American Legion v. American Humanist Ass’n: Exempting Longstanding Governmental Religious Displays from Establishment Clause Scrutiny and How the Endorsement Test Could Have Prevented It

M. Allison Hyde

In American Legion v. American Humanist Ass’n the United States Supreme Court considered whether a large monument in the shape of a Latin cross on government land (“the Cross”) and maintained by the government violated the Establishment Clause. The Court’s decision turned on whether commemorating World War I (“WWI”) veterans was a purpose sufficiently secular to overcome the cross’s Christian association. Part I of this Note will discuss the history of the Cross and the lower courts’ litigation of the challenge to government ownership. Part II will discuss the enactment of the Establishment Clause and Supreme Court case law on governmental displays of religious expression leading up to American Legion. Part III will discuss the decision in American Legion, which held that longstanding religious monuments are presumptively constitutional and the Cross is constitutional as a longstanding symbol possessing a legitimate secular meaning. In Part IV, this Note will argue that although the Court’s holding was consistent with relevant precedent, its opinion unnecessarily created an exemption from Establishment Clause scrutiny for longstanding governmental religious displays. Instead, the Court should have invoked its endorsement test as the most appropriate existing test for evaluating religious displays. Finally, this Note will argue that a modified version of the endorsement test should be adopted for analyzing such displays in the future.