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Chaplaincy and the Law: The Bladensburg Cross

On the surface one would wonder how last week’s Supreme Court ruling concerning the Bladensburg Cross could have any impact on the status of government-supported chaplaincy. But this ruling not only referenced government chaplaincy, but in my view reaffirmed and strengthened it for years to come.

This case centers around a war memorial in Prince George’s County, Maryland. It was erected between 1917 and 1925. Now, through annexation, it sits on public land and is maintained with public funds. The memorial is in the form of a Latin cross like the ones that cover so many of our fallen soldiers’ graves after WW I in Europe. The American Humanist Association filed suit because some people took offense that this symbol of Christianity was being maintained by the government. They found this an offense and an impermissible violation of the principle of the separation of church and state.

The Supreme Court ruled 7-2 in favor of the defendant, the American Legion, saying this monument did not violate the Establishment Clause (that congress shall not “establish” a religion) and was not against the constitution. But while most justices agreed on the ruling, it was very clear that they were not totally together on why. And some of the issues they brought up in their concurring statements pertain to chaplaincy.

Rejection of “The Lemon Test”

A previous ruling key to the laws regarding religion and government was Lemon v. Kurtzman.

In that case the justices tried to establish a unified theory of how to handle First Amendment Establishment Clause cases, usually known as “The Lemon Test.”

  1. Does the challenged law or other governmental action have a bona fide secular (nonreligious) or civic purpose?

  2. Does the primary effect of the law or action neither advance nor inhibit religion?

  3. Does the law or action avoid excessive entanglement of government with religion?

While the recent ruling did not overturn Lemon v. Kurtzman, many of the justices disparaged it as a horribly flawed standard that should not be used anymore. Only Justice Kegan spoke in favor of it.

The “Reasonable Observer” Test Not Invoked

The Supreme Court has set aside The Lemon Test on many occasions in various rulings. Instead, they have asked if a “reasonable observer” would conclude an action would be a violation of the Endorsement clause. The “reasonable observer” direction was postulated in Justice O’Connor’s concurring opinion concerning the crèche display in Lynch v. Donnelly.

In the latest ruling, the justices did not address the reasonable observer test. They did not find the state responsible for avoiding offense to those of other religions or the non-religious.

The Role of Historic Precedent

In the case of the Bladensburg Cross as well as Chambers v. Marsh and Town of Greece v. Galloway, the court declined to apply either The Lemon Test or the Reasonable Observer test, or simply ignored them. Instead, the justices took historic accounts into consideration. In the case of Chambers v. Marsh, the issue was specifically about chaplaincy. They noted that just a few days before the ratification of the First Amendment, congress hired its first chaplain to serve the needs of the members of the assembly. While not knowing why the framers did something that would seem so opposed to the separation of church and state, the justices trusted that the framers saw this as not in conflict.

The Court Rejected Government Hostility toward Religion

In their ruling about Bladensburg Cross case, the justices clearly state that the memorial’s removal or radical alteration would be seen by many not as a “neutral act,” but as “the manifestation of a hostility toward religion,” something “that has no place in our Establishment Clause traditions.” They rejected government hostility toward people of faith, instead welcoming and recognizing faith as part of the very fabric that makes up this nation. Such thinking is also in line with Chambers v. Marsh.

Being Offended Is Not Real Harm

Actions that are ruled religious coercion, the justices agreed, are a violation of the Establishment Clause. But they did not find the display of the cross as coercion. In their concurring statements, some of the justices seemed to express frustration with the “offended observer” theory. Justice Gorsuch with Justice Thomas said it has no basis in law. Just because someone is offended by something they perceived as religious, the action did not incur real harm. They said the plaintiff must show (1) injury-in-fact, (2) causation, and (3) redressability. Not just being offended.

This distinction may affect chaplains in cases that concern proselytizing and/or public prayers, but that’s a topic for another conversation.

A New Bottom Line?

While the standard of Lemon v. Kurtzman was not overturned, Justice Kavanaugh, in his concurring opinion, wrote what might be the new standard for Establishment Clause cases:

“If the challenged government practice is not coercive and if it (i) is rooted in history and tradition; or (ii) treats religious people, organizations, speech, or activity equally to comparable secular people, organizations, speech, or activity; or (iii) represents and permissible legislative accommodation or exemption from a generally applicable law, then there ordinarily is no Establishment Clause violation.”

This standard may prove helpful in cases involving chaplaincy. Government-funded chaplaincy has been shown to be part of the very fabric of the society of the United States (Chambers v. Marsh), with historic precedent in all three branches of government. I see this ruling strengthening that standing. We will have to see how it plays out in the lower courts, and remember our actions are not immune from judicial review.

Chaplain Chris Wade Vice President South Carolina Public Safety Chaplains Association

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