In an opinion so split between the justices of the U.S. Supreme Court that it takes a chart to figure out what the majority said, American Legion v. American Humanist Association (Humanist), 2019 U.S. LEXIS 4182, ruled that a cross long existing on public property did not need to come down. The Bladensburg Peace Cross has stood since 1925 as a tribute to 49 local soldiers who died in the First World War. As Justice Samuel Alito, the writer of the majority opinion, was quick to point out, the cross stood for 89 years after its dedication before a lawsuit was filed claiming that the sight of it on public land was offensive to Humanist. The expenditure of public funds to maintain the cross violated, said Humanist, the Establishment Clause of the First Amendment.

The Establishment Clause of the First Amendment prohibits Congress from making laws respecting an establishment of religion. Initially the Establishment Clause was applied only to the federal government. The quintessential case wrestling with the Establishment Clause is the off-cited decision of Lemon vs. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105 (1971). Under the so-called Lemon test, the court must ask whether a challenged governmental action: has a secular purpose; has a “principal or primary affect” that “neither advances nor inhibits religion;” and does not foster “an excessive government entanglement with religion.” Like so many legal decisions, the Lemon test proved difficult to apply and the exceptions almost outnumber the rule.

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