Justices Seem Likely to Keep Cross Memorial in Place

U.S. Supreme Court Building. (Kjetil Ree)

A majority of the Supreme Court leaned toward permitting a cross memorializing war dead to remain on government land in what is likely to be the most important case for religious groups the justices will decide this year.

It is largely expected that the court’s five conservative-leaning justices will support leaving the monument in place. During oral arguments held on Wednesday, some observers detected the makings of what could be a widely supported ruling in statements from Justices Stephen Breyer and Elena Kagan expressing skepticism about the argument being advanced by a “humanist” organization that the memorial is unconstitutional.

Both typically left-leaning justices repeatedly asked American Humanist Association’s (AHA) attorney, Monica Miller, why the historic context of the cross should not play a role in the court’s determination.

“I really did mean to confine it to this World War I context, because I think there’s something quite different about this historic moment in time when … if you look at all the crosses that are war memorials, they’re basically all World War I memorials. Why isn’t that important,” asked Justice Kagan.

During and in the wake of the First World War, whose victims the memorial at hand was built to commemorate, fields of crosses used as grave markers for soldiers became a prominent symbol of the tremendous costs of the conflict, a point emphasized by a famous poem of the period.

Despite that fact that the case revolves around an ostensibly Christian symbol, legal advisors for the Orthodox community 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 National Jewish Commission on Law and Public Affairs (COLPA) submitted a brief on behalf of several organizations, including Agudath Israel of America and Rabbinic Council of America (RCA) arguing for the monument to remain. The unique brief, authored by noted attorney Nat Lewin, draws attention to several examples in halachic literature that recognize possibility of the cross’ dual religious and secular nature.

While the brief was not mentioned by counsel or the justices, various questions regarding stars of David as symbols were raised as well as the fact that a Jewish war veteran, J. Moses Eldovich, was one of the memorial’s most prominent fundraisers were subjects of discussion.

The cross in dispute sits on a traffic median in Bladensburg, Maryland, a suburb of Washington D.C. It was 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 the state in 1961 for practical concerns.

Several years ago, the AHA 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.

Two private attorneys argued on behalf of the American Legion and the Municipality of Bladensburg as well as Jeffery Wall, a deputy to the solicitor general, who also argued for the cross’ preservation on the behalf of the Trump administration.

The team faced questions, particularly from Justices Ruth Ginsburg and Sonia Sotomayor that a cross in any context is inseparable from sectarian religion.

A question that loomed large was what a ruling against the monument would mean for many other such symbols on government land. Justice Samuel Alito suggested that a wave of deconstruction of religious symbols around the country could send an even stronger message about the government’s beliefs about religion than leaving historical monuments with Christian overtones in place.

When Mrs. Miller made several attempts to explain why other crosses could remain saying that “each one is evaluated with its specific facts,” the Justice questioned her client’s goal in the case.

“So you just said no other cross has to be torn down, just this one. Would you like us to write that in the opinion,” he asked to laughter in the courtroom.

The larger looming issue is whether justices will use the case to formally abandon a 1971 Supreme Court decision that 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.” 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 the test, an approach viewed more favorably by most religious groups.

Many of the briefs in the present case from religious liberty advocates, including one from an Orthodox group, have advocated that the court use the present as an opportunity to formally break with Lemon, and idea that seemed to win approval from Justice Neil Gorsuch, who twice referred to the test as “a dog’s breakfast.”

Yet, many observers feel a narrow ruling is more likely especially given Chief Justice John Robert’s penchant for narrow rulings that garner consensus on the bench.

A decision is expected this coming June.

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