American Legion Case: Various Tests

 Consider the two tests discussed by the Majority and the dissent in American Legion:

I. Justice Alito's Plurality Opinion: The Lemon test does not apply to the retention of "established, religiously expressive monuments. symbols, and practices." More Alito: "The passage of time gives rise to a strong presumption of constitutionality." p. 1804 & 1805.\

II. Justice Ginsburg's dissent: She applies the Lemon endorsement test and asserts that "a display of a religious symbol" is "presumed to endorse its religious content." p. 1810

Now consider Justice Kavanaugh's concurring opinion on p. 1807-1808:

"[T]he Court today applies a history and tradition test in examining and upholding the constitutionality of the Bladensburg Cross....And the cases together lead to an overarching set of principles: 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  a   permissible  legislative  accommodation  or  exemption  from  a  generally applicable law, then  there ordinarily is no Establishment Clause violation. The   practice   of   displaying   religious   memorials,   particularly   religious   war  memorials, on public land is not coercive and is rooted in history and tradition. The Bladensburg Cross does not violate the Establishment Clause. . . ."

So, where does the opinion leave newer displays, ones that are not yet “established” by the passage of time?

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? 

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