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Prof. David Skeel comments on SCOTUS decision on religious World War I memorial

June 21, 2019

University of Pennsylvania Law School Professor David Skeel comments on the United States Supreme Court’s 7-2 decision in American Legion v. American Humanist Association allowing a 40-foot-tall cross-shaped World War I memorial to remain on state property. 

 

David Skeel, S. Samuel Arsht Professor of Corporate Law

“The decision is quite narrow: Justice Alito focuses extensively on the fact that this cross has been in place since 1925, with no complaints until this case, and that crosses like this — in addition to their Christian significance — had acquired secular meaning as a way of honoring those who died in World War I.  The Court doesn’t say anything about whether and when new monuments would be permissible under the Establishment Clause.  The Court seems more concerned with signaling to lower courts that they shouldn’t order longstanding monuments that have secular as well as religious significance to be removed.  The Court once again declined to apply the three part Lemon test (from 1971) to determine whether the cross violated the Establishment Clause.  This test has been widely criticized, and a majority of the justices appear to favor overruling it, but the Court did not formally take that step here, to the chagrin of Justices Kavanaugh, Gorsuch, and Thomas.”