What Should the Court Do With That Cross?

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Everybody knows that you can’t put a cross on a Jewish soldier’s grave. The Jew gets a Star of David. The Muslim a Crescent and Star. The Atheist, an Atomic Swirl. The Christian, a Cross. Or a Crucifix. The symbol should reflect the individual’s beliefs.

There is no agreement, however, on whether the state government can constitutionally pay for and protect a forty-foot high cross in the middle of a busy Bladensburg, Maryland, intersection. That cross is a World War I memorial to 49 local veterans. The cross is also the preeminent symbol of one religion, Christianity. The Fourth Circuit ruled that the cross violated the Establishment Clause. The Supreme Court granted certiorari in American Legion/Maryland National-Capital Park and Planning Commission v. American Humanist Association to decide whether the Fourth Circuit got it right.

The Supreme Court’s oral argument about that cross reflected the Court’s ongoing disagreement about what the Establishment Clause allows and forbids. The Establishment Clause states “Congress shall make no law respecting an establishment of religion.” The Supreme Court has ruled that states must obey it too. But the justices often disagree about what it means, especially what it means about religious public monuments.

The argument confirms that the Court needs a clearer standard. It should adopt the straightforward rule that one religion cannot be preferred to another.

The Cases

Everyone has long agreed that the Court’s Establishment Clause jurisprudence is conflicting and changing. Those confusing cases appeared in the Court’s oral argument.

As always, the justices raised questions about the famous, or infamous, Lemon test. The Lemon test dates back to 1971, when the Supreme Court used it to block state funding to religious schools. That Court identified a three-part establishment test. It asked whether the law had a secular purpose, whether its principal or primary effect either advances or inhibits religion, and whether there was an excessive government entanglement between church and state.

Some justices have long called for the separationist precedent’s overruling. And that question made it to the oral argument. Chief Justice Roberts asked a question that was skeptical of Lemon. Justice Gorsuch asked the Humanists’ lawyer: “Is it time for this Court to thank Lemon for its services and send it on its way?” He also suggested that many justices on the Court had opposed it and it might be good to take the Lemon burden away from the lower courts. Justice Kavanaugh reiterated that point, arguing that the Court had not applied Lemon in a long time and also suggesting that lower courts should be free of its burden. Gorsuch even noted that Michael Carvin, the American Legion’s lawyer, wanted them to “abandon Lemon’s endorsement test because it’s become a dog’s breakfast.” Endorsement wasn’t even the original Lemon standard; Justice Sandra Day O’Connor used endorsement as a better way to analyze the Lemon precedent.

Monica Miller, the Humanists’ lawyer, and Neal Katyal, for Maryland, still defended the old frequently-questioned precedent. Although Miller said there was an easier test for resolving the case, namely ”one religion over another can’t be preferred,” she also did conclude that the “reality is no one has come up with a better test than Lemon.” And in his rebuttal, Katyal answered Justice Sotomayor’s question about “a call and a discussion about undoing Lemon altogether.” Katyal said Lemon was not needed to decide his case, which could be decided on much more straightforward grounds. When Justice Gorsuch asked him whether he was telling the Court to keep Lemon but not apply it to his case, Katyal said they were “happy with you applying Lemon.” Then Justice Kavanaugh asked, “What if we think it’s unconstitutional under Lemon? What is your view then?” Gorsuch added “the other side so argues.” Katyal replied that the Court should then take a look at Lemon because it is presented!

The pro-cross lawyers, including Solicitor General Jeffrey Wall, had cases that they much preferred to Lemon. They urged the Court to adopt the Allegheny dissent by Justice Kennedy, which upheld the county courthouse crèche. They praised another Kennedy opinion, Town of Greece, which upheld the town’s very Christian prayer practices by a 5-4 vote. They praised Kennedy’s plurality in Buono, which upheld a war memorial cross, as well as Justice Breyer’s concurrence in Van Orden, which upheld the constitutionality of the Texas Ten Commandments monument. Those cases are much more religion-friendly than Lemon.

Carvin praised those cases, and in particular called for a coercion and proselytizing speech standard to replace the earlier Lemon-based endorsement test. Carvin argued for a standard that all symbols, including sectarian ones, are presumptively valid.

Miller argued she could win even under Buono and Town of Greece.

That is up to the justices.

The Justices

As noted above, at least three justices—Roberts, Gorsuch, and Kavanaugh—made a point to raise questions about the separationist Lemon. And the silent Thomas would probably agree with them.

Justice Sotomayor asked about the size of the monument and whether it really could be moved. Justice Kagan asked whether this should just be one 93-year-old precedent or if it means the state could put the same cross up today which is just as constitutional as this one. Justice Ginsburg asked whether the state could put up a cross for murdered schoolchildren. Justice Ginsburg did not accept the coercion test. Justice Alito wanted to know whether all the groups could put up religious memorials after a tragedy to each one of them.

Kagan asked numerous details about which crosses could go up and which couldn’t. Several of the justices were interested in whether this case is just one odd, old, 93-year-old case, or whether it sets a precedent for future cases. Justice Kavanaugh mentioned that all the crosses were the same, whatever their purpose. Kagan asked whether that means the cross has become a universal symbol.

Chief Justice Roberts asked whether Native American totems would have to be removed from government locations. And, repeatedly, there were questions about the Ten Commandments. The justices kept asking Miller about the differences between the Ten Commandments and the cross.

Justice Breyer, the concurring justice in the Texas Ten Commandments case, seemed to pick up his reasoning from that case. He asked whether history sets a precedent for accepting older monuments but not new ones. In Van Orden, Justices Breyer and Ginsburg voted on opposite sides, with Justice Ginsburg ruling the Ten Commandments were unconstitutional. They could possibly turn up on different sides of this case. That is part of the jumble of Establishment Clause case law.

The Lawyers

In answering one question, Katyal originally said “independent secular purpose,” which he then corrected to say the “objective meaning of the display.” His emphasis on the cross was how secular it had become. That was part of its objective meaning. The cross is usually secular enough to serve as a war memorial, he argued, probably for everyone. He also appeared skeptical about people offended by a memorial having enough injury to sue.

Wall concluded the state could put up another cross just like Bladensburg because the monument has become secular.

Carvin wanted to abandon the endorsement test, and replace it with a coercion and proselytization test. In his thoughts, “In God We Trust” endorses but does not proselytize. He thinks endorsement is hostile to religion and prefers to follow Town of Greece. Katyal thinks Greece is a good secondary argument, showing that this cross survives because of its long historical tradition.

Miller explained that cross displays are appropriate in museums or in private installations. But not in state-sponsored situations. She even says that a Happy Humanist can’t be sponsored by the government as a monument. Humanism, like Christianity, qualifies as a religion.

Miller’s goal was for the cross to be moved to private land. Katyal disagreed, saying the cross could not survive such a move and that it needed the government to protect its safety.

The justices are left to figure out an Establishment-friendly outcome.

The Outcome

The oral argument confirms that a number of Establishment Clause variations and several versions of the facts exist among the discussion’s justices and advocates.

The Establishment Clause received a different analysis last week, in a dissent by Justice Kagan, joined by Ginsburg, Breyer, and Sotomayor in Dunn v. Ray. Those are the same four justices who dissented in Town of Greece.

In Dunn, the majority reversed the Eleventh Circuit’s stay of execution. Five justices allowed a Muslim prisoner’s death sentence to proceed. The Muslim, Domineque Ray, wanted an imam to be present at his death. Alabama rules allowed a Christian prisoner to have a Christian minister. “But if an inmate practices a different religion—whether Islam, Judaism, or any other—he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denomination neutrality.” At stake, and violated, was “‘[t]he clearest command of the Establishment Clause,’ … ‘is that one religious denomination cannot be officially preferred over another.’”

The same rule should apply to the cross case. For the cross case, that means either none or all. If a forty-foot government cross stands alone, one religion is officially preferred to all the rest. Sometimes the case law suggests that the solution is to build a government spot where all religions are represented. There are so many religions, however, that that is nigh impossible. Denominational neutrality—not preferring one religion over another—is not hostile to religion. It is instead a strong statement of respect for all, including Christians and veterans.