A majority of justices on the Supreme Court on Wednesday seemed likely to allow a 40-foot concrete cross on public property in Maryland to stay put.
At the heart of the debate is the question of whether the cross challenges the separation of church and state.
Justice Stephen Breyer, a member of the court’s liberal wing, argued that the history of the monument, which was built in 1925 to honor men from Prince George’s County, Maryland, who died in World War I, should be a factor in deciding whether it should stay or go.
{mosads}“What do you think of saying, yes, look at the historical context here? History counts,” he said to the attorney for the American Humanist Association, which along with three individuals brought the challenge to the memorial.
The 4th Circuit Court of Appeals found the monument to be in violation of the First Amendment, which prohibits government from establishing one religion. The American Legion and the Maryland-National Capital Park and Planning Commission, who are fighting the ruling, say the cross is more than a symbol of Christianity.
“The easiest way to resolve this case is to say, in the wake of World War I, crosses like this one have an independent secular meaning,” said Attorney Neal Katyal, who argued on behalf of The American Legion.
But Justice Ruth Bader Ginsburg didn’t seem to agree that the cross has become or still is a secular way to memorialize the dead.
“In the Field of Flanders, are all of the graves marked by crosses?” Ginsburg asked, referring to World War I battlefields. “Are there not graves marked by Stars of David?”
Katyal said there are but the dominant image of the time was the cross.
Justice Elena Kagan also acknowledged that history.
“When you go into a World War I battlefield, there are Stars of David there, but because those battlefields were just rows and rows and rows of crosses, the cross became, in people’s minds, the preeminent symbol of how to memorialize World War I dead,” she said.
She noted as Katyal argued that the Maryland monument does not bear any religious sayings.
“So why in a case like that can we not say essentially the religious content has been stripped of this monument?” Kagan asked.
The dispute over the separation of church and state is being closely watched by advocates for religious liberty who fear a ruling affirming the 4th Circuit could threaten other monuments across the country, including the Canadian Cross of Sacrifice and the Argonne Cross at Arlington National Cemetery. But secularists are watching, too, to see how far the court will push the line separating church and state.
“I mean, there are cross monuments all over the country, many of them quite old,” Justice Samuel Alito said during the arguments which lasted more than an hour. “Do you want them all taken down?”
But the justices struggled with what test they should adopt in weighing challenges to religious symbols on public property. The American Legion and the Park Commission argued these symbols should only be ruled unconstitutional if they coerce someone to support a specific religion or try to convert them.
The American Humanist Association’s attorney Monica Miller argued her client’s preferred remedy to the whole dispute is for the cross, now in a median, to be moved to private property. But the petitioners say not only is it unsafe to deed the property back to the American Legion, the monument is falling apart and in need of repair.
The Supreme Court is expected to release its decision in the case by the end of June.