USA TODAY International Edition
For deity or the dead? Cross case complex
War memorial stands at crux of church and state
WASHINGTON – The Supreme Court will be on trial itself next week when it weighs the fate of a 40-foot Latin cross honoring World War I dead that reignited the nation’s never-ending battle between church and state.
At first glance, the question before the high court seems simple enough: Does the monument violate the First Amendment, which prohibits government establishment of religion?
But the answer is complicated by opinion after opinion from the court over the past several decades.
Look no further than how the judicial system itself has officially characterized the thorny issue – “murky,” “muddled” and “morass” are ways judges, lawyers and constitutional scholars describe the court’s rules for government involvement with religion. Also “unclear,” “unsound” and “unworkable.”
By the justices’ own admission, the court’s interpretations of the First Amendment’s Establishment Clause have left the law in “chaos,” “disarray” and “shambles.”
Into this steps a 93-year-old memorial that towers over the small town of Bladensburg, Maryland. Conceived in 1919 by bereaved mothers of the fallen, and completed by the American Legion six years later, it’s owned and operated by a government agency.
In 1971, the court said any govern-
ment role must have a secular purpose, cannot favor or inhibit religion and cannot excessively entangle church and state. Years later, it outsourced part of the decision-making process to a “reasonable observer.”
In 2005, the justices created exceptions to their original test for passive religious displays, such as Nativity scenes. In a case upholding legislative prayer in 2014, they incorporated history and tradition into the mix.
All of which led Associate Justice Clarence Thomas to conclude last year that “this court’s Establishment Clause jurisprudence is in disarray.”
“We don’t have a real strong sense of what the rules are, and this has been true for a while,” says Richard Garnett, founding director of Notre Dame Law School’s Program on Church, State and Society.
The Trump administration agrees. It joined dozens of religious, municipal and veterans groups defending the “Peace Cross” and complaining that the court’s mixed messages force legal battles to be decided “display by display.” The Justice Department says that turns the purpose of the Establishment Clause on its head by creating even more disputes.
The case stands out on the court’s docket this term as a likely win for the conservative majority, bolstered by Associate Justice Brett Kavanaugh‘s confirmation in 2018. Even before his elevation, the court had ruled in favor of many religious groups and causes. When it did not, several conservative justices usually complained.
In 2014, the court ruled corporations with religious objections do not have to include free coverage of contraceptives in health insurance policies. In 2017, it said religious institutions can receive public funds for secular purposes, such as playground renovation. In 2018, it absolved a Colorado baker of discrimination for refusing on religious grounds to serve a same-sex wedding.
Against that backdrop, the American Humanist Association will have a hard time convincing the justices that the Maryland war memorial should be moved or redesigned. Nevertheless, it argues vociferously that religion, not commemoration, is what most observers see in a 40-foot Latin cross.
“This is the most intensely religious and most intensely sectarian symbol that there is,” says Douglas Laycock, a leading scholar on religious liberty and law professor at the University of Virginia and University of Texas-Austin.
Squeezing the ‘Lemon’
The attack on the cross has mobilized the religious right like few issues before. Its wrath mostly is focused not on the challengers but the court itself.
For nearly a half-century, the court’s seminal doctrine has been the “Lemon test,” named after the decision in 1971 that was intended to define what government could and could not do when it comes to religion. But over the years, the justices have ignored the very rules that lower courts continue to follow.
Shortly after joining the high court in 1986, Associate Justice Antonin Scalia said contemporaneous decisions on the subject “leave the theme of chaos securely unimpaired.” Around the same time, Associate Justice Anthony Kennedy called the test “flawed in its fundamentals and unworkable in practice.”
Associate Justice Sandra Day O’Connor was responsible for adding the “reasonable observer” test for determining where the line is drawn between government and religion. In 2010, when the federal appeals court where future Associate Justice Neil Gorsuch served ruled that 12-foot crosses honoring fallen state troopers on the side of Utah highways were unconstitutional, Gorsuch said the fictional observer turned out to be “biased, replete with foibles and prone to mistake.”
Associate Justice Stephen Breyer, one of three Jews on the court, swung his colleagues in both directions on the same day in 2005. A Ten Commandments display in a Kentucky courthouse was unconstitutional, he said, but one outside the Texas State Capitol was not.
In the Peace Cross case, a federal district court judge ruled in 2015 that the monument was OK under the Lemon test. In 2017, a federal appeals court panel ruled 2-1 that the cross failed to pass the test, calling it the “preeminent symbol of Christianity.” The full U.S. Court of Appeals for the Fourth Circuit voted 8-6 not to reconsider that ruling.
The high court is poised to overrule that decision.
Ground Zero to Taos, N.M.
Watching what the court does with the Peace Cross will be state and local governments that have their own monuments to worry about. The Veterans of Foreign Wars and municipal groups claim hundreds could be affected, from the steel beams that form the Ground Zero cross in New York City to a memorial in Taos, New Mexico, that commemorates the Bataan Death March.
The American Humanist Association disputes those numbers and says few crosses or monuments are in jeopardy.
Senior counsel Monica Miller says the Bladensburg memorial is unique. Even so, she says, the dispute could be resolved by transferring the land to private ownership and incorporating a disclaimer. But Miller says in her view, “There’s no principled way to uphold this cross . ... It’s imposing on every driver who goes through that intersection, whether they want to see it or not.”