On the plaza outside the Supreme Court on Wednesday, protesters from the American Humanist Association thought the truth of their argument was simple: A 40-foot-tall Latin cross is the preeminent symbol of Christianity and should not be on government property.
On the sidewalk not far away, members of the American Legion, also waiting in line for oral arguments to begin, had their own truth: It would be a disgrace to tear down or move a World War I memorial that has been in place for 93 years.
Inside the court, the arguments were more complicated and hinged on previous decisions about the Establishment Clause of the First Amendment which states “Congress shall make no law respecting an establishment of religion.” Justices questioned what constitutes an endorsement of religion? Which precedents from which cases should apply?
Justice Neil Gorsuch upped the stakes when he asked, “Is it time for the court to thank Lemon for its services and send it on its way?” Gorsuch was referring to the possibility of overturning the 1971 Lemon v. Kurtzman case — a case that asked whether a law meets the requirements for the Establishment Clause and is not primarily concerned with advancing, inhibiting, or entangling the government with religion.
The cross in question sits in the middle of a busy intersection of highways in Bladensburg, Md. It was erected in 1925 by a local chapter of the American Legion and transferred in 1961 to the Maryland National Capital Park and Planning Commission. The names of 49 men from Prince George’s County who died in World War I are listed on the cross.
At the protest before oral arguments, Washington, D.C. based Rabbi Jeremy Hridel quoted an amicus brief from the Military Religious Freedom Foundation that listed the names of three fallen Jewish soldiers from the area who were excluded from the monument: Sgt. Isaac Morris, Lt. Merrill Rosenfeld, and Pvt. Zadoc Morton Katz.
The memorial displays no religious scripture. Engraved on it are the words, “Valor, Courage, Endurance, Devotion,” and at its center is the symbol of the American Legion.
In 2014, the American Humanist Association and three individuals challenged the constitutionality of the cross. The U.S. District Court of Maryland found for the government by applying a precedent from the Lemon case that Justice Gorsuch found problematic.
“It’s been a long time since this Court has applied Lemon; but yet the courts of appeals continue to cite it and use it,” Gorsuch said.
The three-prong test in Lemon asks the purpose, effect, and entanglement of the government in a religious issue. In 2014, the lower court found that a war memorial served a secular purpose that was not an endorsement of religion.
The appeals court reversed, finding that a Latin cross is not a “generic symbol of death, but rather a Christian symbol of the death of Jesus Christ.”
On Wednesday, Neal Katyal, the attorney for the Maryland National Capital Park and Planning Commission, argued that because the cross has stood for 93 years, it is constitutional under the precedents set down in Van Orden v. Perry, which honors long-standing traditions. The government also argued that in World War I, the cross was used as a universal symbol of sacrifice, honoring all religions, and therefore had a second secular meaning. Katyal warned that removing or demolishing the Bladensburg cross would cause 50 other crosses to be demolished or moved.
Monica Miller, representing the American Humanist Association, countered that the government was displaying a preference for the Christian religion by owning and maintaining the cross.
“But this Court has always rejected the idea that restoring the government to a place of neutrality is hostile to religion,” Miller said.
She disputed both the number of crosses and the belief that other crosses would be torn down as a result of the decision, saying that each one would be evaluated with its specific facts.