When Anti-Establishment Becomes Exclusion: The Supreme Court’s Opinion in <i>American Legion v. American Humanist Association</i> and the Flip Side of the Endorsement Test

In 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. I. Introduction II. The American Legion Decision ... A. Facts of the Case ... B. The Supreme Court’s Decision III. Passive Displays and the Establishment Clause ... A. Problems with the Endorsement Test ... B. The Endorsement Test as a Secular Trump Card IV. The Meaning of the Establishment Clause ... A. Institutional Nonpreferentialism ... B. Protecting the Existence of Religion V. Religion in Modern Secular Society VI. The Weaknesses of Current Establishment Clause Approaches ... A. The Rise of the Neutrality Approach ... B. Neutrality as a Denial of Religion’s Role ... C. Neutrality’s Erosion of Religious Liberty ... D. The Wrong Baseline ... E. The Endorsement Test’s Favoring of Anti-Religion VII. Conclusion: When the Supposed Remedy Becomes the Deprivation