The U.S. Supreme Court heard arguments Wednesday in a challenge to a 94-year-old cross memorializing a Maryland county’s World War I dead, in a case that may affect church-state controversies in the public schools.
Conservative members of the court seemed inclined to find a way to uphold keeping the cross on state property, with some wanting to use the case to overrule the so-called Lemon test for evaluating government interaction with religion. If the court goes that far, the cross case would hold more significant implications for religion in public education.
“Is it time for the court to thank Lemon for its service and send it on its way?” Justice Neil M. Gorsuch asked in reference to the 1971 decision in Lemon v. Kurtzman. Under that test, courts must examine whether government action regarding religion had a secular purpose, had the primary effect of advancing or inhibiting religion, or created an excessive entanglement with religion.
Gorsuch made clear he believed the answer was yes, since the Supreme Court itself has rarely relied on the test for the last quarter-century, he said, while lower courts continue to apply Lemon in church-state cases, but are confused by it. More than once, Gorsuch used an especially vivid and disdainful description of the Lemon test, saying it has become “a dog’s breakfast.”
The case before the court involves a 40-foot-tall memorial, known as the “Peace Cross,” which stands in a large highway median in Bladensburg, Md. It was erected in 1925 by the American Legion to honor 49 men from Prince George’s County, Md., who died during World War I. In 1961, the cross and the land beneath it were acquired by the Maryland-National Capital Park and Planning Commission, a state agency.
Last year, ruling on a 2012 challenge brought by the American Humanist Association, a panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., ruled 2-1 that the cross on public land violated the First Amendment’s prohibition against government establishment of religion because it has the primary effect of endorsing religion and excessively entangles the government in religion.
“The Latin cross is the core symbol of Christianity,” the 4th Circuit majority said. “And here, it is 40 feet tall; prominently displayed in the center of one of the busiest intersections in Prince George’s County, Maryland; and maintained with thousands of dollars in government funds. Therefore, we hold that the purported war memorial breaches the ‘wall of separation between church and state.’”
The appeals court did not rule on a remedy for the violation, but the humanist group has sought the cross’s removal, while one judge suggested that the “arms” could be cut off to render the statue an obelisk that would no longer violate the Constitution.
‘49 Brave Souls’
The Supreme Court agreed to hear two consolidated appeals, in American Legion v. American Humanist Association (Case No. 17-1717) and Maryland-National Capital Park and Planning Commission v. American Humanist Association (No. 18-18).
Neal K. Katyal, one of three lawyers who argued in support of the cross during the Feb. 27 arguments, said the case was an easy one because of the circumstances of the cross, including its age and the fact that it was designed specifically to memorialize the Maryland county’s war dead.
“Families and the Legion built it 93 years ago to commemorate 49 brave souls who gave their lives in World War I, and it has stood since that time” until the recent challenge, he said.
“It’s unnecessary and unwise” to use this case to overrule the Lemon test, Katyal said, because the cross could be upheld under that or any of the court’s other establishment clause tests. “Wait for a case where [Lemon] has some bite.”
Justice Ruth Bader Ginsburg wondered about the constitutionality of hypothetical similar memorial to a “mass shooting at a school.”
“Could the local community then decide it wants to put up a cross in front of that school to honor the children and the teachers who died in the mass shooting?” Ginsburg asked.
Katyal said the test for such a memorial was whether there was “an independent secular purpose.”
Jeffrey B. Wall, who is the acting U.S. solicitor general in this case because Solicitor General Noel J. Francisco is recused, argued on behalf of the Trump administration to uphold the Bladensburg cross. He said that “the cross that commemorates the school shooting ... seems to us perfectly permissible.”
Katyal, who represents the Maryland agency; Wall, and Michael A. Carvin, who represents the American Legion, were peppered with questions from the court’s more liberal justices about the symbolism of the large cross.
Justice Elena Kagan said that a Latin cross would be a “very natural” way for predominantly Christian communities to memorialize their war dead. But “for others, not,” she said.
Ginsburg said she had visited U.S. cemeteries of World War I dead in Europe, where the markers of Jewish soldiers have a Star of David.
The cross is “the preeminent symbol of Christianity,” she said. “People wear crosses to show their Christian faith.”
Justice Sonia Sotomayor said that not just religious minorities might be offended by the Bladensburg cross, but also Christians who objected to arguments that is is merely a secular symbol.
Justice Stephen G. Breyer hinted that he favors upholding the Bladensburg cross, but a similar one erected today might face more skepticism.
“History counts, but no more,” he said. “We’re a different country now, there are 50 more different religions and, therefore, no more.”
Breyer said he was merely offering that observation as a question, but it is consistent with his concurring opinion in a 2005 case, Van Orden v. Perry, that upheld a longstanding Ten Commandments monument on the grounds of the Texas state capitol.
World War I History
Monica L. Miller, defending the 4th Circuit’s ruling against the cross on behalf of the humanists’ group, said “the establishment clause prevents the government to prefer one religion over another religion.”
Justice Samuel A. Alito Jr. told her there are “cross memorials all over the country. Do you want them all taken down?”
Miller said there were only 10 to 20 on government land, and the remedy for most if not all of those could be to move them or sell the land to private parties.
Chief Justice John G. Roberts Jr. said he understood that “Native American totems have spiritual and religious significance. If one of those is on federal property, does it have to be torn down?”
Likely not, Miller said.
Justice Brett M. Kavanaugh said that the Supreme Court has “upheld religious displays and religious words” in cases that approved of legislative prayers and the Ten Commandments monuments.
Kagan, who defended a cross on a federal property when she was U.S. solicitor general under President Barack Obama, suggested to Miller that “World War I does have this history that this is how soldiers were memorialized,” with crosses.
“And it’s true not all soldiers,” Kagan said. “When you go into a World War I battlefield [cemetery], there are Stars of David there, but because those battlefields were just rows and rows and rows of crosses, the cross became, in people’s minds, the preeminent symbol of how to memorialize World War I dead.”
“So why in a case like [this] can we not say essentially the religious content has been stripped of this monument?” she said.
“I’m not aware of any secondary meaning that’s derived from the Latin cross,” Miller said. “Its meaning as a war memorial is distinctly for Christians.”
A decision in the case is expected by late June.
A version of this news article first appeared in The School Law Blog.