Takeaway From American Legion Decision

 So what exactly did the Court do?

Did the Court overrule the Lemon test? Or is it buried but without a stake in its heart?

Although there are several different opinions making up a 7 to 2 majority, the Court reached a consensus that goes at least this far:

 the Lemon test will not apply to the retention of “[long] established, religiously expressive monuments, symbols, and practices.” In the words of Justice Alito’s majority opinion, “The passage of time gives rise to a strong presumption of constitutionality.” (p. 1804)

Applying the presumption of constitutionality, the Court concluded that “the Bladensburg Cross does not violate the Establishment Clause.” (p.1806)

The presumption is a strong one, but could be rebutted if there is evidence that an established symbol was displayed to be “deliberately disrespectful” of religious minorities.(quotation edited from the edited opinion)

How long is long?

What test applies to newer displays?

Suppose the City of Kearney erects a cross monument for local soldiers who died fighting in Iraq or Afghanistan?

Would Lemon apply?No, clearly not after Kennedy.

Or some kind of historical traditions test that would uphold the types of displays existing throughout American history?

What about a Nativity display in a public park?

Here is a favorite passage of mine, that I think focuses on how these religious cleansing cases are viewed by many ordinary citizens:

Fourth, when time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance, removing it may no longer appear neutral, especially to the local community for which it has taken on particular meaning. A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion. Militantly secular regimes have carried out such projects in the past, and for those with a knowledge of history, the image of monuments being taken down will be evocative, disturbing, and divisive.p. 1805