Document Type
Article
Publication Date
2020
Disciplines
Law
Abstract
In The American Legion v. American Humanist Association, the Court addressed the Establishment Clause issues surrounding a longstanding Latin cross veteran’s memorial located on public property. Although the Court upheld the memorial with a narrow ruling, an unresolved issue lurking beneath the surface of passive display cases like American Legion is whether a government dismantling of a longstanding religious symbol might itself, under certain circumstances, constitute an independent Establishment Clause violation. Such a dismantling of a religious symbol built decades earlier before the property became publicly owned might well be considered a government act hostile to religion, especially as America becomes increasingly secular and government actors demonstrate increasing hostility to religious institutions and beliefs.
Given the continual drift toward secularism in American society, this Article uses the decision in American Legion to explore the question of whether government exclusion of religion from the public square, in favor of a secularism baseline, violates the neutrality doctrine and constitutes its own Establishment Clause infringement. The Court has never ruled that a government exclusion of religion violates the First Amendment, but as American Legion demonstrates, the necessity of such a ruling may well arise in the future.
Publication Title
Nebraska Law Review
Volume
98
First Page
643
Recommended Citation
Patrick M. Garry, When Anti-Establishment Becomes Exclusion: The Supreme Court’s Opinion in The American Legion v. American Humanist Association, and the Flip Side of the Endorsement Test, 98 Neb. L. Rev. 643 (2020)