memorials, less than 1% of the total number of monuments to World War I in the United States. Cross memorials, in short, are outliers. The overwhelming majority of World War I memorials contain no Latin cross.

In fact, the “most popular and enduring memorial of the [post-World War I] decade” was “[t]he mass-produced Spirit of the American Doughboy statue.” That statue, depicting a U. S. infantryman, “met with widespread approval throughout American communities.” Indeed, the first memorial to World War I erected in Prince George’s County “depict[s] a doughboy.” The Peace Cross, as Plaintiffs’ expert historian observed, was an “aberration ... even in the era [in which] it was built and dedicated.”

Like cities and towns across the country, the United States military comprehended the importance of “pay[ing] equal respect to all members of the Armed Forces who perished in the service of our country,” and therefore avoided incorporating the Latin cross into memorials. The construction of the Tomb of the Unknown Soldier is illustrative. When a proposal to place a cross on the Tomb was advanced, the Jewish Welfare Board objected; no cross appears on the Tomb. In sum, “[t]here is simply ‘no evidence . . . that the cross has been widely embraced by’—or even applied to—‘non-Christians as a secular symbol of death’ or of sacrifice in military service” in World War I or otherwise. . . .