Wade through the 87 pages of the June 20 decision in American Legion v. American Humanist Association and you will find no bright-line test for when a monument with a religious symbol runs afoul of the establishment clause. Still, the court offers some guidance that may help in deciding such cases. The sound bite version is that when it comes to such public displays, age and intent matter. In terms of defending against constitutional attack, it is better if the monument has been around for a very long time and that the intent in placing it was weighted more in favor commemorating something nonsectarian.

The appendix to the opinion tells a good part of the background in the photographs. The Bladensburg Peace Cross monument was erected in 1925 following a seven-year effort by local citizens of Prince George's County and later the local American Legion post. It features a 32-foot Latin cross and emblem of the American Legion at its center. The cross was chosen because it was reminiscent of the fields of crosses marking the graves of fallen soldiers buried overseas. On the pedestal supporting the cross is a bronze plaque with the names of the 49 soldiers from Prince George's County who gave their lives in World War I.

The Maryland-National Capital Park and Planning Commission acquired the monument and its site in 1961 and has maintained it at the public's expense since then. No one apparently complained about the monument until 2014 when the American Humanist Association, joined by others, sued in federal court claiming a violation of the establishment clause.

In the majority opinion written by Justice Samuel Alito and joined by Chief Justice John Roberts, Justice Stephen Breyer and Justice Brett Kavanaugh, the court chose not to apply the three-part Lemon test (Lemon v. Kurtzman, 403 U.S. 602, 1971) often used in establishment clause cases: “Three … tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.”

Justice Elena Kagan joined the majority, except for its criticism of the Lemon test.

Justice Clarence Thomas in his concurring opinion said the court should overrule the Lemon test.

Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.

American Legion establishes four considerations in weighing whether religious monuments, symbols or practices survive scrutiny:

1. How old is it? If the symbols go back a long time, it is hard to determine the original purposes. Ninety-four years is long enough, but how long is not long enough?
2. The passage of time may cause any original religious purpose to be overshadowed by new nonsectarian meaning, such as becoming of historical and cultural significance beyond religion, and being the site of patriotic events.
3. The original message may “evolve” and familiarity with it, in and of itself, may become a basis for preserving it. The court cites Notre Dame, cities in the United States with religious names and century-old state symbols all as transcending religion.
4. Familiarity and historical significance may make removal something other than a neutral act, manifesting “a hostility toward religion that has no place in our establishment clause traditions,” as in Van Orden v. Perry, 545 U. S. 677 (2005).

For land use practitioners, the Lemon test, weakened as it now is and probably doomed, is going to be ineffective in regulating religious uses, though perhaps it may still serve as a kind of first-cut measuring stick. The court focuses its criticism of the Lemon test on those situations “that involve the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations,” but in a footnote it identifies six categories of cases, including land use, and a seventh miscellaneous category that includes the cases where religious uses have been given veto power over other land uses.

This does not bode well for the continued use of the Lemon test in land use cases. Still, the first prong of the Lemon test is instructive: religious land use regulation should be nonsectarian. The best way to avoid free exercise and establishment clause claims and those under the Religious Land Use and Institutionalized Persons Act (RLUIPA) is to not regulate religious land uses at all as a separate use, but treat them as any other place of public assembly.

For local governments facing the uncertain, fuzzy line four-part considerations in the Peace Cross decision, and for those unhappy with the decision itself, it might be best to consider Kavanaugh's suggestion of the alternative of conveying such monuments to private owners: “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.”

Such a transfer is not likely to happen in Maryland, however. Maryland Gov. Larry Hogan called the decision a “great victory” and declared: “Today's ruling ensures that this memorial—a dignified tribute to those who came before us and made the ultimate sacrifice—will stand tall and proud for the ages.”

Attorney Dwight Merriam is a member of the Connecticut Law Tribune's editorial board.