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1 1 (February 12, 2019)

handle is hein.crs/govyki0001 and id is 1 raw text is: Supreme Court May Reconsider Establishment Clause Jurisprudence in Challenge to Cross Display: Part One Updated February 12, 2019 On February 27, in American Legion v. American Humanist Association, the Supreme Court is scheduled to hear oral argument on the constitutionality of a large cross that was erected as a war memorial in Prince George's County, Maryland. Last year, the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit) held that the cross display violated the First Amendment's Establishment Clause. The Supreme Court agreed to review this decision, considering not only whether the memorial is unconstitutional, but also what test should govern this inquiry. The case thus presents the Court with the opportunity to clarify its Establishment Clause jurisprudence-an area of the law that scholars and judges alike routinely deride for lacking clear legal rules. It also offers the first significant opportunity for the newest members of the Court, Justices Gorsuch and Kavanaugh, to weigh in on this area of the law. This is a two-part Legal Sidebar. This first part briefly reviews existing jurisprudence, explaining the various tests that the Court has used to analyze Establishment Clause claims and ending with a focus on recent decisions considering the constitutionality of public monuments that contain religious symbols. Part Two focuses on American Legion, reviewing the lower court decision and the parties' arguments before the Supreme Court. It then discusses ways the Court might resolve the case, as well as the significant implications the Court's decision could have for Congress. Various Approaches to the Establishment Clause The Establishment Clause provides that the government shall make no law respecting an establishment of religion. This language most obviously prohibits the government from establishing an official national religion, and the Court has also long understood the Clause to prevent other government aid directed toward religion, as well. However, judges-and even the Framers of the Constitution-have debated the precise scope of this prohibition. While the Supreme Court has often referred to government neutrality toward religion as the guiding principle, this neutrality standard has itself been subject to divergent interpretations. Broadly speaking, scholars have identified two diametric views of the Establishment Clause: a separationist view and an accommodationist view. The Court has embraced both views, at vanous times. Congressional Research Service https://crsreports.congress.gov LSB10259 CRS Legal Sidebar Prepared for Members and Committees of Congress

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