Supreme Court Mulls Religion Test on 40-Foot Cross for WWI Dead

(Bloomberg) -- U.S. Supreme Court justices struggled to clarify the constitutional limits on government-sponsored displays of religious symbols as they heard a case over a 40-foot cross that serves as a World War I memorial in a Maryland intersection.

The session Wednesday suggested the court was heading toward a narrow decision. That could mean letting the almost century-old memorial stand without giving government officials broad leeway to erect new religious displays. The court will rule by June.

Supreme Court Mulls Religion Test on 40-Foot Cross for WWI Dead

"What about saying past is past, if you go back 93 years, but no more?" asked Justice Stephen Breyer.

The high court has struggled to lay out clear rules governing when religious symbols are permissible on public land. Supporters of the Bladensburg, Maryland, memorial say the Constitution generally allows religious displays, while opponents say the government can’t show favoritism toward particular faiths.

But the 70-minute session suggested many -- and perhaps most -- of the justices were more interested in the context of religious displays than categorical rules. They asked about hypothetical monuments to school shooting victims and the steel-beam cross that served first as a makeshift memorial, and then as a permanent one, after it was found in the World Trade Center wreckage from the 2001 terrorist attacks.

Chief Justice John Roberts inquired about Native American totem poles, which he said can have spiritual meaning.

"If one of those is on federal property, does it have to be torn down?" he said to the American Humanist Association lawyer challenging the Maryland cross.

Roberts is one of six justices with Catholic roots. Breyer and Justices Elena Kagan and Ruth Bader Ginsburg are Jewish.

Ginsburg emerged as perhaps the court’s biggest skeptic about the Peace Cross, as the Maryland monument is known.

‘Preeminent Symbol’

The cross "is the preeminent symbol of Christianity," she said. "People wear crosses to show their devotion to the Christian faith."

The Peace Cross was erected to honor 49 local men who died in World War I. The American Legion completed the project in 1925 and owned it for several decades before the Maryland-National Capital Park and Planning Commission took over ownership in 1961.

The cross sits on a grassy island where three major roads converge just outside Washington. It rests on a base that includes a weathered plaque with the names of the men and a quote from President Woodrow Wilson. The words “courage,” “valor,” “devotion” and “endurance” are engraved around the foot of the cross, above the base.

The commission and the American Legion are defending the monument, with support from the Trump administration. A federal appeals court said the structure was unconstitutional, raising the prospect it would have to be moved or torn down.

Justice Samuel Alito said there was no evidence that any of the 49 men listed on the monument weren’t Christian -- or that any of their family members opposed the use of the cross.

"We don’t know that there was anybody who objected, that there was any family who objected to having this form of a memorial for their fallen family member," Alito said.

Kagan pressed the monument’s defenders on the reach of their argument. She asked whether a city could erect a cross in a local park "just to emphasize the values of Christianity."

European Cemeteries

At another point Kagan suggested that crosses might be less problematic for World War I memorials than in other contexts. She pointed to European cemeteries containing rows of crosses to commemorate soldiers who died during that war.

"There is something quite different about this historical moment in time," Kagan said. "Because of the battlefields and the way the crosses were erected there, this became the preeminent symbol for how to memorialize the war dead at that time."

Justice Neil Gorsuch hinted he might vote to restrict the power of citizens to sue over religious displays.

"There aren’t many any 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," he said. "We accept that people have to sometimes live in a world in which other people’s speech offends them."

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.

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