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First Liberty Briefing

First Liberty Briefing is an exclusive podcast hosted by First Liberty Institute’s Deputy General Counsel Jeremy Dys. In about 90-seconds, once a week, Jeremy recalls the stories that have shaped America’s religious liberty, from the founding era to current legal battles and more. It’s an insider’s look at the stories, cases, people, and laws that have made America the world’s leader in protecting religious liberty.
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Now displaying: September, 2019
Sep 30, 2019

The Lemon Test is the main proponent in religious monuments and symbols being torn down. While the American Legion case didn’t overrule the Lemon Test, the Justices expressed significant skepticism of it. Learn more at FirstLiberty.org/Briefing.


Over the last few episodes, we have been making our way through First Liberty’s latest Supreme Court case, The American Legion v. AHA.  Today, it’s all about Lemon.

Of course, we’re not talking about citrus, but the test stemming from the court’s decision in Lemon v. Kurtzman from several decades ago.  Lemonhas been the primary means by which opponents of religiously expressive monuments, symbols, and practices have torn down, erased, or ended them.  But, thanks to The American Legion case, those days are over.

In the words of a plurality of Justices, “Lemon ambitiously attempted to distill from the Court’s existing case law a test that would bring order and predictability to Establishment Clause decision making.” 

But it didn’t.  So, the plurality expressed significant skepticism of the test, but stopped short of overruling it. 

Justice Brett Kavanaugh, concurring, evaluated all the ways the Lemontest has been applied, concluding that unless the state action is coercive, monuments and practices rooted in our history and tradition are just fine.  Justice Neil Gorsuch called Lemon“a misadventure.”

Justice Clarence Thomas, also concurring, agreed with the plurality’s thinking, but said, “I would take the logical next step and overrule the Lemon test in all contexts.”

Bottom line for those who wish to attack religiously expressive monuments, symbols, or practices, they’re going to have to find another case.

We’ll wrap up our evaluation of this case in our next episode.

To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

Sep 23, 2019

The removal of the Bladensburg monument would not be considered neutral by the justices. The passage of time turns the monument into a historical monument, rather than the focus being on religion. Learn more at FirstLiberty.org/Briefing.


In The American Legion v. AHA, the Supreme Court acknowledged that the Peace Cross was, and is, a religious symbol.  The Justices even noted that some who erected the memorial had a religious motivation in doing so.  But, the majority of the court rejected the idea that that religious symbolism or religious meaning meant the memorial must be destroyed.

As Justice Samuel Alito wrote for the majority of the Justices, “Even if the original purpose of a monument was infused with religion, the passage of time may obscure that sentiment.”

Over time, he notes, “a community may preserve such monuments, symbols, and practices for the sake of their historical significance or their place in a common cultural heritage” and “as time goes by, the purposes associated with an established monument, symbol, or practice often multiply.”

In other words, what was once viewed as religious may now simply be considered historical. But, the passage of time makes that line more difficult to see. But, that’s ok. 

As Justice Alito explained, “With sufficient time, religiously expressive monuments, symbols, and practices can become embedded features of a community’s landscape and identity. The community may come to value them without necessarily embracing their religious roots.”

And, if it is so firmly rooted to the community, he concluded, “removing it may no longer appear neutral.”

On the next First Liberty Briefing, let’s talk about what The American Legion case means for the Lemon test.

To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

Sep 16, 2019

The Justices wanted to remain neutral and tearing down the monument would be hostile towards religion. They emphasized that respecting monuments and symbols of religion is the best way to remain neutral towards religion. Learn more at FirstLiberty.org/Briefing.


This is the third in a series of episodes exploring the impact of the Supreme Court’s decision in First Liberty’s case, The American Legion v. AHA.  In this episode, we turn to the issue of hostility toward religion.

It’s clear that the Justices wished to respect the presence of the memorial and what it has come to mean for the people of Bladensburg, Maryland.  Though opponents of the memorial clamored for neutrality, removing the Peace Cross would not be a neutral act by the government.

As the majority explained, “requiring their removal would not be viewed by many as a neutral act” and “would be seen by many as profoundly disrespectful.”  Worse, the court’s majority observed, “a campaign to obliterate items with religious associations may evidence hostility to religion even if those religious associations are no longer in the forefront.”

In our next episode, we will look at that last part and the evolution of this particular religious symbol into what it means today, but don’t miss this critical point: the Justices of the Supreme Court are communicating to the nation that genuine neutrality toward religion means respecting religiously expressive monuments, symbols, and practices, not destroying, altering, or hiding them.

As Justice Alito explained in his majority opinion, “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.”

Stay tuned for more.

To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

Sep 9, 2019

A lawsuit could once be filed because someone was offended by the fact that a religious monument was in a public area. Now instead of being removed just because someone dislikes it, the monument must be proved unconstitutional, which is much more difficult to achieve. Learn more at FirstLiberty.org/Briefing.


In our last episode, we learned that memorials with religious symbolism bear a “strong presumption of constitutionality,” according to Justice Alito’s majority opinion in The American Legion v. AHA.  But what does that mean?

Well, to fully appreciate the court’s decision, you need to understand how these lawsuits once worked.  Previously, if someone saw what the Supreme Court calls “religiously expressive monuments, symbols, and practices,” a lawsuit could be filed based on little more than the offense of having been exposed to such a thing on public property. 

It was called “offended observer standing” and, as Justice Gorsuch made clear in his concurring opinion, “If individuals and groups could invoke the authority of a federal court to forbid what they dislike for no more reason than they dislike it, we would risk exceeding the judiciary’s limited constitutional mandate and infringing on powers committed to other branches of government.”

Instead, those merely offended by the presence of a religiously expressive monument, symbol, or practice must now rebut the presumption that such religious displays are constitutional.  That’s a far more difficult standard to overcome and one certain to dissuade suits from even being filed. 

Of course, there’s a reason why the court shifted the burden.  On our next episode of the First Liberty Briefing, we will discuss how the Justices are combatting hostility toward religion.

To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

Sep 2, 2019

Seven out of nine Supreme Court Justices rule that the Bladensburg Peace Cross in Prince George County, Maryland should remain standing. The majority opinion acknowledges that the memorial’s age makes it a part of the community. Learn more at FirstLiberty.org/Briefing.


It may have been a long time coming, but the freedom First Liberty Institute secured in The American Legion v. AHA is significant. 

You will recall that at issue in the case was the Peace Cross, a World War I monument Gold Star Mothers erected to remember 49 sons of Prince George’s County, Maryland who died in the Great War. That idea came in 1919 and The American Legion dedicated it in 1925.

Everything was fine until 2013 when someone decided they were offended at the presence of a cross on public property, ignoring the surrounding memorials to other wars in what is known as Memorial Park. 

In June of 2019, the Supreme Court of the United States handed down its decision.  Seven of the nine Justices wrote an opinion, making the decision somewhat difficult to decipher.  But the clear majority of seven Justices ruled that the memorial should stay right where it is.

The majority opinion, written by Justice Samuel Alito, explained the fact that the memorial bears religious symbolism does not mean the memorial must be destroyed or moved to private property.  That is all the more true when memorials age and become a central part of the community itself. “The passage of time,” Justice Alito wrote, “gives rise to a strong presumption of constitutionality.”

In our next episode, we will explore what this “strong presumption of constitutionality” means today.

To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

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