The World War I Memorial Cross Case: U.S. Supreme Court Takes a New Approach with the Establishment Clause
Part I of this article identifies the litigants and the complex facts involving multiple parties, public and private, leading up to the Supreme Court’s opinion in American Legion v. AHA, as well as gives a description of the proceedings and conclusions in the lower federal courts.
Part II is an account of the High Court’s decision, splintered into six separate opinions by the seven-justice majority, concerning whether the three-part Lemon test has any future role. More importantly, it discusses how five of the seven justices interpret the Establishment Clause by reference to historical practices at the nation’s founding and early republic. The concurring opinions by the two center-left justices, Breyer and Kagan, as well as the opinions concurring in the judgment by the two conservative justices, Thomas and Gorsuch, are essential to understanding that Lemon is being supplanted by an historical interpretive test. What counts as controlling history, however, is to be worked out in future cases.
Finally, Part III raises several lingering concerns about the decision in American Legion v. AHA.
Carl H Esbeck, The World War I Memorial Cross Case: U.S. Supreme Court Takes a New Approach with the Establishment Clause, 63 Journal of Church and State 109-134 (2021), csaa001, https://doi.org/10.1093/jcs/csaa001