American Legion v. American Humanist Ass'n

NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
goes to press.

															SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 17–1717 and 18–18

															_________________

															THE AMERICAN LEGION, et al.,
PETITIONERS

															17–1717 v. AMERICAN HUMANIST ASSOCIATION,
et al.; and

															MARYLAND-NATIONAL CAPITAL PARK AND
PLANNING COMMISSION, PETITIONER

															18–18 v. AMERICAN HUMANIST ASSOCIATION,
et al.

															on writs of certiorari to the united states
court of appeals for the fourth circuit

															[June 20, 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 , 545
U.S. 677 , 704 (2005) (Breyer, J., concurring in judgment). And
con- trary 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
fundraising 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 commu-
nity 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 Lemon ’s “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 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.’ ” 874 F. 3d,
at 206–207. 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. Id., at
209–210. The court rejected as “too simplistic” an argument
dppefending 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 con-cerned 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. Milford 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 Orden , 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 considera- tions 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 Orden , 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 Ruegemer 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 Lib- erty, 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 Orden , 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 il- lustrative 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 his- tory.
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 centrality 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 Brennan, 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,” 1Stat. 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. Fitzpatrick 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 the motion: “ ‘I
am no bigot. I can hear a prayer from a man of piety and virtue,
who is at the same time a friend of his country.’ ” Ibid. Others agreed and the chaplain was appointed.

															Over time, the members of the clergy invited to
offer prayers at the opening of a session grew more and more
diverse. For example, an 1856 study of Senate and House Chaplains
since 1789 tallied 22 Methodists, 20 Presbyterians, 19
Episcopalians, 13 Baptists, 4 Congregationalists, 2 Roman
Catholics, and 3 that were characterized as
“miscellaneous.”[ 29 ] Four
years later, Rabbi Morris Raphall became the first rabbi to open
Congress.[ 30 ] Since then,
Congress has welcomed guest chaplains from a variety of faiths,
including Islam, Hinduism, Buddhism, and Native American
religions.[ 31 ]

															In Town of Greece, which concerned prayer
before a town council meeting, there was disagreement about the
inclusiveness of the town’s practice. Compare 572 U. S., at
585 (opinion of the Court) (“The town made reasonable efforts to
identify all of the congregations located within its borders and
represented that it would welcome a prayer by any minister or
layman who wished to give one”), with id ., at 616 (Kagan,
J., dissenting) (“Greece’s Board did nothing to recognize religious
diversity”). But there was no disagreement that the Establishment
Clause permits a nondiscriminatory practice of prayer at the
beginning of a town council session. See ibid. (“I believe
that pluralism and inclusion [in legislative prayer] in a town hall
can satisfy the constitutional requirement of neutrality”). 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.” Id., at 577 (opinion of the Court).

															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 longstand- ing 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,[ 32 ] 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. See
App. 65, 205, 990.

															The AHA’s brief strains to connect the
Bladensburg Cross and even the American Legion with anti-Semitism
and the Ku Klux Klan, see Brief for Respondents 5–7, 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.[ 33 ] 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. App. 1559–1569,
1373. 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.[ 34 ] 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.’ ”[ 35 ] 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.

															It is so ordered. Notes 1 B. Longenecker, The Cross
Before Constantine: The Early Life of a Christian Symbol 2
(2015). 2 See Blue Cross, Blue
Shield, https://www.bcbs.com; The Bayer Group, The Bayer Cross—Logo
and Landmark, https://www.bayer.com/en/logo-history.aspx; Band-Aid
Brand Adhesive Bandages, Johnson & Johnson All Purpose First
Aid Kit,
https://www.band-aid.com/products/first-aid-kits/all-purpose (all
Internet materials as last visited June 18, 2019). 3 International Committee
of the Red Cross, The History of the Emblems,
https://www.icrc.org/en/doc/resources/documents/misc/emblem-history.htm. 4 For example, the Indian
and Japanese affiliates of the ICRC and Red Crescent Societies use
the symbol of the cross. See Indian Red Cross Society, https://www.indianredcross.org/ircs/index.php ; Japanese Red
Cross Society, http://www.jrc.or.jp/english /. 5 See “Flag of
Switzerland,” Britannica Academic,
https://academic.eb.com/levels/collegiate/article/flag-of-Switzerland/93966. 6 The Latin form of the
cross “has a longer upright than crossbar. The intersection of the
two is usually such that the upper and the two horizontal arms are
all of about equal length, but the lower arm is conspicuously
longer.” G. Ferguson, Signs & Symbols in Christian Art 294
(1954). See also Webster’s Third New International Dictionary 1276
(1981) (“latin cross, n.”: “a figure of a cross having a long
upright shaft and a shorter crossbar traversing it above the
middle”). 7 Of the roughly 116,000
casualties the United States suffered in World War I, some 3,500
were Jewish soldiers. J. Fredman & L. Falk, Jews in American
Wars 100 (5th ed. 1954). 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.
See Hearings before the Committee on Military Affairs, 68th Cong.,
1st Sess., 3 (1924). That would constitute about 5.2% of the 30,973
graves in American World War I cemeteries abroad. See American
Battle Monuments Commission (ABMC), World War I Burials and
Memorializations, https://www.abmc.gov/node/1273. 8 “In Flanders Fields,”
N. Y. Times, Dec. 18, 1921, p. 96. 9 See ABMC, Cemeteries and
Memorials, https://www.abmc.gov/cemeteries-memorials. 10 Other
World War I memorials that incorporate the cross include the
Argonne Cross and the Canadian Cross of Sacrifice in Arlington
National Cemetery; the Wayside Cross in Towson, Maryland; the
Wayside Cross in New Canaan, Connecticut; the Troop K Georgia
Cavalry War Memorial Front in Augusta, Georgia; the Chestnut Hill
and Mt. Airy World War Memorial in Philadelphia, Pennsylvania; and
the Great War for Democracy Memorial in Waterbury,
Connecticut. 11 There
is some ambiguity as to whether the American Legion ever owned the
land on which the Cross rests. When the Legion took over the Cross,
the town of Bladensburg passed a resolution “assign[ing] and
grant[ing] to the said Snyder-Farmer Post #3, American Legion, that
parcel of ground upon which the cross now stands and that part
necessary to complete . . . the park around said cross,
to the perpetual care of the Snyder-Farmer Post #3 as long as it is
in existence, and should the said Post go out of existence the plot
to revert to the Town of Bladensburg, together with the cross and
its surroundings.” App. 65. In 1935, a statute authorized the State
Roads Commission of Maryland to “investigate the ownership and
possessory rights” of the tract surrounding the Cross and to
“acquire the same by purchase or condemnation.” Id. , at 421.
It appears that in 1957, a court determined that it was necessary
for the State to condemn the property. Id. , at 1377–1379.
The State Roads Commission thereafter conveyed the property to the
Commission in 1960. Id. , at 1380, 1382. To resolve any
ambiguities, in 1961, the local American Legion post “transfer[ed]
and assign[ed] to [the Commission] all its right, title and
interest in and to the Peace Cross, also originally known as the
Memorial Cross, and the tract upon which it is located.” Id. , at 1387. At least by 1961, then, both the land and the
Cross were publicly owned. 12 Of
the budgeted $100,000, the Commission had spent only $5,000 as of
2015. The Commission put off additional spending and repairs in
light of this lawsuit. Id., at 823. 13 See, e.g. , Utah Highway Patrol Assn. v. American
Atheists, Inc. , 565 U.S. 994, 995 (2011) (Thomas, J.,
dissenting from denial of certiorari); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh
Chapter , 492 U.S.
573 , 655–656 (1989) (Kennedy, J., concurring in judgment in
part and dissenting in part); Lamb’s Chapel v. Center
Moriches Union Free School Dist. , 508 U.S.
384 , 398–399 (1993) (Scalia, J., concurring in judgment); Wallace v. Jaffree , 472 U.S.
38 , 112 (1985) (Rehnquist, J., dissenting). 14 See, e.g., Green v. Haskell Cty. Bd. of Comm’rs , 574 F.3d
1235, n. 1 (CA10 2009) (Kelly, J., dissenting from denial of
rehearing en banc) (discussing the “judicial morass resulting from
the Supreme Court’s opinions”); Cooper v. United States
Postal Service , 577 F.3d 479, 494 (CA2 2009) (“ Lemon is
difficult to apply and not a particularly useful test”); Roark v. South Iron R–1 School Dist. , 573 F.3d 556,
563 (CA8 2009) (“[T]he Lemon test has had a ‘checkered
career’ ”); Skoros v. New York , 437 F.3d 1 , 15 (CA2 2006) (government officials “confront a
‘jurisprudence of minutiae’ that leaves them to rely on ‘little
more than intuition and a tape measure’ to ensure the
constitutionality of public holiday displays” (quoting County of
Allegheny , supra , at 674–675 (opinion of Kennedy, J.)); Felix v. Bloomfield , 841 F.3d 848, 864 (CA10 2016)
(court “cannot speculate what precise actions a government must
take” to comply with the Establishment Clause); Separation of
Church and State Comm. v. Eugene , 93 F.3d 617 , 627 (CA9 1996) (O’Scannlain, J., concurring in result) (The
standards announced by this Court “are not always clear, consistent
or coherent”). 15 See
McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. Rev.
115, 118–120 (1992) (describing doctrinal “chaos” Lemon created, allowing the Court to “reach almost any result in almost
any case”); Laycock, Towards a General Theory of the Religion
Clauses: The Case of Church Labor Relations and the Right to Church
Autonomy, 81 Colum. L. Rev. 1373, 1380–1388 (1981) (criticizing the
“unstructured expansiveness of the entanglement notion” and the
potential that certain constructions of the effects prong may
result in “the establishment clause threaten[ing] to swallow the
free exercise clause”); Smith, Symbols, Perceptions, and Doctrinal
Illusions: Establishment Neutral-ity and the “No Endorsement” Test,
86 Mich. L. Rev. 266, 269 (1987) (criticizing both the Lemon test and the endorsement gloss); Tushnet, Reflections on the Role
of Purpose in the Jurisprudence of the Religion Clauses, 27 Wm.
& Mary L. Rev. 997, 1004 (1986) (describing cases involving
“ ‘deeply ingrained practices’ ” as “not readily
susceptible to analysis under the ordinary Lemon approach”);
Choper, The Endorsement Test: Its Status and Desirability, 18
J. L. & Politics 499 (2002) (criticizing both Lemon and the endorsement gloss); Paulsen, Religion, Equality, and the
Constitution: An Equal Protection Approach to Establishment Clause
Adjudication, 61 Notre Dame L. Rev. 311, 315 (1986) (criticizing
the Court’s reading of the Establishment Clause as “producing a
schizophrenic pattern of decisions”); Marshall, “We Know It When We
See It”: The Supreme Court and Establishment, 59 S. Cal. L. Rev.
495, 526 (1986) (explaining that the purpose prong of Lemon ,
“[t]aken to its logical conclusion . . . suggests
that laws which respect free exercise rights
. . . are unconstitutional”). 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 v . Board of Ed. of Ewing, 330 U.S. 1 (1947), 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 , 465 U.S.
668 (1984); Van Orden v. Perry , 545
U.S. 677 (2005); (2) religious accommodations and exemptions
from gener-ally applicable laws, e.g. , Cutter v .
Wilkinson , 544 U.S.
709 (2005); Corporation of Presiding Bishop of Church of
Jesus Christ of Latter-day Saints v. Amos , 483 U.S.
327 (1987); (3) subsidies and tax exemptions, e.g. , Walz v. Tax Comm’n of City of New York , 397 U.S.
664 (1970); Zelman v. Simmons-Harris , 536 U.S.
639 (2002); (4) religious expression in public schools, e.g. , School Dist. of Abington Township v. Schempp , 374 U.S.
203 (1963); Lee v. Weisman , 505 U.S.
577 (1992); (5) regulation of private religious speech, e.g. , Capitol Square Review and Advisory Bd . v. Pinette , 515 U.S.
753 (1995); and (6) state interference with internal church
affairs, e.g., Hosanna-Tabor Evangelical Lutheran Church and
School v. EEOC , 565 U.S.
171 (2012). A final, miscellaneous category, including cases
involving such issues as Sunday closing laws, see McGowan ,
v. Maryland , 366 U.S.
420 (1961), and church involvement in governmental
decisionmaking, see Larkin v. Grendel’s Den, Inc ., 459 U.S.
116 (1982); Board of Ed. of Kiryas Joel Village School
Dist . v. Grumet , 512 U.S.
687 (1994), might be added. We deal here with an issue that
falls into the first category. 17 See
Bravin, When Moses’ Laws Run Afoul of the U. S.’s, Get Me
Cecil B. deMille—Ten Commandment Memorial Has Novel Defense in
Suit, Wall Street Journal, Apr. 18, 2001, p. A1. 18 See
D. Davis, The Oxford Handbook of Church and State in the United
States 284 (2010). 19 See
French Constitution, Art. 1 (proclaiming that France is a “secular
. . . Republic”). 20 See
Erlanger, What the Notre-Dame Fire Reveals About the Soul of
France, N. Y. Times, Apr. 16, 2019. 21 Hinnant, Petrequin, & Ganley,
Fire Ravages Soaring Notre Dame Cathedral, Paris Left Aghast, AP
News, Apr. 16, 2019. 22 See
B. Shearer & B. Shearer, State Names, Seals, Flags, and
Symbols: A Historical Guide 17–18 (3d ed. 2002). See also id., at 18 (Connecticut motto: “ Qui Tanstulit
Sustinet ” (“He Who Transplanted Still Sustains”), dating back
to the colonial era and adapted from the Book of Psalms 79:3); ibid. (Florida motto: “In God We Trust,” adopted in 1868); id., at 20 (Maryland motto: “ Scuto Bonae Volantatis Tuae
Coronasti Nos ” (“With Favor Wilt Thou Compass Us as with a
Shield”), which appeared on the seal adopted in 1876 and comes from
Psalms 5:12); id., at 21–22 (Ohio motto: “With God, All
Things Are Possible,” adopted in 1959 and taken from Matthew
19:26); id., at 22 (South Dakota motto: “Under God the
People Rule,” adopted in 1885); id., at 23 (American Samoa
motto: “ Samoa—Muamua le Atua ” (“Samoa—Let God Be First”),
adopted in 1975). 23 The
current flag was known and used since at least October 1880, and
was officially adopted by the General Assembly in 1904. See History
of the Maryland Flag,
https://sos.maryland.gov/Pages/Services/Flag-History.aspx. 24 For
example, the French Revolution sought to “dechristianize” the
nation and thus removed “plate[s], statues and other fittings from
places of worship,” destroyed “crosses, bells, shrines and other,
‘external signs of worship,’ ” and altered “personal and place
names which had any ecclesiastical connotations to more suitably
Revolutionary ones.” Tallett, Dechristianizing France: The Year II
and the Revolutionary Experience, in Religion, Society and Politics
in France Since 1789, pp. 1–2 (F. Tallett & N. Atkin eds.
1991). 25 See
App. 141, 936; M. Sledge, Soldier Dead 67 (2005). 26 Local
Memorials Honoring Dr. King,
https://www.kingcounty.gov/elected/executive/equity-social-justice/mlk/local-memorials.aspx. 27 The
National Statuary Hall Collection,
https://www.aoc.gov/the-national-statuary-hall-collection. 28 W.
Hutchison, Religious Pluralism in America 20–21
(2003). 29 A.
Stokes, 3 Church and State in the United States 130
(1950). 30 Korn,
Rabbis, Prayers, and Legislatures, 23 Hebrew Union College Annual,
No. 2, pp. 95, 96 (1950). 31 See
Lund, The Congressional Chaplaincies, 17 Wm. & Mary Bill of
Rights J. 1171, 1204–1205 (2009). See also 160 Cong. Rec. 3853
(2014) (prayer by the Dalai Lama). 32 J.
Fredman & L. Falk, Jews in American Wars 100–101 (5th ed.
1954). 33 Fryer
& Levitt, Hatred and Profits: Under the Hood of the Ku Klux
Klan, 127 Q. J. Econ. 1883 (2012). 34 For
example, the South Carolina Holocaust Memorial depicts a large Star
of David “ ‘in sacred memory of the six million,’ ”see
https://www.onecolumbiasc.com/public-art/south-carolina-holocaust-memorial/,
and the Philadelphia Monument to Six Million Jewish Martyrs depicts
a burning bush, Torah scrolls, and a blazing men-orah, see
https://www.associationforpublicart.org/artwork/monument-to-six-million-jewish-martyrs/. 35 Hedgpeth, “A Very Deep Kind of
Patriotism”: Memorial to Honor Native American Veterans Is Coming
to the Mall, Washington Post , Mar. 31, 2019. SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 17–1717 and 18–18

															_________________

															THE AMERICAN LEGION, et al.,
PETITIONERS

															17–1717 v. AMERICAN HUMANIST ASSOCIATION,
et al.; and

															MARYLAND-NATIONAL CAPITAL PARK AND
PLANNING COMMISSION, PETITIONER

															18–18 v. AMERICAN HUMANIST ASSOCIATION,
et al.

															on writs of certiorari to the united states
court of appeals for the fourth circuit

															[June 20, 2019]

															Justice Breyer, with whom Justice Kagan joins,
concurring.

															I have long maintained that there is no single
formula for resolving Establishment Clause challenges. See Van
Orden v. Perry , 545 U.S.
677 , 698 (2005) (opinion concurring in judgment). 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].” Ibid. ;
see also Zelman v. Simmons-Harris , 536 U.S.
639 , 717−723 (2002) (Breyer, J., dissenting).

															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.” Van Orden , 545 U. S., at 702 (Breyer, J., concurring in
judgment). 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.” Ibid. 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.” Id., at 704.

															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.
See ante, at 29; see also Van Orden , 545 U. S.,
at 703 (opinion of Breyer, J.) (explaining that, in light of the
greater religious diversity today, “a more contemporary state
effort” to put up a religious display is “likely to prove divisive
in a way that [a] longstanding, pre-existing monument [would]
not”). 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. See post, at
1, 4 (Kavanaugh, J., concurring); cf. post, at 8−9 (Gorsuch,
J., concurring in judgment). The Court appropriately “looks to
history for guidance,” ante, at 25 (plurality opinion), but
it upholds the constitutionality of the Peace Cross only after
considering its particular historical context and its long-held
place in the community, see ante, at 28−30 (majority
opinion). A newer memorial, erected under different circumstances,
would not necessarily be permissible under this approach. Cf. ante, at 21.

															As I have previously explained, “where the
Establishment Clause is at issue,” the Court must
“ ‘distinguish between real threat and mere shadow.’ ” Van Orden , 545 U. S., at 704 (opinion concurring in
judgment) (quoting School Dist. of Abington Township v. Schempp , 374 U.S.
203 , 308 (1963) (Goldberg, J., concurring)). 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. SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 17–1717 and 18–18

															_________________

															THE AMERICAN LEGION, et al.,
PETITIONERS

															17–1717 v. AMERICAN HUMANIST ASSOCIATION,
et al.; and

															MARYLAND-NATIONAL CAPITAL PARK AND
PLANNING COMMISSION, PETITIONER

															18–18 v. AMERICAN HUMANIST ASSOCIATION,
et al.

															on writs of certiorari to the united states
court of appeals for the fourth circuit

															[June 20, 2019]

															Justice Kavanaugh, concurring.

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

															I

															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. See Marsh v. Chambers , 463 U.S.
783 , 787–792, 795 (1983); Van Orden v. Perry , 545 U.S.
677 , 686–690 (2005) (plurality opinion); Town of Greece v. Galloway , 572 U.S. 565, 575–578 (2014).

															As this case again demonstrates, this Court no
longer applies the old test articulated in Lemon v. Kurtzman, 403 U.S.
602 (1971). 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. See ante , at 15,
n. 16.

															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. See, e.g ., Marsh , 463 U. S., at 787–792,
795; Van Orden , 545 U. S., at 686–690 (plurality
opinion); Town of Greece , 572 U. S., at
575–578. 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. See, e.g ., Corporation of Presiding
Bishop of Church of Jesus Christ of Latter-day Saints v. Amos , 483 U.S.
327 (1987); Cutter v. Wilkinson , 544 U.S.
709 (2005). But accommodations and exemptions “by definition”
have the effect of advancing or endorsing religion to some extent. Amos , 483 U. S., at 347 (O’Connor, J., concurring in
judgment) (quotation altered). 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. See, e.g ., Walz v. Tax Comm’n of City of New York , 397 U.S.
664 (1970); Mueller v. Allen , 463 U.S.
388 (1983); Mitchell v. Helms , 530 U.S.
793 (2000) (plurality opinion); Zelman v. Simmons-Harris , 536 U.S.
639 (2002); Trinity Lutheran Church of Columbia, Inc . v. Comer , 582 U. S. ___ (2017). 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 , 505 U.S.
577 (1992), 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. See, e.g ., Lamb’s Chapel v. Center
Moriches Union Free School Dist ., 508 U.S.
384 (1993); Capitol Square Review and Advisory Bd . v. Pinette , 515 U.S.
753 (1995); Rosenberger v. Rector and Visitors of
Univ. of Va ., 515 U.S.
819 (1995); Good News Club v. Milford Central
School , 533 U.S.
98 (2001). 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.[ 1 ]*

															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. Cf. Town of
Greece , 572 U.S. 565.

															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. See, e.g ., West Virginia Bd. of Ed . v. Barnette , 319 U.S.
624 (1943); Wisconsin v. Yoder , 406 U.S.
205 (1972). 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. See generally J. Sutton, 51 Imperfect Solutions
(2018); Brennan, State Constitutions and the Protection of
Individual Rights, 90 Harv. L. Rev. 489 (1977). Notes 1 *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. SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 17–1717 and 18–18

															_________________

															THE AMERICAN LEGION, et al.,
PETITIONERS

															17–1717 v. AMERICAN HUMANIST ASSOCIATION,
et al.; and

															MARYLAND-NATIONAL CAPITAL PARK AND
PLANNING COMMISSION, PETITIONER

															18–18 v. AMERICAN HUMANIST ASSOCIATION,
et al.

															on writs of certiorari to the united states
court of appeals for the fourth circuit

															[June 20, 2019]

															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,” ante, at 25 (plurality opinion), 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.” Ante, at 28. 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. SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 17–1717 and 18–18

															_________________

															THE AMERICAN LEGION, et al.,
PETITIONERS

															17–1717 v. AMERICAN HUMANIST ASSOCIATION,
et al.; and

															MARYLAND-NATIONAL CAPITAL PARK AND
PLANNING COMMISSION, PETITIONER

															18–18 v. AMERICAN HUMANIST ASSOCIATION,
et al.

															on writs of certiorari to the united states
court of appeals for the fourth circuit

															[June 20, 2019]

															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.” 874 F.3d 195, 203 (CA4 2017). 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. See Tr.
of Oral Arg. 48–49. 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 , 504 U.S.
555 , 560 (1992) (internal quotation marks omitted).

															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 dis- agreement,
however sharp and acrimonious it may be, is insufficient by itself
to meet Art. III’s requirements.” Diamond v. Charles , 476 U.S.
54 , 62 (1986). 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? Cf. Whitmore v. Arkansas , 495 U.S.
149 , 151 (1990) (holding that a third party does not have
“standing to challenge the validity of a death sentence imposed on
a capital defendant who has elected to forgo his right of
appeal”).

															It’s not hard to see why this Court has refused
suits like these. If individuals and groups could invoke the
author- ity 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. See, e.g. , Clapper v. Amnesty Int’l
USA , 568 U.S.
398 , 408 (2013) (“The law of Article III standing, which is
built on separation-of-powers principles, serves to prevent the
judicial process from being used to usurp the powers of the
political branches”); Warth v. Seldin , 422 U.S.
490 , 500 (1975) (without standing requirements “courts would be
called upon to decide abstract questions of wide public
significance even though other governmental institutions may be
more competent to address the questions”); Hein v. Freedom From Religion Foundation, Inc. , 551 U.S.
587 , 635–636 (2007) (Scalia, J., concurring in judgment)
(“ ‘To permit a complainant who has no concrete injury to
require a court to rule on important constitutional issues in the
abstract would create the potential for abuse of the judicial
process, distort the role of the Judiciary in its relationship to
the Executive and the Legislature and open the Judiciary to an
arguable charge of providing “government by
injunction” ’ ”).

															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 , 468 U.S.
737 (1984), 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. Id. , at 754. 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.” Id. , at 755
(internal quotation marks omitted). 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 Es- tablishment
Clause. Who really thinks that could be the law? See Brief
for Becket Fund for Religious Liberty as Amicus Curiae 34–35.

															Consider, as well, the Free Exercise Clause. In Harris v. McRae , 448 U.S.
297 (1980), 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.’ ” Id. , at 321, n. 24. 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.” Braunfeld v. Brown , 366 U.S.
599 , 615 (1961) (Brennan, J., concurring and dissenting). 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 , Inc. , 454 U.S.
464 (1982), 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 dis-
agrees” is not an injury-in-fact “sufficient to confer standing
under Art. III.” Id. , at 485. 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.” Steel
Co. v. Citizens for Better Environment , 523 U.S.
83 , 91 (1998).

															Offended observer standing is deeply
inconsistent, too, with many other longstanding principles and
precedents. For example, this Court has consistently ruled 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 (1974). But if offended observers could bring
suit, this rule would be rendered meaningless: Who, after all,
would have trouble recasting a generalized grievance about
governmental action into an “I-take-offense” argument for standing?
Similarly, this Court has long “adhered to the rule that a party
‘generally must assert his own legal rights and interests, and
cannot rest his claim to relief on the legal rights or interests of
third parties.’ ” Kowalski v. Tesmer , 543 U.S.
125 , 129 (2004). We depart from this rule only where the party
seeking to invoke the judicial power “has a ‘close’ relationship
with the person who possesses the right” and “there is a
‘hindrance’ to the possessor’s ability to protect his own
interests.” Id. , at 130. Applying these principles in Kowalski , this Court held that attorneys lacked standing to
assert the rights of indigent defendants. Id. , at 127. And
in Whitmore , we rejected a third party’s effort to appeal
another person’s death sentence. 495 U. S., at 151. But if
offended observers could sue, the attorneys in Kowalski might have sim- ply claimed they were “offended” by Michigan’s
procedure for appointing appellate counsel, and the third party in Whitmore could have just said he was offended (as he surely
was) by the impending execution. None of this Court’s limits on
third-party standing would really matter.

															*

															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 , 403 U.S.
602 (1971). Lemon held that whether governmental action
violates the Establishment Clause depends on its (1) purpose,
(2) effect, and (3) potential to “ ‘excessive[ly]
. . . entangl[e]’ ” church and state, id. , at
613, a standard this Court came to understand as prohibiting the
government from doing anything that a “ ‘reasonable
observer’ ” might perceive as “endorsing” religion, County
of Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter , 492 U.S.
573 , 620–621 (1989) (opinion of Blackmun, J.); id. , at
631 (O’Connor, J., concurring in part and concurring in judgment).
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. Moore v. Bryant , 853 F.3d 245, 250 (CA5 2017). 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.” Suhre v. Haywood Cty. , 131 F.3d 1083 , 1086 (CA4 1997).

															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. See ante , at 24 (plurality opinion). 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”)? Harris v . Zion ,
927 F.2d 1401, 1423 (CA7 1991) (Easterbrook, J., dissenting).
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.”
McConnell, Religious Participation in Public Programs: Religious
Freedom at a Crossroads, 59 U. Chi. L. Rev. 115, 119 (1992).
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. Ante , at
14–15 (plurality opinion). 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.” County of Allegheny , 492 U. S., at
655, 669 (opinion concurring in judgment in part and dissenting in
part).

															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.” Ante , at 25 (quoting Town of Greece v. Galloway , 572 U.S. 565, 576 (2014) (internal quotation
marks omitted); see also ante , at 1–4 (Kavanaugh, J.,
concurring). 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.” Ante , at 25
(discussing Marsh v. Chambers , 463 U.S.
783 (1983), and Town of Greece , 572 U. S. 565). 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. Ante , at 27 (citing Town of Greece , 572 U. S., at 577).

															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. Ante , at 16. 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. Ante ,
at 25; see also ante , at 2–4 (Kavanaugh, J., concurring).
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. See ante , at 2–3 (Breyer, J., concurring); ante , at 1–2
(Kagan, J., concurring in part) (declining to join Parts II–A &
II–D); post , at 2, n. 2 (Ginsburg, J., dissenting). 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.

															*

															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. Nor does this development mean colorable
Establishment Clause violations will lack for proper plaintiffs. By
way of example only, a public school student compelled to recite a
prayer will still have standing to sue. See School Dist. of
Abington Township v . Schempp , 374
U.S. 203 , 224, n. 9 (1963). So will persons denied public
office because of their religious affiliations or lack of them. And
so will those who are denied government benefits because they do
not practice a favored religion or any at all. Texas Monthly,
Inc. v . Bullock , 489 U.S.
1 , 7–8 (1989) (plurality opinion). On top of all that, States
remain free to supply other forms of relief consistent with their
own laws and constitutions.

															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. Along the way, this will bring with it the welcome side
effect of rescuing the federal judiciary from the sordid business
of having to pass aesthetic judgment, one by one, on every public
display in this country for its perceived capacity to give offense.
It’s a business that has consumed volumes of the federal reports,
invited erratic results, frustrated generations of judges, and
fomented “the very kind of religiously based divisiveness that the
Establishment Clause seeks to avoid.” Van Orden v. Perry , 545 U.S.
677 , 704 (2005) (Breyer, J., concurring in judgment). Courts
applying Lemon ’s test have upheld Ten Commandment displays
and demanded their removal; they have allowed memorial crosses and
insisted that they be razed; they have permitted Christmas displays
and pulled the plug on them; and they have pondered seemingly
endlessly the inclusion of “In God We Trust” on currency or similar
language in our Pledge of Allegiance. No one can predict the
rulings—but one thing is certain: Between the challenged practices
and the judicial decisions, just about everyone will wind up
offended.

															Nor have we yet come close to exhausting the
potential sources of offense and federal litigation Lemon invited, for what about the display of the Ten Commandments on the
frieze in our own courtroom or on the doors leading into it? Or the
statues of Moses and the Apostle Paul next door in the Library of
Congress? Or the depictions of the Ten Commandments found in the
Justice Department and the National Archives? Or the crosses that
can be found in the U. S. Capitol building? And all that just
takes us mere steps from where we sit. In light of today’s
decision, we should be done with this business, and our lower court
colleagues may dispose of cases like these on a motion to dismiss
rather than enmeshing themselves for years in intractable disputes
sure to generate more heat than light.

															*

															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,” Erznoznik v. Jacksonville , 422
U.S. 205 , 212 (1975), 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. SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 17–1717 and 18–18

															_________________

															THE AMERICAN LEGION, et al.,
PETITIONERS

															17–1717 v. AMERICAN HUMANIST ASSOCIATION,
et al.; and

															MARYLAND-NATIONAL CAPITAL PARK AND
PLANNING COMMISSION, PETITIONER

															18–18 v. AMERICAN HUMANIST ASSOCIATION,
et al.

															on writs of certiorari to the united states
court of appeals for the fourth circuit

															[June 20, 2019]

															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.

															I

															As I have explained elsewhere, the
Establishment Clause resists incorporation against the States. Town of Greece v. Galloway , 572 U.S. 565, 604–607
(2014) (opinion concurring in part and concurring in judgment); Elk Grove Unified School Dist. v. Newdow , 542 U.S.
1 , 49–51 (2004) (opinion concurring in judgment); Van
Orden v. Perry , 545 U.S.
677 , 692–693 (2005) (concurring opinion); Zelman v. Simmons-Harris , 536 U.S.
639 , 677–680 (2002) (same). In Everson v. Board of
Ed. of Ewing , 330 U.S.
1 , 15 (1947), the Court “casually” incorporated the Clause with
a declaration that because the Free Exercise Clause had been
incorporated, “ ‘[t]here is every reason to give the same
application and broad interpretation to the “establishment of
religion” clause.’ ” Town of Greece , 572
U. S. , at 607, n. 1 (opinion of Thomas, J.). The
Court 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. See id. , at 605–606.

															The Court’s “inattention” to the significant
question of incorporation “might be explained, although not
excused, by the rise of popular conceptions about ‘separation of
church and state’ as an ‘American’ constitutional right.” Id., at 608, n. 1; see P. Hamburger, Separation of
Church and State 454–463 (2002); see also id. , at 391–454
(tracing the role of nativist sentiment in the rise of “the modern
myth of separation” as an American ideal). But an ahistorical
generalization is no substitute for careful constitutional
analysis. We should consider whether any longstanding right of
citizenship restrains the States in the establishment context. See
generally McDonald v. Chicago , 561 U.S.
742 , 805–858, and n. 20 (2010) (Thomas, J., concurring in
part and concurring in judgment).

															Further confounding the incorporation question
is the fact that the First Amendment by its terms applies only to
“law[s]” enacted by “Congress.” Obviously, a memorial is not a law.
And respondents have not identified any speci- fic law they
challenge as unconstitutional, either on its face or as applied.
Thus, respondents could prevail on their establishment claim only
if the prohibition embodied in the Establishment Clause was
understood to be an individual right of citizenship that applied to
more than just “law[s]” “ma[de]” by “Congress.”[ 1 ]

															II

															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 coercion and thus does not
violate the Establishment Clause.” Van Orden , 545
U. S., at 694 (opinion of Thomas, J.). The sine qua non of an establishment of religion is “ ‘actual legal
coercion.’ ” Id., at 693. At the founding, “[t]he
coercion that was a hallmark of historical establishments of
religion was coercion of religious orthodoxy and of financial
support by force of law and threat of penalty.” Lee v. Weisman , 505 U.S.
577 , 640 (1992) (Scalia, J., dissenting) (emphasis deleted).
“In a typical case, attendance at the established church was
mandatory, and taxes were levied to generate church revenue.
Dissenting ministers were barred from preaching, and political
participation was limited to members of the established church.” Town of Greece , supra , at 608 (opinion of Thomas, J.)
(citation omitted). In an action claiming an unconstitutional
establishment of religion, the plaintiff must demonstrate that he
was actually coerced by government conduct that shares the
characteristics of an establishment as understood at the
founding.[ 2 ]

															Here, respondents briefly suggest that the
government’s spending their tax dollars on maintaining the
Bladensburg Cross represents coercion, but they have not
demonstrated that maintaining a religious display on public
property shares any of the historical characteristics of an
establishment of religion. The local commission has not attempted
to control religious doctrine or personnel, compel religious
observance, single out a particular religious denomination for
exclusive state subsidization, or punish dissenting worship.
Instead, the commission has done something that the founding
generation, as well as the generation that ratified the Fourteenth
Amendment, would have found commonplace: displaying a religious
symbol on government property. See Brief for Becket Fund for
Religious Liberty as Amicus Curiae 14–22. Lacking any
characteristics of “the coercive state establishments that existed
at the founding,” Town of Greece , 572 U. S., at 608
(opinion of Thomas, J.), the Bladensburg Cross is
constitutional.

															The Bladensburg Cross is constitutional even
though the cross has religious significance as a central symbol of
Christianity. Respondents’ primary contention is that this
characteristic of the Cross makes it “sectarian”—a word used in
respondents’ brief more than 40 times. Putting aside the fact that
Christianity is not a “sect,” religious displays or speech need not
be limited to that which a “judge considers to be nonsectarian.” Id ., at 582 (majority opinion). As the Court has explained,
“[a]n insistence on nonsectarian” religious speech is inconsistent
with our Nation’s history and traditions. Id., at 578–580;
see id., at 595 (Alito, J., concurring). Moreover, requiring
that religious expressions be nonsectarian would force the courts
“to act as supervisors and censors of religious speech.” Id., at 581 (majority opinion). Any such effort would find
courts “trolling through . . . religious beliefs” to
decide what speech is sufficiently generic. Mitchell v. Helms , 530 U.S.
793 , 828 (2000) (plurality opinion). And government bodies
trying to comply with the inevitably arbitrary decisions of the
courts would face similarly intractable questions. See Town of
Greece , supra, at 596 (opinion of Alito, J.).[ 3 ]

															III

															As to the long-discredited test set forth in Lemon v. Kurtzman , 403
U.S. 602 , 612–613 (1971), and reiterated in County of
Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter , 492 U.S.
573 , 592–594 (1989), the plurality rightly rejects its
relevance to claims, like this one, involving “religious references
or imagery in public monuments, symbols, mottos, displays, and
ceremonies.” Ante, at 15–16, and n. 16. 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 manipu- lated to fit whatever
result the Court aimed to achieve.” McCreary County v. American Civil Liberties Union of Ky. , 545 U.S.
844 , 900 (2005) (Scalia, J., dissenting); see Lamb’s
Chapel v. Center Moriches Union Free School Dist. , 508 U.S.
384 , 398–399 (1993) (Scalia, J., concurring in judgment).
Third, it continues to cause enormous confusion in the States and
the lower courts. See generally Utah Highway Patrol Assn . v. American Atheists, Inc. , 565 U.S. 994 (2011) (Thomas, J.,
dissenting from denial of certiorari). In recent decades, the Court
has tellingly refused to apply Lemon in the very cases where
it purports to be most useful. See Utah Highway , supra , at 997–998 (collecting cases); ante, at 13
(plurality opinion) (same). 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 .” 874 F.3d 195, 205 (CA4 2017). It is our job to
say what the law is, and because the Lemon test is not good
law, we ought to say so.

															*  *  *

															Regrettably, I cannot join the Court’s opinion
because it does not adequately clarify the appropriate standard for
Establishment Clause cases. Therefore, I concur only in the
judgment. Notes 1 In my view, the original
meaning of the phrase “Congress shall make no law” is a question
worth exploring. Compare G. Lawson & G. Seidman, The
Constitution of Empire 42 (2004) (arguing that the First Amendment
“applies only to Congress”), with Shrum v. Coweta , 449 F.3d 1132 , 1140–1143 (CA10 2006) (McConnell, J.) (arguing
that it is not so limited). 2 Of course, cases
involving state or local action are not strictly speaking
Establishment Clause cases, but instead Fourteenth Amendment cases
about a privilege or immunity of citizenship. It is conceivable
that the salient characteristics of an establishment changed by the
time of the Fourteenth Amendment, see Town of Greece v. Galloway , 572 U.S. 565, 607, 609–610 (2014) (Thomas, J.,
concurring in part and concurring in judgment), but respondents
have presented no evidence suggesting so. 3 Another reason to avoid a
constitutional test that turns on the “sectarian” nature of
religious speech is that the Court has suggested “formally
dispens[ing]” with this factor in related contexts. Mitchell , 530 U. S., at 826 (plurality opinion). Among
other reasons, the “sectarian” test “has a shameful pedigree” that
originated during the 1870s when Congress considered the Blaine
Amendment, “which would have amended the Constitution to bar any
aid to sectarian institutions.” Id., at 828. “Consideration
of the amendment arose at a time of pervasive hostility to the
Catholic Church and to Catholics in general, and it was an open
secret that ‘sectarian’ was code for ‘Catholic.’ ” Ibid. This anti-Catholic hostility may well have played a
role in the Court’s later decisions. Everson v. Board of
Ed . of Ewing , 330 U.S. 1 (1947), for example, was written by Justice Black, who would later
accuse Catholics who advocated for textbook loans to religious
schools of being “powerful sectarian religious propagandists
. . . looking toward complete domination and supremacy of
their particular brand of religion.” Board of Ed. of Central
School Dist. No. 1 v. Allen , 392
U.S. 236 , 251 (1968) (Black, J., dissenting). Even by the time
of Lemon v. Kurtzman , 403 U.S.
602 (1971), some Justices were still “influenced by residual
anti-Catholicism and by a deep suspicion of Catholic schools.”
Laycock, The Underlying Unity of Separation and Neutrality, 46
Emory L. J. 43, 58 (1997). Indeed, the Court’s opinion in Lemon “relied on what it considered to be inherent risks in
religious schools despite the absence of a record in Lemon itself and despite contrary fact-finding by the district court in
the companion case.” Laycock, supra, at 58 (footnote
omitted); see generally W. Ball, Mere Creatures of the State?,
35–40 (1994). And in his concurring opinion, Justice Douglas
(joined by Justice Black) repeatedly quoted an anti-Catholic book,
including for the proposition that, in Catholic parochial schools,
“ ‘[t]he whole education of the child is filled with
propaganda.’ ” 403 U. S., at 635, n. 20 (quoting L.
Boettner, Roman Catholicism 360 (1962)); see 403 U. S., at 636
(similar). The tract said that Hitler, Mussolini, and Stalin
learned the “secret[s] of [their] success” in indoctrination from
the Catholic Church, and that “an undue proportion of the
gangsters, racketeers, thieves, and juvenile delinquents who roam
our big city streets come . . . from the [Catholic]
parochial schools,” where children are taught by “brain-washed,”
“ ‘ignorant European peasants.’ ” Boettner, supra, at 363, 370–372. SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 17–1717 and 18–18

															_________________

															THE AMERICAN LEGION, et al.,
PETITIONERS

															17–1717 v. AMERICAN HUMANIST ASSOCIATION,
et al.; and

															MARYLAND-NATIONAL CAPITAL PARK AND
PLANNING COMMISSION, PETITIONER

															18–18 v. AMERICAN HUMANIST ASSOCIATION,
et al.

															on writs of certiorari to the united states
court of appeals for the fourth circuit

															[June 20, 2019]

															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.[ 1 ]
“[M]onumental, clear, and bold” by day, App. 914, 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,” id., at
868 (internal quotation marks omitted), by “all veterans,” id., at 195. 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. See Everson v. Board of Ed. of
Ewing , 330 U.S.
1 , 15 (1947). 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.” Ante, at 16 (plurality
opinion).[ 2 ]

															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.” Brief for Baptist Joint Committee for
Religious Liberty et al. as Amici Curiae 7 (Brief for Amici Christian and Jewish Organizations). 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. See infra , at 10–11, n. 10. Just as a Star of David is not
suit- able 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 3 (Brief for Amicus Jewish War
Veterans).

															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. Van Orden v. Perry , 545 U.S.
677 , 715 (2005) (Stevens, J., dissenting). But the Commission
does not serve that objective by displaying a symbol that bears “a
starkly sectarian message.” Salazar v. Buono , 559 U.S.
700 , 736 (2010) (Stevens, J., dissenting).

															I

															A

															The First Amendment commands that the
government “shall make no law” either “respecting an establishment
of religion” or “prohibiting the free exercise thereof.” See Everson , 330 U. S., at 15. Adoption of these
complementary provisions followed centuries of “turmoil, civil
strife, and persecutio[n], generated in large part by established
sects determined to maintain their absolute political and religious
supremacy.” Id , at 8–9. Mindful of that history, the
fledgling Republic ratified the Establishment Clause, in the words
of Thomas Jefferson, to “buil[d] a wall of separation between
church and state.” Draft Reply to the Danbury Baptist Association,
in 36 Papers of Thomas Jefferson 254, 255 (B. Oberg ed. 2009)
(footnote omitted).

															This barrier “protect[s] the integrity of
individual conscience in religious matters.” McCreary County v. American Civil Liberties Union of Ky. , 545 U.S.
844 , 876 (2005). It guards against the “anguish, hardship and
bitter strife,” Engel v. Vitale , 370 U.S.
421 , 429 (1962), that can occur when “the government weighs in
on one side of religious debate,” McCreary County , 545
U. S., at 876. And while the “union of government and religion
tends to destroy government and to degrade religion,” separating
the two preserves the legitimacy of each. Engel , 370
U. S., at 431.

															The Establishment Clause essentially instructs:
“[T]he government may not favor one religion over another, or
religion over irreligion.” McCreary County , 545 U. S.,
at 875. For, as James Madison observed, the government is not “a
competent Judge of Religious Truth.” Memorial and Remonstrance
Against Religious Assessments, 8 Papers of James Madison 295, 301
(R. Rutland, W. Rachal, B. Ripel, & F. Teute eds. 1973)
(Memorial and Remonstrance). When the government places its “power,
prestige [or] financial support . . . behind a particular
religious belief,” Engel , 370 U. S., at 431, the
government’s imprimatur “mak[es] adherence to [that] religion
relevant . . . to a person’s standing in the political
community,” County of Allegheny v. American Civil
Liberties Union, Greater Pittsburgh Chapter , 492 U.S.
573 , 594 (1989) (internal quotation marks omitted).
Correspondingly, “the indirect coercive pressure upon religious
minorities to conform to the prevailing officially approved
religion is plain.” Engel , 370 U. S., at 431. And by
demanding neutrality between religious faith and the absence
thereof, the Establishment Clause shores up an individual’s “right
to select any religious faith or none at all.” Wallace v. Jaffree , 472 U.S.
38 , 53 (1985).

															B

															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.” County of Allegheny , 492
U. S., at 592. The display fails this requirement if it
objectively “convey[s] a message that religion or a particular
religious belief is favored or preferred.” Id., at 593
(internal quotation marks omitted; emphasis deleted).[ 3 ] To make that determination, a court must
consider “the pertinent facts and circumstances surrounding the
symbol and its placement.” Buono , 559 U. S., at 721
(plurality opinion); id., at 750–751 (Stevens, J.,
dissenting) (quoting plurality opinion).[ 4 ]

															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.” Pleasant Grove
City v. Summum , 555 U.S.
460 , 471 (2009). 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 commu- nity,” County of Allegheny , 492
U. S., at 625 (O’Connor, J., concurring in part and concurring
in judgment) (internal quotation marks omitted). Cf. Van
Orden , 545 U. S., at 708 (Stevens, J., dissenting) (“The
adornment of our public spaces with displays of religious symbols”
risks “ ‘offend[ing] nonmembers of the faith being advertised
as well as adherents who consider the particular advertisement
disrespectful.’ ” (quoting County of Allegheny , 492
U. S., at 651 (Stevens, J., concurring in part and dissenting
in part))).[ 5 ]

															A presumption of endorsement, of course, may be
overcome. See Buono , 559 U. S., at 718 (plurality
opinion) (“The goal of avoiding governmental endorsement does not
require eradication of all religious symbols in the public
realm.”). 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.” Van Orden , 545
U. S., at 737 (Souter, J., dissenting). The “typical museum
setting,” for example, “though not neutralizing the religious
content of a religious painting, negates any message of endorsement
of that content.” Lynch v. Donnelly , 465 U.S.
668 , 692 (1984) (O’Connor, J., concurring). 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, R. Jensen, The
Cross: History, Art, and Controversy ix (2017), 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.” Lynch , 465 U. S., at 708
(Brennan, J., dissenting). 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.” Brief for Amici Christian and
Jewish Organizations 7.[ 6 ]
“From its earliest times,” Christianity was known as “ religio
crucis —the religion of the cross.” R. Viladesau, The Beauty of
the Cross: The Passion of Christ in Theol- ogy and the Arts, From
the Catacombs to the Eve of the Renaissance 7 (2006). 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. Buono , 559 U. S.,
at 747 (Stevens, J., dissenting); Viladesau, supra, at 7
(“[T]he cross and its meaning . . . set Christianity
apart from other world religions.”).[ 7 ] The principal symbol of Christianity around the world
should not loom over public thoroughfares, suggesting official
recognition of that religion’s paramountcy.

															B

															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.” Brief for Petitioner
Maryland-National Capital Park and Planning Commission 34–35 (Brief
for Planning Commission) (internal quotation marks omitted). See
also Brief for United States as Amicus Curiae 25 (The Latin
cross is “a Christian symbol . . . [b]ut it is also ‘a
symbol often used to honor and respect [soldiers’] heroic
acts.’ ” (quoting Buono , 559 U. S., at 721
(plurality opinion); some internal quotation marks omitted)).

															The Commission’s “[a]ttempts to secularize what
is unquestionably a sacred [symbol] defy credibility and disserve
people of faith.” Van Orden , 545 U. S., at 717
(Stevens, J., dissenting). See, e.g., Brief for Amici Christian and Jewish Organizations 7 (“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.” American Civil Liberties Union of
Illinois v. St. Charles , 794 F.2d 265, 273 (CA7 1986)
(internal quotation marks omitted).

															Because of its sacred meaning, the Latin cross
has been used to mark Christian deaths since at least the fourth
century. See Jensen, supra, at 68–69. The cross on a grave
“says that a Christian is buried here,” Brief for Amici Christian and Jewish Organizations 8, and “commemorates [that
person’s death] by evoking a conception of salvation and eternal
life reserved for Christians,” Brief for Amicus Jewish War
Veterans 7. As a commemorative symbol, the Latin cross simply
“makes no sense apart from the crucifixion, the resurrection, and
Christianity’s promise of eternal life.” Brief for Amici Christian and Jewish Organizations 8.[ 8 ]

															The cross affirms that, thanks to the soldier’s
embrace of Christianity, he will be rewarded with eternal life. Id., at 8–9 . “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.” Id., at 8. Scarcely “a universal symbol of
sacrifice,” the cross is “the symbol of one particular sacrifice.” Buono , 559 U. S., at 748, n. 8 (Stevens, J.,
dissenting).[ 9 ]

															Every Court of Appeals to confront the question
has held that “[m]aking a . . . Latin cross a war
memorial does not make the cross secular,” it “makes the war
memorial sectarian.” Id., at 747.[ 10 ] See also Separation of Church and State
Comm. v. Eugene , 93 F.3d 617 , 626 (CA9 1996) (O’Scannlain, J., concurring in
result) (“[T]he City’s use of a cross to memorialize the war dead
may lead observers to believe that the City has chosen to honor
only Christian veterans.”).

															The Peace Cross is no exception. That was
evident from the start. At the dedication ceremony, the keynote
speaker analogized the sacrifice of the honored soldiers to that of
Jesus Christ, calling the Peace Cross “symbolic of Calvary,” App.
449, where Jesus was crucified. Local reporters variously described
the monument as “[a] mammoth cross, a likeness of the Cross of
Calvary, as described in the Bible,” id., at 428; “a monster
[C]alvary cross,” id., at 431; and “a huge sacrifice cross,” id., at 439. The character of the monument has not changed
with the passage of time.

															C

															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.”
Brief for Planning Commission 21. Calling up images of United
States cemeteries overseas showing row upon row of cross-shaped
gravemarkers, id., at 4–8; see ante , at 4–5, 21–22;
Brief for United States as Amicus Curiae 26, 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.

															1

															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. American
Battle Monuments Commission, Annual Report to the President of the
United States Fiscal Year 1925, p. 5 (1926) (ABMC Report).

															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. See L. Budreau,
Bodies of War: World War I and the Politics of Commemoration in
America, 1919–1933, p. 120 (2010). The remains of soldiers who were
neither Christian nor Jewish could be repatriated to the United
States for burial under an appropriate headstone.[ 11 ]

															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.” Id., at
121–122. Everyone involved in the dispute, how- ever, 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.” Van Duyne, Erection of Permanent Headstones in the
American Military Cemeteries in Europe, The Quartermaster Review
(1930) (Quartermaster Report).

															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. See ibid. ; Budreau, supra , at 123. 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. ABMC Report 57. 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.” Ibid. (internal quotation marks omitted). In 1924, the War Department
approved the ABMC’s “designs for a Cross and Star of David.”
Quartermaster Report; ABMC Report 57.[ 12 ]

															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. A committee convened by the War Department
composed of representatives from “seven prominent war-time
organizations” as well as “religious bodies, Protestant, Jewish,
[and] Catholic” agreed “unanimous[ly] . . . that marble
crosses be placed on the graves of all Christian American
dead buried abroad, and that the graves of the Jewish American dead
be marked by the six-pointed star.” Durable Markers in the Form of
Crosses for Graves of American Soldiers in Europe, Hearings before
the Committee on Military Affairs of the House of Representatives,
68th Cong., 1st Sess., 24 (1924) (emphasis added). The Executive
Director of the Jewish Welfare Board stated that “if any religious
symbol is erected over the graves, then Judaism should have its
symbol over the graves of its dead.” Id., at 19. Others
expressing views described the Latin cross as the appropriate
symbol to “mar[k] the graves of the Christian heroes of the
American forces.” Id., at 24 (emphasis added). As stated by
the National Catholic War Council, “the sentiment and desires of
all Americans, Christians and Jews alike, are one”: “They who
served us in life should be honored, as they would have wished, in
death.” Ibid. [ 13 ]

															Far more crosses than Stars of David, as one
would expect, line the grounds of American cemeteries overseas, for
Jews composed only 3% of the United States population in 1917. J.
Fredman & L. Falk, Jews in American Wars 100 (5th ed. 1954).
Jews accounted for nearly 6% of U. S. forces in World War I
(in numbers, 250,000), and 3,500 Jewish soldiers died in that war. Ibid. Even in Flanders Field, with its “ ‘crosses, row
on row,’ ” ante, at 5 (quoting J. McCrae, In Flanders
Fields, In Flanders Fields and Other Poems 3 (G. P. Putnam’s Sons
ed. 1919)), “Stars of David mark the graves of [eight American
soldiers] of Jewish faith,” American Battle Monuments Commission,
Flanders Field American Cemetery and Memorial Visitor Booklet
11.[ 14 ]

															2

															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.” Brief for
Planning Commission 8 (citing App. 1130). This figure includes
memorials that merely “incorporat[e]” a cross. App. 1130.[ 15 ] Moreover, the 40 monuments
compose only 4% of the “948 outdoor sculptures commemorating the
First World War.” Ibid. The Court lists just seven
freestanding cross memorials, ante, at 6, n. 10, less
than 1% of the total number of monuments to World War I in the
United States, see App. 1130. 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.” Budreau, Bodies of
War, at 139. That statue, depicting a U. S. infantryman, “met
with widespread approval throughout American communities.” Ibid. Indeed, the first memorial to World War I erected in
Prince George’s County “depict[s] a doughboy.” App. 110–111. The
Peace Cross, as Plaintiffs’ expert historian observed, was an
“aberration . . . even in the era [in which] it was built
and dedicated.” Id., at 123.

															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,” Buono , 559 U. S., at 759
(Stevens, J., dissenting), 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. See App. 167. 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. Trunk v. San Diego , 629 F.3d 1099, 1116
(CA9 2011).

															D

															Holding the Commission’s display of the Peace
Cross unconstitutional would not, as the Commission fears,
“inevitably require the destruction of other cross-shaped memorials
throughout the country.” Brief for Planning Commission 52. When a
religious symbol appears in a public cemetery—on a headstone, or as
the headstone itself, or perhaps integrated into a larger
memorial—the setting counters the inference that the government
seeks “either to adopt the religious message or to urge its
acceptance by others.” Van Orden , 545 U. S., at 737
(Souter, J., dissenting). In a cemetery, the “privately selected
re- ligious symbols on individual graves are best understood as the
private speech of each veteran.” Laycock, Government-Sponsored
Religious Displays: Transparent Rational- izations and Expedient
Post-Modernism, 61 Case W. Res. L. Rev. 1211, 1242 (2011). See also Summum , 555 U. S., at 487 (Souter, J., concurring in
judgment) (“[T]here are circumstances in which government
maintenance of monuments does not look like government speech at
all. Sectarian identifications on markers in Arlington Cemetery
come to mind.”). Such displays are “linked to, and sho[w] respect
for, the individual honoree’s faith and beliefs.” Buono , 559
U. S., at 749, n. 8 (Stevens, J., dissenting). They do not
suggest governmental endorsement of those faith and
beliefs.[ 16 ]

															Recognizing that a Latin cross does not belong
on a public highway or building does not mean the monument must be
“torn down.” Ante, at 2 (Breyer, J., concurring); ante, at 1 (Gorsuch, J., concurring in judgment).[ 17 ] “[L]ike the determination of the
violation itself,” the “proper remedy . . . is
necessarily context specific.” Buono , 559 U. S., at
755, n. 11 (Stevens, J., dissenting). In some instances, the
violation may be cured by relocating the monument to private land
or by transferring ownership of the land and monument to a private
party.

															*  *  *

															In 1790, President Washington visited Newport,
Rhode Island, “a longtime bastion of religious liberty and the home
of one of the first communities of American Jews.” Town of
Greece v. Galloway , 572 U.S. 565, 636 (2014) (Kagan, J.,
dissenting). In a letter thanking the congregation for its warm
welcome, Washington praised “[t]he citizens of the United States of
America” for “giv[ing] to mankind . . . a policy worthy
of imitation”: “All possess alike liberty of conscience and
immunities of citizenship.” Letter to Newport Hebrew Congregation
(Aug. 18, 1790), in 6 Papers of George Washington 284, 285 (D.
Twohig ed. 1996). As Washington and his contemporaries were aware,
“some of them from bitter personal experience,” Engel , 370
U. S., at 429, religion is “too personal, too sacred, too
holy, to permit its ‘unhallowed perversion’ by a civil magistrate,” id., at 432 (quoting Memorial and Remonstrance). The
Establishment Clause, which preserves the integrity of both church
and state, guarantees that “however . . . individuals
worship, they will count as full and equal American citizens.” Town of Greece , 572 U. S., at 615 (Kagan, J.,
dissenting). “If the aim of the Establishment Clause is genuinely
to uncouple government from church,” the Clause does “not permit
. . . a display of th[e] character” of Bladensburg’s
Peace Cross. Capitol Square Review and Advisory Bd. v. Pinette , 515 U.S.
753 , 817 (1995) (Ginsburg, J., dissenting).

															APPENDIX

															The Bladensburg Peace Cross. App. 887.

															Map showing the location of the Peace Cross.
App. 1533.

															The World War II Memorial in Veterans Memorial
Park. App. 891.

															Plaque of the World War II Memorial. App.
891.

															The Korea-Vietnam Veterans Memorial in Veterans
Memorial Park. App. 894.

															Headstones in the Henri-Chappelle American
Cemetery and Memorial in Belgium. American Battle Monuments
Commission, Henri-Chappelle American Cemetery and Memorial 16
(1986). Notes 1 A photograph of the
monument and a map showing its location are reproduced in the
Appendix, infra , at 19. 2 Some of my colleagues
suggest that the Court’s new presumption extends to all
governmental displays and practices, regardless of their age. See ante, at 3 (Kavanaugh, J., concurring); ante, at 6
(Thomas, J., concurring in judgment); ante, at 9 (Gorsuch,
J., concurring in judgment). But see ante, at 2 (Breyer, J.,
joined by Kagan, J., concurring) (“ ‘[A] more contemporary
state effort’ to put up a religious display is ‘likely to prove
divisive in a way that [a] longstanding, pre-existing monument
[would] not.’ ”). I read the Court’s opinion to mean what it
says: “[R]etaining established, religiously expressive monuments,
symbols, and practices is quite different from erecting or adopting
new ones,” ante, at 21, and, consequently, only
“longstanding monuments, symbols, and practices” enjoy “a
presumption of constitutionality,” id., at 16 (plurality
opinion). 3 Justice Gorsuch’s “no
standing” opinion is startling in view of the many
religious-display cases this Court has resolved on the merits. E.g., McCreary County , 545 U.S.
844 ; Van Orden , 545 U.S.
677 ; Stone v. Graham , 449 U.S.
39 (1980) ( per curiam ). 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 , 559 U. S., at 715 (opinion of
Kennedy, J., joined by Roberts, C.J., and Alito, J.) (quoting County of Allegheny , 492 U. S., at 661 (second
alteration in original), for no one, according to Justice Gorsuch,
should be heard to complain about such a thing. But see Brief for
Law Professors as Amici Curiae (explaining why offended
observer standing is necessary and proper). 4 This inquiry has been
described by some Members of the Court as the “reasonable observer”
standard. See, e.g. , Capitol Square Review and Advisory
Bd . v. Pinette , 515 U.S.
753 , 806 (1995) (Stevens, J., dissenting); County of
Allegheny , 492 U. S., at 630–631 (O’Connor, J., concurring
in part and concurring in judgment). 5 See also Jews and
Christians Discussion Group in the Central Committee of German
Catholics, A Convent and Cross in Auschwitz, in The Continuing
Agony: From the Carmelite Convent to the Crosses at Auschwitz
231–232 (A. Berger, H. Cargas, & S. Nowak eds. 2004) (“We
Christians must appreciate [that] [t]hroughout history many
non-Christians, especially Jews, have experienced the Cross as a
symbol of persecution, through the Crusades, the Inquisition and
the compulsory baptisms.”). 6 Under “one widespread
reading of Christian scriptures,” non-Christians are barred from
eternal life and, instead, are condemned to hell. Brief for Amici Christian and Jewish Organizations 2. On this reading,
the Latin cross symbolizes both the promise of salvation and the
threat of damnation by “divid[ing] the world between the saved and
the damned.” Id., at 12. 7 Christianity comprises
numerous denominations. The term is here used to distinguish
Christian sects from religions that do not embrace the defining
tenets of Christianity. 8 The Court sets out
familiar uses of the Greek cross, including the Red Cross and the
Navy Cross, ante, at 3, 22, and maintains that, today, they
carry no religious message. But because the Latin cross has never
shed its Christian character, its commemorative meaning is
exclusive to Christians. The Court recognizes as much in suggesting
that the Peace Cross features the Latin cross for the same reason
“why Holocaust memorials invariably include Stars of David”: those
sectarian “symbols . . . signify what death meant for
those who are memorialized.” Ante , at 30. 9 Christian soldiers have
drawn parallels between their experiences in war and Jesus’s
suffering and sacrifice. See, e.g. , C. Dawson, Living
Bayonets: A Record of the Last Push 19–20 (1919) (upon finding a
crucifix strewn among rubble, a soldier serving in World War I
wrote home that Jesus Christ “seem[ed] so like ourselves in His
lonely and unhallowed suffering”). This comparison has been
portrayed by artists, see, e.g. , 7 Encyclopedia of Religion
4348 (2d ed. 2005) (painter George Rouault’s 1926 Miserere series “compares Christ’s suffering with twentieth-century
experiences of human sufferings in war”), and documented by
historians, see, e.g. , R. Schweitzer, The Cross and the
Trenches: Religious Faith and Doubt Among British and American
Great War Soldiers 28–29 (2003) (given the horrors of trench
warfare, “[t]he parallels that soldiers saw between their suffering
and Christ’s make their identification with Jesus both
understandable and revealing”); Lemay, Politics in the Art of War:
The American War Cemeteries, 38 Int’l J. Mil. History &
Historiography 223, 225 (2018) (“[T]he [cross] grave markers assert
the absolute valour and Christ-like heroism of the American dead
. . . .”). 10 See
874 F.3d 195, 207 (CA4 2017) (case below) (“Even in the memorial
context, a Latin cross serves not . . . as a generic
symbol of death, but rather a Christian symbol of the death of
Jesus Christ.”); American Atheists, Inc. v. Davenport , 637 F.3d 1095, 1122 (CA10 2010) (“[A] memorial
cross is not a generic symbol of death; it is a Christian symbol of death that signifies or memorializes the
death of a Christian .”); Trunk v. San Diego ,
629 F.3d 1099, 1102 (CA9 2011) (“Resurrection of this Cross as a
war memorial does not transform it into a secular monument.”); Separation of Church and State Comm. v. Eugene , 93 F.3d 617 , 619 (CA9 1996) ( per curiam ) (“[T]he City
urges that the cross is no longer a religious symbol but a war
memorial. This argument . . . fails to withstand
Establishment Clause analysis.”); Gonzales v. North Twp.
of Lake Cty. , 4 F.3d 1412 , 1418 (CA7 1993) (“[W]e are masters of the obvious,
and we know that . . . the Latin cross . . . is
‘[the] unmistakable symbol of Christianity as practiced in this
country today.’ ” (quoting Harris v. Zion , 927
F.2d 1401, 1403 (CA7 1991)). See also Jewish War Veterans of the
United States v. United States , 695 F. Supp. 3 , 11 (DC 1988) (“[D]efendants are unable to cite
a single federal case where a cross such as the one at issue here
has survived Establishment Clause scrutiny.”). The Courts of
Appeals have similarly concluded that the Latin cross remains a
Christian symbol when used for other purposes. See, e.g. , Robinson v. Edmond , 68 F.3d 1226 , 1232 (CA10 1995) (city seal depicting the cross)
(“The religious significance and meaning of the Latin or Christian
cross are unmistakable.”); Carpenter v. City and County
of San Francisco , 93 F.3d 627 , 630 (CA9 1996) (103-foot cross in public park)
(“The Latin cross . . . [‘]represents with relative
clarity and simplicity the Christian message of the crucifixion and
resurrection of Jesus Christ, a doctrine at the heart of
Christianity.’ ”); American Civil Liberties Union of
Ill. v. St. Charles , 794 F.2d 265, 272–273 (CA7 1986)
(35-foot cross displayed atop a fire house during the Christmas
season) (“The cross . . . is ‘the principal symbol of the
Christian religion, recalling the crucifixion of Jesus Christ and
the redeeming benefits of his passion and death.’ ”); Friedman v. Board of Cty. Comm’rs of Bernalillo Cty. ,
781 F.2d 777, 782 (CA10 1985) (county seal depicting Latin cross)
(“[T]he seal . . . conveys a strong impression to the
average observer that Christianity is being
endorsed.”). 11 For
unidentified soldiers buried overseas, the American Battle
Monuments Commission (ABMC) used the cross and the Star of David
markers “in ‘proportion of known Jewish dead to know[n]
Christians.’ ” App. 164. The ABMC later decided that “all
unidentified graves would be marked with a [c]ross.” Id., at
164, n. 21 . This change was prompted by “fear [that] a Star
of David would be placed over an [u]nknown Christian,” not by the
belief that the cross had become a universal symbol. Ibid. 12 A
photograph depicting the two headstones is reproduced in the
Appendix, infra , at 21. 13 As
noted, supra, at 12, the bodies of soldiers who were neither
Christian nor Jewish could be repatriated to the United States and
buried in a national cemetery (with a slab headstone),
Quartermaster Report, or in a private cemetery (with a headstone of
the family’s choosing). 14 Available at
https://www.abmc.gov/sites/default/files/publications/
FlandersField_Booklet.pdf (all Internet materials as last visited
June 18, 2019). For the respective numbers of cross and Star of
David headstones, see ABMC, Flanders Field American Cemetery and
Memorial Brochure 2, available at
https://www.abmc.gov/sites/default/files/publications/Flanders%20Field_Brochure_Mar2018.pdf. 15 No
other monument in Bladensburg’s Veterans Memorial Park displays the
Latin cross. For examples of monuments in the Park, see the
Appendix, infra , at 20–21. 16 As to
the Argonne Cross Memorial and the Canadian Cross of Sacrifice in
Arlington National Cemetery, visitors to the cemetery “expec[t] to
view religious symbols, whether on individual headstones or as
standalone monuments.” Brief for Amicus Jewish War Veterans
17. 17 The
Court asserts that the Court of Appeals “entertained” the
possibility of “amputating the arms of the cross.” Ante, at
24. The appeals court, however, merely reported Plaintiffs’
“desired injunctive relief,” namely, “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, at 202,
n. 7. See also id., at 212, n. 19 (noting that the
parties remained “free to explore alternative arrangements that
would not offend the Constitution”).