On Wednesday, the Supreme Court heard oral arguments in a case challenging the constitutionality of the memorial. The question at issue: Does it violate the First Amendment prohibition on the "establishment of religion” by government?
The case is the most important to date in the current Supreme Court term, not simply because of the fate of the cross itself but rather because of the possibility that in deciding its constitutionality, the court will overhaul its establishment clause doctrine.
For many years, the court has held at arm’s length, like a smelly shoe, the governing test from 1971′s Lemon v. Kurtzman. Chief Justice Warren E. Burger’s Lemon decision set up a malleable test with three parts. Does a display have a secular purpose? Is its principal effect to advance religion? And does it foster excessive entanglement with religion?
The application of the Lemon test has changed over the years. In 1984, Justice Sandra Day O’Connor supplied what the court has described as an overlay on the test, but what in reality has typically been the governing touchstone, with her concept of “endorsement.” The question has become whether a display would convey government endorsement of a particular religious claim and thus communicate to nonadherents that they are outsiders in the political community.
A straightforward application of an endorsement test would seem to doom the cross. The doctrinal reasons are complex, but the heart of the matter is common-sensical and unavoidable. As Justice Elena Kagan observed in questioning on Wednesday, the very idea that the cross has a “secular meaning” is problematic because the cross “invokes the central theological claim of Christianity that Jesus Christ, the Son of God, died on the cross for humanity’s sins and that he rose from the dead.”
In other words, even interpreting the cross’s purpose as an honoring and solemnization of the war dead — as opposed to a naked religious symbol — hops over a critical analytical step, which is how the cross achieves that laudable function. It clearly does this by associating the war dead with the qualities and sacrifice of Jesus Christ.
Conservatives eager to permit a greater government role in the nation’s religious life have long advocated the loosening of restrictions on government display of religious symbols. Many — including the American Legion, one of the petitioners in this case — have urged the court to jettison Lemon and adopt a “coercion” test. Such a test would invalidate only displays that coerced (or strongly proselytized) citizens to practice a particular religion. So, for example, an enormous cross on City Hall expressing the majority’s adherence to Christian values, without coercing people of other faiths to practice Christianity, would presumptively stand.
In Wednesday’s arguments, the court seemed disinclined to take this radical, society-changing step. Indeed, a second petitioner, the Maryland-National Capital Park and Planning Commission (which has jurisdiction over the monument), urged the court that it did not need to revisit its doctrine at all to uphold the cross. Rather, it said, the cross could be upheld under current doctrine based on the importance of historic traditions in evaluating the reasonable understanding of such symbols. For nearly a century, the cross has stood as a memorial to the World War I dead, who in fact have traditionally been valorized with crosses.
Justices Kagan and Stephen G. Breyer appeared to seize on that prospect. In the alternate universe that liberals ruefully imagine in which a left-center faction including a Justice Merrick Garland anchors the court, the cross quite likely would be invalidated. But in the cemented conservative majority that exists in the real universe, that faction is left to cast about for piecemeal, rearguard victories — or, really, avoidance of huge losses.
They likely avoided one this week, though it could well be temporary. At least some of the conservative justices appeared hesitant to use the case as the doctrinal wrecking ball that the petitioners urged. And a more incremental and case-specific advance, moreover, is distinctly the style and preference of Chief Justice John G. Roberts Jr.
So look for an opinion in June that upholds the cross under the fairly particular rationale of the “grandfathering” of historically established purposes for religious symbols. But look also for some justices — likely including Clarence Thomas, Neil M. Gorsuch and Samuel A. Alito Jr. — to call for the court to bury the Lemon test and adopt a much more straightforward doctrinal line in a future case. A concurring opinion advocating a giant step rightward from “endorsement” to “coercion” will speak volumes about the future of this fight — and how a future case, one that lacks the safe harbor of historical grandfathering, could change the country.