588 U.S. ___ (2019).

A 2019 United States Supreme Court opinion in which the Court held that, since the Peace Cross (a World War I memorial shaped after a Latin cross) had stood for decades without any controversy, it did not violate the Establishment Clause of the First Amendment.


Perrier-Bilbo v. United States, 2020 WL 1650842 (1st Cir. April 3, 2020):

Most recently in American Legion vAmerican Humanist Association, the Supreme Court assessed an Establishment Clause challenge using a framework that looked to longstanding historical practices and significance. ––– U.S. –––, 139 SCt20672074204 L.Ed.2d 452(2019) (holding that “the adoption of the cross as [a] memorial must be viewed in [its] historical context”). The American Legion Court had to decide whether the Bladensburg Peace Cross — a thirty-two-foot-tall Latin cross erected in 1925 as a World War I memorial, located on public land, and maintained by public funds — violated the Establishment Clause. Id. at 20742077. Relying entirely on a thorough analysis of the cross as a historical symbol (and of the erection of the Bladensburg Cross in particular), it concluded that the monument complied with the Establishment Clause. Id. at 208590. The Court reasoned that the cross, though a symbol of Christianity, had taken on a secular meaning in many contexts, id. at 2074, and that many Americans during and immediately after World War I came to associate the image of a simple white cross with memorializing those who died in the war, idat 207576. Thus, “the image used in the Bladensburg memorial ...also took on new meaning after World War I.” Id. at 2075. Similarly, the Court found that the cross had, “with the passage of time,” “acquired historical importance.” Id. at 2089. Ultimately, it concluded that, even though the cross is “undoubtedly a Christian symbol,” “that fact should not blind us to everything else that the Bladensburg Cross has come to represent.” Id. at 2090.

The American Legion Court also explicitly rejected the application of the three-pronged test pronounced in Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (requiring that a law “have a secular legislative purpose,” that its “principal ... effect ... be one that neither advances nor inhibits religion,” and that it does not “foster ‘an excessive government entanglement with religion,’ ” (citations omitted)), to evaluate Establishment Clause challenges in cases involving “the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations” and “certain references to, and invocations of, the Deity in the public words of public officials [and] the public references to God on coins, decrees, and buildings.”6 Id. at 208081. Rather, the Supreme Court adopted “a presumption of constitutionality” for religiously expressive “longstanding monuments, symbols, and practices.” Id. at 2082. In reaching that holding, it provided four reasons why the application of a presumption of constitutionality was better suited for these situations than the Lemon test: (1) when monuments, symbols, or practices were originally established long ago, “identifying their original purpose or purposes may be especially difficult”; (2) with the passage of time, “the purposes associated with an established monument, symbol, or practice” and the reasons for maintaining them “often multiply”; (3) the message conveyed by the monument, symbol, or practice may evolve over time and “[t]he community may come to value them without necessarily embracing their religious roots”; and (4) when the monument, symbol, or practice has become familiar and of historical significance, “removing it may no longer appear neutral” but “aggressively hostile to religion.” Id. at 208185. Finally, the Supreme Court suggested that the presumption could be overcome by a showing of discriminatory intent in the decision to maintain the challenged practice or by a showing of “deliberate[ ] disrespect[ ]” by that practice on the basis of religion. See id.at 20742089.

We follow the Supreme Court’s most recent framework and apply American Legion‘s presumption of constitutionality to the phrase “so help me God” in the naturalization oath because we consider the inclusion of similar words to be a ceremonial, longstanding practice as an optional means of completing an oath.7 And because the record does not demonstrate a discriminatory intent in maintaining those words in the oath or “deliberate disrespect” by the inclusion of the words, Perrier-Bilbo cannot overcome the presumption.

In American Legion, the Supreme Court held that the presumption of constitutionality applies to “established, religiously expressive monuments, symbols, and practices.” Id. at 2085. As the district court recognized, there is an established history of invocations of God in public oaths and statements tracing back to the founding era.

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