The Supreme Court seems unlikely to take a wrecking ball to the 93-year old war memorial cross that stands on public land in Maryland.
But was not clear during oral arguments before the high court on Wednesday if conservative defenders of the cross had won over enough justices to achieve the sweeping changes they sought to the way federal courts interprets the First Amendment’s establishment clause.
The case involves a cross originally erected by the American Legion as a monument to men who died in World War I. The cross has been owned and maintained by a state park’s commission since 1961. Atheists claimed in a lawsuit that the monument, known as the Peace Cross, violated the constitution’s ban on the establishment of religion. Last year, a federal appeals court held that the cross must be removed or modified to erase any appearance of an endorsement of religion.
Perhaps the biggest surprise of the hearing was that some of the court’s liberal justices appeared sympathetic to the defenders of the cross. Justice Elena Kagan noted that the cross became a particular symbol associated with those killed in World War I. Justice Stephen Breyer asked about the importance of historical context to this case, indicating that older crosses could be permissible but erecting new religious symbols would not.
“History matters,” Breyer said. “So what about saying past is past, if you go back 93 years, but no more.”
Conservatives argued that the court should rethink its approach to religious symbols on public property, arguing that earlier decisions had created a confusing mess of precedent that invited endless litigation and was not well-grounded in the constitution.
President Donald Trump’s two appointments to the Supreme Court appeared sympathetic to this view. Justice Neil Gorsuch asked Wednesday if it wasn’t time to get rid of the existing legal rule, known as the Lemon test after a 1971 decision. Justice Brett Kavanaugh indicated that lower courts deserve more clarity from the Supreme Court than the earlier rulings provide. Justice Clarence Thomas has said in earlier opinions that the court should not ask whether a government action “endorses” a religion but whether it amounts to “coercion.”
But Chief Justice John Roberts has shown an aversion to overturning precedent even when the rules past cases created have been heavily criticized by conservative legal scholars and jurists. It is possible he could form a bloc with the liberal judges for a narrow ruling that allows the Maryland cross to survive but leaves existing rules in place. During the arguments, Roberts seemed to doubt the “coercion” test proposed by the cross defenders would really provide clearer guidance than the existing endorsement test.
Justice Samuel Alito pointed out that a decision to tear down the cross could have implications for “cross monuments all over the country.”
“Do you want them all taken down?” Alito asked.
The lawyer for the cross’s opponents
Amy Howe, who contributes to the ScotusBlog website, said she expects the court to side with the cross.
A decision in the Maryland case is expected by the end of June.
The cases are American Legion v. American Humanist Association, 17-1717, and Maryland-National Capital Park and Planning Commission v. American Humanist Association, 18-18. The full transcript of Wednesday’s oral argument is available here.
–The Associated Press contributed to this report.