The U.S. Supreme Court heard oral arguments last week in a case about a giant cross in Maryland that could affect public monuments and displays throughout the United States.
The American Humanist Association (AHA) sued the American Legion and the Maryland–National Capital Park and Planning Commission over a 40-foot cross memorial in Bladensburg, Md., that an American Legion post erected in 1925 to honor local men who died in World War I. The Maryland–National Capital Park and Planning Commission has maintained the monument since 1961 with the help of public funds.
The Bladensburg cross stood for nearly a century before the AHA sued. A U.S. District Court judge in Maryland ruled the memorial could stay in 2015, but a three-judge panel from the 4th U.S. Circuit Court of Appeals declared the cross a violation of the First Amendment’s Establishment Clause, which forbids the government from establishing an official religion or unduly favoring one religion over another.
If the Supreme Court doesn’t reverse the ruling, the memorial must be removed.
The case raises two main questions: First, is displaying and maintaining the cross unconstitutional, and second, what test should the court use to decide?
Attorney Monica Miller, representing the AHA, argued that the way the cross is being used in Bladensburg offends just about everyone, including Christians. She said that as a sacred symbol of one religion, the cross does not honor the dead of other religions nor those who followed no religion.
Miller fielded questions about whether governments would have to remove all religious symbols if her clients win and had a tough time articulating an easy test to figure out which symbols get to stay and which ones have to go.
The lawyer for the American Legion, Michael Carvin, argued for simplicity: Expand the court’s prior ruling in Town of Greece v. Galloway, which allowed religious prayers before town hall meetings. Under that ruling, religious symbols are fine as long as they don’t cross over into “proselytizing.”
“All symbols are sectarian, and if you ban sectarian symbols then you are necessarily banning all religious symbols, which evinces hostility and is in stark tension with the Free Exercise and Free Speech Clause,” Carvin said.
Part of the problem stems from two Supreme Court rulings from 2005. In one, the court said two framed copies of the Ten Commandments on display in a couple of Kentucky courthouses violated the Establishment Clause. But in the other, it said a 6-foot-tall granite Ten Commandments display on the state Capitol grounds in Texas, set among dozens of other monuments, did not. The difference in those two rulings? The Texas monument had stood unchallenged for decades, while the framed copies in Kentucky stemmed from an effort to promote religion, Justice Stephen Breyer wrote in the opinion.
The two somewhat contradictory rulings sprang from the difficulty of interpreting the “Lemon test,” the leading precedent on Establishment Clause violations since the 1970s. Named for a 1971 Supreme Court case, Lemon v. Kurtzman, the multipart legal test considers whether government actions are intended to establish a religion, among other criteria.
Neal Katyal, a lawyer for the state of Maryland, argued in favor of letting the Bladensburg Cross stand, citing tradition and the passage of time. He also said that a “secular meaning” became attached to the cross during World War I, and people merely being offended did not constitute a violation of the Establishment Clause.
“I don’t think this court has ever adopted the view that, if some people disagree with something, that that itself creates an Establishment Clause violation,” he said. “If that were the rule, you’d be tearing down crosses at Arlington [National] Cemetery and nationwide.”
The justices may rule narrowly that old memorials that reflect Christian symbols may stay as part of American history, but new memorials must not use religious symbols if they are on public land and maintained by public funds, unless the choice of symbol is an individual one such as the grave markers at Arlington National Cemetery.
Some hope the justices will take the opportunity to clarify the Establishment Clause—and that it doesn’t mean all religious symbols must be stripped from the public square. Kelly Shackelford, president of the religious liberty defense group First Liberty, which is helping represent the American Legion, said he thinks the court will do just that.
“I think it was very encouraging to hear that everybody recognizes that the Lemon test and the current approach that’s being used is in hopeless disarray,” Shackelford said. “It’s creating confusion throughout the courts. I think the court really clearly wants to change that.”
The Becket Fund for Religious Liberty submitted an amicus brief in support of the American Legion and the Maryland–National Capital Park and Planning Commission that the court discussed during oral arguments, and senior counsel Eric Baxter also expressed hope a fresh interpretation was on the way: “The justices seemed clearly tired of the existing interpretation of the Establishment Clause.”