The irony of a set of Orthodox Jewish groups submitting briefs to the Supreme Court arguing for the preservation of a roadside cross speaks for itself. Yet, community legal experts have sided with a broad base of religious liberty advocates that its fate could have wide implications for faith groups on issues ranging from funding for parochial schools to the legality of eruv poles on public land.
The case revolves around the constitutionality of a memorial in Bladensburg, Maryland, a suburb of Washington D.C., constructed in 1925 in honor of 49 soldiers from the county who had been killed in the First World War. Funds for the structure, a 40-foot stone cross, were raised by the American Legion, who are named as defendants in the case together with the state, but the monument and the land it sits on was acquired by state in 1961 for practical reasons, as traffic in the area had increased and the plot of ground was turned into a road median.
Several years ago, the American Humanist Association and a group of Bladensburg residents brought a suit alleging that the state’s ownership and maintenance of the monument constitutes government endorsement of religion and that it must be altered or removed. Lower courts have differed on the matter, but the case has now made its way to the Supreme Court, with many groups saying that it is a ripe opportunity for the Justices to clarify their guidelines on where the demarcation line is set for state “establishment” of religion.
Noted attorney Nathan Lewin authored a brief supporting the American Legion’s position on behalf of The National Jewish Commission on Law and Public Affairs (COLPA) and several other Orthodox organizations, including Agudath Israel of America and Rabbinic Council of America (RCA). He told Hamodia that how the court approaches the question at hand could have significant consequences for the community.
“In general, it’s been beneficial for Orthodox Jews for the Establishment Clause to be read narrowly, so that anything short of an out-and-out endorsement of a particular religion or proselytization by the government is constitutional,” he said. “Unfortunately, secular Jewish organizations have persuaded the Supreme Court that it should be read broadly. That approach invalidates lots of action by government that could be helpful to our community, like financial assistance for teachers of secular subjects and other services in yeshivas.”
The case touches on an aspect of the First Amendment jurisprudence which many feel has been muddled by courts in recent decades. A 1971 Supreme Court decision in Lemon v. Kurtzman created what is known as the “Lemon Test.” The test set three standards to determine the constitutionality of government aid or actions related to religious groups; it must serve a secular purpose, neither advance nor impede religion, and not involve “excessive entanglement with religion.” Yet, since then, many feel the rubric has been applied inconsistently, with judges sometimes opting to decide cases dealing with the constitutionality of religious symbols using context rather than an absolute standard, an approach viewed more favorably by most religious groups. The late Justice Antonin Scalia famously referred to the Lemon Test as a “ghoul…that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.”
However, many observers are skeptical that the present case will be used as an opportunity to disavow Lemon, noting Chief Justice John Robert’s penchant for narrow rulings that garner consensus.
Howard Slugh, an attorney who authored a brief on behalf of a group known as the Jewish Coalition for Religious Liberty (JCRL) told Hamodia that he still held out hope that the court would address Lemon.
“I’m an optimist and maybe after decades of criticizing Lemon again and again they will opt to decide these cases based on historic practice, which would not even be such a radical change, since they’ve already done it — sometimes,” he said.
COLPA’s brief notes that broader arguments have already been addressed by the parties as well as by several other support briefs, and chose to focus on the recognition that in halachic literature, too, the cross’s dual nature has been recognized. A filing that reads more like a Torah journal article than a legal brief draws on sources, including commentaries such as the Mordechai and the Rema and responsa literature from the Shoel u’Mashiv and Harav Ovadia Yosef, zt”l, discussing crosses that have been used as an award or ornament versus those used for Christian worship.
JCRL’s brief asked the Justices to address what it calls lower court’s “misuse” of the Lemon Test in this case. It also says that the test’s reliance on a “reasonable observer’s” view of whether the government’s action is an endorsement of religion poses a specific danger to minority religions.
“The symbols and practices of minority religions are inherently less familiar: While the broader population may be aware of the Ten Commandments and the Menorah, it is likely less familiar with Jewish religious items and symbols such as the mezuzah, sukah, or eruv,” reads the brief. “Due to unfamiliarity, these symbols may be more likely to be understood by a ‘reasonable observer’ as a ‘sectarian’ endorsement.”
The case is set to be argued on February 27, 2019.
Mr. Lewin echoed wide skepticism that the Justices’ opinion would create a major precedent but noted that with the new additions of two conservatives to the bench, the possibility was indeed higher.
“The Supreme Court will probably decide the case on narrow grounds,” he said. “But I am hopeful that with Gorsuch and Kavanaugh on the bench, they might reach broader issues and limit the reach of the Establishment Clause.”