CONTINUING LEGAL EDUCATION Written Materials

An Appellate Buffet: Big First Amendment Cases, War Stories from Virginia’s Solicitor General’s Office, and a Conversation With the New Supreme Court of Virginia Clerk of Court

Friday, January 24, 2020 | The Williamsburg Lodge | Williamsburg, VA

CONTINUING Written Materials LEGAL EDUCATION

A presentation of The Virginia Bar Association's Appellate Practice Section An Appellate Buffet: Motions Practice, Big SCOTUS Cases, and a

PRESENTERS Conversation with the New Supreme Court of Virginia Clerk of Court

Monica T. Monday

Monica Monday is Gentry Locke’s Managing Partner and heads the firm’s Appellate practice. Monica represents her clients in Virginia’s state and federal appellate courts across a wide variety of cases, including commercial and business disputes, healthcare, personal injury, local government matters, domestic relations and more. In 2015, Monica was inducted as a Fellow of the American Academy of Appellate Lawyers — only the fifth Virginia attorney to be so honored. She has been recognized among Virginia’s Top 50 Women Lawyers and Virginia’s Top 100 Lawyers by the Thomson Reuters’ Virginia Super Lawyers, and on the Best Lawyers in America and Virginia Business magazine’s Legal Elite lists and was a “Leaders in the Law” honoree by Virginia Lawyers Weekly. Notably, Monica is described by Chambers USA 2018: America’s Leading Lawyers for Business as having “a commanding reputation as ‘one of the go-to practitioners’ for appellate work.”

Monica frequently lectures and writes on appellate issues. She currently serves as Chair of The Virginia Bar Association’s Appellate Practice Section Council and as Chair of the Appellate Practice Committee of the Virginia State Bar Litigation Section.

Before joining Gentry Locke, Monica clerked for the Honorable Lawrence L. Koontz, Jr., then Chief Judge of the Court of Appeals of Virginia, and now a Senior Justice on the Supreme Court of Virginia.

Leslie Kendrick

Leslie Kendrick is vice dean of the Law School. Her scholarship and teaching focus on freedom of speech, torts and property law.

Kendrick’s work has appeared in the Harvard Law Review, Columbia Law Review, Michigan Law Review, Virginia Law Review, the Supreme Court Review, and Philosophy & Public Affairs, among other journals. She is co-authoring the fifth edition of the casebook Tort Law: Responsibilities and Redress, with John C. P. Goldberg, Anthony J. Sebok and Benjamin C. Zipursky.

The biographical information is provided by the speakers or collected from their websites. Kendrick is a member of the American Law Institute. She is past chair of the AALS Section on Torts and Compensation Systems and a member of the Harvard Higher Education Forum. In 2017, she received the University of Virginia’s All-University Teaching Award.

A member of the Virginia State Bar, Kendrick serves on the executive committee of the Charlottesville-Albemarle Bar Association. She has recently litigated cases before the Supreme Court of Virginia, the Western District of Virginia and the U.S. Court of Appeals for the Fourth Circuit.

Kendrick received a B.A. in classics and English as a Morehead Scholar at the University of North Carolina at Chapel Hill. She received her master’s and doctorate in English literature at the University of Oxford, where she studied as a Rhodes Scholar. During law school at UVA, she was a Hardy Cross Dillard Scholar, served as essays development editor for the Virginia Law Review and received several academic awards, including the Margaret G. Hyde Award.

Before joining the faculty in 2008, Kendrick clerked for Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit and Justice David Hackett Souter of the Supreme Court of the United States. She has been a visiting professor at UCLA Law School and Harvard Law School.

Douglas B. (Doug) Robelen

Douglas B. “Doug” Robelen currently serves as the 14th Clerk of the Supreme Court of Virginia, a position he has held since February 2019. Before being selected by the Court to be the next Clerk, Doug served 16 years as the Chief Deputy Clerk. Doug came to the Court from the Department of Medical Assistance Services, where he worked as an informal appeals agent. He also has worked as a staff attorney with the Court of Appeals of Virginia, as an appeals examiner with the Virginia Employment Commission, and as an associate attorney with the then law firm of Mays & Valentine.

Doug is a graduate of Davidson College and the University of Virginia School of Law.

Matthew (Matt) R. McGuire

The former Principal Deputy Solicitor General in Virginia’s Office of the Attorney General, Matt is a seasoned appellate and trial court attorney. As counsel, Matt focuses on appellate litigation as well as helping clients frame complex legal issues before trial courts and administrative agencies.

Before joining Hunton Andrews Kurth LLP, Matt served for nearly four years in the Solicitor General’s division of the Office of the Attorney General of Virginia. He represented the Commonwealth, its agencies and its officials in significant and sensitive cases pending before

The biographical information is provided by the speakers or collected from their websites. the US Supreme Court, the US Courts of Appeals, the Supreme Court of Virginia and federal and state trial courts. Before the US Supreme Court, Matt briefed, argued and won a 5-4 victory in Currier v. Virginia, 138 S. Ct. 2144 (2018). That case involved a “complicated” constitutional question about the double jeopardy clause, which resulted in one commentator noting “the exceptionally high intellectual plane of the Supreme Court’s discourse” during the argument (SCOTUSBlog 2018). Matt was also the principal attorney defending the sentence imposed on Lee Boyd Malvo, one of the “D.C. Snipers,” including drafting the successful petition for writ of certiorari, granted by the US Supreme Court in 2019. Recently, Matt argued before the full en banc US Court of Appeals for the Fourth Circuit in Manning v. Caldwell, a case challenging the constitutionality of Virginia’s habitual drunkard laws, and successfully represented the Virginia State Bar before the Supreme Court of Virginia in Morrissey v. Virginia State Bar.

Before joining the Attorney General’s office, Matt frequently represented clients before the Federal Energy Regulatory Commission (FERC) in proceedings arising under the Federal Power Act and the Natural Gas Act. Immediately after law school, Matt served as a law clerk for Judge E. Grady Jolly on the US Court of Appeals for the Fifth Circuit.

Matt also co-teaches a course on the Constitution and State Attorneys General at the University of Richmond School of Law.

The biographical information is provided by the speakers or collected from their websites. CHANGES IN THE FIRST AMENDMENT: SUPREME COURT OCTOBER TERM 2018

Leslie Kendrick Vice Dean & David H. Ibbeken '71 Research Professor of Law University of Virginia School of Law

I. Introduction: The First Amendment and the Roberts Court

II. Iancu v. Brunetti

a. Holding: The Lanham Act prohibition on the registration of “immoral” or “scandalous” trademarks infringes the First Amendment.

b. Background

c. Court’s Opinion

d. Analysis

III. American Legion v. American Humanist Association

a. Holding: The Bladensburg Cross does not violate the establishment clause of the First Amendment.

b. Background

c. Holding

d. Analysis

IV. Conclusion: Looking Ahead

(Slip Opinion) OCTOBER TERM, 2018 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES

Syllabus

IANCU, UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR, PATENT AND TRADEMARK OFFICE v. BRUNETTI

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

No. 18–302. Argued April 15, 2019—Decided June 24, 2019 Respondent Erik Brunetti sought federal registration of the trademark FUCT. The Patent and Trademark Office (PTO) denied his application under a provision of the Lanham Act that prohibits registration of trademarks that “[c]onsist[ ] of or comprise[ ] immoral[ ] or scandalous matter,” 15 U. S. C. §1052(a). Brunetti brought a First Amendment challenge to the “immoral or scandalous” bar in the Fed- eral Circuit, which invalidated the provision. Held: The Lanham Act’s prohibition on registration of “immoral[ ] or scandalous” trademarks violates the First Amendment. In Matal v. Tam, 582 U. S. ___, this Court declared unconstitutional the Lanham Act’s ban on registering marks that “disparage” any “person[ ], living or dead.” §1052(a). A divided Court agreed on two propositions. First, if a trademark registration bar is viewpoint based, it is unconstitutional. And second, the disparagement bar was viewpoint based. The “immoral or scandalous” bar similarly discriminates on the basis of viewpoint and so collides with this Court’s First Amendment doctrine. Expressive material is “immoral” when it is “inconsistent with rectitude, purity, or good morals”; “wicked”; or “vicious.” So the Lanham Act permits registration of marks that champion society’s sense of rectitude and morality, but not marks that denigrate those concepts. And material is “scandalous” when it “giv[es] offense to the conscience or moral feelings”; “excite[s] reprobation”; or “call[s] out condemnation.” So the Lanham Act allows registration of marks when their messages accord with, but not when their messages defy,

2 IANCU v. BRUNETTI

Syllabus

society’s sense of decency or propriety. The statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. This facial viewpoint bias in the law results in viewpoint- discriminatory application. The PTO has refused to register marks communicating “immoral” or “scandalous” views about (among other things) drug use, religion, and terrorism. But all the while, it has approved registration of marks expressing more accepted views on the same topics. The Government says the statute is susceptible of a limiting construction that would remove its viewpoint bias. The Government’s idea is to narrow the statutory bar to “marks that are offensive [or] shocking[ ] because of their mode of expression, independent of any views that they may express,” which would mostly restrict the PTO to refusing marks that are lewd, sexually explicit, or profane. But this Court cannot accept the Government’s proposal, because the statute says something markedly different. The “immoral or scandalous” bar does not draw the line at lewd, sexually explicit, or profane marks. Nor does it refer only to marks whose “mode of expression,” independent of viewpoint, is particularly offensive. To cut the statute off where the Government urges is not to interpret the statute Congress enacted, but to fashion a new one. And once the “immoral or scandalous” bar is interpreted fairly, it must be invalidated. Pp. 4–11. 877 F. 3d 1330, affirmed.

KAGAN, J., delivered the opinion of the Court, in which THOMAS, GINSBURG, ALITO, GORSUCH and KAVANAUGH, JJ., joined. ALITO, J., filed a concurring opinion. ROBERTS, C. J., and BREYER, J., filed opinions concurring in part and dissenting in part. SOTOMAYOR, J., filed an opinion concurring in part and dissenting in part, in which BREYER, J., joined.

Cite as: 588 U. S. ____ (2019) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES ______No. 18–302 ______ANDREI IANCU, UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR, PATENT AND TRADEMARK OFFICE, PETITIONER v. ERIK BRUNETTI

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT [June 24, 2019]

JUSTICE KAGAN delivered the opinion of the Court. Two Terms ago, in Matal v. Tam, 582 U. S. ___ (2017), this Court invalidated the Lanham Act’s bar on the registration of “disparag[ing]” trademarks. 15 U. S. C. §1052(a). Although split between two non-majority opinions, all Members of the Court agreed that the provision violated the First Amendment because it discriminated on the basis of viewpoint. Today we consider a First Amendment challenge to a neighboring provision of the

Act, prohibiting the registration of “immoral[] or scandalous” trademarks. Ibid. We hold that this provision infringes the First Amendment for the same reason: It too disfavors certain ideas. I Respondent Erik Brunetti is an artist and entrepreneur who founded a clothing line that uses the trademark FUCT. According to Brunetti, the mark (which functions as the clothing’s brand name) is pronounced as four let- ters, one after the other: F-U-C-T. See Brief for Respond-

2 IANCU v. BRUNETTI

Opinion of the Court ent 1. But you might read it differently and, if so, you would hardly be alone. See Tr. of Oral Arg. 5 (describing the brand name as “the equivalent of [the] past participle form of a well-known word of profanity”). That common perception caused difficulties for Brunetti when he tried to register his mark with the U. S. Patent and Trademark Office (PTO). Under the Lanham Act, the PTO administers a federal registration system for trademarks. See 15 U. S. C. §§1051, 1052. Registration of a mark is not mandatory. The owner of an unregistered mark may still use it in commerce and enforce it against infringers. See Tam, 582 U. S., at ___ (slip op., at 4). But registration gives trademark owners valuable benefits. For example, registration constitutes “prima facie evidence” of the mark’s validity. §1115(a). And registration serves as “constructive notice of the registrant’s claim of ownership,” which forecloses some defenses in infringement actions. §1072. Generally, a trademark is eligible for registration, and receipt of such benefits, if it is “used in commerce.” §1051(a)(1). But the

Act directs the PTO to “refuse[] registration” of certain marks. §1052. For instance, the PTO cannot register a mark that “so resembles” another mark as to create a likelihood of confusion. §1052(d). It cannot register a mark that is “merely descriptive” of the goods on which it is used. §1052(e). It cannot register a mark containing the flag or insignia of any nation or State. See §1052(b). There are five or ten more (depending on how you count). And until we invalidated the criterion two years ago, the PTO could not register a mark that “disparage[d]” a “person[ ], living or dead.” §1052(a); see Tam, 582 U. S. ___. This case involves another of the Lanham Act’s prohibi- tions on registration—one applying to marks that

“[c]onsist[ ] of or comprise[ ] immoral[ ] or scandalous matter.” §1052(a). The PTO applies that bar as a “unitary provision,” rather than treating the two adjectives in it

Cite as: 588 U. S. ____ (2019) 3

Opinion of the Court separately. In re Brunetti, 877 F. 3d 1330, 1336 (CA Fed. 2017); Brief for Petitioner 6 (stating that the PTO “has long treated the two terms as composing a single category”). To determine whether a mark fits in the category, the PTO asks whether a “substantial composite of the general public” would find the mark “shocking to the sense of truth, decency, or propriety”; “giving offense to the conscience or moral feelings”; “calling out for condemnation”; “disgraceful”; “offensive”; “disreputable”; or “vulgar.” 877 F. 3d, at 1336 (internal quotation marks omitted); see Brief for Petitioner 6 (agreeing that the PTO “generally defines” the category in that way). Both a PTO examining attorney and the PTO’s Trade- mark Trial and Appeal Board decided that Brunetti’s mark flunked that test. The attorney determined that

FUCT was “a total vulgar” and “therefore[ ] unregistrable.” App. 27–28. On review, the Board stated that the mark was “highly offensive” and “vulgar,” and that it had “de- cidedly negative sexual connotations.” App. to Pet. for Cert. 59a, 64a–65a. As part of its review, the Board also considered evidence of how Brunetti used the mark. It found that Brunetti’s website and products contained imagery, near the mark, of “extreme nihilism” and “anti- social” behavior. Id., at 64a. In that context, the Board thought, the mark communicated “misogyny, depravity, [and] violence.” Ibid. The Board concluded: “Whether one considers [the mark] as a sexual term, or finds that [Bru- netti] has used [the mark] in the context of extreme misogyny, nihilism or violence, we have no question but that [the term is] extremely offensive.” Id., at 65a. Brunetti then brought a facial challenge to the “immoral or scandalous” bar in the Court of Appeals for the Federal Circuit. That court found the prohibition to violate the First Amendment. As usual when a lower court has invalidated a federal statute, we granted certiorari. 586 U. S. ___ (2019).

4 IANCU v. BRUNETTI

Opinion of the Court II This Court first considered a First Amendment challenge to a trademark registration restriction in Tam, just two Terms ago. There, the Court declared unconstitutional the Lanham Act’s ban on registering marks that “disparage” any “person[], living or dead.” §1052(a). The eight- Justice Court divided evenly between two opinions and could not agree on the overall framework for deciding the case. (In particular, no majority emerged to resolve whether a Lanham Act bar is a condition on a government benefit or a simple restriction on speech.) But all the Justices agreed on two propositions. First, if a trademark registration bar is viewpoint-based, it is unconstitutional. See 582 U. S., at ___–___, ___–___ (opinion of ALITO, J.) (slip op., at 1–2, 22–23); id., at ___–___, ___ (opinion of Kennedy, J.) (slip op., at 1–2, 5). And second, the disparagement bar was viewpoint-based. See id., at ___–___, ___–___ (opinion of ALITO, J.) (slip op., at 1–2, 22–23); id., at ___–___ (opinion of Kennedy, J.) (slip op., at 2–5). The Justices thus found common ground in a core postu- late of free speech law: The government may not discriminate against speech based on the ideas or opinions it conveys. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 829–830 (1995) (explaining that viewpoint discrimination is an “egregious form of content discrimination” and is “presumptively unconstitutional”). In Justice Kennedy’s explanation, the disparagement bar allowed a trademark owner to register a mark if it was “positive” about a person, but not if it was “derogatory.” Tam, 582 U. S., at ___ (slip op., at 2). That was the “essence of viewpoint discrimination,” he continued, because “[t]he law thus reflects the Government’s disapproval of a subset of messages it finds offensive.” Id., at ___–___ (slip op., at 2–3). JUSTICE ALITO emphasized that the statute “denie[d] registration to any mark” whose disparaging message was “offensive to a substantial percentage of the

Cite as: 588 U. S. ____ (2019) 5

Opinion of the Court members of any group.” Id., at ___ (slip op., at 22). The bar thus violated the “bedrock First Amendment principle” that the government cannot discriminate against “ideas that offend.” Id., at ___–___ (slip op., at 1–2). Slightly different explanations, then, but a shared conclusion: Viewpoint discrimination doomed the disparagement bar. If the “immoral or scandalous” bar similarly discriminates on the basis of viewpoint, it must also collide with our First Amendment doctrine. The Government does not argue otherwise. In briefs and oral argument, the Gov- ernment offers a theory for upholding the bar if it is viewpoint-neutral (essentially, that the bar would then be a reasonable condition on a government benefit). See Brief for Petitioner 14–26. But the Government agrees that under Tam it may not “deny registration based on the views expressed” by a mark. Tr. of Oral Arg. 24. “As the Court’s Tam decision establishes,” the Government says, “the criteria for federal trademark registration” must be “viewpoint-neutral to survive Free Speech Clause review.” Pet. for Cert. 19. So the key question becomes: Is the “immoral or scandalous” criterion in the Lanham Act viewpoint-neutral or viewpoint-based? It is viewpoint-based. The meanings of “immoral” and “scandalous” are not mysterious, but resort to some dictionaries still helps to lay bare the problem. When is expressive material “immoral”? According to a standard definition, when it is “inconsistent with rectitude, purity, or good morals”; “wicked”; or “vicious.” Webster’s New International Dictionary 1246 (2d ed. 1949). Or again, when it is “opposed to or violating morality”; or “morally evil.” Shorter Oxford English Dictionary 961 (3d ed. 1947). So the Lanham Act permits registration of marks that champion society’s sense of rectitude and morality, but not marks that denigrate those concepts. And when is such material “scandalous”? Says a typical definition, when it “giv[es] offense to the conscience or moral feel-

6 IANCU v. BRUNETTI

Opinion of the Court ings”; “excite[s] reprobation”; or “call[s] out condemnation.” Webster’s New International Dictionary, at 2229. Or again, when it is “shocking to the sense of truth, decency, or propriety”; “disgraceful”; “offensive”; or “disreputable.” Funk & Wagnalls New Standard Dictionary 2186 (1944). So the Lanham Act allows registration of marks when their messages accord with, but not when their messages defy, society’s sense of decency or propriety. Put the pair of overlapping terms together and the statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. The statute favors the former, and disfavors the latter. “Love rules”? “Always be good”? Registration follows. “Hate rules”? “Always be cruel”? Not according to the Lanham Act’s “immoral or scandalous” bar. The facial viewpoint bias in the law results in viewpoint-discriminatory application. Recall that the PTO itself describes the “immoral or scandalous” criterion using much the same language as in the dictionary definitions recited above. See supra, at 3. The PTO, for example, asks whether the public would view the mark as “shocking to the sense of truth, decency, or propriety”; “calling out for condemnation”; “offensive”; or “disreputable.” Brief for Petitioner 6 (internal quotation marks omitted). Using those guideposts, the PTO has refused to register marks communicating “immoral” or “scandalous” views about (among other things) drug use, religion, and terrorism. But all the while, it has approved registration of marks expressing more accepted views on the same topics. See generally Gilson & LaLonde, Trademarks Laid Bare, 101 Trademark Reporter 1476, 1510–1513, 1518– 1522 (2011); Brief for Barton Beebe et al. as Amici Curiae 28–29. Here are some samples. The PTO rejected marks con-

Cite as: 588 U. S. ____ (2019) 7

Opinion of the Court veying approval of drug use (YOU CAN’T SPELL HEALTHCARE WITHOUT THC for pain-relief medica- tion, MARIJUANA COLA and KO KANE for beverages) because it is scandalous to “inappropriately glamoriz[e] drug abuse.” PTO, Office Action of Aug. 28, 2010, Serial No. 85038867; see Office Action of Dec. 24, 2009, Serial No. 77833964; Office Action of Nov. 17, 2009, Serial No. 77671304. But at the same time, the PTO registered marks with such sayings as D.A.R.E. TO RESIST DRUGS AND VIOLENCE and SAY NO TO DRUGS—REALITY IS THE BEST TRIP IN LIFE. See PTO, Reg. No. 2975163 (July 26, 2005); Reg. No. 2966019 (July 12, 2005). Simi- larly, the PTO disapproved registration for the mark BONG HITS 4 JESUS because it “suggests that people should engage in an illegal activity [in connection with] worship” and because “Christians would be morally out- raged by a statement that connects Jesus Christ with illegal drug use.” Office Action of Mar. 15, 2008, Serial No. 77305946. And the PTO refused to register trademarks associating religious references with products (AGNUS DEI for safes and MADONNA for wine) because they would be “offensive to most individuals of the Chris- tian faith” and “shocking to the sense of propriety.” Ex parte Summit Brass & Bronze Works, 59 USPQ 22, 23 (Dec. Com. Pat. 1943); In re Riverbank Canning Co., 95 F. 2d 327, 329 (CCPA 1938). But once again, the PTO approved marks—PRAISE THE LORD for a game and JESUS DIED FOR YOU on clothing—whose message suggested religious faith rather than blasphemy or irrev- erence. See Reg. No. 5265121 (Aug. 15, 2017); Reg. No. 3187985 (Dec. 19, 2006). Finally, the PTO rejected marks reflecting support for al-Qaeda (BABY AL QAEDA and AL-QAEDA on t-shirts) “because the bombing of civilians and other terrorist acts are shocking to the sense of decency and call out for condemnation.” Office Action of Nov. 22, 2004, Serial No. 78444968; see Office Action of Feb. 23,

8 IANCU v. BRUNETTI

Opinion of the Court 2005, Serial No. 78400213. Yet it approved registration of a mark with the words WAR ON TERROR MEMORIAL. Reg. No. 5495362 (Jun. 19, 2018). Of course, all these decisions are understandable. The rejected marks express opinions that are, at the least, offensive to many Ameri- cans. But as the Court made clear in Tam, a law disfavor- ing “ideas that offend” discriminates based on viewpoint, in violation of the First Amendment. 582 U. S., at ___ (opinion of ALITO, J.) (slip op., at 2); see id., at ___–___ (slip op., at 22–23); id., at ___–___ (opinion of Kennedy, J.) (slip op., at 2–3). How, then, can the Government claim that the “immoral or scandalous” bar is viewpoint-neutral? The Government basically asks us to treat decisions like those described above as PTO examiners’ mistakes. See Brief for Petitioner 46. Still more, the Government tells us to ignore how the Lanham Act’s language, on its face, disfavors some ideas. In urging that course, the Government does not dispute that the statutory language—and words used to define it—have just that effect. At oral argument, the Government conceded: “[I]f you just looked at the words like ‘shocking’ and ‘offensive’ on their face and gave them their ordinary meanings[,] they could easily encompass material that was shocking [or offensive] because it expressed an outrageous point of view or a point of view that most members” of society reject. Tr. of Oral Arg. 6. But no matter, says the Government, because the statute is “susceptible of” a limiting construction that would remove this viewpoint bias. Id., at 7 (arguing that the Court should “attempt to construe [the] statute in a way that would render it constitutional”). The Government’s idea, abstractly phrased, is to narrow the statutory bar to “marks that are offensive [or] shocking to a substantial segment of the public because of their mode of expression, independent of any views that they may express.” Id., at 11 (emphasis added); see Brief for Petitioner 27–28. More

Cite as: 588 U. S. ____ (2019) 9

Opinion of the Court concretely, the Government explains that this reinterpre- tation would mostly restrict the PTO to refusing marks that are “vulgar”—meaning “lewd,” “sexually explicit or profane.” Id., at 27, 30. Such a reconfigured bar, the Government says, would not turn on viewpoint, and so we could uphold it. But we cannot accept the Government’s proposal, because the statute says something markedly different. This Court, of course, may interpret “ambiguous statutory language” to “avoid serious constitutional doubts.” FCC v. Fox Television Stations, Inc., 556 U. S. 502, 516 (2009). But that canon of construction applies only when ambiguity exists. “We will not rewrite a law to conform it to constitutional requirements.” United States v. Stevens, 559 U. S. 460, 481 (2010) (internal quotation marks and alteration omitted). So even assuming the Government’s reading would eliminate First Amendment problems, we may adopt it only if we can see it in the statutory language. And we cannot. The “immoral or scandalous” bar stretches far beyond the Government’s proposed construction. The statute as written does not draw the line at lewd, sexually explicit, or profane marks. Nor does it refer only to marks whose “mode of expression,” independent of viewpoint, is particularly offensive. Brief for Petitioner 28 (internal quotation marks omitted). It covers the universe of immoral or scandalous—or (to use some PTO synonyms) offensive or disreputable—material. Whether or not lewd or profane. Whether the scandal and immorality comes from mode or instead from viewpoint. To cut the statute off where the Government urges is not to interpret the statute Congress enacted, but to fashion a new one.* —————— *We reject the dissent’s statutory surgery for the same reason. Al- though conceding that the term “immoral” cannot be saved, the dissent thinks that the term “scandalous” can be read as the Government proposes. See post, at 1–2 (SOTOMAYOR, J., concurring in part and dissenting in part). But that term is not “ambiguous,” as the dissent

10 IANCU v. BRUNETTI

Opinion of the Court And once the “immoral or scandalous” bar is interpreted fairly, it must be invalidated. The Government just barely argues otherwise. In the last paragraph of its brief, the Government gestures toward the idea that the provision is salvageable by virtue of its constitutionally permissible applications (in the Government’s view, its applications to lewd, sexually explicit, or profane marks). See id., at 47. In other words, the Government invokes our First Amendment overbreadth doctrine, and asks us to uphold the statute against facial attack because its unconstitutional applications are not “substantial” relative to “the statute’s plainly legitimate sweep.” Stevens, 559 U. S., at 473 (internal quotation marks omitted). But to begin with, this Court has never applied that kind of analysis to a viewpoint-discriminatory law. In Tam, for example, we did not pause to consider whether the disparagement clause might admit some permissible applications (say, to certain libelous speech) before striking it down. The Court’s finding of viewpoint bias ended the matter. And similarly, it seems unlikely we would compare permissible and impermissible applications if Congress outright banned “offensive” (or to use some other examples, “divisive” or “subversive”) speech. Once we have found that a law “aim[s] at the suppression of ” views, why would it

—————— argues, post, at 3; it is just broad. Remember that the dictionaries define it to mean offensive, disreputable, exciting reprobation, and so forth. See supra, at 5–6; post, at 3 (accepting those definitions). Even if hived off from “immoral” marks, the category of scandalous marks thus includes both marks that offend by the ideas they convey and marks that offend by their mode of expression. And its coverage of the former means that it discriminates based on viewpoint. We say nothing at all about a statute that covers only the latter—or, in the Government’s more concrete description, a statute limited to lewd, sexually explicit, and profane marks. Nor do we say anything about how to evaluate viewpoint-neutral restrictions on trademark registration, see post, at 14–17—because the “scandalous” bar (whether or not attached to the “immoral” bar) is not one.

Cite as: 588 U. S. ____ (2019) 11

Opinion of the Court matter that Congress could have captured some of the same speech through a viewpoint-neutral statute? Tam, 582 U. S., at ___ (opinion of Kennedy, J.) (slip op., at 2). But in any event, the “immoral or scandalous” bar is sub- stantially overbroad. There are a great many immoral and scandalous ideas in the world (even more than there are swearwords), and the Lanham Act covers them all. It therefore violates the First Amendment. We accordingly affirm the judgment of the Court of Appeals. It is so ordered.

Cite as: 588 U. S. ____ (2019) 1

ALITO, J., concurring SUPREME COURT OF THE UNITED STATES ______No. 18–302 ______ANDREI IANCU, UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR, PATENT AND TRADEMARK OFFICE, PETITIONER v. ERIK BRUNETTI

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT [June 24, 2019]

JUSTICE ALITO, concurring. For the reasons explained in the opinion of the Court, the provision of the Lanham Act at issue in this case violates the Free Speech Clause of the First Amendment because it discriminates on the basis of viewpoint and cannot be fixed without rewriting the statute. Viewpoint discrimination is poison to a free society. But in many countries with constitutions or legal traditions that claim to protect freedom of speech, serious viewpoint discrimination is now tolerated, and such discrimination has become increasingly prevalent in this country. At a time when free speech is under attack, it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination. We reaffirm that principle today. Our decision is not based on moral relativism but on the recognition that a law banning speech deemed by government officials to be “immoral” or “scandalous” can easily be exploited for illegitimate ends. Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas. The particular mark in question in this case could

2 IANCU v. BRUNETTI

ALITO, J., concurring be denied registration under such a statute. The term suggested by that mark is not needed to express any idea and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary. The registration of such marks serves only to further coarsen our popular culture. But we are not legislators and cannot substitute a new statute for the one now in force.

Cite as: 588 U. S. ____ (2019) 1

ROBERTS, C. J., concurringOpinion of RinOBERTS part and, C. dissentingJ. in part SUPREME COURT OF THE UNITED STATES ______No. 18–302 ______ANDREI IANCU, UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR, PATENT AND TRADEMARK OFFICE, PETITIONER v. ERIK BRUNETTI

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT [June 24, 2019]

CHIEF JUSTICE ROBERTS, concurring in part and dissenting in part. The Lanham Act directs the Patent and Trademark Office to refuse registration to marks that consist of or comprise “immoral, deceptive, or scandalous matter.” 15 U. S. C. §1052(a). Although the statute lists “immoral” and “scandalous” separately, the PTO has long read those terms together to constitute a unitary bar on “immoral or scandalous” marks. The Government concedes that the provision so read is broad enough to reach not only marks that offend because of their mode of expression (such as vulgarity and profanity) but also marks that offend because of the ideas they convey. The Government urges, however, that the provision can be given a narrowing construction—it can be understood to cover only marks that offend because of their mode of expression. The Court rejects that proposal on the ground that it would in effect rewrite the statute. I agree with the majority that the “immoral” portion of the provision is not susceptible of a narrowing construction that would eliminate its viewpoint bias. As JUSTICE SOTOMAYOR explains, however, the “scandalous” portion of the provision is sus- 2 IANCU v. BRUNETTI

ROBERTS, C. J., concurringOpinion of RinOBERTS part and, C. dissentingJ. in part ceptible of such a narrowing construction. Standing alone, the term “scandalous” need not be understood to reach marks that offend because of the ideas they convey; it can be read more narrowly to bar only marks that offend because of their mode of expression—marks that are obscene, vulgar, or profane. That is how the PTO now understands the term, in light of our decision in Matal v. Tam, 582 U. S. ___ (2017). See Tr. of Oral Arg. 4–5. I agree with JUSTICE SOTOMAYOR that such a narrowing construction is appropriate in this context. I also agree that, regardless of how exactly the trademark registration system is best conceived under our precedents—a question we left open in Tam—refusing registration to obscene, vulgar, or profane marks does not offend the First Amendment. Whether such marks can be registered does not affect the extent to which their owners may use them in commerce to identify goods. No speech is being restricted; no one is being punished. The owners of such marks are merely denied certain additional benefits associated with federal trademark registration. The Gov- ernment, meanwhile, has an interest in not associating itself with trademarks whose content is obscene, vulgar, or profane. The First Amendment protects the freedom of speech; it does not require the Government to give aid and comfort to those using obscene, vulgar, and profane modes of expression. For those reasons, I concur in part and dissent in part. Cite as: 588 U. S. ____ (2019) 1

Opinion of BREYER, J. SUPREME COURT OF THE UNITED STATES ______No. 18–302 ______ANDREI IANCU, UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR, PATENT AND TRADEMARK OFFICE, PETITIONER v. ERIK BRUNETTI

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT [June 24, 2019]

JUSTICE BREYER, concurring in part and dissenting in part. Our precedents warn us against interpreting statutes in ways that would likely render them unconstitutional. Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 397 (1988) (noting that a law “will be upheld” if it is

“ ‘readily susceptible’ to a narrowing construction that would make it constitutional”); United States v. 12 200-ft. Reels of Super 8MM. Film, 413 U. S. 123, 130, n. 7 (1973)

(noting our “duty” to adopt a “ ‘fairly possible’ ” construction by which constitutional doubts “ ‘may be avoided’ ” (quoting United States v. Thirty-seven Photographs, 402 U. S. 363, 369 (1971))). Following these precedents, I agree with JUSTICE SOTOMAYOR that, for the reasons she gives, we should interpret the word “scandalous” in the present statute to refer only to certain highly “vulgar” or “obscene” modes of expression. See post, at 6–7 (opinion concurring in part and dissenting in part). The question, then, is whether the First Amendment permits the Government to rely on this statute, as narrowly construed, to deny the benefits of federal trademark registration to marks like the one at issue here, which involves the use of the term “FUCT” in connection with a

2 IANCU v. BRUNETTI

Opinion of BREYER, J. clothing line that includes apparel for children and in- fants. Like JUSTICE SOTOMAYOR, I believe the answer is “yes,” though my reasons differ slightly from hers. I A In my view, a category-based approach to the First Amendment cannot adequately resolve the problem before us. I would place less emphasis on trying to decide whether the statute at issue should be categorized as an example of “viewpoint discrimination,” “content discrimination,” “commercial speech,” “government speech,” or the like. Rather, as I have written before, I believe we would do better to treat this Court’s speech-related categories not as outcome-determinative rules, but instead as rules of thumb. See Reed v. Town of Gilbert, 576 U. S. ___, ___ (2015) (opinion concurring in judgment) (slip op., at 1). After all, these rules are not absolute. The First Amendment is not the Tax Code. Indeed, even when we consider a regulation that is ostensibly “viewpoint discriminatory” or that is subject to “strict scrutiny,” we sometimes find the regulation to be constitutional after weigh- ing the competing interests involved. See, e.g., Morse v. Frederick, 551 U. S. 393, 397 (2007) (“[S]chools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use”); Williams-Yulee v. Florida Bar, 575 U. S. 433, ___ (2015) (slip op., at 8) (explaining that although

“ ‘it is the rare case’ ” when a statute satisfies strict scrutiny, “those cases do arise” (quoting Burson v. Freeman, 504 U. S. 191, 211 (1992) (plurality opinion))). Unfortunately, the Court has sometimes applied these rules—especially the category of “content discrimination”—too rigidly. In a number of cases, the Court has struck down what I believe are ordinary, valid regulations that pose little or no threat to the speech interests that the

Cite as: 588 U. S. ____ (2019) 3

Opinion of BREYER, J. First Amendment protects. See Janus v. State, County, and Municipal Employees, 585 U. S. ___, ___–___ (2018) (KAGAN, J., dissenting) (slip op., at 27–28); Sorrell v. IMS Health Inc., 564 U. S. 552, 589–592 (2011) (BREYER, J., dissenting); see generally Reed, 576 U. S., at ___–___ (opinion of BREYER, J.) (slip op., at 2–4). Rather than deducing the answers to First Amendment questions strictly from categories, as the Court often does, I would appeal more often and more directly to the values the First Amendment seeks to protect. As I have previously written, I would ask whether the regulation at issue “works speech-related harm that is out of proportion to its justifications.” United States v. Alvarez, 567 U. S. 709, 730 (2012) (opinion concurring in judgment); see Reed, 576 U. S., at ___ (opinion concurring in judgment) (slip op., at 4) (discussing the matter further, particularly in respect to the category of content discrimination). B This case illustrates the limits of relying on rigid First Amendment categories, for the statute at issue does not fit easily into any of these categories. The Court has not decided whether the trademark statute is simply a method of regulating pure “commercial speech.” See Matal v. Tam, 582 U. S. ___, ___ (2017) (opinion of ALITO, J.) (slip op., at 24) (leaving open the question whether trademarks are commercial speech); id., at ___ (opinion of Kennedy, J.) (slip op., at 5) (same). There may be reasons for doubt on that score. Trade- marks, after all, have an expressive component in addition to a commercial one, and the statute does not bar anyone from speaking. To be sure, the statute does regulate the commercial function of trademarks. But it does so in a limited way designed primarily to ensure that a mark identifies the product’s source. See Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U. S. 205, 212 (2000).

4 IANCU v. BRUNETTI

Opinion of BREYER, J. The trademark statute cannot easily be described as a regulation of “government speech,” either. Tam, 582 U. S., at ___–___ (slip op., at 12–18). The Government, however, may be loosely associated with the mark because it registers the mark and confers certain benefits upon the owner. What about the concept of a “public forum”? Trademark registration has little in common with a traditional public forum, as the register of trademarks is not a public park, a street, or a similar forum for public debate. See Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 45 (1983). But one can find some vague resemblance between trademark registration and what this Court refers to as a “limited public forum” created by the government for private speech. See post, at 15 (opinion of SOTOMAYOR, J.); Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez, 561 U. S. 661, 679, n. 11 (2010). The trademark registration system also bears some resemblance to cases involving government subsidies for private speech, as such programs—like trademark registration—may grant a benefit to some forms of speech without prohibiting other forms of speech. See post, at 15 (opinion of SOTOMAYOR, J.); Legal Services Corporation v. Velazquez, 531 U. S. 533, 543–544 (2001) (noting that the First Amendment rules applicable to limited public forums may be “instruc[tive]” “when the government establishes a subsidy for specified ends”). As for the concepts of “viewpoint discrimination” and “content discrimination,” I agree with JUSTICE SOTOMAYOR that the boundaries between them may be difficult to discern. Post, at 10; see Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 831 (1995) (“[T]he distinction is not a precise one”). Even so, it is hard to see how a statute prohibiting the registration of only highly vulgar or obscene words discriminates based on “viewpoint.” Of course, such words often evoke powerful emotions. Standing by themselves, however, these

Cite as: 588 U. S. ____ (2019) 5

Opinion of BREYER, J. words do not typically convey any particular viewpoint. See FCC v. Pacifica Foundation, 438 U. S. 726, 746, n. 22 (1978) (noting that the Government’s regulation of vulgar words was based not on “point of view,” but on “the way in which [speech] is expressed”). Moreover, while a restriction on the registration of highly vulgar words arguably places a content-based limit on trademark registration, it is hard to see why that label should be outcome- determinative here, for regulations governing trademark registration “inevitably involve content discrimination.” Reed, 576 U. S., at ___ (opinion of BREYER, J.) (slip op., at 3); see Tam, 582 U. S., at ___ (opinion of Kennedy, J.) (slip op., at 6) (noting that the constitutionality of some content-based trademark restrictions is “well settled”); Katyal, Trademark Intersectionality, 57 UCLA L. Rev. 1601, 1602 (2010) (noting that trademark law is “indelibly rooted in content-based considerations”). In short, the trademark statute does not clearly fit within any of the existing outcome-determinative categories. Why, then, should we rigidly adhere to these categories? Rather than puzzling over categorization, I believe we should focus on the interests the First Amendment protects and ask a more basic proportionality question: Does “the regulation at issue wor[k] harm to First Amendment interests that is disproportionate in light of the relevant regulatory objectives”? Reed, 576 U. S., at ___ (opinion of BREYER, J.) (slip op., at 4). II Based on this proportionality analysis, I would conclude that the statute at issue here, as interpreted by JUSTICE SOTOMAYOR, does not violate the First Amendment. How much harm to First Amendment interests does a bar on registering highly vulgar or obscene trademarks work? Not much. The statute leaves businesses free to use highly vulgar or obscene words on their products, and

6 IANCU v. BRUNETTI

Opinion of BREYER, J. even to use such words directly next to other registered marks. Indeed, a business owner might even use a vulgar word as a trademark, provided that he or she is willing to forgo the benefits of registration. See post, at 2 (opinion of SOTOMAYOR, J.); Tam, 582 U. S., at ___–___ (slip op., at 4–5). Moreover, the field at issue here, trademark law, is a highly regulated one with a specialized mission: to “hel[p] consumers identify goods and services that they wish to purchase, as well as those they want to avoid.” Id., at ___ (slip op., at 2). As I have noted, that mission, by its very nature, requires the Government to impose limitations on speech. Supra, at 5. Trademark law therefore forbids the registration of certain types of words—for example, those that will likely “cause confusion,” or those that are “merely descriptive.” 15 U. S. C. §§1052(d), (e). For that reason, an applicant who seeks to register a mark should not expect complete freedom to say what she wishes, but should instead expect linguistic regulation. Now consider, by way of contrast, the Government’s interests in barring the registration of highly vulgar or obscene trademarks. For one thing, when the Government registers a mark, it is necessarily “involv[ed] in promoting” that mark. Post, at 18 (opinion of SOTOMAYOR, J.). The Government has at least a reasonable interest in ensuring that it is not involved in promoting highly vulgar or obscene speech, and that it will not be associated with such speech. For another, scientific evidence suggests that certain highly vulgar words have a physiological and emotional impact that makes them different in kind from most other words. See M. Mohr, Holy S***: A Brief History of Swear- ing 252 (2013) (Mohr) (noting the “emotional impact” of certain profane words that “excite the lower-brain circuitry responsible for emotion,” resulting in “electrical impulses that can be measured in the skin”). These vulgar words

Cite as: 588 U. S. ____ (2019) 7

Opinion of BREYER, J. originate in a different part of our brains than most other words. Id., at 250. And these types of swear words tend to attract more attention and are harder to forget than other words. See Jay, Caldwell-Harris, & King, Recalling Taboo and Nontaboo Words, 121 Am. J. Psych. 83, 83–86 (2008) (collecting research). Notably, that has remained true even as the list of offensive swear words has changed over time: In the last few centuries, the list has evolved away from words of religious disrespect and toward words that are sexually explicit or that crudely describe bodily functions. Mohr 253. And the list of swear words may be evolving yet again, perhaps in the direction of including race-based epithets. Id., at 254, 256. These attention-grabbing words, though financially valuable to some businesses that seek to attract interest in their products, threaten to distract consumers and disrupt commerce. And they may lead to the creation of public spaces that many will find repellant, perhaps on occasion creating the risk of verbal altercations or even physical confrontations. (Just think about how you might react if you saw someone wearing a t-shirt or using a product emblazoned with an odious racial epithet.) The Govern- ment thus has an interest in seeking to disincentivize the use of such words in commerce by denying the benefit of trademark registration. Cf. Brandenburg v. Ohio, 395 U. S. 444, 447 (1969) (per curiam) (permitting regulation of words “directed to inciting or producing imminent law- less action” and “likely to incite or produce such action”). Finally, although some consumers may be attracted to products labeled with highly vulgar or obscene words, others may believe that such words should not be displayed in public spaces where goods are sold and where children are likely to be present. They may believe that trademark registration of such words could make it more likely that children will be exposed to public displays involving such words. To that end, the Government may

8 IANCU v. BRUNETTI

Opinion of BREYER, J. have an interest in protecting the sensibilities of children by barring the registration of such words. See Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 743 (1996) (plurality opinion) (noting the Government’s interest in “protec[ting] children from expo- sure to patently offensive sex-related material”); Ginsberg v. New York, 390 U. S. 629, 640 (1968) (noting the government’s “interest in the well-being of its youth”). The upshot of this analysis is that the narrowing construction articulated by JUSTICE SOTOMAYOR risks some harm to First Amendment interests, but not very much. And applying that interpretation seems a reasonable way—perhaps the only way—to further legitimate government interests. Of course, there is a risk that the statute might be applied in a manner that stretches it beyond the few vulgar words that are encompassed by the narrow interpretation JUSTICE SOTOMAYOR sets forth. That risk, however, could be mitigated by internal agency review to ensure that agency officials do not stray beyond their mandate. In any event, I do not believe that this risk alone warrants the facial invalidation of this statute. I would conclude that the prohibition on registering “scandalous” marks does not “wor[k] harm to First Amendment interests that is disproportionate in light of the relevant regulatory objectives.” Reed, 576 U. S., at ___ (opinion of BREYER, J.) (slip op., at 4). I would therefore uphold this part of the statute. I agree with the Court, however, that the bar on registering “immoral” marks violates the First Amendment. Because JUSTICE SOTOMAYOR reaches the same conclusions, using roughly similar reasoning, I join her opinion insofar as it is consistent with the views set forth here.

Cite as: 588 U. S. ____ (2019) 1

Opinion of SOTOMAYOR, J. SUPREME COURT OF THE UNITED STATES ______No. 18–302 ______ANDREI IANCU, UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR, PATENT AND TRADEMARK OFFICE, PETITIONER v. ERIK BRUNETTI

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT [June 24, 2019]

JUSTICE SOTOMAYOR, with whom JUSTICE BREYER joins, concurring in part and dissenting in part. The Court’s decision today will beget unfortunate results. With the Lanham Act’s scandalous-marks provision, 15 U. S. C. §1052(a), struck down as unconstitutional viewpoint discrimination, the Government will have no statutory basis to refuse (and thus no choice but to begin) registering marks containing the most vulgar, profane, or obscene words and images imaginable. The coming rush to register such trademarks—and the Government’s immediate powerlessness to say no—is eminently avoidable. Rather than read the relevant text as the majority does, it is equally possible to read that provision’s bar on the registration of “scandalous” marks to address only obscenity, vulgarity, and profanity. Such a narrowing construction would save that duly enacted legislative text by rendering it a reasonable, viewpoint- neutral restriction on speech that is permissible in the context of a beneficial governmental initiative like the trademark-registration system. I would apply that narrowing construction to the term “scandalous” and accordingly reject petitioner Erik Brunetti’s facial challenge.

2 IANCU v. BRUNETTI

Opinion of SOTOMAYOR, J. I Trademark registration, as the majority notes, is not required for using, owning, or suing others for infringing a trademark. Rather, the trademark-registration system is an ancillary system set up by the Government that confers a small number of noncash benefits on trademark-holders who register their marks. See ante, at 2. The Government need not provide this largely commercial benefit at all. Once the Government does provide the benefit, however, it may not restrict access on the basis of the viewpoint expressed by the relevant mark. See ante, at 4–5. For that reason, the Court concluded in Matal v. Tam, 582 U. S. ___ (2017), that §1052(a)’s provision directing the U. S. Patent and Trademark Office (PTO) to deny registration to “disparag[ing]” trademarks was unconstitutional. This case centers on a neighboring set of restrictions: §1052(a)’s provision barring registration of marks featuring “immoral . . . or scandalous matter.” The majority finds viewpoint discrimination here by treating the terms “scandalous” and “immoral” as compris- ing a unified standard that allows messages “aligned with conventional moral standards” but forbids messages “hostile to” such standards. See ante, at 6. While the majority’s interpretation of the statute is a reasonable one, it is not the only reasonable one. A As the majority notes, there are dictionary definitions for both “immoral” and “scandalous” that do suggest a viewpoint-discriminatory meaning. See ante, at 5–6. And as for the word “immoral,” I agree with the majority that there is no tenable way to read it that would ameliorate the problem. The word clearly connotes a preference for “rectitude and morality” over its opposite. See ante, at 5. It is with regard to the word “scandalous” that I part ways with the majority. Unquestionably, “scandalous” can

Cite as: 588 U. S. ____ (2019) 3

Opinion of SOTOMAYOR, J. mean something similar to “immoral” and thus favor some viewpoints over others. See ante, at 6. But it does not have to be read that way. To say that a word or image is “scandalous” can instead mean that it is simply indecent, shocking, or generally offensive. See Funk & Wagnalls New Standard Dictionary 2186 (1944) (Funk & Wagnalls) (“shocking to the sense of truth, decency, or propriety; disgraceful, offensive” (emphasis added)); Webster’s New International Dictionary 2229 (1942) (“exciting reprobation; calling out condemnation”); 9 Oxford English Diction- ary 175 (1933) (“Of the nature of, or causing, a ‘stumbling- block’ or occasion of offence”); 8 Century Dictionary and Cyclopedia 5374 (1911) (Century Dictionary) (“Caus- ing scandal or offense; exciting reproach or reprobation; extremely offensive to the sense of duty or propriety; shameful; shocking”); see also Webster’s New College Dictionary 1008 (3d ed. 2005) (“shocking or offensive”). That offensiveness could result from the views expressed, but it could also result from the way in which those views are expressed: using a manner of expression that is “shocking to [one’s] sense of . . . decency,” Funk & Wag- nalls 2186, or “extremely offensive to the sense of . . . propriety,” 8 Century Dictionary 5374. The word “scandalous” on its own, then, is ambiguous: It can be read broadly (to cover both offensive ideas and offensive manners of expressing ideas), or it can be read narrowly (to cover only offensive modes of expression). That alone raises the possibility that a limiting construction might be appropriate. But the broader text confirms the reasonableness of the narrower reading, because the word “scandalous” appears in the statute alongside other words that can, and should, be read to constrain its scope. It is foundational “that a statute is to be read as a whole, since the meaning of statutory language, plain or not, depends on context.” King v. St. Vincent’s Hospital,

502 U. S. 215, 221 (1991) (citation omitted). “ ‘Words are

4 IANCU v. BRUNETTI

Opinion of SOTOMAYOR, J. not pebbles in alien juxtaposition; they have only a com- munal existence; and not only does the meaning of each interpenetrate the other, but all in their aggregate take their purport from the setting in which they are used.’ ” Ibid. (quoting NLRB v. Federbush Co., 121 F. 2d 954, 957 (CA2 1941) (L. Hand, J.)). Accordingly, and relatedly, courts should, to the extent possible, read statutes so that

“ ‘no clause, sentence, or word shall be superfluous, void, or insignificant.’ ” TRW Inc. v. Andrews, 534 U. S. 19, 31 (2001).1 Here, Congress used not only the word “scandalous,” but also the words “immoral” and “disparage,” in the same block of statutory text—each as a separate feature that could render a mark unregistrable. See §1052(a). Tam already decided that “disparage” served to prohibit marks that were offensive because they derided a particular person or group. See 582 U. S., at ___ (opinion of ALITO, J.) (slip op., at 22) (“It denies registration to any mark that is offensive to a substantial percentage of the members of any group”); id., at ___ (opinion of Kennedy, J.) (slip op., at 2) (“[A]n applicant may register a positive or benign mark but not a derogatory one”). That defines one of the three words. Meanwhile, as the majority explains, the word “immoral” prohibits marks that are offensive because they transgress widely held moral beliefs. See ante, at 5. That defines a second of the three words. With marks that are offensive because they are disparaging and marks that are offensive because they are immoral already covered, what work did Congress intend for —————— 1 For example, McDonnell v. United States, 579 U. S. ___ (2016), involved a statute that defined an “ ‘official act’ ” as “ ‘any decision or action on any question, matter, cause, suit, proceeding or controversy.’ ” Id., at ___ (slip op., at 13). The Court declined to read “ ‘question’ ” and “ ‘matter’ ” as covering “a typical meeting, call, or event arranged by a public official” because doing so would deprive the words “ ‘cause, suit, proceeding or controversy’ ” of meaning. Id., at ___ (slip op., at 16).

Cite as: 588 U. S. ____ (2019) 5

Opinion of SOTOMAYOR, J. “scandalous” to do? A logical answer is that Congress meant for “scandalous” to target a third and distinct type of offensiveness: offensiveness in the mode of communica- tion rather than the idea. The other two words cover marks that are offensive because of the ideas they express; the “scandalous” clause covers marks that are offensive because of the mode of expression, apart from any particular message or idea. To be sure, there are situations in which it makes sense to treat adjoining words as expressing the same or highly similar concepts (even at the risk of some redundancy). Cf. Swearingen v. United States, 161 U. S. 446, 450 (1896)

(construing “ ‘obscene, lewd or lascivious’ ” to have a unified meaning). That is essentially the approach that the majority takes. See ante, at 6.2 But that is not the approach that Congress appears to have intended here. For example, “scandalous” does not serve as a broader catchall at the end of a list of similar words that all point in one direction. E.g., Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U. S. 371, 384 (2003). Nor is “scandalous” simply grouped among a number of closely related terms that help define its meaning. E.g., Gustafson v. Alloyd Co., 513 U. S. 561, 575 (1995). The text of §1052, instead, is a grab bag: It bars the registration of marks featuring “immoral, deceptive, or scandalous matter,” as well as, inter alia, disparaging marks, flags, insignias, mislabeled wines, and deceased Presidents. See §§1052(a)–(e). This is not, in other words, a situation in which Congress was simply being “verbos[e] —————— 2 That interpretive move appears to accord with the Federal Circuit and the PTO’s past practice. Ante, at 2–3. Nevertheless, it is by no means the only reasonable way to read this text, and indeed some courts have suggested that “scandalous” can and should be applied independently of “immoral,” see, e.g., In re McGinley, 660 F. 2d 481, 485, n. 6 (CCPA 1981).

6 IANCU v. BRUNETTI

Opinion of SOTOMAYOR, J. and proli[x],” Bruesewitz v. Wyeth LLC, 562 U. S. 223, 236 (2011), using two synonyms in rapid-fire succession when one would have done fine. Instead, “scandalous” and “immoral” are separated by an unrelated word (“deceptive”) and mixed in with a lengthy series of other, unrelated concepts. The two therefore need not be interpreted as mutually reinforcing under the Court’s precedents. See Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. 280, 288 (2010). For that reason, while the majority offers a reasonable reading of “scandalous,” it also unnecessarily and ill- advisedly collapses the words “scandalous” and “immoral.” Instead, it should treat them as each holding a distinct, nonredundant meaning, with “immoral” covering marks that are offensive because they transgress social norms, and “scandalous” covering marks that are offensive because of the mode in which they are expressed. What would it mean for “scandalous” in §1052(a) to cover only offensive modes of expression? The most obvious ways—indeed, perhaps the only conceivable ways—in which a trademark can be expressed in a shocking or offensive manner are when the speaker employs obscenity, vulgarity, or profanity.3 Obscenity has long been defined by this Court’s decision in Miller v. California, 413 U. S. 15 (1973). See id., at 24–26. As for what constitutes “scandalous” vulgarity or profanity, I do not offer a list, but I do interpret the term to allow the PTO to restrict (and potentially promulgate guidance to clarify) the small group of lewd words or “swear” words that cause a visceral reaction, that are not commonly used around children, and that are prohibited in comparable settings.4 Cf. 18 —————— 3 Other modes of expression, such as fighting words or extremely loud noises, could also be called shocking or offensive in certain contexts, see R. A. V. v. St. Paul, 505 U. S. 377, 386 (1992), but it is hard to see how they would apply in the context of a trademark. 4 Although the Government represents, and case law and scholarship

Cite as: 588 U. S. ____ (2019) 7

Opinion of SOTOMAYOR, J. U. S. C. §1464 (prohibiting “obscene, indecent, or profane language” in radio communications); FCC v. Pacifica Foundation, 438 U. S. 726, 746, and n. 22 (1978) (opinion of Stevens, J.) (regulator’s objection to a monologue containing various “four-letter words” was not to its “point of view, but to the way in which it [wa]s expressed”); 46 CFR §67.117(b)(3) (2018) (Coast Guard regulation prohibiting vessel names that “contain” or are “phonetically identical to obscene, indecent, or profane language, or to racial or ethnic epithets”); see also Jacobs, The Public Sensibilities Forum, 95 Nw. U. L. Rev. 1357, 1416–1417, and n. 432 (2001) (noting that “swear words” are “perhaps more than any other categor[y] capable of specific articulation” and citing one state agency’s list). Of course, “scandalous” offers its own limiting principle: if a word, though not exactly polite, cannot be said to be “scandalous”—e.g., “shocking” or “extremely offensive,” 8 Century Dictionary 5374—it is clearly not the kind of vulgarity or profanity that Congress intended to target. Everyone can think of a small number of words (including the apparent homonym of Brunetti’s mark) that would, however, plainly qualify.5 —————— appear to confirm, that “scandalous” in §1052(a) has often been applied to cover this kind of content, see Brief for United States 27; In re Boulevard Entertainment, Inc., 334 F. 3d 1336, 1340 (CA Fed. 2003); Snow, Denying Trademark for Scandalous Speech, 51 U. C. D. L. Rev. 2331, 2339 (2018) (Snow), the majority notes that the PTO has hardly amassed a perfect track record of consistency, see ante, at 6–8. Be that as it may, the Government undeniably receives a large volume of trademark applications that easily would fit under this rubric (examples of which I will spare the reader). See In re Brunetti, 877 F. 3d 1330, 1355 (CA Fed. 2017) (noting an appendix containing marks denied registration “whose offensiveness cannot be reasonably questioned”). As a result of today’s ruling, all of those marks will now presumably have to be registered. 5 There is at least one particularly egregious racial epithet that would fit this description as well. While Matal v. Tam, 582 U. S. ___ (2017), removed a statutory basis to deny the registration of racial epithets in general, the Government represented at oral argument that it is

8 IANCU v. BRUNETTI

Opinion of SOTOMAYOR, J. B A limiting construction like the one just discussed is both appropriate in this context and consistent with past precedent. First, while a limiting construction must always be at least reasonable, there are contexts in which imposing such a construction is more appropriate than others. The most obvious example of a setting where more caution is required is in the realm of criminal statutes, where considerations such as the prohibition against vagueness and the rule of lenity come into play. See Reno v. American Civil Liberties Union, 521 U. S. 844, 872 (1997) (noting that “[t]he severity of criminal sanctions” can increase First Amendment concerns); Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569, 575–576 (1987) (declining to apply a limiting construction to a provision that banned “ ‘First Amendment activities’ ” from an airport and noting that the limiting construction proposed would “‘confe[r] on police a virtually unrestrained power to arrest and charge persons with a violation,’ ” leading to “ ‘self-evident’ ” “ ‘opportunity for abuse’ ”). Here, however, the question is only whether the Government must be forced to provide the ancillary benefit of trademark registration to pre-existing trademarks that use even the most extreme obscenity, vulgarity, or profanity. The stakes are far removed from a situation in which, say, Brunetti was facing a threat to his liberty, or even his right to use and enforce his trademark in commerce. Second, the Court has in the past accepted or applied similarly narrow constructions to avoid constitutional

—————— holding in abeyance trademark applications that use that particular epithet. See Tr. of Oral Arg. 61. As a result of today’s ruling, the Government will now presumably be compelled to register marks containing that epithet as well rather than treating it as a “scandalous” form of profanity under §1052(a).

Cite as: 588 U. S. ____ (2019) 9

Opinion of SOTOMAYOR, J. infirmities. In Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), for example, the Court accepted the New Hampshire Supreme Court’s narrowing of a state statute covering “ ‘any offensive, derisive or annoying word,’ ” id., at 569, to reach only those words that would strike the average person as being “plainly likely to cause a breach of the peace by the addressee,” id., at 573. “[T]hus construed,” this Court decided, the statute did not violate the right to free speech. Ibid.; see also Boos v. Barry, 485 U. S. 312, 329–330 (1988) (accepting Court of Appeals’ construction of a statute making it illegal “ ‘to congregate within 500 feet of any [embassy, legation, or consulate] and refuse to disperse after having been ordered so to do by the police’ ” to reach only “congregations that are directed at an embassy” and “ ‘only when the police reasonably believe that a threat to the security or peace of the embassy is present’ ”). In Frisby v. Schultz, 487 U. S. 474 (1988), the Court addressed an ordinance that prohibited “ ‘picketing before or about the residence or dwelling of any individual.’ ” Id., at 477. The Court construed the statute to reach only “focused picketing taking place solely in front of a particular residence.” Id., at 483. Given that “narrow scope,” the statute was not facially unconstitutional. Id., at 488; see also In re Brunetti, 877 F. 3d 1330, 1358 (CA Fed. 2017) (Dyk, J., concurring in judgment) (noting this Court’s narrow constructions of federal obscenity statutes). Taking the word “scandalous” to target only those marks that employ an offensive mode of expression follows a similar practice. To be sure, the word could be read more broadly, thereby sweeping unconstitutionally into viewpoint discrimination. And imposing a limiting construction is, of course, “not a license for the judiciary to rewrite language enacted by the legislature.” United States v. Albertini, 472 U. S. 675, 680 (1985). But where the Court can reasonably read a statute like this one to

10 IANCU v. BRUNETTI

Opinion of SOTOMAYOR, J. save it, the Court should do so. See Stern v. Marshall, 564 U. S. 462, 477–478 (2011); NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 30 (1937). II Adopting a narrow construction for the word “scandalous”—interpreting it to regulate only obscenity, vulgarity, and profanity—would save it from unconstitutionality. Properly narrowed, “scandalous” is a viewpoint-neutral form of content discrimination that is permissible in the kind of discretionary governmental program or limited forum typified by the trademark-registration system. A Content discrimination occurs whenever a government regulates “particular speech because of the topic discussed or the idea or message expressed.” Reed v. Town of Gil- bert, 576 U. S. ___, ___ (2015) (slip op., at 6); see also Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989) (“Gov- ernment regulation of expressive activity is content neutral so long as it is ‘justified without reference to the content of the regulated speech’ ”). Viewpoint discrimination is “an egregious form of content discrimination” in which “the government targets not subject matter, but particular views taken by speakers on a subject.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 829 (1995). While the line between viewpoint-based and viewpoint- neutral content discrimination can be “slippery,” see Corbin, Mixed Speech: When Speech Is Both Private and Governmental, 83 N. Y. U. L. Rev. 605, 651 (2008), it is in any event clear that a regulation is not viewpoint discriminatory (or even content discriminatory) simply because it has an “incidental effect” on a certain subset of views. Ward, 491 U. S., at 791. Some people, for example, may have the viewpoint that society should be more sexually

Cite as: 588 U. S. ____ (2019) 11

Opinion of SOTOMAYOR, J. liberated and feel that they cannot express that view sufficiently without the use of pornographic words or images. That does not automatically make a restriction on pornography into viewpoint discrimination, despite the fact that such a restriction limits communicating one’s views on sexual liberation in that way. See ibid.; Renton v. Playtime Theatres, Inc., 475 U. S. 41, 48 (1986). Restrictions on particular modes of expression do not inherently qualify as viewpoint discrimination; they are not by nature examples of “the government target[ing] . . . particular views taken by speakers on a subject.” Rosen- berger, 515 U. S., at 829. For example, a ban on lighting fires in the town square does not facially violate the First Amendment simply because it makes it marginally harder for would-be flag-burners to express their views in that place. See R. A. V. v. St. Paul, 505 U. S. 377, 385 (1992). By the same token, “fighting words are categorically ex- cluded from the protection of the First Amendment” not because they have no content or express no viewpoint (often quite the opposite), but because “their content em- bodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey.” Id., at 393; see id., at 385–386; cf. Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 84 (1983) (Ste- vens, J., concurring in judgment) (“It matters whether a law regulates communications for their ideas or for their style”). A restriction on trademarks featuring obscenity, vulgarity, or profanity is similarly viewpoint neutral, though it is naturally content-based.6 See R. A. V., 505 U. S., at 383 —————— 6 Of course, obscenity itself is subject to a longstanding exception to First Amendment protection, see Brown v. Entertainment Merchants Assn., 564 U. S. 786, 791 (2011), so it is proscribable in any event. As for vulgarity and profanity, however, they are not subject to any such exception, and a regulation like §1052(a)’s ban on the registration of scandalous marks is not “ ‘justified without reference to the content of

12 IANCU v. BRUNETTI

Opinion of SOTOMAYOR, J. (kinds of speech like “obscenity, defamation, etc.” may “be regulated because of their constitutionally proscribable content” (emphasis deleted)); see also Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 685 (1986) (treating punishment of “offensively lewd and indecent speech” as viewpoint neutral); Pacifica, 438 U. S., at 745–746, and n. 22 (treating regulation of profane monologue as viewpoint neutral). Indeed, the statute that the Court upheld in Chaplinsky itself had been construed to cover, among other kinds of “disorderly words,” “profanity, obscenity and threats,” 315 U. S., at 573, despite the fact that such words had been used in that case to communicate an expressive message, id., at 574. To treat a restriction on vulgarity, profanity, or obscenity as viewpoint discrimination would upend decades of precedent.7 Brunetti invokes Cohen v. California, 403 U. S. 15 (1971), to argue that the restriction at issue here is viewpoint discriminatory. But Cohen—which did not employ the precise taxonomy that is more common today—does not reach as far as Brunetti wants. Cohen arose in the criminal context: Cohen had been arrested and imprisoned under a California criminal statute targeting disturbances of the peace because he was “wearing a jacket bearing the words ‘F[***] the Draft.’ ” Id., at 16. The Court held that applying that statute to Cohen because of his jacket violated the First Amendment. Id., at 26. But the Court did —————— the regulated speech’ ” in the way that a simple regulation of time, place, or manner is. Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989) (emphasis deleted). 7 It would also risk destabilizing government practice in a number of other contexts. Governments regulate vulgarity and profanity, for example, on city-owned buses and billboards, e.g., American Freedom Defense Initiative v. Massachusetts Bay Transp. Auth., 989 F. Supp. 2d 182, 183 (Mass. 2013) (noting such a prohibition), on registered vessels, 46 CFR §67.117(b)(3) (Coast Guard regulations), and at school events, e.g., Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 677–678, 685 (1986) (upholding discipline of high school student).

Cite as: 588 U. S. ____ (2019) 13

Opinion of SOTOMAYOR, J. not suggest that the State had targeted Cohen to suppress his view itself (i.e., his sharp distaste for the draft), such that it would have accepted an equally colorful statement of praise for the draft (or hostility toward war protesters). Rather, the Court suggested that the State had simply engaged in what later courts would more precisely call viewpoint-neutral content discrimination—it had regulated “the form or content of individual expression.” Id., at 24; see id., at 25–26. Cohen also famously recognized that “words are often chosen as much for their emotive as their cognitive force,” id., at 26, and that “one man’s vulgarity is another’s lyric,” id., at 25. That is all consistent with observing that a plain, blanket restriction on profanity (regardless of the idea to which it is attached) is a viewpoint-neutral form of content discrimination. The essence of Cohen’s discussion is that profanity can serve to tweak (or amplify) the viewpoint that a message expresses, such that it can be hard to disentangle the profanity from the underlying message— without the profanity, the message is not quite the same. See id., at 25–26. But those statements merely reinforce that profanity is still properly understood as protected First Amendment content. See also R. A. V., 505 U. S., at 384–385. Cohen’s discussion does not also go further to declare, as Brunetti suggests, that a provision that treats all instances of profanity equally is nevertheless by nature an instance of “the government target[ing] . . . particular views taken by speakers on a subject.” Rosenberger, 515 U. S., at 829. To be sure, such a restriction could have the incidental effect of tamping down the overall volume of debate on all sides. But differential effects alone, as explained above, do not render a restriction viewpoint (or even content) discriminatory. See Ward, 491 U. S., at 791–792.8 —————— 8 That does not mean, of course, that a government may elude harsher

14 IANCU v. BRUNETTI

Opinion of SOTOMAYOR, J. Cohen therefore does not resolve this case in Brunetti’s favor. Yes, Brunetti has been, as Cohen was, subject to content discrimination, but that content discrimination is properly understood as viewpoint neutral. And whereas even viewpoint-neutral content discrimination is (in all but the most compelling cases, such as threats) impermissible in the context of a criminal prosecution like the one that Cohen faced, Brunetti is subject to such regulation only in the context of the federal trademark-registration system. I discuss next why that distinction matters. B While the Court has often subjected even viewpoint- neutral content discrimination to strict constitutional scrutiny, see, e.g., Reed, 576 U. S., at ___ (slip op., at 6), there are contexts in which it does not, see, e.g., Rosen- berger, 515 U. S., at 829–830. When that is the case, the difference between viewpoint-based and viewpoint-neutral content discrimination can be decisive. The federal trademark-registration system is such a context. Rights to a trademark itself arise through use, not registration. Regardless of whether a trademark is registered, it can be used, owned, and enforced against would- be infringers. See B&B Hardware, Inc. v. Hargis Indus- tries, Inc., 575 U. S. ___, ___, ___ (2015) (slip op., at 3, 5). Trademark registration, meanwhile, confers several ancil- —————— scrutiny or invalidation of a regulation by simply claiming disinter- est in a speaker’s message, see United States v. Eichman, 496 U. S. 310, 315–317 (1990), or by concealing an attempt to favor some views over others in superficially neutral garb, see Renton v. Playtime Thea- tres, Inc., 475 U. S. 41, 46–49 (1986); cf. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 533–534 (1993). But there is no evidence in the record from which to conclude that Congress enacted the scandalous- marks provision in order to advantage certain views over others. And where a denial of trademark registration by the PTO raises such a concern, it would be proper for an applicant to bring an as-applied challenge. See infra, at 18–19.

Cite as: 588 U. S. ____ (2019) 15

Opinion of SOTOMAYOR, J. lary benefits on trademark-holders who meet Congress’ specifications, including for example, additional protec- tions against infringers. See ante, at 2; Tam, 582 U. S., at ___ (slip op., at 5). Registering a mark in the Govern- ment’s searchable register puts the world on notice (whether actual or constructive) that a party is asserting ownership of that mark.9 Registration, in short, is a help- ful system, but it is one that the Government is under no obligation to establish and that is collateral to the existence and use of trademarks themselves. There is no evidence that speech or commerce would be endangered if the Government were not to provide it at all. When the Court has talked about governmental initiatives like this one before, it has usually used one of two general labels. In several cases, the Court has treated such initiatives as a limited public (or nonpublic) forum. See, e.g., Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez, 561 U. S. 661, 669–

670, 682 (2010) (“ ‘Registered Student Organization’ ” program providing various financial and nonfinancial benefits to recognized law-school student groups); Rosen- berger, 515 U. S., at 823–824, 829–830 (“Student Activities Fund” for registered campus student groups); Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 790–791, 799–801, 806 (1985) (“Combined Federal Cam- paign” literature enabling approved charitable organizations to solicit donations from federal employees). In other situations, the Court has discussed similar initiatives as government programs or subsidies. See, e.g., Legal Ser- vices Corporation v. Velazquez, 531 U. S. 533, 536, 543– 544 (2001) (government program distributing funds to legal-services organizations); National Endowment for

—————— 9 See 15 U. S. C. §1072; U. S. Patent & Trademark Office, Search Trademark Database, https://www.uspto.gov/trademarks-application- process/search-trademark-database (as last visited June 20, 2019).

16 IANCU v. BRUNETTI

Opinion of SOTOMAYOR, J. Arts v. Finley, 524 U. S. 569, 573, 585–587 (1998) (compet- itive government grant-making program to support the arts).10 In each of these situations, a governmental body established an initiative that supported some forms of expression without restricting others. Some speakers were better off, but no speakers were worse off. Regardless of the finer distinctions between these labels, reasonable, viewpoint-neutral content discrimination is generally permissible under either framework. See Chris- tian Legal Soc., 561 U. S., at 679 (“Any access barrier must be reasonable and viewpoint neutral”); Velazquez, 531 U. S., at 543–544, 548–549 (analogizing to limited- forum cases and explaining that “[w]here private speech is involved, even Congress’ antecedent funding decision cannot be aimed at the suppression of ideas thought inim- ical to the Government’s own interest”); see also Ysursa v. Pocatello Ed. Assn., 555 U. S. 353, 355 (2009) (finding government conduct that did not restrict speech but simply “decline[d] to promote” it valid where it was “reasonable in light of the State’s interest”). Perhaps for that reason, the Court has often discussed the two frameworks as at least closely related. See, e.g., Christian Legal Society, 561 U. S., at 682 (“[T]his case fits comfortably within the limited-public forum category, for [the plaintiff], in seek-

—————— 10 In Tam, four Justices concluded that cash-subsidy programs like the one in Finley were “not instructive in analyzing” trademark registration. 582 U. S., at ___ (opinion of ALITO, J.) (slip op., at 20). Trade- mark registration differs, of course, because any “subsidy” comes in the form of a noncash benefit, but that difference does not foreclose understanding the registration system as a beneficial, noncash governmental program. No Justice, meanwhile, rejected the limited-public-forum analogy, see id., at ___–___, and n. 16 (slip op., at 22–23, and n. 16) (calling such cases “[p]otentially more analogous” and reserving the question), and scholars have noted arguments for adopting it. See Snow 2364–2366; Katyal, Trademark Intersectionality, 57 UCLA L. Rev. 1601, 1676–1681 (2010); Lefstin, Note, Does the First Amendment Bar Cancellation of REDSKINS? 52 Stan. L. Rev. 665, 706–707 (2000).

Cite as: 588 U. S. ____ (2019) 17

Opinion of SOTOMAYOR, J. ing what is effectively a state subsidy, faces only indirect pressure . . . ”); Velazquez, 531 U. S., at 544 (“As this suit involves a subsidy, limited forum cases . . . may not be controlling in a strict sense, yet they do provide some instruction”). Whichever label one chooses here, the federal system of trademark registration fits: It is, in essence, an opportunity to include one’s trademark on a list and thereby secure the ancillary benefits that come with registration.11 Just as in the limited-forum and government-program cases, some speakers benefit, but no speakers are harmed. Brunetti, for example, can use, own, and enforce his mark regardless of whether it has been registered. Whether he may register his mark can therefore turn on reasonable, viewpoint-neutral content regulations.12 C Prohibiting the registration of obscene, profane, or vulgar marks qualifies as reasonable, viewpoint-neutral, content-based regulation. Apart from any interest in regulating commerce itself, the Government has an interest in not promoting certain kinds of speech, whether because such speech could be perceived as suggesting governmental favoritism or simply because the Govern- ment does not wish to involve itself with that kind of speech. See, e.g., Ysursa, 555 U. S., at 359–360; Cornelius, 473 U. S., at 809. While “there is no evidence that the —————— 11 Not every registration system would necessarily fit the same bill, whether because not every such system invites expressive content like trademarks or simply because other forms of registration may not be so ancillary as to qualify solely as a “benefit.” 12 Though I do not address the constitutionality of provisions not before the Court, I note as well that the “scandalous” bar in §1052(a) is hardly the only provision in §1052 that could be characterized as content discriminatory. See, e.g., §1052(b) (no flags or insignias); §1052(c) (no unapproved markers of deceased U. S. Presidents during the lives of their spouses).

18 IANCU v. BRUNETTI

Opinion of SOTOMAYOR, J. public associates the contents of trademarks with the Federal Government,” Tam, 582 U. S., at ___ (slip op., at 17), registration nevertheless entails Government involvement in promoting a particular mark. Registration requires the Government to publish the mark, as well as to take steps to combat international infringement. See 15 U. S. C. §§1062, 1124; see also Brief for United States 35. The Government has a reasonable interest in refraining from lending its ancillary support to marks that are obscene, vulgar, or profane. Cf. Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 56 (1988) (“[S]peech that is vulgar, offensive, and shocking is not entitled to absolute constitutional protection under all circumstances” (internal quotation marks omitted)). III “The cardinal principle of statutory construction is to save and not to destroy.” Jones & Laughlin Steel Corp., 301 U. S., at 30; see also Hooper v. California, 155 U. S. 648, 657 (1895) (“The elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality”). In directing the PTO to deny the ancillary benefit of registration to trademarks featuring “scandalous” content, Congress used a word that is susceptible of different meanings. The majority’s reading would render the provision unconstitutional; mine would save it. Under these circumstances, the Court ought to adopt the narrower construction, rather than permit a rush to register trademarks for even the most viscerally offensive words and images that one can imagine.13 —————— 13 As noted above, I agree with the majority that §1052(a)’s bar on the registration of “immoral” marks is unconstitutional viewpoint discrimination. See supra, at 2. I would simply sever that provision and uphold the bar on “scandalous” marks. See Reno v. American Civil Liberties Union, 521 U. S. 844, 882–883 (1997); Brockett v. Spokane

Cite as: 588 U. S. ____ (2019) 19

Opinion of SOTOMAYOR, J. That said, I emphasize that Brunetti’s challenge is a facial one. That means that he must show that “ ‘a substantial number of [the scandalous-marks provision’s] applications are unconstitutional, judged in relation to the

[provision’s] plainly legitimate sweep.’ ” United States v. Stevens, 559 U. S. 460, 473 (2010). With “scandalous” narrowed to reach only obscene, profane, and vulgar content, the provision would not be overly broad. Cf. Frisby, 487 U. S., at 488 (rejecting a facial challenge after adopting a limiting construction); Boos, 485 U. S., at 331 (same). Even so, hard cases would remain, and I would expect courts to take seriously as-applied challenges demonstrat- ing a danger that the provision had been used to restrict speech based on the views expressed rather than the mode of expression.14 Cf. Finley, 524 U. S., at 587 (reserving the possibility of as-applied challenges). Freedom of speech is a cornerstone of our society, and the First Amendment protects Brunetti’s right to use words like the one at issue here. The Government need not, however, be forced to confer on Brunetti’s trademark (and some more extreme) the ancillary benefit of trademark registration, when “scandalous” in §1052(a) can reasonably be read to bar the registration of only those marks that are obscene, vulgar, or profane. Though I concur as to the unconstitutionality of the term “immoral” in §1052(a), I respectfully dissent as to the term “scandalous” in the same statute and would instead uphold it under the narrow construction discussed here.

—————— Arcades, Inc., 472 U. S. 491, 504–507 (1985); see also Tam, 582 U. S., at ___ (slip op., at 26) (striking down only the disparagement clause). 14 The majority adverts to details in the record that could call into question whether the PTO engaged in viewpoint discrimination in this very case. See ante, at 3. Because a facial challenge is the only challenge before the Court, I do not address whether an as-applied challenge could have merit here.

(Slip Opinion) OCTOBER TERM, 2018 1

Syllabus

AMERICAN LEGION ET AL. v. AMERICAN HUMANIST ASSN. ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17–1717. Argued February 27, 2019—Decided June 20, 2019* In 1918, residents of Prince George’s County, Maryland, formed a committee for the purpose of erecting a memorial for the county’s soldiers who fell in World War I. The committee decided that the memorial should be a cross, which was not surprising since the plain Latin cross had become a central symbol of the war. The image of row after row of plain white crosses marking the overseas graves of soldiers was emblazoned on the minds of Americans at home. The memorial would stand at the terminus of another World War I memorial—the National Defense Highway connecting Washington to Annapolis. When the committee ran out of funds, the local American Legion took over the project, completing the memorial in 1925. The 32-foot tall Latin cross displays the American Legion’s emblem at its center and sits on a large pedestal bearing, inter alia, a bronze plaque that lists the names of the 49 county soldiers who had fallen in the war. At the dedication ceremony, a Catholic priest offered an invocation and a Baptist pastor offered a benediction. The Bladens- burg Cross (Cross) has since been the site of patriotic events honoring veterans on, e.g., V eterans Day, Memorial Day, and Independence Day. Monuments honoring the veterans of other conflicts have been added in a park near the Cross. As the area around the Cross developed, the monument came to be at the center of a busy intersection. In 1961, the Maryland-National Capital Park and Planning Commis- sion (Commission) acquired the Cross and the land where it sits, but ——————

* Together with No. 18–18, Maryland-National Capital Park and Planning Commission v. American Humanist Assn. et al., also on certiorari to the same court. 2 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

Syllabus the American Legion reserved the right to continue using the site for ceremonies. The Commission has used public funds to maintain the monument ever since. In 2014, the American Humanist Association (AHA) and others filed suit in District Court, alleging that the Cross’s presence on public land and the Commission’s maintenance of the memorial violate the First Amendment’s Establishment Clause. The American Legion intervened to defend the Cross. The District Court granted summary judgment for the Commission and the American Legion, concluding that the Cross satisfies both the test announced in Lemon v. Kurtz- man, 403 U. S. 602, and the analysis applied by JUSTICE BREYER in upholding a Ten Commandments monument in Van Orden v. Perry, 545 U. S. 677. The Fourth Circuit reversed. Held: The judgment is reversed and remanded. 874 F. 3d 195, reversed and remanded. JUSTICE ALITO delivered the opinion of the Court with respect to Parts I, II–B, II–C, III, and IV , concluding that the Bladensburg Cross does not violate the Establishment Clause. Pp. 16–24, 28–31. (a) At least four considerations show that retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones. First, these cases often concern monuments, symbols, or practices that were first established long ago, and thus, identifying their original purpose or purposes may be especially difficult. See Salazar v. Buono, 559 U. S. 700. Second, as time goes by, the purposes associated with an established monument, symbol, or practice often multiply, as in the Ten Com- mandments monuments addressed in Van Orden and McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844. Even if the monument’s original purpose was infused with religion, the passage of time may obscure that sentiment and the monument may be retained for the sake of its historical significance or its place in a common cultural heritage. Third, the message of a monument, symbol, or practice may evolve, Pleasant Grove City v. Summum, 555 U. S. 460, 477, as is the case with a city name like Bethlehem, Penn- sylvania; Arizona’s motto “Ditat Deus” (“God enriches”), adopted in 1864; or Maryland’s flag, which has included two crosses since 1904. Familiarity itself can become a reason for preservation. 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. The passage of time thus gives rise to a strong presumption of constitutionality. Pp. 16–21. (b) The cross is a symbol closely linked to World War I. The United States adopted it as part of its military honors, establishing the Dis- Cite as: 588 U. S. ____ (2019) 3

Syllabus tinguished Service Cross and the Navy Cross in 1918 and 1919, respectively. And the fallen soldiers’ final resting places abroad were marked by white crosses or Stars of David, a solemn image that became inextricably linked with and symbolic of the ultimate price paid by 116,000 soldiers. This relationship between the cross and the war may not have been the sole or dominant motivation for the design of the many war memorials that sprang up across the Nation, but that is all but impossible to determine today. The passage of time means that testimony from the decisionmakers may not be available. And regardless of the original purposes for erecting the monument, a community may wish to preserve it for very different reasons, such as the historic preservation and traffic-safety concerns noted here. The area surrounding a monument like the Bladensburg Cross may also have been altered in ways that change its meaning and provide new reasons for its preservation. Even the AHA recognizes that the monument’s surroundings are important, as it concedes that the presence of a cross monument in a cemetery is unobjectionable. But a memorial’s placement in a cemetery is not necessary to create the connection to those it honors. Memorials took the place of gravestones for those parents and other relatives who lacked the means to travel to Europe to visit the graves of their war dead and for those soldiers whose bodies were never recovered. Similarly, memorials and monuments honoring important historical figures e.g., Dr. Martin Luther King, Jr., often include a symbol of the faith that was important to the persons whose lives are commemorated. Finally, as World War I monuments have endured through the years and become a familiar part of the physical and cultural landscape, requiring their removal or alteration would not be viewed by many as a neutral act. Few would say that California is attempting to convey a religious message by retaining the many city names, like Los Angeles and San Diego, given by the original Spanish settlers. But it would be something else entirely if the State undertook to change those names. Much the same is true about monuments to soldiers who sacrificed their lives for this country more than a century ago. Pp. 21–24. (c) Applying these principles here, the Bladensburg Cross does not violate the Establishment Clause. The image of the simple wooden cross that originally marked the graves of American soldiers killed in World War I became a symbol of their sacrifice, and the design of the Bladensburg Cross must be understood in light of that background. That the cross originated as a Christian symbol and retains that meaning in many contexts does not change the fact that the symbol took on an added secular meaning when used in World War I memorials. The Cross has also acquired historical importance with the passage of time, reminding the townspeople of the deeds and sacrific- 4 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

Syllabus es of their predecessors as it stands among memorials to veterans of later wars. It has thus become part of the community. It would not serve that role had its design deliberately disrespected area soldiers, but there is no evidence that the names of any area Jewish soldiers were either intentionally left off the memorial’s list or included against the wishes of their families. The AHA tries to connect the Cross and the American Legion with anti-Semitism and the Ku Klux Klan, but the monument, which was dedicated during a period of heightened racial and religious animosity, includes the names of both Black and White soldiers; and both Catholic and Baptist clergy par- ticipated in the dedication. It is also natural and appropriate for a monument commemorating the death of particular individuals to invoke the symbols that signify what death meant for those who are memorialized. Excluding those symbols could make the memorial seem incomplete. This explains why Holocaust memorials invariably feature a Star of David or other symbols of Judaism and why the memorial at issue features the same symbol that marks the graves of so many soldiers near the battlefields where they fell. Pp. 28–30. (d) The fact that the cross is undoubtedly a Christian symbol should not blind one to everything else that the Bladensburg Cross has come to represent: a symbolic resting place for ancestors who never returned home, a place for the community to gather and honor all veterans and their sacrifices for this Nation, and a historical landmark. For many, destroying or defacing the Cross would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment. P. 31. JUSTICE ALITO, joined by THE CHIEF JUSTICE, JUSTICE BREYER, and JUSTICE KAVANAUGH, concluded in Parts II–A and II–D: (a) Lemon ambitiously attempted to fashion a test for all Estab- lishment Clause cases. The test called on courts to examine the purposes and effects of a challenged government action, as well as any entanglement with religion that it might entail. The expectation of a ready framework has not been met, and the Court has many times either expressly declined to apply the test or simply ignored it. See, e.g., Zobrest v. Catalina Foothills Sch. Dist., 509 U. S. 1; Town of Greece v. Galloway, 572 U. S. 565. Pp. 12–16. (b) The Lemon Court ambitiously attempted to find a grand unified theory of the Establishment Clause, but the Court has since taken a more modest approach that focuses on the particular issue at hand and looks to history for guidance. The cases involving prayer before legislative sessions are illustrative. In Marsh v. Chambers, 463 U. S. 783, the Court upheld a State Legislature’s practice of beginning each session with a prayer by an official chaplain, finding it highly persuasive that Congress for over 200 years had opened its sessions with a Cite as: 588 U. S. ____ (2019) 5

Syllabus prayer and that many state legislatures had followed suit. And the Court in Town of Greece reasoned that the historical practice of having, since the First Congress, chaplains in Congress showed “that the Framers considered legislative prayer a benign acknowledgment of religion’s role in society.” 572 U. S., at 576. Where monuments, symbols, and practices with a longstanding history follow in the tradition of the First Congress in respecting and tolerating different views, endeavoring to achieve inclusivity and nondiscrimination, and recognizing the important role religion plays in the lives of many Americans, they are likewise constitutional. Pp. 24–28. JUSTICE THOMAS, agreeing that the Bladensburg Cross is constitutional, concluded: (a) The text and history of the Clause—which reads “Congress shall make no law respecting an establishment of religion”—suggest that it should not be incorporated against the States. When the Court incorporated the Clause in Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15, it apparently did not consider that an incorporated Establishment Clause would prohibit exactly what the text of the Clause seeks to protect: state establishments of religion. The appropriate question is whether any longstanding right of citizenship restrains the States in the establishment context. Further confounding the incorporation question is the fact that the First Amendment by its terms applies only to “law[s]” enacted by “Congress.” Pp. 1–3. (b) Even if the Clause applied to state and local governments in some fashion, “[t]he mere presence of the monument along [respondents’] path involves no [actual legal] coercion,” the sine qua non of an establishment of religion. Van Orden v. Perry, 545 U. S. 677, 694 (opinion of THOMAS, J.). The plaintiff claiming an unconstitutional establishment of religion must demonstrate that he was actually coerced by government conduct that shares the characteristics of an establishment as understood at the founding. Respondents have not demonstrated that maintaining a religious display on public property shares any of the historical characteristics of an establishment of religion. Town of Greece v. Galloway, 572 U. S. 565, 608 (same). The Bladensburg Cross is constitutional even though the cross has religious significance. Religious displays or speech need not be limited to those considered nonsectarian. Insisting otherwise is inconsistent with this Nation’s history and traditions, id., at 578–580 (majority opinion), and would force the courts “to act as supervisors and censors of religious speech,” id., at 581. Pp. 3–5. (c) The plurality rightly rejects the relevance of the test set forth in Lemon v. Kurtzman, 403 U. S. 602, 612–613, to claims like this one, which involve religiously expressive monuments, symbols, displays, and similar practices, but JUSTICE THOMAS would take the logical 6 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

Syllabus next step and overrule the Lemon test in all contexts. The test has no basis in the original meaning of the Constitution; it has “been ma- nipulated to fit whatever result the Court aimed to achieve,” McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844, 900 (Scalia, J., dissenting); and it continues to cause enormous confusion in the States and the lower courts. Pp. 6–7. JUSTICE GORSUCH, joined by JUSTICE THOMAS, concludes that a suit like this one should be dismissed for lack of standing. Pp. 1–11. (a) The American Humanist Association claims that its members come into regular, unwelcome contact with the Bladensburg Cross when they drive through the area, but this “offended observer” theory of standing has no basis in law. To establish standing to sue consistent with the Constitution, a plaintiff must show: (1) injury-in-fact, (2) causation, and (3) redressability. And the injury-in-fact must be “concrete and particularized.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560. This Court has already rejected the notion that offense alone qualifies as a “concrete and particularized” injury sufficient to confer standing, Diamond v. Charles, 476 U. S. 54, 62, and it has done so in the context of the Establishment Clause itself, see Val- ley Forge Christian College v. Americans United for the Separation of Church and State, 454 U. S. 464. Offended observer standing is deeply inconsistent, too, with many other longstanding principles and precedents, including the rule that “ ‘generalized grievances’ about the conduct of Government” are insufficient to confer standing to sue, Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 217, and “the rule that a party ‘generally must assert his own legal rights and interests,’ ” not those “ ‘of third parties,’ ” Kowalski v. Tesmer, 543 U. S. 125, 129. Pp. 1–6. (b) Lower courts invented offended observer standing for Estab- lishment Clause cases in response to Lemon v. Kurtzman, 403 U. S. 602, reasoning that if the Establishment Clause forbids anything that a reasonable observer would view as an endorsement of religion, then such an observer must be able to sue. Lemon, however, was a misadventure, and the Court today relies on a more modest, historically sensitive approach, interpreting the Establishment Clause with reference to historical practices and understandings. The monument here is clearly constitutional in light of the nation’s traditions. Al- though the plurality does not say it in as many words, the message of today’s decision for the lower courts must be this: whether a monument, symbol, or practice is old or new, apply Town of Greece v. Gal- loway, 572 U. S. 565, not Lemon, because what matters when it comes to assessing a monument, symbol, or practice is not its age but its compliance with ageless principles. Pp. 6–9. (c) With Lemon now shelved, little excuse will remain for the Cite as: 588 U. S. ____ (2019) 7

Syllabus anomaly of offended observer standing, and the gaping hole it tore in standing doctrine in the courts of appeals should now begin to close. Abandoning offended observer standing will mean only a return to the usual demands of Article III, requiring a real controversy with real impact on real persons to make a federal case out of it. Pp. 9–11.

ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B, II–C, III, and IV , in which ROBERTS, C. J., and BREYER, KAGAN, and KAVANAUGH, JJ., joined, and an opinion with respect to Parts II–A and II–D, in which ROBERTS, C. J., and BREYER and KAVANAUGH, JJ., joined. BREYER, J., filed a concurring opinion, in which KAGAN, J., joined. KAVANAUGH, J., filed a concurring opinion. KAGAN, J., filed an opinion concurring in part. THOM- AS, J., filed an opinion concurring in the judgment. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined. Cite as: 588 U. S. ____ (2019) 1

Opinion of the Court

Nos. 17–1717 and 18–18 ______

THE AMERICAN LEGION, ET AL., PETITIONERS 17–1717 v. AMERICAN HUMANIST ASSOCIATION, ET AL.; AND

MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, PETITIONER 18–18 v. AMERICAN HUMANIST ASSOCIATION, ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [June 20, 2019]

JUSTICE ALITO announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B, II–C, III, and IV, and an opinion with respect to Parts II–A and II–D, in which THE CHIEF JUSTICE, JUSTICE BREYER, and JUSTICE KAVANAUGH join. Since 1925, the Bladensburg Peace Cross (Cross) has stood as a tribute to 49 area soldiers who gave their lives in the First World War. Eighty-nine years after the dedication of the Cross, respondents filed this lawsuit, claiming that they are offended by the sight of the memorial on public land and that its presence there and the expendi- ture of public funds to maintain it violate the Establish- ment Clause of the First Amendment. To remedy this violation, they asked a federal court to order the relocation or demolition of the Cross or at least the removal of its 2 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

Opinion of the Court arms. The Court of Appeals for the Fourth Circuit agreed that the memorial is unconstitutional and remanded for a determination of the proper remedy. We now reverse. Although the cross has long been a preeminent Chris- tian symbol, its use in the Bladensburg memorial has a special significance. After the First World War, the picture of row after row of plain white crosses marking the overseas graves of soldiers who had lost their lives in that horrible conflict was emblazoned on the minds of Ameri- cans at home, and the adoption of the cross as the Bladensburg memorial must be viewed in that historical context. For nearly a century, the Bladensburg Cross has expressed the community’s grief at the loss of the young men who perished, its thanks for their sacrifice, and its dedication to the ideals for which they fought. It has become a prominent community landmark, and its removal or radical alteration at this date would be seen by many not as a neutral act but as the manifestation of “a hostility toward religion that has no place in our Establishment Clause traditions.” Van Orden v. Perry, 545 U. S. 677, 704 (2005) (BREYER, J., concurring in judgment). And contrary to respondents’ intimations, there is no evidence of discriminatory intent in the selection of the design of the memorial or the decision of a Maryland commission to maintain it. The Religion Clauses of the Constitution aim to foster a society in which people of all beliefs can live together harmoniously, and the presence of the Bladens- burg Cross on the land where it has stood for so many years is fully consistent with that aim. I A The cross came into widespread use as a symbol of Chris- tianity by the fourth century,1 and it retains that meaning today. But there are many contexts in which the symbol

—————— 1 B. Longenecker, The Cross Before Constantine: The Early Life of a Christian Symbol 2 (2015). Cite as: 588 U. S. ____ (2019) 3

Opinion of the Court has also taken on a secular meaning. Indeed, there are instances in which its message is now almost entirely secular. A cross appears as part of many registered trademarks held by businesses and secular organizations, including Blue Cross Blue Shield, the Bayer Group, and some John- son & Johnson products.2 Many of these marks relate to health care, and it is likely that the association of the cross with healing had a religious origin. But the current use of these marks is indisputably secular. The familiar symbol of the Red Cross—a red cross on a white background—shows how the meaning of a symbol that was originally religious can be transformed. The International Committee of the Red Cross (ICRC) selected that symbol in 1863 because it was thought to call to mind the flag of Switzerland, a country widely known for its neutrality.3 The Swiss flag consists of a white cross on a red background. In an effort to invoke the message associated with that flag, the ICRC copied its design with the colors inverted. Thus, the ICRC selected this symbol for an essentially secular reason, and the current secular message of the symbol is shown by its use today in nations with only tiny Christian populations.4 But the cross was originally chosen for the Swiss flag for religious reasons.5

—————— 2 See Blue Cross, Blue Shield, https://www.bcbs.com; The Bayer Group, The Bayer Cross—Logo and Landmark, https://www.bayer.com/en/logo- history.aspx; Band-Aid Brand Adhesive Bandages, Johnson & Johnson All Purpose First Aid Kit, https://www.band-aid.com/products/first-aid- kits/all-purpose (all Internet materials as last visited June 18, 2019). 3 International Committee of the Red Cross, The History of the Emblems, https://www.icrc.org/en/doc/resources/documents/misc/emblem-history.htm. 4 For example, the Indian and Japanese affiliates of the ICRC and Red Crescent Societies use the symbol of the cross. See Indian Red Cross Society, https://www.indianredcross.org/ircs/index.php; Japanese Red Cross

Society, http://www.jrc.or.jp/english/ . 5 See “Flag of Switzerland,” Britannica Academic, https://academic. eb.com/levels/collegiate/article/flag-of-Switzerland/93966. 4 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

Opinion of the Court So an image that began as an expression of faith was transformed. The image used in the Bladensburg memorial—a plain Latin cross6—also took on new meaning after World War I. “During and immediately after the war, the army marked soldiers’ graves with temporary wooden crosses or Stars of David”—a departure from the prior practice of marking graves in American military cemeteries with uniform rectangular slabs. G. Piehler, Remembering War the American Way 101 (1995); App. 1146. The vast majority of these grave markers consisted of crosses,7 and thus when Americans saw photographs of these cemeteries, what struck them were rows and rows of plain white crosses. As a result, the image of a simple white cross “developed into a ‘central symbol’ ” of the conflict. Ibid. Contemporary literature, poetry, and art reflected this powerful imagery. See Brief for Veterans of Foreign Wars of the United States et al. as Amici Curiae 10–16. Per- haps most famously, John McCrae’s poem, In Flanders Fields, began with these memorable lines: —————— 6 The Latin form of the cross “has a longer upright than crossbar. The intersection of the two is usually such that the upper and the two horizontal arms are all of about equal length, but the lower arm is conspicuously longer.” G. Ferguson, Signs & Symbols in Christian Art 294 (1954). See also Webster’s Third New International Dictionary 1276 (1981) (“latin cross, n.”: “a figure of a cross having a long upright shaft and a shorter crossbar traversing it above the middle”). 7 Of the roughly 116,000 casualties the United States suffered in World War I, some 3,500 were Jewish soldiers. J. Fredman & L. Falk, Jews in American Wars 100 (5th ed. 1954). In the congressional hearings involving the appropriate grave markers for those buried abroad, one Representative stated that approximately 1,600 of these Jewish soldiers were buried in overseas graves marked by Stars of David. See Hearings before the Committee on Military Affairs, 68th Cong., 1st Sess., 3 (1924). That would constitute about 5.2% of the 30,973 graves in American World War I cemeteries abroad. See Ameri- can Battle Monuments Commission (ABMC), World War I Burials and Memorializations, https://www.abmc.gov/node/1273. Cite as: 588 U. S. ____ (2019) 5

Opinion of the Court “In Flanders fields the poppies blow Between the crosses, row on row.” In Flanders Fields and Other Poems 3 (G. P. Putnam’s Sons ed. 1919). The poem was enormously popular. See P. Fussell, The Great War and Modern Memory 248–249 (1975). A 1921 New York Times article quoted a description of McCrae’s composition as “ ‘the poem of the army’ ” and “ ‘of all those who understand the meaning of the great 8 conflict.’ ” The image of “the crosses, row on row,” stuck in people’s minds, and even today for those who view World War I cemeteries in Europe, the image is arresting.9 After the 1918 armistice, the War Department announced plans to replace the wooden crosses and Stars of David with uniform marble slabs like those previously used in American military cemeteries. App. 1146. But the public outcry against that proposal was swift and fierce. Many organizations, including the American War Moth- ers, a nonsectarian group founded in 1917, urged the Department to retain the design of the temporary markers. Id., at 1146–1147. When the American Battle Mon- uments Commission took over the project of designing the headstones, it responded to this public sentiment by opt- ing to replace the wooden crosses and Stars of David with marble versions of those symbols. Id., at 1144. A Member of Congress likewise introduced a resolution noting that “these wooden symbols have, during and since the World War, been regarded as emblematic of the great sacrifices which that war entailed, have been so treated by poets and artists and have become peculiarly and inseparably associated in the thought of surviving relatives and comrades and of the Nation with these World War graves.” H. Res. 15, 68th Cong., 1 (1924), App. 1163–1164. This na- —————— 8 “In Flanders Fields,” N. Y. Times, Dec. 18, 1921, p. 96. 9 See ABMC, Cemeteries and Memorials, https://www.abmc.gov/cemeteries- memorials. 6 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

Opinion of the Court tional debate and its outcome confirmed the cross’s widespread resonance as a symbol of sacrifice in the war. B Recognition of the cross’s symbolism extended to local communities across the country. In late 1918, residents of Prince George’s County, Maryland, formed a committee for the purpose of erecting a memorial for the county’s fallen soldiers. App. 988–989, 1014. Among the committee’s members were the mothers of 10 deceased soldiers. Id., at 989. The committee decided that the memorial should be a cross and hired sculptor and architect John Joseph Earley to design it. Although we do not know precisely why the committee chose the cross, it is unsurprising that the committee—and many others commemorating World War I10—adopted a symbol so widely associated with that wrenching event. After selecting the design, the committee turned to the task of financing the project. The committee held fund- raising events in the community and invited donations, no matter the size, with a form that read: “We, the citizens of Maryland, trusting in God, the Supreme Ruler of the Universe, Pledge Faith in our Brothers who gave their all in the World War to make [the] World Safe for Democracy. Their Mortal Bodies have turned to dust, but their spirit Lives to guide us through Life in the way of Godliness, Justice and Liberty. “With our Motto, ‘One God, One Country, and One Flag’ We contribute to this Memorial Cross Commem- —————— 10 Other World War I memorials that incorporate the cross include the Argonne Cross and the Canadian Cross of Sacrifice in Arlington National Cemetery; the Wayside Cross in Towson, Maryland; the Wayside Cross in New Canaan, Connecticut; the Troop K Georgia Cavalry War Memorial Front in Augusta, Georgia; the Chestnut Hill and Mt. Airy World War Memorial in Philadelphia, Pennsylvania; and the Great War for Democracy Memorial in Waterbury, Connecticut. Cite as: 588 U. S. ____ (2019) 7

Opinion of the Court orating the Memory of those who have not Died in Vain.” Id., at. 1251. Many of those who responded were local residents who gave small amounts: Donations of 25 cents to 1 dollar were the most common. Id., at 1014. Local businesses and political leaders assisted in this effort. Id., at 1014, 1243. In writing to thank United States Senator John Walter Smith for his donation, committee treasurer Mrs. Martin Redman explained that “[t]he chief reason I feel as deeply in this matter [is that], my son, [Wm.] F. Redman, lost his life in France and because of that I feel that our memorial cross is, in a way, his grave stone.” Id., at 1244. The Cross was to stand at the terminus of another World War I memorial—the National Defense Highway, which connects Washington to Annapolis. The community gathered for a joint groundbreaking ceremony for both memorials on September 28, 1919; the mother of the first Prince George’s County resident killed in France broke ground for the Cross. Id., at 910. By 1922, however, the committee had run out of funds, and progress on the Cross had stalled. The local post of the American Legion took over the project, and the monument was finished in 1925. The completed monument is a 32-foot tall Latin cross that sits on a large pedestal. The American Legion’s emblem is displayed at its center, and the words “Valor,” “Endurance,” “Courage,” and “Devotion” are inscribed at its base, one on each of the four faces. The pedestal also features a 9- by 2.5-foot bronze plaque explaining that the monument is “Dedicated to the heroes of Prince George’s County, Maryland who lost their lives in the Great War for the liberty of the world.” Id., at 915 (capitalization omitted). The plaque lists the names of 49 local men, both Black and White, who died in the war. It identifies the dates of American involvement, and quotes President Woodrow Wilson’s request for a declaration of war: “The 8 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

Opinion of the Court right is more precious than peace. We shall fight for the things we have always carried nearest our hearts. To such a task we dedicate our lives.” Ibid. At the dedication ceremony, a local Catholic priest offered an invocation. Id., at 217–218. United States Representative Stephen W. Gambrill delivered the keynote address, honoring the “ ‘men of Prince George’s County’ ” who “ ‘fought for the sacred right of all to live in peace and security.’ ” Id., at 1372. He encouraged the community to look to the “ ‘token of this cross, symbolic of Calvary,’ ” to “ ‘keep fresh the memory of our boys who died for a righteous cause.’ ” Ibid. The ceremony closed with a benediction offered by a Baptist pastor. Since its dedication, the Cross has served as the site of patriotic events honoring veterans, including gatherings on Veterans Day, Memorial Day, and Independence Day. Like the dedication itself, these events have typically included an invocation, a keynote speaker, and a benediction. Id., at 182, 319–323. Over the years, memorials honoring the veterans of other conflicts have been added to the surrounding area, which is now known as Veterans Memorial Park. These include a World War II Honor Scroll; a Pearl Harbor memorial; a Korea-Vietnam veterans memorial; a September 11 garden; a War of 1812 memorial; and two recently added 38-foot-tall markers depicting British and American soldiers in the Battle of Bladensburg. Id., at 891–903, 1530. Because the Cross is located on a traffic island with limited space, the closest of these other monuments is about 200 feet away in a park across the road. Id., at 36, 44. As the area around the Cross developed, the monument came to be at the center of a busy intersection. In 1961, the Maryland-National Capital Park and Planning Com- mission (Commission) acquired the Cross and the land on which it sits in order to preserve the monument and ad- Cite as: 588 U. S. ____ (2019) 9

Opinion of the Court dress traffic-safety concerns.11 Id., at 420–421, 1384– 1387. The American Legion reserved the right to continue using the memorial to host a variety of ceremonies, including events in memory of departed veterans. Id., at 1387. Over the next five decades, the Commission spent approximately $117,000 to maintain and preserve the monument. In 2008, it budgeted an additional $100,000 for renovations and repairs to the Cross.12 C In 2012, nearly 90 years after the Cross was dedicated and more than 50 years after the Commission acquired it, the American Humanist Association (AHA) lodged a complaint with the Commission. The complaint alleged that the Cross’s presence on public land and the Commission’s maintenance of the memorial violate the Establishment —————— 11 There is some ambiguity as to whether the American Legion ever owned the land on which the Cross rests. When the Legion took over the Cross, the town of Bladensburg passed a resolution “assign[ing] and grant[ing] to the said Snyder-Farmer Post #3, American Legion, that parcel of ground upon which the cross now stands and that part necessary to complete . . . the park around said cross, to the perpetual care of the Snyder-Farmer Post #3 as long as it is in existence, and should the said Post go out of existence the plot to revert to the Town of Bladens- burg, together with the cross and its surroundings.” App. 65. In 1935, a statute authorized the State Roads Commission of Maryland to “investigate the ownership and possessory rights” of the tract surrounding the Cross and to “acquire the same by purchase or condemnation.” Id., at 421. It appears that in 1957, a court determined that it was necessary for the State to condemn the property. Id., at 1377–1379. The State Roads Commission thereafter conveyed the property to the Commission in 1960. Id., at 1380, 1382. To resolve any ambiguities, in 1961, the local American Legion post “transfer[ed] and assign[ed] to [the Commission] all its right, title and interest in and to the Peace Cross, also originally known as the Memorial Cross, and the tract upon which it is located.” Id., at 1387. At least by 1961, then, both the land and the Cross were publicly owned. 12 Of the budgeted $100,000, the Commission had spent only $5,000 as of 2015. The Commission put off additional spending and repairs in light of this lawsuit. Id., at 823. 10 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

Opinion of the Court Clause of the First Amendment. Id., at 1443–1451. The AHA, along with three residents of Washington, D. C., and Maryland, also sued the Commission in the District Court for the District of Maryland, making the same claim. The AHA sought declaratory and injunctive relief requiring “removal or demolition of the Cross, or removal of the arms from the Cross to form a non-religious slab or obelisk.” 874 F. 3d 195, 202, n. 7 (CA4 2017) (internal quotation marks omitted). The American Legion intervened to defend the Cross. The District Court granted summary judgment for the Commission and the American Legion. The Cross, the District Court held, satisfies both the three-pronged test announced in Lemon v. Kurtzman, 403 U. S. 602 (1971), and the analysis applied by JUSTICE BREYER in upholding the Ten Commandments monument at issue in Van Orden v. Perry, 545 U. S. 677. Under the Lemon test, a court must ask whether a challenged government action (1) has a secular purpose; (2) has a “principal or primary effect” that “neither advances nor inhibits religion”; and (3) does not foster “an excessive government entanglement with religion,” 403 U. S., at 612–613 (internal quotation marks omitted). Applying that test, the District Court determined that the Commission had secular purposes for acquiring and maintaining the Cross—namely, to commemorate World War I and to ensure traffic safety. The court also found that a reasonable observer aware of the Cross’s history, setting, and secular elements “would not view the Monument as having the effect of impermissibly endorsing religion.” 147 F. Supp. 3d 373, 387 (Md. 2015). Nor, according to the court, did the Commission’s maintenance of the memorial create the kind of “continued and repeated government involvement with religion” that would constitute an excessive entanglement. Ibid. (internal quotation marks and emphasis omitted). Finally, in light of the factors that informed its analysis of Lemon’s “effects” prong, the court concluded that the Cross is Cite as: 588 U. S. ____ (2019) 11

Opinion of the Court constitutional under JUSTICE BREYER’s approach in Van Orden. 147 F. Supp. 3d, at 388–390. A divided panel of the Court of Appeals for the Fourth Circuit reversed. The majority relied primarily on the Lemon test but also took cognizance of JUSTICE BREYER’s Van Orden concurrence. While recognizing that the Commission acted for a secular purpose, the court held that the Bladensburg Cross failed Lemon’s “effects” prong because a reasonable observer would view the Commis- sion’s ownership and maintenance of the monument as an endorsement of Christianity. The court emphasized the cross’s “inherent religious meaning” as the “ ‘preeminent symbol of Christianity.’ ” 874 F. 3d, at 206–207. Although conceding that the monument had several “secular elements,” the court asserted that they were “overshad- ow[ed]” by the Cross’s size and Christian connection— especially because the Cross’s location and condition would make it difficult for “passers-by” to “read” or otherwise “examine” the plaque and American Legion emblem. Id., at 209–210. The court rejected as “too simplistic” an argument defending the Cross’s constitutionality on the basis of its 90-year history, suggesting that “[p]erhaps the longer a violation persists, the greater the affront to those offended.” Id., at 208. In the alternative, the court concluded, the Commission had become excessively entangled with religion by keeping a display that “aggrandizes the Latin cross” and by spending more than de minimis public funds to maintain it. Id., at 211–212. Chief Judge Gregory dissented in relevant part, con- tending that the majority misapplied the “effects” test by failing to give adequate consideration to the Cross’s “physical setting, history, and usage.” Id., at 218 (opinion concurring in part and dissenting in part). He also disputed the majority’s excessive-entanglement analysis, noting that the Commission’s maintenance of the Cross was not the kind of “comprehensive, discriminating, and continuing state surveillance” of religion that Lemon was con- 12 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

OpinionOpinion ofof theALITO Court, J. cerned to rule out. 874 F. 3d, at 221 (internal quotation marks omitted). The Fourth Circuit denied rehearing en banc over dis- sents by Chief Judge Gregory, Judge Wilkinson, and Judge Niemeyer. 891 F. 3d 117 (2018). The Commission and the American Legion each petitioned for certiorari. We granted the petitions and consolidated them for argument. 586 U. S. ___ (2016). II A The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion.” While the concept of a formally established church is straightforward, pinning down the meaning of a “law respecting an establishment of religion” has proved to be a vexing problem. Prior to the Court’s decision in Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947), the Establishment Clause was applied only to the Federal Government, and few cases involving this provision came before the Court. After Everson recognized the incorporation of the Clause, however, the Court faced a steady stream of difficult and controversial Establishment Clause issues, ranging from Bible reading and prayer in the public schools, Engel v. Vitale, 370 U. S. 421 (1962); School Dist. of Abington Township v. Schempp, 374 U. S. 203 (1963), to Sunday closing laws, McGowan v. Mary- land, 366 U. S. 420 (1961), to state subsidies for church- related schools or the parents of students attending those schools, Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236 (1968); Everson, supra. After grappling with such cases for more than 20 years, Lemon ambitiously attempted to distill from the Court’s existing case law a test that would bring order and predictability to Estab- lishment Clause decisionmaking. That test, as noted, called on courts to examine the purposes and effects of a Cite as: 588 U. S. ____ (2019) 13

OpinionOpinion ofof theALITO Court, J. challenged government action, as well as any entanglement with religion that it might entail. Lemon, 403 U. S., at 612–613. The Court later elaborated that the “effect[s]” of a challenged action should be assessed by asking whether a “reasonable observer” would conclude that the action constituted an “endorsement” of religion. County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 592 (1989); id., at 630 (O’Connor, J., concurring in part and concurring in judgment). If the Lemon Court thought that its test would provide a framework for all future Establishment Clause decisions, its expectation has not been met. In many cases, this Court has either expressly declined to apply the test or has simply ignored it. See Zobrest v. Catalina Foothills School Dist., 509 U. S. 1 (1993); Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687 (1994); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995); Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753 (1995); Good News Club v. Mil- ford Central School, 533 U. S. 98 (2001); Zelman v. Simmons-Harris, 536 U. S. 639 (2002); Cutter v. Wilkinson, 544 U. S. 709 (2005); Van Orden, 545 U. S. 677; Hosanna- Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012); Town of Greece v. Galloway, 572 U. S. 565 (2014); Trump v. Hawaii, 585 U. S. ___ (2018). This pattern is a testament to the Lemon test’s short- comings. As Establishment Clause cases involving a great array of laws and practices came to the Court, it became more and more apparent that the Lemon test could not resolve them. It could not “explain the Establishment Clause’s tolerance, for example, of the prayers that open legislative meetings, . . . certain references to, and invoca- tions of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of 14 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

OpinionOpinion ofof theALITO Court, J. certain holidays, including Thanksgiving.” Van Orden, supra, at 699 (opinion of BREYER, J.). The test has been harshly criticized by Members of this Court,13 lamented by lower court judges,14 and questioned by a diverse roster of scholars.15

—————— 13 See, e.g., Utah Highway Patrol Assn. v. American Atheists, Inc., 565 U. S. 994, 995 (2011) (THOMAS, J., dissenting from denial of certiorari); County of Allegheny v. American Civil Liberties Union, Greater Pitts- burgh Chapter, 492 U. S. 573, 655–656 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part); Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 398–399 (1993) (Scalia, J., concurring in judgment); Wallace v. Jaffree, 472 U. S. 38, 112 (1985) (Rehnquist, J., dissenting). 14 See, e.g., Green v. Haskell Cty. Bd. of Comm’rs, 574 F. 3d 1235, n. 1 (CA10 2009) (Kelly, J., dissenting from denial of rehearing en banc) (discussing the “judicial morass resulting from the Supreme Court’s opinions”); Cooper v. United States Postal Service, 577 F. 3d 479, 494 (CA2 2009) (“Lemon is difficult to apply and not a particularly useful test”); Roark v. South Iron R–1 School Dist., 573 F. 3d 556, 563 (CA8 2009) (“[T]he Lemon test has had a ‘checkered career’ ”); Skoros v. New York, 437 F. 3d 1, 15 (CA2 2006) (government officials “confront a ‘jurisprudence of minutiae’ that leaves them to rely on ‘little more than intuition and a tape measure’ to ensure the constitutionality of public holiday displays” (quoting County of Allegheny, supra, at 674–675 (opinion of Kennedy, J.)); Felix v. Bloomfield, 841 F. 3d 848, 864 (CA10 2016) (court “cannot speculate what precise actions a government must take” to comply with the Establishment Clause); Separation of Church and State Comm. v. Eugene, 93 F. 3d 617, 627 (CA9 1996) (O’Scannlain, J., concurring in result) (The standards announced by this Court “are not always clear, consistent or coherent”). 15 See McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115, 118–120 (1992) (describing doctrinal “chaos” Lemon created, allowing the Court to “reach almost any result in almost any case”); Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 Colum. L. Rev. 1373, 1380–1388 (1981) (criticizing the “unstructured expansiveness of the entanglement notion” and the potential that certain constructions of the effects prong may result in “the establishment clause threaten[ing] to swallow the free exercise clause”); Smith, Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutral- ity and the “No Endorsement” Test, 86 Mich. L. Rev. 266, 269 (1987) Cite as: 588 U. S. ____ (2019) 15

OpinionOpinion ofof theALITO Court, J.

For at least four reasons, the Lemon test presents particularly daunting problems in cases, including the one now before us, that involve the use, for ceremonial, cele- bratory, or commemorative purposes, of words or symbols with religious associations.16 Together, these considera-

—————— (criticizing both the Lemon test and the endorsement gloss); Tushnet, Reflections on the Role of Purpose in the Jurisprudence of the Religion Clauses, 27 Wm. & Mary L. Rev. 997, 1004 (1986) (describing cases involving “ ‘deeply ingrained practices’ ” as “not readily susceptible to analysis under the ordinary Lemon approach”); Choper, The Endorse- ment Test: Its Status and Desirability, 18 J. L. & Politics 499 (2002) (criticizing both Lemon and the endorsement gloss); Paulsen, Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 Notre Dame L. Rev. 311, 315 (1986) (criticizing the Court’s reading of the Establishment Clause as “producing a schizophrenic pattern of decisions”); Marshall, “We Know It When We See It”: The Supreme Court and Establishment, 59 S. Cal. L. Rev. 495, 526 (1986) (explaining that the purpose prong of Lemon, “[t]aken to its logical conclusion . . . suggests that laws which respect free exercise rights . . . are unconstitutional”). 16 While we do not attempt to provide an authoritative taxonomy of the dozens of Establishment Clause cases that the Court has decided since Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947), most can be divided into six rough categories: (1) religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies, e.g., Lynch v. Donnelly, 465 U. S. 668 (1984); Van Orden v. Perry, 545 U. S. 677 (2005); (2) religious accommodations and exemptions from generally applicable laws, e.g., Cutter v. Wilkinson, 544 U. S. 709 (2005); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327 (1987); (3) subsidies and tax exemptions, e.g., Walz v. Tax Comm’n of City of New York, 397 U. S. 664 (1970); Zelman v. Simmons-Harris, 536 U. S. 639 (2002); (4) religious expression in public schools, e.g., School Dist. of Abington Township v. Schempp, 374 U. S. 203 (1963); Lee v. Weisman, 505 U. S. 577 (1992); (5) regulation of private religious speech, e.g., Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753 (1995); and (6) state interfer- ence with internal church affairs, e.g., Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012). A final, miscellaneous category, including cases involving such issues as Sun- day closing laws, see McGowan, v. Maryland, 366 U. S. 420 (1961), and church involvement in governmental decisionmaking, see Larkin v. 16 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

Opinion of the Court tions counsel against efforts to evaluate such cases under Lemon and toward application of a presumption of constitutionality for longstanding monuments, symbols, and practices. B First, these cases often concern monuments, symbols, or practices that were first established long ago, and in such cases, identifying their original purpose or purposes may be especially difficult. In Salazar v. Buono, 559 U. S. 700 (2010), for example, we dealt with a cross that a small group of World War I veterans had put up at a remote spot in the Mojave Desert more than seven decades earlier. The record contained virtually no direct evidence regarding the specific motivations of these men. We knew that they had selected a plain white cross, and there was some evidence that the man who looked after the monument for many years—“a miner who had served as a medic and had thus presumably witnessed the carnage of the war firsthand”—was said not to have been “particularly religious.” Id., at 724 (ALITO, J., concurring in part and concurring in judgment). Without better evidence about the purpose of the monument, different Justices drew different inferences. The plurality thought that this particular cross was meant “to commemorate American servicemen who had died in World War I” and was not intended “to promote a Chris- tian message.” Id., at 715. The dissent, by contrast, “presume[d]” that the cross’s purpose “was a Christian one, at least in part, for the simple reason that those who erected the cross chose to commemorate American veterans in an explicitly Christian manner.” Id., at 752 (opinion of Stevens, J.). The truth is that 70 years after the

—————— Grendel’s Den, Inc., 459 U. S. 116 (1982); Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687 (1994), might be added. We deal here with an issue that falls into the first category. Cite as: 588 U. S. ____ (2019) 17

Opinion of the Court fact, there was no way to be certain about the motivations of the men who were responsible for the creation of the monument. And this is often the case with old monuments, symbols, and practices. Yet it would be inappro- priate for courts to compel their removal or termination based on supposition. Second, as time goes by, the purposes associated with an established monument, symbol, or practice often multiply. Take the example of Ten Commandments monuments, the subject we addressed in Van Orden, 545 U. S. 677, and McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844 (2005). For believing Jews and Christians, the Ten Commandments are the word of God handed down to Moses on Mount Sinai, but the image of the Ten Commandments has also been used to convey other meanings. They have historical significance as one of the foun- dations of our legal system, and for largely that reason, they are depicted in the marble frieze in our courtroom and in other prominent public buildings in our Nation’s capital. See Van Orden, supra, at 688–690. In Van Orden and McCreary, no Member of the Court thought that these depictions are unconstitutional. 545 U. S., at 688–690; id., at 701 (opinion of BREYER, J.); id., at 740 (Souter, J., dissenting). Just as depictions of the Ten Commandments in these public buildings were intended to serve secular purposes, the litigation in Van Orden and McCreary showed that secular motivations played a part in the proliferation of Ten Commandments monuments in the 1950s. In 1946, Minnesota Judge E. J. Ruegemer proposed that the Ten Commandments be widely disseminated as a way of com- bating juvenile delinquency.17 With this prompting, the

—————— 17 See Bravin, When Moses’ Laws Run Afoul of the U. S.’s, Get Me Cecil B. deMille—Ten Commandment Memorial Has Novel Defense in Suit, Wall Street Journal, Apr. 18, 2001, p. A1. 18 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

Opinion of the Court Fraternal Order of the Eagles began distributing paper copies of the Ten Commandments to churches, school groups, courts, and government offices. The Eagles, “while interested in the religious aspect of the Ten Com- mandments, sought to highlight the Commandments’ role in shaping civic morality.” Van Orden, supra, at 701 (opinion of BREYER, J.). At the same time, Cecil B. DeMille was filming The Ten Commandments.18 He learned of Judge Ruegemer’s campaign, and the two col- laborated, deciding that the Commandments should be carved on stone tablets and that DeMille would make arrangements with the Eagles to help pay for them, thus simultaneously promoting his film and public awareness of the Decalogue. Not only did DeMille and Judge Ruege- mer have different purposes, but the motivations of those who accepted the monuments and those responsible for maintaining them may also have differed. As we noted in Pleasant Grove City v. Summum, 555 U. S. 460, 476 (2009), “the thoughts or sentiments expressed by a government entity that accepts and displays [a monument] may be quite different from those of either its creator or its donor.” The existence of multiple purposes is not exclusive to longstanding monuments, symbols, or practices, but this phenomenon is more likely to occur in such cases. Even if the original purpose of a monument was infused with religion, the passage of time may obscure that sentiment. As our society becomes more and more religiously diverse, a community may preserve such monuments, symbols, and practices for the sake of their historical significance or their place in a common cultural heritage. Cf. Schempp, 374 U. S., at 264–265 (Brennan, J., concurring) (“[The] government may originally have decreed a Sunday day of

—————— 18 See D. Davis, The Oxford Handbook of Church and State in the United States 284 (2010). Cite as: 588 U. S. ____ (2019) 19

Opinion of the Court rest for the impermissible purpose of supporting religion but abandoned that purpose and retained the laws for the permissible purpose of furthering overwhelmingly secular ends”). Third, just as the purpose for maintaining a monument, symbol, or practice may evolve, “[t]he ‘message’ conveyed . . . may change over time.” Summum, 555 U. S., at 477. Consider, for example, the message of the Statue of Lib- erty, which began as a monument to the solidarity and friendship between France and the United States and only decades later came to be seen “as a beacon welcoming immigrants to a land of freedom.” Ibid. 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. The recent tragic fire at Notre Dame in Paris provides a striking example. Although the French Republic rigorously enforces a secular public square,19 the cathedral remains a symbol of national importance to the religious and nonreligious alike. Notre Dame is funda- mentally a place of worship and retains great religious importance, but its meaning has broadened. For many, it is inextricably linked with the very idea of Paris and France.20 Speaking to the nation shortly after the fire, President Macron said that Notre Dame “ ‘is our history, our literature, our imagination. The place where we survived epidemics, wars, liberation. It has been the epicen- 21 ter of our lives.’ ” In the same way, consider the many cities and towns —————— 19 See French Constitution, Art. 1 (proclaiming that France is a “secular . . . Republic”). 20 See Erlanger, What the Notre-Dame Fire Reveals About the Soul of France, N. Y. Times, Apr. 16, 2019. 21 Hinnant, Petrequin, & Ganley, Fire Ravages Soaring Notre Dame Cathedral, Paris Left Aghast, AP News, Apr. 16, 2019. 20 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

Opinion of the Court across the United States that bear religious names. Reli- gion undoubtedly motivated those who named Bethlehem, Pennsylvania; Las Cruces, New Mexico; Providence, Rhode Island; Corpus Christi, Texas; Nephi, Utah, and the countless other places in our country with names that are rooted in religion. Yet few would argue that this history requires that these names be erased from the map. Or take a motto like Arizona’s, “Ditat Deus” (“God enriches”), which was adopted in 1864,22 or a flag like Maryland’s, which has included two crosses since 1904.23 Familiarity itself can become a reason for preservation. 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,24 and for those with a knowledge of —————— 22 See B. Shearer & B. Shearer, State Names, Seals, Flags, and Sym- bols: A Historical Guide 17–18 (3d ed. 2002). See also id., at 18 (Con- necticut motto: “Qui Tanstulit Sustinet” (“He Who Transplanted Still Sustains”), dating back to the colonial era and adapted from the Book of Psalms 79:3); ibid. (Florida motto: “In God We Trust,” adopted in 1868); id., at 20 (Maryland motto: “Scuto Bonae Volantatis Tuae Coronasti Nos” (“With Favor Wilt Thou Compass Us as with a Shield”), which appeared on the seal adopted in 1876 and comes from Psalms 5:12); id., at 21–22 (Ohio motto: “With God, All Things Are Possible,” adopted in 1959 and taken from Matthew 19:26); id., at 22 (South Dakota motto: “Under God the People Rule,” adopted in 1885); id., at 23 (American Samoa motto: “Samoa—Muamua le Atua” (“Samoa—Let God Be First”), adopted in 1975). 23 The current flag was known and used since at least October 1880, and was officially adopted by the General Assembly in 1904. See History of the Maryland Flag, https://sos.maryland.gov/Pages/Services/Flag-History.aspx. 24 For example, the French Revolution sought to “dechristianize” the Cite as: 588 U. S. ____ (2019) 21

Opinion of the Court history, the image of monuments being taken down will be evocative, disturbing, and divisive. Cf. Van Orden, 545 U. S., at 704 (opinion of BREYER, J.) (“[D]isputes concern- ing the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation . . . could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid”). These four considerations show that retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones. The passage of time gives rise to a strong presumption of constitutionality. C The role of the cross in World War I memorials is illustrative of each of the four preceding considerations. Immediately following the war, “[c]ommunities across Amer- ica built memorials to commemorate those who had served the nation in the struggle to make the world safe for democracy.” G. Piehler, The American Memory of War, App. 1124. Although not all of these communities included a cross in their memorials, the cross had become a symbol closely linked to the war. “[T]he First World War witnessed a dramatic change in . . . the symbols used to commemorate th[e] service” of the fallen soldiers. Id., at 1123. In the wake of the war, the United States adopted the cross as part of its military honors, establishing the Dis- tinguished Service Cross and the Navy Cross in 1918 and

—————— nation and thus removed “plate[s], statues and other fittings from places of worship,” destroyed “crosses, bells, shrines and other, ‘exter- nal signs of worship,’ ” and altered “personal and place names which had any ecclesiastical connotations to more suitably Revolutionary ones.” Tallett, Dechristianizing France: The Year II and the Revolu- tionary Experience, in Religion, Society and Politics in France Since 1789, pp. 1–2 (F. Tallett & N. Atkin eds. 1991). 22 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

Opinion of the Court 1919, respectively. See id., at 147–148. And as already noted, the fallen soldiers’ final resting places abroad were marked by white crosses or Stars of David. The solemn image of endless rows of white crosses became inextricably linked with and symbolic of the ultimate price paid by 116,000 soldiers. And this relationship between the cross and the war undoubtedly influenced the design of the many war memorials that sprang up across the Nation. This is not to say that the cross’s association with the war was the sole or dominant motivation for the inclusion of the symbol in every World War I memorial that features it. But today, it is all but impossible to tell whether that was so. The passage of time means that testimony from those actually involved in the decisionmaking process is generally unavailable, and attempting to uncover their motivations invites rampant speculation. And no matter what the original purposes for the erection of a monument, a community may wish to preserve it for very different reasons, such as the historic preservation and traffic- safety concerns the Commission has pressed here. In addition, the passage of time may have altered the area surrounding a monument in ways that change its meaning and provide new reasons for its preservation. Such changes are relevant here, since the Bladensburg Cross now sits at a busy traffic intersection, and numerous additional monuments are located nearby. Even the AHA recognizes that there are instances in which a war memorial in the form of a cross is unobjectionable. The AHA is not offended by the sight of the Argonne Cross or the Canadian Cross of Sacrifice, both Latin crosses commemorating World War I that rest on public grounds in Arlington National Cemetery. The difference, according to the AHA, is that their location in a cemetery gives them a closer association with individual gravestones and interred soldiers. See Brief for Respond- ents 96; Tr. of Oral Arg. 52. Cite as: 588 U. S. ____ (2019) 23

Opinion of the Court But a memorial’s placement in a cemetery is not necessary to create such a connection. The parents and other relatives of many of the war dead lacked the means to travel to Europe to visit their graves, and the bodies of approximately 4,400 American soldiers were either never found or never identified.25 Thus, for many grieving relatives and friends, memorials took the place of gravestones. Recall that the mother of one of the young men memorialized by the Bladensburg Cross thought of the memorial as, “in a way, his grave stone.” App. 1244. Whether in a cemetery or a city park, a World War I cross remains a memorial to the fallen. Similar reasoning applies to other memorials and monuments honoring important figures in our Nation’s history. When faith was important to the person whose life is commemorated, it is natural to include a symbolic reference to faith in the design of the memorial. For example, many memorials for Dr. Martin Luther King, Jr., make reference to his faith. Take the Martin Luther King, Jr. Civil Rights Memorial Park in Seattle, which contains a sculpture in three segments representing “both the Chris- tian Trinity and the union of the family.”26 In Atlanta, the Ebenezer Baptist Church sits on the grounds of the Mar- tin Luther King, Jr. National Historical Park. National Statuary Hall in the Capitol honors a variety of religious figures: for example, Mother Joseph Pariseau kneeling in prayer; Po’Pay, a Pueblo religious leader with symbols of the Pueblo religion; Brigham Young, president of the Church of Jesus Christ of Latter-day Saints; and Father Eusebio Kino with a crucifix around his neck and his hand raised in blessing.27 These monuments honor men and —————— 25 See App. 141, 936; M. Sledge, Soldier Dead 67 (2005). 26 Local Memorials Honoring Dr. King, https://www.kingcounty. gov/elected/executive/equity-social-justice/mlk/local-memorials.aspx. 27 The National Statuary Hall Collection, https://www.aoc.gov/the- national-statuary-hall-collection. 24 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

OpinionOpinion ofof theALITO Court, J. women who have played an important role in the history of our country, and where religious symbols are included in the monuments, their presence acknowledges the cen- trality of faith to those whose lives are commemorated. Finally, as World War I monuments have endured through the years and become a familiar part of the physical and cultural landscape, requiring their removal would not be viewed by many as a neutral act. And an alteration like the one entertained by the Fourth Circuit— amputating the arms of the Cross, see 874 F. 3d, at 202, n. 7—would be seen by many as profoundly disrespectful. One member of the majority below viewed this objection as inconsistent with the claim that the Bladensburg Cross serves secular purposes, see 891 F. 3d, at 121 (Wynn, J., concurring in denial of en banc), but this argument mis- understands the complexity of monuments. A monument may express many purposes and convey many different messages, both secular and religious. Cf. Van Orden, 545 U. S., at 690 (plurality opinion) (describing simultaneous religious and secular meaning of the Ten Commandments display). Thus, a campaign to obliterate items with religious associations may evidence hostility to religion even if those religious associations are no longer in the forefront. For example, few would say that the State of California is attempting to convey a religious message by retaining the names given to many of the State’s cities by their original Spanish settlers—San Diego, Los Angeles, Santa Barbara, San Jose, San Francisco, etc. But it would be something else entirely if the State undertook to change all those names. Much the same is true about monuments to soldiers who sacrificed their lives for this country more than a century ago. D While the Lemon Court ambitiously attempted to find a grand unified theory of the Establishment Clause, in later Cite as: 588 U. S. ____ (2019) 25

OpinionOpinion ofof theALITO Court, J. cases, we have taken a more modest approach that focuses on the particular issue at hand and looks to history for guidance. Our cases involving prayer before a legislative session are an example. In Marsh v. Chambers, 463 U. S. 783 (1983), the Court upheld the Nebraska Legislature’s practice of beginning each session with a prayer by an official chaplain, and in so holding, the Court conspicuously ignored Lemon and did not respond to Justice Brennan’s argument in dissent that the legislature’s practice could not satisfy the Lemon test. Id., at 797–801. Instead, the Court found it highly persuasive that Congress for more than 200 years had opened its sessions with a prayer and that many state legislatures had followed suit. Id., at 787–788. We took a similar approach more recently in Town of Greece, 572 U. S., at 577. We reached these results even though it was clear, as stressed by the Marsh dissent, that prayer is by definition religious. See Marsh, supra, at 797–798 (opinion of Bren- nan, J.). As the Court put it in Town of Greece: “Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation.” 572 U. S., at 576. “The case teaches instead that the Establishment Clause must be interpreted ‘by reference to historical practices and understandings’ ” and that the decision of the First Congress to “provid[e] for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion’s role in society.” Ibid. The prevalence of this philosophy at the time of the founding is reflected in other prominent actions taken by the First Congress. It requested—and President Wash- ington proclaimed—a national day of prayer, see 1 J. Richardson, Messages and Papers of the Presidents, 1789– 1897, p. 64 (1897) (President Washington’s Thanksgiving 26 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

OpinionOpinion ofof theALITO Court, J.

Proclamation), and it reenacted the Northwest Territory Ordinance, which provided that “[r]eligion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged,” 1 Stat. 52, n. (a). President Washington echoed this sentiment in his Farewell Ad- dress, calling religion and morality “indispensable supports” to “political prosperity.” Farewell Address (1796), in 35 The Writings of George Washington 229 (J. Fitzpat- rick ed. 1940). See also P. Hamburger, Separation of Church and State 66 (2002). The First Congress looked to these “supports” when it chose to begin its sessions with a prayer. This practice was designed to solemnize congressional meetings, unifying those in attendance as they pursued a common goal of good governance. To achieve that purpose, legislative prayer needed to be inclusive rather than divisive, and that required a determined effort even in a society that was much more religiously homogeneous than ours today. Although the United States at the time was overwhelmingly Christian and Protestant,28 there was considerable friction between Protestant denominations. See M. Noll, America’s God: From Jonathan Edwards to Abraham Lincoln 228 (2002). Thus, when an Episcopal clergyman was nominated as chaplain, some Congregationalist Members of Congress objected due to the “ ‘diversity of religious sentiments represented in Congress.’ ” D. Davis, Religion and the Continental Congress 74 (2000). Nevertheless, Samuel Adams, a staunch Congregationalist, spoke in favor of the motion: “ ‘I am no bigot. I can hear a prayer from a man of piety and virtue, who is at the same time a friend of his country.’ ” Ibid. Others agreed and the chaplain was appointed. Over time, the members of the clergy invited to offer —————— 28 W. Hutchison, Religious Pluralism in America 20–21 (2003). Cite as: 588 U. S. ____ (2019) 27

OpinionOpinion ofof theALITO Court, J. prayers at the opening of a session grew more and more diverse. For example, an 1856 study of Senate and House Chaplains since 1789 tallied 22 Methodists, 20 Presbyteri- ans, 19 Episcopalians, 13 Baptists, 4 Congregationalists, 2 Roman Catholics, and 3 that were characterized as “miscellaneous.”29 Four years later, Rabbi Morris Raphall became the first rabbi to open Congress.30 Since then, Congress has welcomed guest chaplains from a variety of faiths, including Islam, Hinduism, Buddhism, and Native American religions.31 In Town of Greece, which concerned prayer before a town council meeting, there was disagreement about the inclusiveness of the town’s practice. Compare 572 U. S., at 585 (opinion of the Court) (“The town made reasonable efforts to identify all of the congregations located within its borders and represented that it would welcome a prayer by any minister or layman who wished to give one”), with id., at 616 (KAGAN, J., dissenting) (“Greece’s Board did nothing to recognize religious diversity”). But there was no disagreement that the Establishment Clause permits a nondiscriminatory practice of prayer at the beginning of a town council session. See ibid. (“I believe that pluralism and inclusion [in legislative prayer] in a town hall can satisfy the constitutional requirement of neutrality”). Of course, the specific practice challenged in Town of Greece lacked the very direct connection, via the First Congress, to the thinking of those who were responsible for framing the First Amendment. But what mat- tered was that the town’s practice “fi[t] within the tradition long followed in Congress and the state legislatures.” —————— 29 A. Stokes, 3 Church and State in the United States 130 (1950). 30 Korn, Rabbis, Prayers, and Legislatures, 23 Hebrew Union College Annual, No. 2, pp. 95, 96 (1950). 31 See Lund, The Congressional Chaplaincies, 17 Wm. & Mary Bill of Rights J. 1171, 1204–1205 (2009). See also 160 Cong. Rec. 3853 (2014) (prayer by the Dalai Lama). 28 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

Opinion of the Court Id., at 577 (opinion of the Court). The practice begun by the First Congress stands out as an example of respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans. Where categories of monuments, symbols, and practices with a longstanding history follow in that tradition, they are likewise constitutional. III Applying these principles, we conclude that the Bladensburg Cross does not violate the Establishment Clause. As we have explained, the Bladensburg Cross carries special significance in commemorating World War I. Due in large part to the image of the simple wooden crosses that originally marked the graves of American soldiers killed in the war, the cross became a symbol of their sacrifice, and the design of the Bladensburg Cross must be understood in light of that background. That the cross originated as a Christian symbol and retains that meaning in many contexts does not change the fact that the symbol took on an added secular meaning when used in World War I memorials. Not only did the Bladensburg Cross begin with this meaning, but with the passage of time, it has acquired historical importance. It reminds the people of Bladens- burg and surrounding areas of the deeds of their predecessors and of the sacrifices they made in a war fought in the name of democracy. As long as it is retained in its original place and form, it speaks as well of the community that erected the monument nearly a century ago and has maintained it ever since. The memorial represents what the relatives, friends, and neighbors of the fallen soldiers felt at the time and how they chose to express their senti- Cite as: 588 U. S. ____ (2019) 29

Opinion of the Court ments. And the monument has acquired additional layers of historical meaning in subsequent years. The Cross now stands among memorials to veterans of later wars. It has become part of the community. The monument would not serve that role if its design had deliberately disrespected area soldiers who perished in World War I. More than 3,500 Jewish soldiers gave their lives for the United States in that conflict,32 and some have wondered whether the names of any Jewish soldiers from the area were deliberately left off the list on the memorial or whether the names of any Jewish soldiers were included on the Cross against the wishes of their families. There is no evidence that either thing was done, and we do know that one of the local American Legion leaders responsible for the Cross’s construction was a Jewish veteran. See App. 65, 205, 990. The AHA’s brief strains to connect the Bladensburg Cross and even the American Legion with anti-Semitism and the Ku Klux Klan, see Brief for Respondents 5–7, but the AHA’s disparaging intimations have no evidentiary support. And when the events surrounding the erection of the Cross are viewed in historical context, a very different picture may perhaps be discerned. The monument was dedicated on July 12, 1925, during a period when the country was experiencing heightened racial and religious animosity. Membership in the Ku Klux Klan, which preached hatred of Blacks, Catholics, and Jews, was at its height.33 On August 8, 1925, just two weeks after the dedication of the Bladensburg Cross and less than 10 miles away, some 30,000 robed Klansmen marched down Pennsylvania Avenue in the Nation’s Capital. But the Bladensburg Cross memorial included the names of both

—————— 32 J. Fredman & L. Falk, Jews in American Wars 100–101 (5th ed. 1954). 33 Fryer & Levitt, Hatred and Profits: Under the Hood of the Ku Klux Klan, 127 Q. J. Econ. 1883 (2012). 30 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

Opinion of the Court Black and White soldiers who had given their lives in the war; and despite the fact that Catholics and Baptists at that time were not exactly in the habit of participating together in ecumenical services, the ceremony dedicating the Cross began with an invocation by a Catholic priest and ended with a benediction by a Baptist pastor. App. 1559–1569, 1373. We can never know for certain what was in the minds of those responsible for the memorial, but in light of what we know about this ceremony, we can perhaps make out a picture of a community that, at least for the moment, was united by grief and patriotism and rose above the divisions of the day. Finally, it is surely relevant that the monument commemorates the death of particular individuals. It is natural and appropriate for those seeking to honor the deceased to invoke the symbols that signify what death meant for those who are memorialized. In some circumstances, the exclusion of any such recognition would make a memorial incomplete. This well explains why Holocaust memorials invariably include Stars of David or other symbols of Judaism.34 It explains why a new memorial to Native American veterans in Washington, D. C., will portray a steel circle to represent “ ‘the hole in the sky 35 where the creator lives.’ ” And this is why the memorial for soldiers from the Bladensburg community features the cross—the same symbol that marks the graves of so many of their comrades near the battlefields where they fell.

—————— 34 For example, the South Carolina Holocaust Memorial depicts a large Star of David “ ‘in sacred memory of the six million,’ ” see https://www.onecolumbiasc.com/public-art/south-carolina-holocaust- memorial/, and the Philadelphia Monument to Six Million Jewish Martyrs depicts a burning bush, Torah scrolls, and a blazing men- orah, see https://www.associationforpublicart.org/artwork/monument- to-six-million-jewish-martyrs/. 35 Hedgpeth, “A Very Deep Kind of Patriotism”: Memorial to Honor Native American Veterans Is Coming to the Mall, Washington Post, Mar. 31, 2019. Cite as: 588 U. S. ____ (2019) 31

Opinion of the Court IV The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent. For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark. For many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment. For all these reasons, the Cross does not offend the Constitution. * * * We reverse the judgment of the Court of Appeals for the Fourth Circuit and remand the cases for further proceedings.

It is so ordered. Cite as: 588 U. S. ____ (2019) 1

BREYER, J., concurring SUPREME COURT OF THE UNITED STATES ______

Nos. 17–1717 and 18–18 ______

THE AMERICAN LEGION, ET AL., PETITIONERS 17–1717 v. AMERICAN HUMANIST ASSOCIATION, ET AL.; AND

MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, PETITIONER 18–18 v. AMERICAN HUMANIST ASSOCIATION, ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [June 20, 2019]

JUSTICE BREYER, with whom JUSTICE KAGAN joins, concurring. I have long maintained that there is no single formula for resolving Establishment Clause challenges. See Van Orden v. Perry, 545 U. S. 677, 698 (2005) (opinion concurring in judgment). The Court must instead consider each case in light of the basic purposes that the Religion Clauses were meant to serve: assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its “separate spher[e].” Ibid.; see also Zelman v. Simmons-Harris, 536 U. S. 639, 717−723 (2002) (BREYER, J., dissenting). I agree with the Court that allowing the State of Mary- land to display and maintain the Peace Cross poses no threat to those ends. The Court’s opinion eloquently explains why that is so: The Latin cross is uniquely associated with the fallen soldiers of World War I; the organiz- 2 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

BREYER, J., concurring ers of the Peace Cross acted with the undeniably secular motive of commemorating local soldiers; no evidence suggests that they sought to disparage or exclude any religious group; the secular values inscribed on the Cross and its place among other memorials strengthen its message of patriotism and commemoration; and, finally, the Cross has stood on the same land for 94 years, generating no controversy in the community until this lawsuit was filed. Noth- ing in the record suggests that the lack of public outcry “was due to a climate of intimidation.” Van Orden, 545 U. S., at 702 (BREYER, J., concurring in judgment). In light of all these circumstances, the Peace Cross cannot reasonably be understood as “a government effort to favor a particular religious sect” or to “promote religion over nonreligion.” Ibid. And, as the Court explains, ordering its removal or alteration at this late date would signal “a hostility toward religion that has no place in our Estab- lishment Clause traditions.” Id., at 704. The case would be different, in my view, if there were evidence that the organizers had “deliberately disrespected” members of minority faiths or if the Cross had been erected only recently, rather than in the aftermath of World War I. See ante, at 29; see also Van Orden, 545 U. S., at 703 (opinion of BREYER, J.) (explaining that, in light of the greater religious diversity today, “a more contemporary state effort” to put up a religious display is “likely to prove divisive in a way that [a] longstanding, pre-existing monument [would] not”). But those are not the circumstances presented to us here, and I see no reason to order this cross torn down simply because other crosses would raise constitutional concerns. Nor do I understand the Court’s opinion today to adopt a “history and tradition test” that would permit any newly constructed religious memorial on public land. See post, at 1, 4 (KAVANAUGH, J., concurring); cf. post, at 8−9 (GORSUCH, J., concurring in judgment). The Court appro- Cite as: 588 U. S. ____ (2019) 3

BREYER, J., concurring priately “looks to history for guidance,” ante, at 25 (plurality opinion), but it upholds the constitutionality of the Peace Cross only after considering its particular historical context and its long-held place in the community, see ante, at 28−30 (majority opinion). A newer memorial, erected under different circumstances, would not necessarily be permissible under this approach. Cf. ante, at 21. As I have previously explained, “where the Establish- ment Clause is at issue,” the Court must “ ‘distinguish between real threat and mere shadow.’ ” Van Orden, 545 U. S., at 704 (opinion concurring in judgment) (quoting School Dist. of Abington Township v. Schempp, 374 U. S. 203, 308 (1963) (Goldberg, J., concurring)). In light of all the circumstances here, I agree with the Court that the Peace Cross poses no real threat to the values that the Establishment Clause serves. Cite as: 588 U. S. ____ (2019) 1

KAVANAUGH, J., concurring SUPREME COURT OF THE UNITED STATES ______

Nos. 17–1717 and 18–18 ______

THE AMERICAN LEGION, ET AL., PETITIONERS 17–1717 v. AMERICAN HUMANIST ASSOCIATION, ET AL.; AND

MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, PETITIONER 18–18 v. AMERICAN HUMANIST ASSOCIATION, ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [June 20, 2019]

JUSTICE KAVANAUGH, concurring. I join the Court’s eloquent and persuasive opinion in full. I write separately to emphasize two points. I Consistent with the Court’s case law, the Court today applies a history and tradition test in examining and upholding the constitutionality of the Bladensburg Cross. See Marsh v. Chambers, 463 U. S. 783, 787–792, 795 (1983); Van Orden v. Perry, 545 U. S. 677, 686–690 (2005) (plurality opinion); Town of Greece v. Galloway, 572 U. S. 565, 575–578 (2014). As this case again demonstrates, this Court no longer applies the old test articulated in Lemon v. Kurtzman, 403 U. S. 602 (1971). The Lemon test examined, among other things, whether the challenged government action had a primary effect of advancing or endorsing religion. If Lemon guided this Court’s understanding of the Estab- lishment Clause, then many of the Court’s Establishment 2 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

KAVANAUGH, J., concurring Clause cases over the last 48 years would have been decided differently, as I will explain. The opinion identifies five relevant categories of Estab- lishment Clause cases: (1) religious symbols on government property and religious speech at government events; (2) religious accommodations and exemptions from generally applicable laws; (3) government benefits and tax exemptions for religious organizations; (4) religious expression in public schools; and (5) regulation of private religious speech in public forums. See ante, at 15, n. 16. The Lemon test does not explain the Court’s decisions in any of those five categories. In the first category of cases, the Court has relied on history and tradition and upheld various religious symbols on government property and religious speech at government events. See, e.g., Marsh, 463 U. S., at 787–792, 795; Van Orden, 545 U. S., at 686–690 (plurality opinion); Town of Greece, 572 U. S., at 575–578. The Court does so again today. Lemon does not account for the results in these cases. In the second category of cases, this Court has allowed legislative accommodations for religious activity and upheld legislatively granted religious exemptions from generally applicable laws. See, e.g., Corporation of Presid- ing Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327 (1987); Cutter v. Wilkinson, 544 U. S. 709 (2005). But accommodations and exemptions “by definition” have the effect of advancing or endorsing religion to some extent. Amos, 483 U. S., at 347 (O’Connor, J., concurring in judgment) (quotation altered). Lemon, fairly applied, does not justify those decisions. In the third category of cases, the Court likewise has upheld government benefits and tax exemptions that go to religious organizations, even though those policies have the effect of advancing or endorsing religion. See, e.g., Walz v. Tax Comm’n of City of New York, 397 U. S. 664 Cite as: 588 U. S. ____ (2019) 3

KAVANAUGH, J., concurring (1970); Mueller v. Allen, 463 U. S. 388 (1983); Mitchell v. Helms, 530 U. S. 793 (2000) (plurality opinion); Zelman v. Simmons-Harris, 536 U. S. 639 (2002); Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___ (2017). Those outcomes are not easily reconciled with Lemon. In the fourth category of cases, the Court has proscribed government-sponsored prayer in public schools. The Court has done so not because of Lemon, but because the Court concluded that government-sponsored prayer in public schools posed a risk of coercion of students. The Court’s most prominent modern case on that subject, Lee v. Weisman, 505 U. S. 577 (1992), did not rely on Lemon. In short, Lemon was not necessary to the Court’s decisions holding government-sponsored school prayers unconstitutional. In the fifth category, the Court has allowed private religious speech in public forums on an equal basis with secular speech. See, e.g., Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993); Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753 (1995); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995); Good News Club v. Milford Central School, 533 U. S. 98 (2001). That practice does not violate the Establishment Clause, the Court has ruled. Lemon does not explain those cases. Today, the Court declines to apply Lemon in a case in the religious symbols and religious speech category, just as the Court declined to apply Lemon in Town of Greece v. Galloway, Van Orden v. Perry, and Marsh v. Chambers. The Court’s decision in this case again makes clear that the Lemon test does not apply to Establishment Clause cases in that category. And the Court’s decisions over the span of several decades demonstrate that the Lemon test is not good law and does not apply to Establishment Clause cases in any of the five categories. On the contrary, each category of Establishment Clause 4 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

KAVANAUGH, J., concurring cases has its own principles based on history, tradition, and precedent. And the cases together lead to an over- arching 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 Bladens- burg Cross does not violate the Establishment Clause. Cf. Town of Greece, 572 U. S. 565. II The Bladensburg Cross commemorates soldiers who gave their lives for America in World War I. I agree with the Court that the Bladensburg Cross is constitutional. At the same time, I have deep respect for the plaintiffs’ sincere objections to seeing the cross on public land. I have great respect for the Jewish war veterans who in an amicus brief say that the cross on public land sends a message of exclusion. I recognize their sense of distress and aliena- tion. Moreover, I fully understand the deeply religious nature of the cross. It would demean both believers and nonbelievers to say that the cross is not religious, or not all that religious. A case like this is difficult because it represents a clash of genuine and important interests. Applying our precedents, we uphold the constitutionality of the cross. In doing so, it is appropriate to also restate this bedrock constitutional principle: All citizens are —————— *That is not to say that challenged government actions outside that safe harbor are unconstitutional. Any such cases must be analyzed under the relevant Establishment Clause principles and precedents. Cite as: 588 U. S. ____ (2019) 5

KAVANAUGH, J., concurring equally American, no matter what religion they are, or if they have no religion at all. The conclusion that the cross does not violate the Estab- lishment Clause does not necessarily mean that those who object to it have no other recourse. The Court’s ruling allows the State to maintain the cross on public land. The Court’s ruling does not require the State to maintain the cross on public land. The Maryland Legislature could enact new laws requiring removal of the cross or transfer of the land. The Maryland Governor or other state or local executive officers may have authority to do so under current Maryland law. And if not, the legislature could enact new laws to authorize such executive action. The Mary- land Constitution, as interpreted by the Maryland Court of Appeals, may speak to this question. And if not, the people of Maryland can amend the State Constitution. Those alternative avenues of relief illustrate a funda- mental feature of our constitutional structure: This Court is not the only guardian of individual rights in America. This Court fiercely protects the individual rights secured by the U. S. Constitution. See, e.g., West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943); Wisconsin v. Yoder, 406 U. S. 205 (1972). But the Constitution sets a floor for the protection of individual rights. The constitutional floor is sturdy and often high, but it is a floor. Other federal, state, and local government entities generally possess authority to safeguard individual rights above and beyond the rights secured by the U. S. Constitution. See generally J. Sutton, 51 Imperfect Solutions (2018); Bren- nan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977). Cite as: 588 U. S. ____ (2019) 1

KAGANKAGAN, J., ,concurring J., concurring in part SUPREME COURT OF THE UNITED STATES ______

Nos. 17–1717 and 18–18 ______

THE AMERICAN LEGION, ET AL., PETITIONERS 17–1717 v. AMERICAN HUMANIST ASSOCIATION, ET AL.; AND

MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, PETITIONER 18–18 v. AMERICAN HUMANIST ASSOCIATION, ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [June 20, 2019]

JUSTICE KAGAN, concurring in part. I fully agree with the Court’s reasons for allowing the Bladensburg Peace Cross to remain as it is, and so join Parts I, II–B, II–C, III, and IV of its opinion, as well as JUSTICE BREYER’s concurrence. Although I agree that rigid application of the Lemon test does not solve every Establishment Clause problem, I think that test’s focus on purposes and effects is crucial in evaluating government action in this sphere—as this very suit shows. I therefore do not join Part II–A. I do not join Part II–D out of perhaps an excess of caution. Although I too “look[ ] to history for guidance,” ante, at 25 (plurality opinion), I prefer at least for now to do so case-by-case, rather than to sign on to any broader statements about history’s role in Estab- lishment Clause analysis. But I find much to admire in this section of the opinion—particularly, its emphasis on whether longstanding monuments, symbols, and practices reflect “respect and tolerance for differing views, an honest 2 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

KAGAN, J., concurring in part endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans.” Ante, at 28. Here, as elsewhere, the opinion shows sensitivity to and respect for this Nation’s pluralism, and the values of neutrality and inclusion that the First Amendment demands.

Cite as: 588 U. S. ____ (2019) 1

THOMAST,HOMAS J., concurring, J., concurring in judgment SUPREME COURT OF THE UNITED STATES ______

Nos. 17–1717 and 18–18 ______

THE AMERICAN LEGION, ET AL., PETITIONERS 17–1717 v. AMERICAN HUMANIST ASSOCIATION, ET AL.; AND

MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, PETITIONER 18–18 v. AMERICAN HUMANIST ASSOCIATION, ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [June 20, 2019]

JUSTICE THOMAS, concurring in the judgment. The Establishment Clause states that “Congress shall make no law respecting an establishment of religion.” U. S. Const., Amdt. 1. The text and history of this Clause suggest that it should not be incorporated against the States. Even if the Clause expresses an individual right enforceable against the States, it is limited by its text to “law[s]” enacted by a legislature, so it is unclear whether the Bladensburg Cross would implicate any incorporated right. And even if it did, this religious display does not involve the type of actual legal coercion that was a hallmark of historical establishments of religion. Therefore, the Cross is clearly constitutional. I As I have explained elsewhere, the Establishment Clause resists incorporation against the States. Town of Greece v. Galloway, 572 U. S. 565, 604–607 (2014) (opinion concurring in part and concurring in judgment); Elk Grove 2 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

THOMAS, J., concurring in judgment

Unified School Dist. v. Newdow, 542 U. S. 1, 49–51 (2004) (opinion concurring in judgment); Van Orden v. Perry, 545 U. S. 677, 692–693 (2005) (concurring opinion); Zelman v. Simmons-Harris, 536 U. S. 639, 677–680 (2002) (same). In Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15 (1947), the Court “casually” incorporated the Clause with a declaration that because the Free Exercise Clause had been incorporated, “ ‘[t]here is every reason to give the same application and broad interpretation to the “establishment of religion” clause.’ ” Town of Greece, 572 U. S., at 607, n. 1 (opinion of THOMAS, J.). The Court apparently did not consider that an incorporated Establishment Clause would prohibit exactly what the text of the Clause seeks to protect: state establishments of religion. See id., at 605–606. The Court’s “inattention” to the significant question of incorporation “might be explained, although not excused, by the rise of popular conceptions about ‘separation of church and state’ as an ‘American’ constitutional right.” Id., at 608, n. 1; see P. Hamburger, Separation of Church and State 454–463 (2002); see also id., at 391–454 (tracing the role of nativist sentiment in the rise of “the modern myth of separation” as an American ideal). But an ahis- torical generalization is no substitute for careful constitutional analysis. We should consider whether any longstanding right of citizenship restrains the States in the establishment context. See generally McDonald v. Chicago, 561 U. S. 742, 805–858, and n. 20 (2010) (THOMAS, J., concurring in part and concurring in judgment). Further confounding the incorporation question is the fact that the First Amendment by its terms applies only to “law[s]” enacted by “Congress.” Obviously, a memorial is not a law. And respondents have not identified any specific law they challenge as unconstitutional, either on its face or as applied. Thus, respondents could prevail on their Cite as: 588 U. S. ____ (2019) 3

THOMAS, J., concurring in judgment

establishment claim only if the prohibition embodied in the Establishment Clause was understood to be an individual right of citizenship that applied to more than just “law[s]” “ma[de]” by “Congress.”1 II Even if the Clause applied to state and local governments in some fashion, “[t]he mere presence of the monument along [respondents’] path involves no coercion and thus does not violate the Establishment Clause.” Van Orden, 545 U. S., at 694 (opinion of THOMAS, J.). The sine qua non of an establishment of religion is “ ‘actual legal coercion.’ ” Id., at 693. At the founding, “[t]he coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty.” Lee v. Weisman, 505 U. S. 577, 640 (1992) (Scalia, J., dissenting) (emphasis deleted). “In a typical case, attendance at the established church was mandatory, and taxes were levied to generate church revenue. Dissenting ministers were barred from preaching, and political participation was limited to members of the established church.” Town of Greece, supra, at 608 (opinion of THOMAS, J.) (citation omitted). In an action claiming an unconstitutional establishment of religion, the plaintiff must demonstrate that he was actually coerced by government conduct that shares the characteristics of an establishment as understood at the founding.2 —————— 1 In my view, the original meaning of the phrase “Congress shall make no law” is a question worth exploring. Compare G. Lawson & G. Seidman, The Constitution of Empire 42 (2004) (arguing that the First Amendment “applies only to Congress”), with Shrum v. Coweta, 449 F. 3d 1132, 1140–1143 (CA10 2006) (McConnell, J.) (arguing that it is not so limited). 2 Of course, cases involving state or local action are not strictly speaking Establishment Clause cases, but instead Fourteenth Amendment cases about a privilege or immunity of citizenship. It is conceivable 4 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

THOMAS, J., concurring in judgment

Here, respondents briefly suggest that the government’s spending their tax dollars on maintaining the Bladens- burg Cross represents coercion, but they have not demonstrated that maintaining a religious display on public property shares any of the historical characteristics of an establishment of religion. The local commission has not attempted to control religious doctrine or personnel, compel religious observance, single out a particular religious denomination for exclusive state subsidization, or punish dissenting worship. Instead, the commission has done something that the founding generation, as well as the generation that ratified the Fourteenth Amendment, would have found commonplace: displaying a religious symbol on government property. See Brief for Becket Fund for Religious Liberty as Amicus Curiae 14–22. Lacking any characteristics of “the coercive state establishments that existed at the founding,” Town of Greece, 572 U. S., at 608 (opinion of THOMAS, J.), the Bladensburg Cross is constitutional. The Bladensburg Cross is constitutional even though the cross has religious significance as a central symbol of Christianity. Respondents’ primary contention is that this characteristic of the Cross makes it “sectarian”—a word used in respondents’ brief more than 40 times. Putting aside the fact that Christianity is not a “sect,” religious displays or speech need not be limited to that which a “judge considers to be nonsectarian.” Id., at 582 (majority opinion). As the Court has explained, “[a]n insistence on nonsectarian” religious speech is inconsistent with our Nation’s history and traditions. Id., at 578–580; see id., at 595 (ALITO, J., concurring). Moreover, requiring that —————— that the salient characteristics of an establishment changed by the time of the Fourteenth Amendment, see Town of Greece v. Galloway, 572 U. S. 565, 607, 609–610 (2014) (THOMAS, J., concurring in part and concurring in judgment), but respondents have presented no evidence suggesting so. Cite as: 588 U. S. ____ (2019) 5

THOMAS, J., concurring in judgment religious expressions be nonsectarian would force the courts “to act as supervisors and censors of religious speech.” Id., at 581 (majority opinion). Any such effort would find courts “trolling through . . . religious beliefs” to decide what speech is sufficiently generic. Mitchell v. Helms, 530 U. S. 793, 828 (2000) (plurality opinion). And government bodies trying to comply with the inevitably arbitrary decisions of the courts would face similarly intractable questions. See Town of Greece, supra, at 596 (opinion of ALITO, J.).3

—————— 3 Another reason to avoid a constitutional test that turns on the “sectarian” nature of religious speech is that the Court has suggested “formally dispens[ing]” with this factor in related contexts. Mitchell, 530 U. S., at 826 (plurality opinion). Among other reasons, the “sectarian” test “has a shameful pedigree” that originated during the 1870s when Congress considered the Blaine Amendment, “which would have amended the Constitution to bar any aid to sectarian institutions.” Id., at 828. “Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that ‘sectarian’ was code for ‘Catholic.’ ” Ibid. This anti- Catholic hostility may well have played a role in the Court’s later decisions. Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947), for example, was written by Justice Black, who would later accuse Catho- lics who advocated for textbook loans to religious schools of being “powerful sectarian religious propagandists . . . looking toward complete domination and supremacy of their particular brand of religion.” Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236, 251 (1968) (Black, J., dissenting). Even by the time of Lemon v. Kurtzman, 403 U. S. 602 (1971), some Justices were still “influenced by residual anti-Catholicism and by a deep suspicion of Catholic schools.” Laycock, The Underlying Unity of Separation and Neutrality, 46 Emory L. J. 43, 58 (1997). Indeed, the Court’s opinion in Lemon “relied on what it considered to be inherent risks in religious schools despite the absence of a record in Lemon itself and despite contrary fact-finding by the district court in the companion case.” Laycock, supra, at 58 (footnote omitted); see generally W. Ball, Mere Creatures of the State?, 35–40 (1994). And in his concurring opinion, Justice Douglas (joined by Justice Black) repeatedly quoted an anti-Catholic book, including for the proposition that, in Catholic parochial schools, “ ‘[t]he whole education of the child is filled with propaganda.’ ” 403 U. S., at 635, n. 20 6 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

THOMAS, J., concurring in judgment

III As to the long-discredited test set forth in Lemon v. Kurtzman, 403 U. S. 602, 612–613 (1971), and reiterated in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 592–594 (1989), the plurality rightly rejects its relevance to claims, like this one, involving “religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.” Ante, at 15–16, and n. 16. I agree with that aspect of its opinion. I would take the logical next step and overrule the Lemon test in all contexts. First, that test has no basis in the original meaning of the Constitu- tion. Second, “since its inception,” it has “been manipu- lated to fit whatever result the Court aimed to achieve.” McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844, 900 (2005) (Scalia, J., dissenting); see Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 398–399 (1993) (Scalia, J., concurring in judgment). Third, it continues to cause enormous confusion in the States and the lower courts. See generally Utah Highway Patrol Assn. v. American Atheists, Inc., 565 U. S. 994 (2011) (THOMAS, J., dissenting from denial of certiorari). In recent decades, the Court has tellingly refused to apply Lemon in the very cases where it purports to be most useful. See Utah Highway, supra, at 997–998 (collecting cases); ante, at 13 (plurality opinion) (same). The obvious explanation is that Lemon does not provide a sound basis for judging Establishment Clause claims. —————— (quoting L. Boettner, Roman Catholicism 360 (1962)); see 403 U. S., at 636 (similar). The tract said that Hitler, Mussolini, and Stalin learned the “secret[s] of [their] success” in indoctrination from the Catholic Church, and that “an undue proportion of the gangsters, racketeers, thieves, and juvenile delinquents who roam our big city streets come . . . from the [Catholic] parochial schools,” where children are taught by “brain-washed,” “ ‘ignorant European peasants.’ ” Boettner, supra, at 363, 370–372. Cite as: 588 U. S. ____ (2019) 7

THOMAS, J., concurring in judgment

However, the court below “s[aw] fit to apply Lemon.” 874 F. 3d 195, 205 (CA4 2017). It is our job to say what the law is, and because the Lemon test is not good law, we ought to say so. * * * Regrettably, I cannot join the Court’s opinion because it does not adequately clarify the appropriate standard for Establishment Clause cases. Therefore, I concur only in the judgment. Cite as: 588 U. S. ____ (2019) 1

GORSUCHGORSUCH, J., concurring, J., concurring in judgment SUPREME COURT OF THE UNITED STATES ______

Nos. 17–1717 and 18–18 ______

THE AMERICAN LEGION, ET AL., PETITIONERS 17–1717 v. AMERICAN HUMANIST ASSOCIATION, ET AL.; AND

MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, PETITIONER 18–18 v. AMERICAN HUMANIST ASSOCIATION, ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [June 20, 2019]

JUSTICE GORSUCH, with whom JUSTICE THOMAS joins, concurring in the judgment. The American Humanist Association wants a federal court to order the destruction of a 94 year-old war memorial because its members are offended. Today, the Court explains that the plaintiffs are not entitled to demand the destruction of longstanding monuments, and I find much of its opinion compelling. In my judgment, however, it follows from the Court’s analysis that suits like this one should be dismissed for lack of standing. Accordingly, while I concur in the judgment to reverse and remand the court of appeals’ decision, I would do so with additional instructions to dismiss the case. * The Association claims that its members “regularly” come into “unwelcome direct contact” with a World War I memorial cross in Bladensburg, Maryland “while driving in the area.” 874 F. 3d 195, 203 (CA4 2017). And this, the 2 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

GORSUCH, J., concurring in judgment Association suggests, is enough to allow it to insist on a federal judicial decree ordering the memorial’s removal. Maybe, the Association concedes, others who are less offended lack standing to sue. Maybe others still who are equally affected but who come into contact with the memorial too infrequently lack standing as well. See Tr. of Oral Arg. 48–49. But, the Association assures us, its members are offended enough—and with sufficient fre- quency—that they may sue. This “offended observer” theory of standing has no basis in law. Federal courts may decide only those cases and controversies that the Constitution and Congress have authorized them to hear. And to establish standing to sue consistent with the Constitution, a plaintiff must show: (1) injury-in-fact, (2) causation, and (3) redressability. The injury-in-fact test requires a plaintiff to prove “an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjec- tural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992) (internal quotation marks omitted). Unsurprisingly, this Court has already rejected the notion that offense alone qualifies as a “concrete and particularized” injury sufficient to confer standing. We could hardly have been clearer: “The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. III’s requirements.” Diamond v. Charles, 476 U. S. 54, 62 (1986). Imagine if a bystander disturbed by a police stop tried to sue under the Fourth Amendment. Suppose an advocacy organization whose members were distressed by a State’s decision to deny someone else a civil jury trial sought to complain under the Seventh Amendment. Or envision a religious group upset about the application of the death penalty trying to sue to stop it. Does anyone doubt those cases would be rapidly dispatched for lack of standing? Cf. Whitmore v. Arkansas, 495 U. S. 149, 151 (1990) (holding Cite as: 588 U. S. ____ (2019) 3

GORSUCH, J., concurring in judgment that a third party does not have “standing to challenge the validity of a death sentence imposed on a capital defend- ant who has elected to forgo his right of appeal”). It’s not hard to see why this Court has refused suits like these. 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. Courts would start to look more like legislatures, responding to social pressures rather than remedying concrete harms, in the process supplanting the right of the people and their elected representatives to govern themselves. See, e.g., Clapper v. Amnesty Int’l USA, 568 U. S. 398, 408 (2013) (“The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches”); Warth v. Seldin, 422 U. S. 490, 500 (1975) (without standing requirements “courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions”); Hein v. Freedom From Religion Foundation, Inc., 551 U. S. 587, 635–636 (2007) (Scalia, J., concurring in judgment) (“ ‘To permit a complainant who has no concrete injury to require a court to rule on important constitutional issues in the abstract would create the potential for abuse of the judicial process, distort the role of the Judiciary in its relationship to the Executive and the Legislature and open the Judiciary to an arguable charge of providing “government by injunction” ’ ”). Proceeding on these principles, this Court has held offense alone insufficient to convey standing in analogous—and arguably more sympathetic—circumstances. Take Allen v. Wright, 468 U. S. 737 (1984), where the parents of African-American schoolchildren sued to compel 4 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

GORSUCH, J., concurring in judgment the Internal Revenue Service to deny tax-exempt status to schools that discriminated on the basis of race. The parents claimed that their children suffered a “stigmatic injury, or denigration” when the government supported racially discriminatory institutions. Id., at 754. But this Court refused to entertain the case, reasoning that standing extends “only to those persons who are personally denied equal treatment by the challenged discriminatory conduct.” Id., at 755 (internal quotation marks omitted). Now put the teachings there alongside the Association’s standing theory here and you get this utterly unjustifiable result: An African-American offended by a Confederate flag atop a state capitol would lack standing to sue under the Equal Protection Clause, but an atheist who is offended by the cross on the same flag could sue under the Es- tablishment Clause. Who really thinks that could be the law? See Brief for Becket Fund for Religious Liberty as Amicus Curiae 34–35. Consider, as well, the Free Exercise Clause. In Harris v. McRae, 448 U. S. 297 (1980), this Court denied standing to a religious group that raised a free exercise challenge to federal restrictions on abortion funding because “the plaintiffs had ‘not contended that the [statute in question] in any way coerce[d] them as individuals in the practice of their religion.’ ” Id., at 321, n. 24. Instead, the Court has held, a free exercise plaintiff generally must “show that his good-faith religious beliefs are hampered before he acquires standing to attack a statute under the Free- Exercise Clause.” Braunfeld v. Brown, 366 U. S. 599, 615 (1961) (Brennan, J., concurring and dissenting). And if standing doctrine has such bite under the Free Exercise Clause, it’s difficult to see how it could be as toothless as plaintiffs suppose under the neighboring Establishment Clause. In fact, this Court has already expressly rejected “offended observer” standing under the Establishment Cite as: 588 U. S. ____ (2019) 5

GORSUCH, J., concurring in judgment Clause itself. In Valley Forge Christian College v. Ameri- cans United for Separation of Church and State, Inc., 454 U. S. 464 (1982), the plaintiffs objected to a transfer of property from the federal government to a religious college, an action they had learned about through a news release. This Court had little trouble concluding that the plaintiffs lacked standing to challenge the transfer, explaining that “the psychological consequence presumably produced by observation of conduct with which one dis- agrees” is not an injury-in-fact “sufficient to confer standing under Art. III.” Id., at 485. To be sure, this Court has sometimes resolved Establishment Clause challenges to religious displays on the merits without first addressing standing. But as this Court has held, its own failure to consider standing cannot be mistaken as an endorsement of it: “[D]rive-by jurisdictional rulings of this sort” carry “no precedential effect.” Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 91 (1998). Offended observer standing is deeply inconsistent, too, with many other longstanding principles and precedents. For example, this Court has consistently ruled that “ ‘generalized grievances’ about the conduct of Government” are insufficient to confer standing to sue. Schlesinger v. Re- servists Comm. to Stop the War, 418 U. S. 208, 217 (1974). But if offended observers could bring suit, this rule would be rendered meaningless: Who, after all, would have trouble recasting a generalized grievance about governmental action into an “I-take-offense” argument for standing? Similarly, this Court has long “adhered to the rule that a party ‘generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.’ ” Kowalski v. Tesmer, 543 U. S. 125, 129 (2004). We depart from this rule only where the party seeking to invoke the judicial power “has a ‘close’ relationship with the person who possesses the right” and “there is a ‘hindrance’ to the 6 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

GORSUCH, J., concurring in judgment possessor’s ability to protect his own interests.” Id., at 130. Applying these principles in Kowalski, this Court held that attorneys lacked standing to assert the rights of indigent defendants. Id., at 127. And in Whitmore, we rejected a third party’s effort to appeal another person’s death sentence. 495 U. S., at 151. But if offended observers could sue, the attorneys in Kowalski might have simply claimed they were “offended” by Michigan’s procedure for appointing appellate counsel, and the third party in Whitmore could have just said he was offended (as he surely was) by the impending execution. None of this Court’s limits on third-party standing would really matter. * Offended observer standing cannot be squared with this Court’s longstanding teachings about the limits of Article III. Not even today’s dissent seriously attempts to defend it. So at this point you might wonder: How did the lower courts in this case indulge the plaintiffs’ “offended observer” theory of standing? And why have other lower courts done similarly in other cases? The truth is, the fault lies here. Lower courts invented offended observer standing for Establishment Clause cases in the 1970s in response to this Court’s decision in Lemon v. Kurtzman, 403 U. S. 602 (1971). Lemon held that whether governmental action violates the Establish- ment Clause depends on its (1) purpose, (2) effect, and (3) potential to “ ‘excessive[ly] . . . entangl[e]’ ” church and state, id., at 613, a standard this Court came to understand as prohibiting the government from doing anything that a “ ‘reasonable observer’ ” might perceive as “endorsing” religion, County of Allegheny v. American Civil Liber- ties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 620–621 (1989) (opinion of Blackmun, J.); id., at 631 (O’Connor, J., concurring in part and concurring in judgment). And lower courts reasoned that, if the Establish- Cite as: 588 U. S. ____ (2019) 7

GORSUCH, J., concurring in judgment ment Clause forbids anything a reasonable observer would view as an endorsement of religion, then such an observer must be able to sue. Moore v. Bryant, 853 F. 3d 245, 250 (CA5 2017). Here alone, lower courts concluded, though never with this Court’s approval, an observer’s offense must “suffice to make an Establishment Clause claim justiciable.” Suhre v. Haywood Cty., 131 F. 3d 1083, 1086 (CA4 1997). As today’s plurality rightly indicates in Part II–A, however, Lemon was a misadventure. It sought a “grand unified theory” of the Establishment Clause but left us only a mess. See ante, at 24 (plurality opinion). How much “purpose” to promote religion is too much (are Sun- day closing laws that bear multiple purposes, religious and secular, problematic)? How much “effect” of advancing religion is tolerable (are even incidental effects disal- lowed)? What does the “entanglement” test add to these inquiries? Even beyond all that, how “reasonable” must our “reasonable observer” be, and what exactly qualifies as impermissible “endorsement” of religion in a country where “In God We Trust” appears on the coinage, the eye of God appears in its Great Seal, and we celebrate Thanksgiving as a national holiday (“to Whom are thanks being given”)? Harris v. Zion, 927 F. 2d 1401, 1423 (CA7 1991) (Easterbrook, J., dissenting). Nearly half a century after Lemon and, the truth is, no one has any idea about the answers to these questions. As the plurality documents, our “doctrine [is] in such chaos” that lower courts have been “free to reach almost any result in almost any case.” McConnell, Religious Participation in Public Pro- grams: Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115, 119 (1992). Scores of judges have pleaded with us to retire Lemon, scholars of all stripes have criticized the doctrine, and a majority of this Court has long done the same. Ante, at 14–15 (plurality opinion). Today, not a single Member of the Court even tries to defend 8 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

GORSUCH, J., concurring in judgment Lemon against these criticisms—and they don’t because they can’t. As Justice Kennedy explained, Lemon is “flawed in its fundamentals,” has proved “unworkable in practice,” and is “inconsistent with our history and our precedents.” County of Allegheny, 492 U. S., at 655, 669 (opinion concurring in judgment in part and dissenting in part). In place of Lemon, Part II–D of the plurality opinion relies on a more modest, historically sensitive approach, recognizing that “the Establishment Clause must be interpreted by reference to historical practices and understandings.” Ante, at 25 (quoting Town of Greece v. Gallo- way, 572 U. S. 565, 576 (2014) (internal quotation marks omitted); see also ante, at 1–4 (KAVANAUGH, J., concurring). So, by way of example, the plurality explains that a state legislature may permissibly begin each session with a prayer by an official chaplain because “Congress for more than 200 years had opened its sessions with a prayer and . . . many state legislatures had followed suit.” Ante, at 25 (discussing Marsh v. Chambers, 463 U. S. 783 (1983), and Town of Greece, 572 U. S. 565). The constitutionality of a practice doesn’t depend on some artificial and indeterminate three-part test; what matters, the plurality reminds us, is whether the challenged practice fits “ ‘within the tradition’ ” of this country. Ante, at 27 (citing Town of Greece, 572 U. S., at 577). I agree with all this and don’t doubt that the monument before us is constitutional in light of the nation’s traditions. But then the plurality continues on to suggest that “longstanding monuments, symbols, and practices” are “presumpt[ively]” constitutional. Ante, at 16. And about that, it’s hard not to wonder: How old must a monument, symbol, or practice be to qualify for this new presumption? It seems 94 years is enough, but what about the Star of David monument erected in South Carolina in 2001 to commemorate victims of the Holocaust, or the cross that Cite as: 588 U. S. ____ (2019) 9

GORSUCH, J., concurring in judgment marines in California placed in 2004 to honor their comrades who fell during the War on Terror? And where exactly in the Constitution does this presumption come from? The plurality does not say, nor does it even explain what work its presumption does. To the contrary, the plurality proceeds to analyze the “presumptively” constitutional memorial in this case for its consistency with “ ‘historical practices and understandings’ ” under Marsh and Town of Greece—exactly the same approach that the plurality, quoting Town of Greece, recognizes “ ‘must be’ ” used whenever we interpret the Establishment Clause. Ante, at 25; see also ante, at 2–4 (KAVANAUGH, J., concurring). Though the plurality does not say so in as many words, the message for our lower court colleagues seems unmistakable: Whether a monument, symbol, or practice is old or new, apply Town of Greece, not Lemon. Indeed, some of our colleagues recognize this implication and blanch at its prospect. See ante, at 2–3 (BREYER, J., concurring); ante, at 1–2 (KAGAN, J., concurring in part) (declining to join Parts II–A & II–D); post, at 2, n. 2 (GINSBURG, J., dissenting). But if that’s the real message of the plurality’s opinion, it seems to me exactly right— because what matters when it comes to assessing a monument, symbol, or practice isn’t its age but its compliance with ageless principles. The Constitution’s meaning is fixed, not some good-for-this-day-only coupon, and a practice consistent with our nation’s traditions is just as permissible whether undertaken today or 94 years ago. * With Lemon now shelved, little excuse will remain for the anomaly of offended observer standing, and the gaping hole it tore in standing doctrine in the courts of appeals should now begin to close. Nor does this development mean colorable Establishment Clause violations will lack for proper plaintiffs. By way of example only, a public 10 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

GORSUCH, J., concurring in judgment school student compelled to recite a prayer will still have standing to sue. See School Dist. of Abington Township v. Schempp, 374 U. S. 203, 224, n. 9 (1963). So will persons denied public office because of their religious affiliations or lack of them. And so will those who are denied government benefits because they do not practice a favored religion or any at all. Texas Monthly, Inc. v. Bullock, 489 U. S. 1, 7–8 (1989) (plurality opinion). On top of all that, States remain free to supply other forms of relief consistent with their own laws and constitutions. Abandoning offended observer standing will mean only a return to the usual demands of Article III, requiring a real controversy with real impact on real persons to make a federal case out of it. Along the way, this will bring with it the welcome side effect of rescuing the federal judiciary from the sordid business of having to pass aesthetic judgment, one by one, on every public display in this country for its perceived capacity to give offense. It’s a business that has consumed volumes of the federal reports, invited erratic results, frustrated generations of judges, and fo- mented “the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.” Van Orden v. Perry, 545 U. S. 677, 704 (2005) (BREYER, J., concurring in judgment). Courts applying Lemon’s test have upheld Ten Commandment displays and demanded their removal; they have allowed memorial crosses and insisted that they be razed; they have permitted Christmas displays and pulled the plug on them; and they have pondered seemingly endlessly the inclusion of “In God We Trust” on currency or similar language in our Pledge of Allegiance. No one can predict the rulings—but one thing is certain: Between the challenged practices and the judicial decisions, just about everyone will wind up offended. Nor have we yet come close to exhausting the potential sources of offense and federal litigation Lemon invited, for what about the display of the Ten Commandments on the Cite as: 588 U. S. ____ (2019) 11

GORSUCH, J., concurring in judgment frieze in our own courtroom or on the doors leading into it? Or the statues of Moses and the Apostle Paul next door in the Library of Congress? Or the depictions of the Ten Commandments found in the Justice Department and the National Archives? Or the crosses that can be found in the U. S. Capitol building? And all that just takes us mere steps from where we sit. In light of today’s decision, we should be done with this business, and our lower court colleagues may dispose of cases like these on a motion to dismiss rather than enmeshing themselves for years in intractable disputes sure to generate more heat than light. * In a large and diverse country, offense can be easily found. Really, most every governmental action probably offends somebody. No doubt, too, that offense can be sincere, sometimes well taken, even wise. But recourse for disagreement and offense does not lie in federal litigation. Instead, in a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and demo- cratic responsibility, an “offended viewer” may “avert his eyes,” Erznoznik v. Jacksonville, 422 U. S. 205, 212 (1975), or pursue a political solution. Today’s decision represents a welcome step toward restoring this Court’s recognition of these truths, and I respectfully concur in the judgment. Cite as: 588 U. S. ____ (2019) 1

GINSBURG, J., dissenting SUPREME COURT OF THE UNITED STATES ______

Nos. 17–1717 and 18–18 ______

THE AMERICAN LEGION, ET AL., PETITIONERS 17–1717 v. AMERICAN HUMANIST ASSOCIATION, ET AL.; AND

MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, PETITIONER 18–18 v. AMERICAN HUMANIST ASSOCIATION, ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [June 20, 2019]

JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR joins, dissenting. An immense Latin cross stands on a traffic island at the center of a busy three-way intersection in Bladensburg, Maryland. 1 “[M]onumental, clear, and bold” by day, App. 914, the cross looms even larger illuminated against the night-time sky. Known as the Peace Cross, the monument was erected by private citizens in 1925 to honor local soldiers who lost their lives in World War I. “[T]he town’s most prominent symbol” was rededicated in 1985 and is now said to honor “the sacrifices made [in] all wars,” id., at 868 (internal quotation marks omitted), by “all veterans,” id., at 195. Both the Peace Cross and the traffic island are owned and maintained by the Maryland-National Capital Park and Planning Commission (Commission), an agency of the State of Maryland. —————— 1 A photograph of the monument and a map showing its location are reproduced in the Appendix, infra, at 19. 2 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

GINSBURG, J., dissenting Decades ago, this Court recognized that the Establish- ment Clause of the First Amendment to the Constitution demands governmental neutrality among religious faiths, and between religion and nonreligion. See Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15 (1947). Numerous times since, the Court has reaffirmed the Constitution’s commitment to neutrality. Today the Court erodes that neutrality commitment, diminishing precedent designed to preserve individual liberty and civic harmony in favor of a “presumption of constitutionality for longstanding monuments, symbols, and practices.” Ante, at 16 (plurality opinion).2 The Latin cross is the foremost symbol of the Christian faith, embodying the “central theological claim of Christi- anity: that the son of God died on the cross, that he rose from the dead, and that his death and resurrection offer the possibility of eternal life.” Brief for Baptist Joint Committee for Religious Liberty et al. as Amici Curiae 7 (Brief for Amici Christian and Jewish Organizations). Precisely because the cross symbolizes these sectarian beliefs, it is a common marker for the graves of Christian soldiers. For the same reason, using the cross as a war memorial does not transform it into a secular symbol, as the Courts of Appeals have uniformly recognized. See

—————— 2 Some of my colleagues suggest that the Court’s new presumption extends to all governmental displays and practices, regardless of their age. See ante, at 3 (KAVANAUGH, J., concurring); ante, at 6 (THOMAS, J., concurring in judgment); ante, at 9 (GORSUCH, J., concurring in judgment). But see ante, at 2 (BREYER, J., joined by KAGAN, J., concurring) (“ ‘[A] more contemporary state effort’ to put up a religious display is ‘likely to prove divisive in a way that [a] longstanding, pre-existing monument [would] not.’ ”). I read the Court’s opinion to mean what it says: “[R]etaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones,” ante, at 21, and, consequently, only “longstanding monuments, symbols, and practices” enjoy “a presumption of constitutionality,” id., at 16 (plurality opinion). Cite as: 588 U. S. ____ (2019) 3

GINSBURG, J., dissenting infra, at 10–11, n. 10. Just as a Star of David is not suitable to honor Christians who died serving their country, so a cross is not suitable to honor those of other faiths who died defending their nation. Soldiers of all faiths “are united by their love of country, but they are not united by the cross.” Brief for Jewish War Veterans of the United States of America, Inc., as Amicus Curiae 3 (Brief for Amicus Jewish War Veterans). By maintaining the Peace Cross on a public highway, the Commission elevates Christianity over other faiths, and religion over nonreligion. Memorializing the service of American soldiers is an “admirable and unquestionably secular” objective. Van Orden v. Perry, 545 U. S. 677, 715 (2005) (Stevens, J., dissenting). But the Commission does not serve that objective by displaying a symbol that bears “a starkly sectarian message.” Salazar v. Buono, 559 U. S. 700, 736 (2010) (Stevens, J., dissenting). I A The First Amendment commands that the government “shall make no law” either “respecting an establishment of religion” or “prohibiting the free exercise thereof.” See Everson, 330 U. S., at 15. Adoption of these complemen- tary provisions followed centuries of “turmoil, civil strife, and persecutio[n], generated in large part by established sects determined to maintain their absolute political and religious supremacy.” Id, at 8–9. Mindful of that history, the fledgling Republic ratified the Establishment Clause, in the words of Thomas Jefferson, to “buil[d] a wall of separation between church and state.” Draft Reply to the Danbury Baptist Association, in 36 Papers of Thomas Jefferson 254, 255 (B. Oberg ed. 2009) (footnote omitted). This barrier “protect[s] the integrity of individual conscience in religious matters.” McCreary County v. Ameri- can Civil Liberties Union of Ky., 545 U. S. 844, 876 (2005). 4 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

GINSBURG, J., dissenting It guards against the “anguish, hardship and bitter strife,” Engel v. Vitale, 370 U. S. 421, 429 (1962), that can occur when “the government weighs in on one side of religious debate,” McCreary County, 545 U. S., at 876. And while the “union of government and religion tends to destroy government and to degrade religion,” separating the two preserves the legitimacy of each. Engel, 370 U. S., at 431. The Establishment Clause essentially instructs: “[T]he government may not favor one religion over another, or religion over irreligion.” McCreary County, 545 U. S., at 875. For, as James Madison observed, the government is not “a competent Judge of Religious Truth.” Memorial and Remonstrance Against Religious Assessments, 8 Papers of James Madison 295, 301 (R. Rutland, W. Rachal, B. Ripel, & F. Teute eds. 1973) (Memorial and Remonstrance). When the government places its “power, prestige [or] financial support . . . behind a particular religious belief,” Engel, 370 U. S., at 431, the government’s imprimatur “mak[es] adherence to [that] religion relevant . . . to a person’s standing in the political community,” County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 594 (1989) (internal quotation marks omitted). Correspondingly, “the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.” Engel, 370 U. S., at 431. And by demanding neutrality between religious faith and the absence thereof, the Establishment Clause shores up an individual’s “right to select any religious faith or none at all.” Wallace v. Jaffree, 472 U. S. 38, 53 (1985). B In cases challenging the government’s display of a religious symbol, the Court has tested fidelity to the principle of neutrality by asking whether the display has the “effect of ‘endorsing’ religion.” County of Allegheny, 492 U. S., at Cite as: 588 U. S. ____ (2019) 5

GINSBURG, J., dissenting 592. The display fails this requirement if it objectively “convey[s] a message that religion or a particular religious belief is favored or preferred.” Id., at 593 (internal quotation marks omitted; emphasis deleted).3 To make that determination, a court must consider “the pertinent facts and circumstances surrounding the symbol and its placement.” Buono, 559 U. S., at 721 (plurality opinion); id., at 750–751 (Stevens, J., dissenting) (quoting plurality opinion).4 As I see it, when a cross is displayed on public property, the government may be presumed to endorse its religious content. The venue is surely associated with the State; the symbol and its meaning are just as surely associated exclusively with Christianity. “It certainly is not common for property owners to open up their property [to] monuments that convey a message with which they do not wish to be associated.” Pleasant Grove City v. Summum, 555 U. S. 460, 471 (2009). To non-Christians, nearly 30% of the population of the United States, Pew Research Center, America’s Changing Religious Landscape 4 (2015), the —————— 3 JUSTICE GORSUCH’s “no standing” opinion is startling in view of the many religious-display cases this Court has resolved on the merits. E.g., McCreary County, 545 U. S. 844; Van Orden, 545 U. S. 677; Stone v. Graham, 449 U. S. 39 (1980) (per curiam). And, if JUSTICE GORSUCH is right, three Members of the Court were out of line when they recognized that “[t]he [Establishment] Clause forbids a city to permit the permanent erection of a large Latin cross on the roof of city hall,” Buono, 559 U. S., at 715 (opinion of Kennedy, J., joined by ROBERTS, C.J., and ALITO, J.) (quoting County of Allegheny, 492 U. S., at 661 (second alteration in original), for no one, according to JUSTICE GORSUCH, should be heard to complain about such a thing. But see Brief for Law Professors as Amici Curiae (explaining why offended observer standing is necessary and proper). 4 This inquiry has been described by some Members of the Court as the “reasonable observer” standard. See, e.g., Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 806 (1995) (Stevens, J., dissenting); County of Allegheny, 492 U. S., at 630–631 (O’Connor, J., concurring in part and concurring in judgment). 6 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

GINSBURG, J., dissenting State’s choice to display the cross on public buildings or spaces conveys a message of exclusion: It tells them they “are outsiders, not full members of the political community,” County of Allegheny, 492 U. S., at 625 (O’Connor, J., concurring in part and concurring in judgment) (internal quotation marks omitted). Cf. Van Orden, 545 U. S., at 708 (Stevens, J., dissenting) (“The adornment of our public spaces with displays of religious symbols” risks “ ‘offend[ing] nonmembers of the faith being advertised as well as adherents who consider the particular advertisement disrespectful.’ ” (quoting County of Allegheny, 492 U. S., at 651 (Stevens, J., concurring in part and dissenting in part))).5 A presumption of endorsement, of course, may be over- come. See Buono, 559 U. S., at 718 (plurality opinion) (“The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm.”). A display does not run afoul of the neutrality principle if its “setting . . . plausibly indicates” that the government has not sought “either to adopt [a] religious message or to urge its acceptance by others.” Van Orden, 545 U. S., at 737 (Souter, J., dissenting). The “typical museum setting,” for example, “though not neutralizing the religious content of a religious painting, negates any message of endorsement of that content.” Lynch v. Don- nelly, 465 U. S. 668, 692 (1984) (O’Connor, J., concurring). Similarly, when a public school history teacher discusses the Protestant Reformation, the setting makes clear that

—————— 5 See also Jews and Christians Discussion Group in the Central Committee of German Catholics, A Convent and Cross in Auschwitz, in The Continuing Agony: From the Carmelite Convent to the Crosses at Auschwitz 231–232 (A. Berger, H. Cargas, & S. Nowak eds. 2004) (“We Christians must appreciate [that] [t]hroughout history many non- Christians, especially Jews, have experienced the Cross as a symbol of persecution, through the Crusades, the Inquisition and the compulsory baptisms.”). Cite as: 588 U. S. ____ (2019) 7

GINSBURG, J., dissenting the teacher’s purpose is to educate, not to proselytize. The Peace Cross, however, is not of that genre. II A “For nearly two millennia,” the Latin cross has been the “defining symbol” of Christianity, R. Jensen, The Cross: History, Art, and Controversy ix (2017), evoking the foundational claims of that faith. Christianity teaches that Jesus Christ was “a divine Savior” who “illuminate[d] a path toward salvation and redemption.” Lynch, 465 U. S., at 708 (Brennan, J., dissenting). Central to the religion are the beliefs that “the son of God,” Jesus Christ, “died on the cross,” that “he rose from the dead,” and that “his death and resurrection offer the possibility of eternal life.” Brief for Amici Christian and Jewish Organizations 7. 6 “From its earliest times,” Christianity was known as “religio crucis—the religion of the cross.” R. Viladesau, The Beauty of the Cross: The Passion of Christ in Theol- ogy and the Arts, From the Catacombs to the Eve of the Renaissance 7 (2006). Christians wear crosses, not as an ecumenical symbol, but to proclaim their adherence to Christianity. An exclusively Christian symbol, the Latin cross is not emblematic of any other faith. Buono, 559 U. S., at 747 (Stevens, J., dissenting); Viladesau, supra, at 7 (“[T]he cross and its meaning . . . set Christianity apart from other world religions.”).7 The principal symbol of Christi- —————— 6 Under “one widespread reading of Christian scriptures,” non- Christians are barred from eternal life and, instead, are condemned to hell. Brief for Amici Christian and Jewish Organizations 2. On this reading, the Latin cross symbolizes both the promise of salvation and the threat of damnation by “divid[ing] the world between the saved and the damned.” Id., at 12. 7 Christianity comprises numerous denominations. The term is here used to distinguish Christian sects from religions that do not embrace the defining tenets of Christianity. 8 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

GINSBURG, J., dissenting anity around the world should not loom over public thor- oughfares, suggesting official recognition of that religion’s paramountcy. B The Commission urges in defense of its monument that the Latin cross “is not merely a reaffirmation of Christian beliefs”; rather, “when used in the context of a war memorial,” the cross becomes “a universal symbol of the sacrifices of those who fought and died.” Brief for Petitioner Maryland-National Capital Park and Planning Commis- sion 34–35 (Brief for Planning Commission) (internal quotation marks omitted). See also Brief for United States as Amicus Curiae 25 (The Latin cross is “a Christian symbol . . . [b]ut it is also ‘a symbol often used to honor and respect [soldiers’] heroic acts.’ ” (quoting Buono, 559 U. S., at 721 (plurality opinion); some internal quotation marks omitted)). The Commission’s “[a]ttempts to secularize what is unquestionably a sacred [symbol] defy credibility and disserve people of faith.” Van Orden, 545 U. S., at 717 (Stevens, J., dissenting). See, e.g., Brief for Amici Chris- tian and Jewish Organizations 7 (“For Christians who think seriously about the events and message that the cross represents, [the Commission’s] claims are deeply offensive.”). The asserted commemorative meaning of the cross rests on—and is inseparable from—its Christian meaning: “the crucifixion of Jesus Christ and the redeeming benefits of his passion and death,” specifically, “the salvation of man.” American Civil Liberties Union of Illinois v. St. Charles, 794 F. 2d 265, 273 (CA7 1986) (internal quotation marks omitted). Because of its sacred meaning, the Latin cross has been used to mark Christian deaths since at least the fourth century. See Jensen, supra, at 68–69. The cross on a grave “says that a Christian is buried here,” Brief for Cite as: 588 U. S. ____ (2019) 9

GINSBURG, J., dissenting Amici Christian and Jewish Organizations 8, and “commemorates [that person’s death] by evoking a conception of salvation and eternal life reserved for Christians,” Brief for Amicus Jewish War Veterans 7. As a commemorative symbol, the Latin cross simply “makes no sense apart from the crucifixion, the resurrection, and Christianity’s promise of eternal life.” Brief for Amici Christian and Jewish Organizations 8. 8 The cross affirms that, thanks to the soldier’s embrace of Christianity, he will be rewarded with eternal life. Id., at 8–9. “To say that the cross honors the Christian war dead does not identify a secular meaning of the cross; it merely identifies a common application of the religious meaning.” Id., at 8. Scarcely “a universal symbol of sacrifice,” the cross is “the symbol of one particular sacrifice.” Buono, 559 U. S., at 748, n. 8 (Stevens, J., dissenting).9 —————— 8 The Court sets out familiar uses of the Greek cross, including the Red Cross and the Navy Cross, ante, at 3, 22, and maintains that, today, they carry no religious message. But because the Latin cross has never shed its Christian character, its commemorative meaning is exclusive to Christians. The Court recognizes as much in suggesting that the Peace Cross features the Latin cross for the same reason “why Holocaust memorials invariably include Stars of David”: those sectarian “symbols . . . signify what death meant for those who are memorialized.” Ante, at 30. 9 Christian soldiers have drawn parallels between their experiences in war and Jesus’s suffering and sacrifice. See, e.g., C. Dawson, Living Bayonets: A Record of the Last Push 19–20 (1919) (upon finding a crucifix strewn among rubble, a soldier serving in World War I wrote home that Jesus Christ “seem[ed] so like ourselves in His lonely and unhallowed suffering”). This comparison has been portrayed by artists, see, e.g., 7 Encyclopedia of Religion 4348 (2d ed. 2005) (painter George Rouault’s 1926 Miserere series “compares Christ’s suffering with twentieth-century experiences of human sufferings in war”), and documented by historians, see, e.g., R. Schweitzer, The Cross and the Trenches: Religious Faith and Doubt Among British and American Great War Soldiers 28–29 (2003) (given the horrors of trench warfare, “[t]he parallels that soldiers saw between their suffering and Christ’s make their identification with Jesus both understandable and reveal- 10 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

GINSBURG, J., dissenting Every Court of Appeals to confront the question has held that “[m]aking a . . . Latin cross a war memorial does not make the cross secular,” it “makes the war memorial sectarian.” Id., at 747. 10 See also Separation of Church —————— ing”); Lemay, Politics in the Art of War: The American War Cemeteries, 38 Int’l J. Mil. History & Historiography 223, 225 (2018) (“[T]he [cross] grave markers assert the absolute valour and Christ-like heroism of the American dead . . . .”). 10 See 874 F. 3d 195, 207 (CA4 2017) (case below) (“Even in the memorial context, a Latin cross serves not . . . as a generic symbol of death, but rather a Christian symbol of the death of Jesus Christ.”); American Atheists, Inc. v. Davenport, 637 F. 3d 1095, 1122 (CA10 2010) (“[A] memorial cross is not a generic symbol of death; it is a Christian symbol of death that signifies or memorializes the death of a Chris- tian.”); Trunk v. San Diego, 629 F. 3d 1099, 1102 (CA9 2011) (“Resur- rection of this Cross as a war memorial does not transform it into a secular monument.”); Separation of Church and State Comm. v. Eu- gene, 93 F. 3d 617, 619 (CA9 1996) (per curiam) (“[T]he City urges that the cross is no longer a religious symbol but a war memorial. This argument . . . fails to withstand Establishment Clause analysis.”); Gonzales v. North Twp. of Lake Cty., 4 F. 3d 1412, 1418 (CA7 1993) (“[W]e are masters of the obvious, and we know that . . . the Latin cross . . . is ‘[the] unmistakable symbol of Christianity as practiced in this country today.’ ” (quoting Harris v. Zion, 927 F. 2d 1401, 1403 (CA7 1991)). See also Jewish War Veterans of the United States v. United States, 695 F. Supp. 3, 11 (DC 1988) (“[D]efendants are unable to cite a single federal case where a cross such as the one at issue here has survived Establishment Clause scrutiny.”). The Courts of Appeals have similarly concluded that the Latin cross remains a Christian symbol when used for other purposes. See, e.g., Robinson v. Edmond, 68 F. 3d 1226, 1232 (CA10 1995) (city seal depicting the cross) (“The religious significance and meaning of the Latin or Christian cross are unmistakable.”); Carpenter v. City and County of San Francisco, 93 F. 3d 627, 630 (CA9 1996) (103-foot cross in public park) (“The Latin cross . . . [‘]represents with relative clarity and simplicity the Christian message of the crucifixion and resurrection of Jesus Christ, a doctrine at the heart of Christianity.’ ”); American Civil Liberties Union of Ill. v. St. Charles, 794 F. 2d 265, 272–273 (CA7 1986) (35-foot cross displayed atop a fire house during the Christmas season) (“The cross . . . is ‘the principal symbol of the Christian religion, recalling the crucifixion of Jesus Christ and the redeeming benefits of his passion and death.’ ”); Friedman v. Board of Cty. Comm’rs of Bernalillo Cite as: 588 U. S. ____ (2019) 11

GINSBURG, J., dissenting and State Comm. v. Eugene, 93 F. 3d 617, 626 (CA9 1996) (O’Scannlain, J., concurring in result) (“[T]he City’s use of a cross to memorialize the war dead may lead observers to believe that the City has chosen to honor only Christian veterans.”). The Peace Cross is no exception. That was evident from the start. At the dedication ceremony, the keynote speaker analogized the sacrifice of the honored soldiers to that of Jesus Christ, calling the Peace Cross “symbolic of Cal- vary,” App. 449, where Jesus was crucified. Local report- ers variously described the monument as “[a] mammoth cross, a likeness of the Cross of Calvary, as described in the Bible,” id., at 428; “a monster [C]alvary cross,” id., at 431; and “a huge sacrifice cross,” id., at 439. The character of the monument has not changed with the passage of time. C The Commission nonetheless urges that the Latin cross is a “well-established” secular symbol commemorating, in particular, “military valor and sacrifice [in] World War I.” Brief for Planning Commission 21. Calling up images of United States cemeteries overseas showing row upon row of cross-shaped gravemarkers, id., at 4–8; see ante, at 4–5, 21–22; Brief for United States as Amicus Curiae 26, the Commission overlooks this reality: The cross was never perceived as an appropriate headstone or memorial for Jewish soldiers and others who did not adhere to Christianity. 1 A page of history is worth retelling. On November 11, 1918, the Great War ended. Bereaved families of Ameri- —————— Cty., 781 F. 2d 777, 782 (CA10 1985) (county seal depicting Latin cross) (“[T]he seal . . . conveys a strong impression to the average observer that Christianity is being endorsed.”). 12 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

GINSBURG, J., dissenting can soldiers killed in the war sought to locate the bodies of their loved ones, and then to decide what to do with their remains. Once a soldier’s body was identified, families could choose to have the remains repatriated to the United States or buried overseas in one of several American military cemeteries, yet to be established. Eventually, the remains of 46,000 soldiers were repatriated, and those of 30,000 soldiers were laid to rest in Europe. American Battle Monuments Commission, Annual Report to the President of the United States Fiscal Year 1925, p. 5 (1926) (ABMC Report). While overseas cemeteries were under development, the graves of American soldiers in Europe were identified by one of two temporary wooden markers painted white. Christian soldiers were buried beneath the cross; the graves of Jewish soldiers were marked by the Star of David. See L. Budreau, Bodies of War: World War I and the Politics of Commemoration in America, 1919–1933, p. 120 (2010). The remains of soldiers who were neither Christian nor Jewish could be repatriated to the United States for burial under an appropriate headstone.11 When the War Department began preparing designs for permanent headstones in 1919, “no topic managed to stir more controversy than the use of religious symbolism.” Id., at 121–122. Everyone involved in the dispute, however, saw the Latin cross as a Christian symbol, not as a universal or secular one. To achieve uniformity, the War Department initially recommended replacing the tempo-

—————— 11 For unidentified soldiers buried overseas, the American Battle Monuments Commission (ABMC) used the cross and the Star of David markers “in ‘proportion of known Jewish dead to know[n] Christians.’ ” App. 164. The ABMC later decided that “all unidentified graves would be marked with a [c]ross.” Id., at 164, n. 21. This change was prompted by “fear [that] a Star of David would be placed over an [u]nknown Christian,” not by the belief that the cross had become a universal symbol. Ibid. Cite as: 588 U. S. ____ (2019) 13

GINSBURG, J., dissenting rary sectarian markers with plain marble slabs resem- bling “those designed for the national cemeteries in the United States.” Van Duyne, Erection of Permanent Headstones in the American Military Cemeteries in Europe, The Quartermaster Review (1930) (Quartermaster Report). The War Department’s recommendation angered prominent civil organizations, including the American Legion and the Gold Star associations: the United States, they urged, ought to retain both the cross and Star of David. See ibid.; Budreau, supra, at 123. In supporting sectarian markers, these groups were joined by the American Battle Monuments Commission (ABMC), a newly created independent agency charged with supervising the establishment of overseas cemeteries. ABMC Report 57. Congress weighed in by directing the War Department to erect headstones “of such design and material as may be agreed upon by the Secretary of War and the American Battle Monuments Commission.” Ibid. (internal quotation marks omitted). In 1924, the War Department approved the ABMC’s “designs for a Cross and Star of David.” Quar- termaster Report; ABMC Report 57.12 Throughout the headstone debate, no one doubted that the Latin cross and the Star of David were sectarian gravemarkers, and therefore appropriate only for soldiers who adhered to those faiths. A committee convened by the War Department composed of representatives from “seven prominent war-time organizations” as well as “religious bodies, Protestant, Jewish, [and] Catholic” agreed “unan- imous[ly] . . . that marble crosses be placed on the graves of all Christian American dead buried abroad, and that the graves of the Jewish American dead be marked by the six-pointed star.” Durable Markers in the Form of Crosses —————— 12 A photograph depicting the two headstones is reproduced in the Appendix, infra, at 21. 14 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

GINSBURG, J., dissenting for Graves of American Soldiers in Europe, Hearings before the Committee on Military Affairs of the House of Representatives, 68th Cong., 1st Sess., 24 (1924) (emphasis added). The Executive Director of the Jewish Welfare Board stated that “if any religious symbol is erected over the graves, then Judaism should have its symbol over the graves of its dead.” Id., at 19. Others expressing views described the Latin cross as the appropriate symbol to “mar[k] the graves of the Christian heroes of the American forces.” Id., at 24 (emphasis added). As stated by the National Catholic War Council, “the sentiment and desires of all Americans, Christians and Jews alike, are one”: “They who served us in life should be honored, as they would have wished, in death.” Ibid.13 Far more crosses than Stars of David, as one would expect, line the grounds of American cemeteries overseas, for Jews composed only 3% of the United States population in 1917. J. Fredman & L. Falk, Jews in American Wars 100 (5th ed. 1954). Jews accounted for nearly 6% of U. S. forces in World War I (in numbers, 250,000), and 3,500 Jewish soldiers died in that war. Ibid. Even in Flanders Field, with its “ ‘crosses, row on row,’ ” ante, at 5 (quoting J. McCrae, In Flanders Fields, In Flanders Fields and Other Poems 3 (G. P. Putnam’s Sons ed. 1919)), “Stars of David mark the graves of [eight American soldiers] of Jewish faith,” American Battle Monuments Commission, Flanders Field American Cemetery and Memorial Visitor Booklet 11.14

—————— 13 As noted, supra, at 12, the bodies of soldiers who were neither Christian nor Jewish could be repatriated to the United States and buried in a national cemetery (with a slab headstone), Quartermaster Report, or in a private cemetery (with a headstone of the family’s choosing). 14 Available at https://www.abmc.gov/sites/default/files/publications/ FlandersField_Booklet.pdf (all Internet materials as last visited June 18, 2019). For the respective numbers of cross and Star of David Cite as: 588 U. S. ____ (2019) 15

GINSBURG, J., dissenting 2 Reiterating its argument that the Latin cross is a “universal symbol” of World War I sacrifice, the Commission states that “40 World War I monuments . . . built in the United States . . . bear the shape of a cross.” Brief for Planning Commission 8 (citing App. 1130). This figure includes memorials that merely “incorporat[e]” a cross. App. 1130.15 Moreover, the 40 monuments compose only 4% of the “948 outdoor sculptures commemorating the First World War.” Ibid. The Court lists just seven free- standing cross memorials, ante, at 6, n. 10, less than 1% of the total number of monuments to World War I in the United States, see App. 1130. Cross memorials, in short, are outliers. The overwhelming majority of World War I memorials contain no Latin cross. In fact, the “most popular and enduring memorial of the [post-World War I] decade” was “[t]he mass-produced Spirit of the American Doughboy statue.” Budreau, Bodies of War, at 139. That statue, depicting a U. S. infantry- man, “met with widespread approval throughout Ameri- can communities.” Ibid. Indeed, the first memorial to World War I erected in Prince George’s County “depict[s] a doughboy.” App. 110–111. The Peace Cross, as Plaintiffs’ expert historian observed, was an “aberration . . . even in the era [in which] it was built and dedicated.” Id., at 123. Like cities and towns across the country, the United States military comprehended the importance of “pay[ing] equal respect to all members of the Armed Forces who perished in the service of our country,” Buono, 559 U. S., at 759 (Stevens, J., dissenting), and therefore avoided —————— headstones, see ABMC, Flanders Field American Cemetery and Memo- rial Brochure 2, available at https://www.abmc.gov/sites/default/ files/publications/Flanders%20Field_Brochure_Mar2018.pdf. 15 No other monument in Bladensburg’s V eterans Memorial Park displays the Latin cross. For examples of monuments in the Park, see the Appendix, infra, at 20–21. 16 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

GINSBURG, J., dissenting incorporating the Latin cross into memorials. The construction of the Tomb of the Unknown Soldier is illustrative. When a proposal to place a cross on the Tomb was advanced, the Jewish Welfare Board objected; no cross appears on the Tomb. See App. 167. In sum, “[t]here is simply ‘no evidence . . . that the cross has been widely embraced by’—or even applied to—‘non-Christians as a secular symbol of death’ or of sacrifice in military service” in World War I or otherwise. Trunk v. San Diego, 629 F. 3d 1099, 1116 (CA9 2011). D Holding the Commission’s display of the Peace Cross unconstitutional would not, as the Commission fears, “inevitably require the destruction of other cross-shaped memorials throughout the country.” Brief for Planning Commission 52. When a religious symbol appears in a public cemetery—on a headstone, or as the headstone itself, or perhaps integrated into a larger memorial—the setting counters the inference that the government seeks “either to adopt the religious message or to urge its acceptance by others.” Van Orden, 545 U. S., at 737 (Souter, J., dissenting). In a cemetery, the “privately selected religious symbols on individual graves are best understood as the private speech of each veteran.” Laycock, Government- Sponsored Religious Displays: Transparent Rational- izations and Expedient Post-Modernism, 61 Case W. Res. L. Rev. 1211, 1242 (2011). See also Summum, 555 U. S., at 487 (Souter, J., concurring in judgment) (“[T]here are circumstances in which government maintenance of monuments does not look like government speech at all. Sectarian identifications on markers in Arlington Ceme- tery come to mind.”). Such displays are “linked to, and sho[w] respect for, the individual honoree’s faith and beliefs.” Buono, 559 U. S., at 749, n. 8 (Stevens, J., dissenting). They do not suggest governmental endorsement Cite as: 588 U. S. ____ (2019) 17

GINSBURG, J., dissenting of those faith and beliefs.16 Recognizing that a Latin cross does not belong on a public highway or building does not mean the monument must be “torn down.” Ante, at 2 (BREYER, J., concurring); ante, at 1 (GORSUCH, J., concurring in judgment).17 “[L]ike the determination of the violation itself,” the “proper remedy . . . is necessarily context specific.” Buono, 559 U. S., at 755, n. 11 (Stevens, J., dissenting). In some instances, the violation may be cured by relocating the monument to private land or by transferring ownership of the land and monument to a private party. * * * In 1790, President Washington visited Newport, Rhode Island, “a longtime bastion of religious liberty and the home of one of the first communities of American Jews.” Town of Greece v. Galloway, 572 U. S. 565, 636 (2014) (KAGAN, J., dissenting). In a letter thanking the congregation for its warm welcome, Washington praised “[t]he citizens of the United States of America” for “giv[ing] to mankind . . . a policy worthy of imitation”: “All possess alike liberty of conscience and immunities of citizenship.” Letter to Newport Hebrew Congregation (Aug. 18, 1790), in 6 Papers of George Washington 284, 285 (D. Twohig ed. 1996). As Washington and his contemporaries were

—————— 16 As to the Argonne Cross Memorial and the Canadian Cross of Sac- rifice in Arlington National Cemetery, visitors to the cemetery “expec[t] to view religious symbols, whether on individual headstones or as standalone monuments.” Brief for Amicus Jewish War Veterans 17. 17 The Court asserts that the Court of Appeals “entertained” the possibility of “amputating the arms of the cross.” Ante, at 24. The appeals court, however, merely reported Plaintiffs’ “desired injunctive relief,” namely, “removal or demolition of the Cross, or removal of the arms from the Cross ‘to form a non-religious slab or obelisk.’ ” 874 F. 3d, at 202, n. 7. See also id., at 212, n. 19 (noting that the parties remained “free to explore alternative arrangements that would not offend the Constitution”). 18 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

GINSBURG, J., dissenting aware, “some of them from bitter personal experience,” Engel, 370 U. S., at 429, religion is “too personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by a civil magistrate,” id., at 432 (quoting Memorial and Re- monstrance). The Establishment Clause, which preserves the integrity of both church and state, guarantees that “however . . . individuals worship, they will count as full and equal American citizens.” Town of Greece, 572 U. S., at 615 (KAGAN, J., dissenting). “If the aim of the Estab- lishment Clause is genuinely to uncouple government from church,” the Clause does “not permit . . . a display of th[e] character” of Bladensburg’s Peace Cross. Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 817 (1995) (GINSBURG, J., dissenting). Cite as: 588 U. S. ____ (2019) 19

AppendixGINSBURG to opinion, J., dissenting of GINSBURG , J.

APPENDIX

The Bladensburg Peace Cross. App. 887.

Map showing the location of the Peace Cross. App. 1533. 20 AMERICAN LEGION v. AMERICAN HUMANIST ASSN.

AppendixGINSBURG to opinion, J., dissenting of GINSBURG , J.

The World War II Memorial in Veterans Memorial Park. App. 891.

Plaque of the World War II Memorial. App. 891.

Cite as: 588 U. S. ____ (2019) 21

AppendixGINSBURG to opinion, J., dissenting of GINSBURG , J.

The Korea-Vietnam Veterans Memorial in Veterans Memorial Park. App. 894.

Headstones in the Henri-Chappelle American Cemetery and Memorial in Belgium. American Battle Monuments Commission, Henri-Chappelle American Cemetery and Memorial 16 (1986).

VBA ANNUAL WINTER MEETING APPELLATE SECTION CLE PRESENTATION JANUARY 24, 2020

MOTIONS PRACTICE, BIG SCOTUS CASES, AND A CONVERSATION WITH THE NEW SUPREME COURT OF VIRGINIA CLERK OF COURT

ADDENDUM TO MOTIONS OUTLINE MATERIALS FROM THE VBA 2018 APPELLATE SUMMIT

Section II. SUPREME COURT OF VIRGINIA

B. General requirements for responses to motions

Effective July 1, 2019, the Supreme Court amended Rule 5:4(a)(2) to add the following language: “Once such a response is filed, no further pleadings in support of or in opposition to a motion may be filed without leave of court.”

The amendment prohibits a movant, absent leave of court, from filing a reply to the party- opponent’s response in opposition to a motion, or from filing a supplement to the original motion. The party-opponent likewise may not supplement a response in opposition to a motion absent leave of court.

E. Oral Argument

The text is corrected to read as follows: No oral argument on motions is permitted except by leave of the Court. Rule 5:4(a)(4).

Section III. COURT OF APPEALS OF VIRGINIA

A. General requirements for motions

The text of subpart (1) is corrected to read as follows: 1. In writing. Motions shall be in writing and filed with the clerk of the Court.

This correction removes language regarding qualification of attorneys to practice in the Court. Part 5:A of the Rules does not address qualification of attorneys to practice in the Court of Appeals.

F. Motions for review of post-trial bail pending appeal orders in criminal cases. Rule 5A:2(c)

The text of subpart (3) is amended to add the following sentence: An order setting or denying bail pending appeal in a criminal case shall be reviewable for abuse of discretion.

Motions

Thursday, September 20, 2018 | McGuireWoods | Richmond, VA

CONTINUING Written Materials LEGAL EDUCATION

A presentation of The Virginia Bar Association’s Appellate Practice Section EFFECTIVE MOTIONS PRACTICE IN VIRGINIA’S APPELLATE COURTS AND IN THE FOURTH CIRCUIT1

Outline to accompany the “Motions” panel at the 2018 VBA Appellate Summit (September 20, 2018)

Panelists

• Pat Connor: Clerk, U.S. Court of Appeals for the Fourth Circuit • Patricia Harrington: Clerk, Supreme Court of Virginia • John Vollino: Clerk, Court of Appeals of Virginia • Trevor S. Cox: Counsel, Hunton Andrews Kurth LLP (moderator)

I. U.S. COURT OF APPEALS FOR THE FOURTH CIRCUIT

A. General requirements for motions

1. When to file. An application for an order or other relief is made by motion unless the rules prescribe another form. FRAP 27(a).

2. In writing. A motion must be in writing unless the Court permits otherwise. FRAP 27(a).

3. Required statement. When all parties are represented by counsel, all motions shall contain a statement by counsel that counsel for the other parties to the appeal have been informed of the intended filing of the motion, and further state whether the other parties consent to the granting of the motion, or intend to file responses in opposition. Local Rule 27(a).

4. Content. A motion must state with particularity the grounds for the motion, the relief sought, and the legal argument necessary to support it. FRAP 27(a)(2)(A).

5. Page limits. Excluding the documents required by FRAP 27(a)(2)(B),

a. a motion produced using a computer must not exceed 5,200 words, FRAP 27(d)(2)(A);

b. a handwritten or typewritten motion or response to a motion must not exceed 20 pages, FRAP 27(d)(2)(B).

6. Copies. Pursuant to Local Rule 25(a)(1), the Court does not require paper copies of motions filed electronically. See FRAP 27(d)(3) (Court may alter FRAP copy requirements by local rule).

1 This outline is based on materials originally prepared by Monica T. Monday, of Gentry Locke Rakes & Moore, LLP, for the 2015 VBA Appellate Summit.

1 7. Format

a. The motion must comply with the type-face requirements of FRAP 32(a)(5), which require either a 14-point proportionally spaced font, with serifs (such as Times New Roman) or a 12-point monospaced font (such as Courier New). FRAP 27(d)(1)(E).

b. The motion must comply with the type-style requirements of FRAP 32(a)(6), which require a plain, roman style, although italics or boldface may be used for emphasis, and case names must be italicized or underlined. FRAP 27(d)(1)(E).

c. The text must be double-spaced, but quotations more than two lines long may be indented and single-spaced. Headings and footnotes may be single-spaced. Margins must be at least one inch on all four sides. Page numbers may be placed in the margins, but no text may appear there. FRAP 27(d)(1)(D).

d. A cover is not required, but there must be a caption that includes the case number, the name of the court, the title of the case, and a brief descriptive title indicating the purpose of the motion and identifying the party or parties for whom it is filed. FRAP 27(d)(1)(B).

8. Separate motions. The parties should not make requests for procedural and substantive relief in a single motion, but should make each request in a separate motion. Local Rule 27(c).

B. Accompanying documents

1. Duty of Counsel. Counsel should always review carefully the specific rule which authorizes relief to ascertain the documents required by a specific rule. If a motion is supported by attachments, these materials should also be served and filed with the motion. Local Rule 27(c).

2. Documents that must be filed and served with the motion:

a. Any affidavit or other paper necessary to support a motion; an affidavit must contain only factual information, not legal argument. FRAP 27(a)(2)(B)(i), (ii).

b. A motion seeking substantive relief must include a copy of the trial court’s opinion or agency’s decision as a separate exhibit. FRAP 27(a)(2)(B)(iii).

c. A Disclosure of Corporate Affiliations statement, unless previously filed with the Court. Local Rule 27(c).

d. A Certificate of Compliance with type-volume limitation, stating the number of words in the motion (for motions produced by computer). FRAP 32(g).

3. Documents not to file with the motion. FRAP 27(a)(2)(C).

a. A separate brief supporting the motion.

b. A notice of motion.

2 c. A proposed order.

C. Responses to motions

1. In general. Although any party may file a response to a motion, a party need not respond to a motion until requested to do so by the Court. Local Rule 27(d)(1).

2. Documents that must be filed and served with the response:

a. A Disclosure of Corporate Affiliations statement, unless previously filed with the Court. Local Rule 27(c).

b. A Certificate of Compliance with Type-Volume Limitation, stating the number of words in the response (for responses produced by computer). FRAP 32(g).

3. Documents not to file with the response. FRAP 27(a)(2)(C):

a. A separate brief responding to the motion;

b. A proposed order.

4. Responses requesting affirmative relief. A response may include a motion for affirmative relief. FRAP 27(a)(3)(B). When a response to a motion includes a request for affirmative relief, the time to respond to the new motion, and to reply to that response, are governed by FRAP 27(a)(3)(A) and (a)(4). The title of the response must alert the court to the request for relief. FRAP 27(A)(3)(B).

5. Page limits:

a. a response to a motion produced using a computer must not exceed 5,200 words, FRAP 27(d)(2)(A);

b. a handwritten or typewritten motion or response to a motion must not exceed 20 pages, FRAP 27(d)(2)(B).

6. Filing deadline:

a. A response to a motion must be filed within 10 days after service of the motion unless the Court shortens or extends the time. FRAP 27(a)(3)(a). A motion authorized by FRAP 8, 9, 18, or 41 may be granted before the 10-day period runs only if the court gives reasonable notice to the parties that it intends to act sooner. FRAP 27(a)(3)(a).

b. The three-day mailing rule does not apply to responses requested by the Court or Clerk by letter wherein a response date is set forth in the request. Local Rule 27(d)(1).

7. Copies. Pursuant to Local Rule 25(a)(1), the Court does not require paper copies of responses filed electronically. See FRAP 27(d)(3) (Court may alter FRAP copy requirements by local rule).

3 D. Reply to a response

1. Court practice. The Court will not ordinarily await the filing of a reply before reviewing a motion and response. If the movant intends to file a reply and does not want the Court to actively consider the motion and response until a reply is filed, the movant shall notify the Clerk in writing of the intended filing of the reply and request that the Court not act on the motion until the reply is received. Local Rule 27(d)(2).

2. Content. A reply must not present matters that do not relate to the response. FRAP 27(a)(4).

3. Filing deadline. Any reply to a response must be filed within 7 days after service of the response. FRAP 27(a)(4).

4. Page limit:

a. a reply produced using a computer must not exceed 2,600 words, FRAP 27(d)(2);

b. a handwritten or typewritten reply to a response must not exceed 10 pages, FRAP 27(d)(2).

5. Time to reply to request for affirmative relief in response to motion:

a. When a response to a motion includes a request for affirmative relief, the times to respond to the new motion, and to reply to that response, are governed by FRAP 27(a)(3)(A) and (a)(4).

b. The title of the response must alert the court to the request for relief. FRAP 27(a)(4).

E. Motions for extension of time. FRAP 26(b)

1. Standard for granting extensions. For good cause, the Court may extend the time prescribed by the Rules or by its order to perform any act, or may permit an act to be done after that time expires.

2. When extensions are not permitted. The Court may not extend the time to file:

a. A notice of appeal (except as authorized in FRAP 4) or a petition for permission to appeal, FRAP 26(b)(1); or

b. A notice of appeal from or a petition to enjoin, set aside, suspend, modify, enforce, or otherwise review an order of an administrative agency, board, commission, or officer of the United States, unless specifically authorized by law, FRAP 26(b)(2).

F. Rulings and orders

1. Disposition of a motion for a procedural order. The Court may act on a motion for a procedural order—including a motion under FRAP 26(b) seeking an extension of time—at any time without awaiting a response, and may, by rule or by order in a particular case, authorize its clerk to act on specified types of procedural motions. FRAP 27(b); Local Rule 27(b).

4 2. Clerk to enter certain orders. Motions and applications for orders if consented to, or if unopposed after due notice to all interested parties has been given or waived, or if the orders sought are procedural or relate to the preparation or printing of the appendix and briefs on appeal, or are such as are ordinarily granted as of course and without notice or hearing, need not be submitted to the Court, or to a judge thereof. Such orders may be entered for the Court by the Clerk, who shall forthwith send copies thereof to the parties. Local Rule 27(b).

3. Single judge. A judge of the Court may act alone on any motion, but may not dismiss or otherwise determine an appeal or other proceeding. The Court may review the action of a single judge. FRAP 27(c).

4. When motion granted. A motion authorized by FRAP 8 (stay or injunction pending appeal), FRAP 9 (release in a criminal case), FRAP 18 (stay pending review), or FRAP 41 (staying the mandate) may be granted before the 10-day period runs for the filing of a response to a motion only if the Court gives reasonable notice to the parties that it intends to act sooner. FRAP 27(A)(3)(A).

5. Reconsideration:

a. If the Court acts upon a motion without a response, any party adversely affected by the Court’s, or the Clerk’s, action may file a motion to reconsider, vacate, or modify that action. Timely opposition filed after the motion is granted in whole or in part does not constitute a request to reconsider, vacate, or modify the disposition; a motion requesting that relief must be filed. FRAP 27(b); Local Rule 27(d)(1).

b. Any party adversely affected by an order entered by the Clerk pursuant to Local Rule 27(b) shall be entitled to request reconsideration of the Clerk’s action by the Court. Local Rule 27(b).

i. A motion for reconsideration shall be filed within 14 days after entry of the order.

ii. A motion for reconsideration shall be in writing, state the grounds for the request, be filed with the Clerk, and be served upon the parties.

G. Oral argument. A motion will be decided without oral argument unless the Court orders otherwise. FRAP 27(e).

5 II. SUPREME COURT OF VIRGINIA

A. General requirements for motions

1. In writing. Motions shall be in writing and filed with the clerk of the Court. This rule does not apply to motions for the qualification of attorneys at law to practice in the Court. Rule 5:4(a)(1).

2. Certification. All motions shall contain a statement by the movant that the other parties to the appeal have been informed of the intended filing of the motion. Rule 5:4(a)(1).

a. For motions where all parties are represented by counsel, the statement by the movant shall also indicate whether the other parties consent to the granting of the motion, or intend to file responses in opposition. Rule 5:4(a)(1).

b. This rule does not apply to motions to dismiss petitions for a writ of habeas corpus. Rule 5:4(a)(1).

3. Copies. An original and three copies of all motions must be filed. Rule 5:4(a)(3).

4. Format. For rules on paper size, font and other requirements, see Rule 5:6(a).

B. General requirements for responses to motions

1. Filing deadline. Responses to motions may be filed within 10 days after the filing of the motion. However, the Court may act on the motion before the 10 days expire, if necessary. Rule 5:4(a)(2).

2. Copies. An original and three copies of all responses must be filed. Rule 5:4(a)(3).

3. Format. For rules on paper size, font and other requirements, see Rule 5:6(a).

C. Orders. Promptly after the Court has entered an order, the clerk will send a copy of the order to all counsel. Rule 5:4(b).

D. Motions for Extension of Time

1. Mandatory filing deadlines:

a. The time for filing a notice of appeal, petition for appeal, petition for review, and petition for rehearing is mandatory. Rule 5:5(a).

b. A single extension of time not to exceed thirty days may be granted if at least two Justices concur in a finding that an extension for papers to be filed is warranted by a showing of good cause sufficient to excuse the delay. Rule 5:5(a).

2. Briefs. Upon motion and with permission of a Justice of the Court, the time for filing any brief may be altered. Rule 5:26(d).

6 3. When motion for extension is timely. A motion for extension of time is timely if filed either within the original filing deadline or within any extension period specified by the governing rule. Filing the motion within the original filing deadline or within the specified extension period does not toll the original filing deadline or further extend the period of extension. Rule 5:5(e).

E. Oral argument. No oral argument on motions is permitted except by leave of the Court. Rule 5:6(a)(4).

7 III. COURT OF APPEALS OF VIRGINIA

A. General requirements for motions

2. Certification. All motions shall contain a statement by the movant that the other parties to the appeal have been informed of the intended filing of the motion. Rule 5A:2(a)(1).

b. This rule does not apply to motions to dismiss petitions for a writ of habeas corpus. Rule 5A:2(a)(1).

3. Copies. An original and three copies of all motions must be filed. Rule 5A:2(a)(3).

4. Format. For rules on paper size, font and other requirements, see Rule 5A:4(a).

B. General requirements for responses to motions

1. Filing deadline. Responses to motions may be filed within 10 days after the filing of the motion. However, the Court may act on the motion before the 10 days expire, if necessary. Rule 5A:2(a)(2).

2. Copies: An original and three copies of all responses must be filed. Rule 5A:2(a)(3).

3. Format: For rules on paper size, font and other requirements, see Rule 5A:4(a).

C. Oral argument: No oral argument on motions is permitted except by leave of the Court. Rule 5A:2(a)(4).

D. Orders: Promptly after the Court has entered an order, the clerk will send a copy of the order to all counsel. Rule 5A:2(d).

E. Motion for review of pre-trial bail orders in criminal cases. Rule 5A:2(b).

1. When a circuit court has granted or denied pre-trial bail or set a bond or terms of recognizance or revoked bail, either party may move the Court to review the order.

2. The party seeking a motion for review shall submit copies of the following documents with the motion:

a. The warrants or indictments in the case;

b. The order granting, denying, or setting bond; and

8 c. A transcript of the bond hearing or a stipulation between counsel stating the evidence introduced at the bond hearing and the ruling of the circuit court.

3. An order setting or denying bail or setting terms of a bond or recognizance shall be reviewable for abuse of discretion.

F. Motions for review of post-trial bail pending appeal orders in criminal cases. Rule 5A:2(c).

1. When a notice of appeal has been filed in a criminal case, an appellant other than the Commonwealth may move the Court to review the trial court’s order denying bail pending appeal or setting an excessive bail pending appeal.

2. The party seeking a motion for review shall submit copies of the following documents with the motion:

a. The sentencing order entered by the trial court;

b. A pre-sentence report when available;

c. The trial court’s decision setting or denying bail; and

d. A transcript of the bail hearing or a stipulation between counsel stating the evidence introduced at the bail hearing and the reason the trial court gave for the bail decision.

3. If the Court overrules a trial court decision denying bail pending appeal, the Court shall set the amount of the bail pending appeal or remand the matter to the trial court with directions to set bail pending appeal.

G. Motions for Extension of Time.

1. Extensions Generally: Except as provided in (G)(2) and (G)(3) below, the times prescribed in the Rules for filing papers may be extended by a Judge of the Court in which the papers are to be filed upon a showing of good cause sufficient to excuse the delay. Rule 5A:3(b).

2. Mandatory filing deadlines

a. The times for filing the notice of appeal, petition for appeal, petition for rehearing, and request for rehearing en banc are mandatory. Rule 5A:3(a).

b. Except for the petition for appeal, a single extension of time not to exceed thirty days may be granted if at least three Judges concur in a finding that an extension for papers to be filed is warranted by a showing of good cause sufficient to excuse the delay. Rule 5A:3(a).

c. Petitions for appeal:

i. For petitions for appeal, an extension of 30 days may be granted on motion in the discretion of the Court upon a showing of good cause sufficient to excuse the delay. Rule 5A:12(a); Va. Code § 17.1-408 (for a petition for appeal in a criminal case, the

9 Court of Appeals may grant a 30-day extension of time in order to attain the ends of justice).

ii. The Court of Appeals does not have authority to extend the filing deadline for petitions for interlocutory appeal by the Commonwealth in criminal cases. Commonwealth v. Square, No., 2012 Va. App. LEXIS 202 (June 12, 2012).

3. Transcripts: The deadline for filing transcripts may be extended by a Judge of the Court of Appeals only upon a written motion filed within 90 days after the entry of final judgment. Timely motions will be granted only upon a showing of good cause to excuse the delay. Rule 5A:8(a).

4. Briefs: A motion for extension of the briefing deadlines shall be filed no later than 10 days after the expiration of the deadline. Rule 5A:19(b)(4), (c)(4).

5. When motion for extension is timely. Rule 5A:3(c).

a. A motion for extension of time is timely if filed either:

i. within the original filing deadline;

ii. within the specified extension period (see Rules 5A:3(a) and 5A:12(a)); or

iii. within any specific deadline governing motions to extend under Rule 5A:8(a) (transcript), Rule 5A:13(a) (brief in opposition), Rule 5A:14 (reply brief), Rule 5A:19(b) (brief in appeals as a matter of right), and Rule 5A:19(c) (brief in appeals by petition).

b. Filing the motion for extension does not toll the applicable deadline or further extend the period of extension. Rule 5A:3(c).

10 99900.12975 EMF_US 70286262v3