Establishment Clause Inversion in the Bladensburg Cross Case

39 Pages Posted: 4 Oct 2019

See all articles by Richard Schragger

Richard Schragger

University of Virginia School of Law

Micah Schwartzman

University of Virginia School of Law

Date Written: October 3, 2019

Abstract

In American Legion v. American Humanist Association, decided at the end of the Supreme Court’s 2018-2019 Term, the Court rejected an Establishment Clause challenge to a 40-foot tall Latin cross, publicly owned and maintained as a World War I memorial in Bladensburg, Maryland. We ask how the Court could take the preeminent symbol of Christianity—the Latin cross—and understand it as a secular symbol, and further what that act of interpretation means for the Establishment Clause going forward. We argue that American Legion represents a significant development in the dismantling of Establishment Clause jurisprudence. The Court has been chipping away steadily on precedent that restricts the government from providing material and expressive support for religion. American Legion could be read narrowly as part of the ongoing demise of the separation of church and state, which has been underway since the Rehnquist Court. But in our view, the decision amounts to something more, namely, an inversion of disestablishment principles. The Court did not use the Establishment Clause as a shield to protect vulnerable minorities, but rather as a sword against them. In upholding the Bladensburg Cross, and in declaring that its removal would show hostility toward religion, the Court has entrenched the views of past religious majorities and opened the way toward Christian preferentialism. In the midst of rising ethno-religious nationalism in the United States, and around the world, American Legion participates in undermining constitutional safeguards against the integration of church and state.

Keywords: Establishment Clause, Religion, Supreme Court, Cross, Free Exercise Clause, Christian Preferentialism

Suggested Citation

Schragger, Richard and Schwartzman, Micah, Establishment Clause Inversion in the Bladensburg Cross Case (October 3, 2019). ACS Supreme Court Review 2018-2019; Virginia Public Law and Legal Theory Research Paper No. 2019-55. Available at SSRN: https://ssrn.com/abstract=3463840

Richard Schragger (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Micah Schwartzman

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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