Quotations from American Legion v. American Humanist Association

Justice Alito, announcing the judgment of the Court and delivering 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:

"[R]etaining 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."

Justice Breyer, with whom Justice Kagan joins, concurring:

"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 spher[e].' "

Justice Kavanaugh, concurring:

"[T]he 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.* (*That is not to say that challenged government actions outside that safe harbor are unconstitutional. Any such cases must be analyzed under the relevant Establishment Clause principles and precedents.)

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."

Justice Kagan, concurring in part:

"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.' "

Justice Thomas, concurring in the judgment:

"The Establishment Clause states that 'Congress shall make no law respecting an establishment of religion.' U. S. Const., Amdt. 1. 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."

Justice Goresuch, with whom Justice Thomas joins, concurring in the judgment:

"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.' "

Justice Ginsburg, with whom Justice Sotomayor joins, dissenting:

"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.'
 
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.' Because the Commission has endorsed Christianity, the monument violates the neutrality required by the Establishment Clause."