Two of the court’s four liberals suggested the passage of time and the unique nature of World War I memorials may provide a way to accommodate the 40-foot-tall cross, which sits in a highway median in Maryland.
But more than an hour of oral arguments showed the difficulty the court faces when it tries to devise a test for anything more than a case-by-case examination of when a religious symbol on public land has an allowable secular purpose or is an unconstitutional embrace of religion.
It suggested the prospect of a narrow decision on the cross in question and splintered opinions on how to proceed in future cases.
The Bladensburg Peace Cross, made of granite and cement, was built in 1925 and paid for by local families, businesses and the American Legion to honor 49 veterans from Prince George’s County. But the 40-foot cross sits on land owned since 1961 by a state commission that pays for its maintenance and upkeep.
The legal challenge began with the American Humanist Association, a nonprofit atheist organization that has filed similar lawsuits throughout the country.
The Maryland-National Capital Park and Planning Commission, which inherited the monument, says the court need not break new legal ground to allow the Bladensburg landmark to remain.
The commission’s lawyer in the case, Neal K. Katyal, said the monument “is no ordinary cross.” At its heart is the symbol of the American Legion, at its base four words: Valor, Endurance, Courage, Devotion. Nearby are other memorials to veterans.
“Not a single word of religious content appears anywhere,” he said.
He added: “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.”
Justices Sonia Sotomayor and Ruth Bader Ginsburg thought it not so easy.
Sotomayor said the size of the cross on government property could not be ignored.
“It’s the only thing that’s that high,” she said. “It dwarfs buildings. It dwarfs people.”
Asked Ginsburg: “Does the cross really have a dual meaning, Mr. Katyal? It is the preeminent symbol of Christianity. People wear crosses to show their devotion to the Christian faith.”
But in questioning Katyal’s counterpart, Monica L. Miller, another member of the court’s left, Justice Elena Kagan, suggested there might be a way to separate crosses used to commemorate WWI veterans from others.
Kagan, who as President Barack Obama’s solicitor general had defended a cross in the Mojave National Preserve erected for that purpose, said the cross had become a symbol for that war.
“I really did mean to confine it to this World War I context, because I think there’s something quite different about this historic moment in time,” she said.
Justice Stephen G. Breyer twice brought up whether historical monuments might be different from new ones and could be left alone. “History counts,” he said.
He also added: “But no more. We’re a different country. We are a different country now, and there are 50 more different religions, and, therefore, no more.”
Miller said the monument did not have to come down but could be moved to another spot, or the land on which it sits could be returned to a private organization such as the American Legion.
But the way it towers over a busy intersection used by thousands of commuters each day sends an unconstitutional message that government favors one religion over another, she said.
She said the court should reject what she called the commission’s argument that the monument is “essentially a non-religious, non-Christian symbol that honors everyone, irrespective of their religion.”
Miller added: “I don’t think anyone here would deny that it would be unconstitutional and inappropriate to go into Arlington (National Cemetery) and place a Latin cross over the grave of every person there, every fallen soldier, irrespective of their religion.”
The monument’s defenders say a Maryland district court judge got it right when she noted that the cross had stood for decades without controversy and that it met the test that the Supreme Court has established for such controversies: that it had a secular purpose, that its “primary effect” was religious neutrality and that there was not excessive entanglement of government and religion.
A panel of the U.S. Court of Appeals for the 4th Circuit looked at the same facts and the same test and concluded otherwise.
“The display aggrandizes the Latin cross in a manner that says to any reasonable observer that the commission either places Christianity above other faiths, views being American and Christian as one in the same, or both,” the panel said in a 2-to-1 ruling.
It was when the court got beyond the specifics of Bladensburg that it had the most trouble.
Could a town today place a cross in front of a school to honor students and teachers killed in a mass attack, Ginsburg asked. Would a town not
be allowed to erect a Star of David to honor students who were targeted because they were Jewish, countered Justice Samuel A. Alito Jr.
Would Native American totems need to be removed from public land because of their spiritual implications, Chief Justice John G. Roberts Jr. wanted to know. Would allowing the Bladensburg cross to remain encourage other communities to erect their own crosses, asked Justice Brett M. Kavanaugh.
While neither the commission nor the association asked the court to adopt a new test, the American Legion and the Trump administration did: that religious symbols are allowed unless the government’s action is “coercive” or involves “excessive proselytization.”
They didn’t seem to find much traction, even with conservative justices.
Justice Neil M. Gorsuch told Michael Carvin, the lawyer representing the American Legion, that the test was no more clear than the court’s current jurisprudence.
Gorsuch wondered if it was too easy to challenge the symbols.
“There aren’t many places in the law where we allow someone to make a federal case out of their offensiveness about a symbol being too loud for them,” Gorsuch said. “We accept that people have to sometimes live in a world in which other people’s speech offend them. We have to tolerate one another.”
He noted the frieze above the justices in the Supreme Court.
“We have a Ten Commandments display just above you, which may be too loud for many,” he said to Miller.
Kagan, who asked many of the questions and seemed to agree both that crosses have an intrinsic religious content and also that WWI monuments might be special, took a stab at one point in coming up with a legal test. It wouldn’t involve “how people process these symbols and what messages they convey,” she said.
Instead, “Does erecting a symbol like this align the government with a particular religion and not align it with every other religion?” she asked
The combined cases are The American Legion v. American Humanist Association and Maryland-National Capital Park and Planning Commission v. American Humanist Association.