Several Jewish organizations – including the Jewish Coalition for Religious Liberty (where we work), the Rabbinical Council of America, and Agudath Israel – recently defended a 40-foot cross in Bladensburg, Maryland in the face of a lawsuit declaring it unconstitutional. The Supreme Court last month – in a 7-2 decision – ruled that the cross could continue to stand on public land and be maintained with public funds.
Some may wonder why so many Jewish organizations cared about – let alone supported – a cross situated on government property. After all, those demanding its removal claimed they were protecting Jews from feeling offended at the sight of a cross.
But what these advocates of public secularism fail to understand is that all religious adherents benefit from the freedom to publicly acknowledge their faith and all suffer when the government treats religion as toxic or unworthy of public display.
Indeed, among those benefiting from the Bladensburg Cross ruling will be Jewish communities defending the legality of public eruvs in court. Plaintiffs in such cases generally argue that the government violates the First Amendment’s prohibition on establishing a state religion when it permits Jews to build an eruv on public telephone poles. In one eruv case, the plaintiffs said an eruv on public property is “a constant and ever-present symbol, message and reminder…that the secular public spaces of the Village have been transformed for religious use” and gives “preferred status to the Jewish religion.”
In fact, the American Humanist Association demanded the removal of the Bladensburg Cross for reasons nearly identical to those of eruv opponents. By rejecting its arguments, therefore, the Supreme Court helped ensure that anti-eruv arguments will fail in court in the future. It also effectively affirmed that religion is not legally toxic and that governments may constitutionally recognize the role faith plays in the lives of millions of Americans.
The Court’s ruling, however, was not an unqualified victory for religious Americans. Supporters of religious expression had hoped that the Supreme Court would provide clear guidance on what the First Amendment prohibits when it states, “Congress shall make no law respecting an establishment of religion.”
More specifically, they had hoped that the court would overturn a 1971 ruling in a case called Lemon v. Kurtzman. According to this ruling, the government violates the Establishment Clause when it takes any action that a “reasonable observer” might interpret as “endorsing” religion. This ruling has been invoked by opponents of all kinds of public displays of religion, including eruvs and menorahs.
Fortunately, this “endorsement test” has lost its luster over the years. Academics have critiqued it as historic and unfaithful to the text of the Constitution. The Supreme Court, for its part, has also criticized it in recent decades and refused to apply it in cases involving legislative prayer and the public display of the Ten Commandments.
Unfortunately, though, the Supreme Court still has not formally overruled it. In the inimitable words of Justice Antonin Scalia, the Lemon test is “like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.”
Each time the Supreme Court refused to apply Lemon, people assumed lower courts would stop utilizing it. Yet, each time their assumptions were proven to be unduly optimistic. Indeed, the Lemon test was precisely what a lower court applied in demanding the removal of the Bladensburg Cross before the case reached the Supreme Court.
Last month, a total of seven justices on the Supreme Court rejected applying Lemon in the Bladensburg Cross case. The majority, though, stopped short of eradicating the test altogether. It based its ruling instead on facts specific to this case – the age of the cross and the secular symbolism it has obtained as a memorial to American casualties in World War I.
The narrowness of the majority’s opinion means religious people still, unfortunately, need to fear Lemon. A strong Supreme Court majority thinks it an unduly harsh test, yet given the Court’s failure to overturn it, we can expect it to rear its ugly head in the future. So, yes, the Bladensburg Cross case will help Jewish Americans, but the ultimate victory over Lemon must wait for another day.