Supreme Court Weighs Fate of 40-Foot Cross Built as War Memorial

(Bloomberg) -- A 40-foot cross in the middle of a Washington-area intersection is the U.S. Supreme Court’s new focus in the centuries-old fight over the role of religion in public life.

The concrete cross, completed in 1925 as a World War I memorial, will be at the center of a high court argument set for Wednesday.

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

A federal appeals court said the cross “endorses Christianity -- not only above other faiths, but also to their exclusion.” The ruling, if it stands, could force removal of the monument.

Supreme Court Weighs Fate of 40-Foot Cross Built as War Memorial

The American Legion and an area park commission are appealing. President Donald Trump’s administration is supporting them in a move that could help the president build enthusiasm among his evangelical base as the 2020 election approaches.

The monument, known as 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 now sits on a grassy island where three major roads converge, a location that offers prominence, if not accessibility. 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.

Across a road are memorials commemorating veterans of World War II, the Korean War and the Vietnam War. In the opposite direction, a monument describes the British victory at the Battle of Bladensburg during the War of 1812.

Coercion Test

The cross’s supporters say the monument conveys a secular message. If the high court agrees, it could preserve the cross without carving out much new legal ground.

But some backers of the monument are urging the court to issue a more sweeping decision that would narrow the Constitution’s ban on government establishment of religion. The Trump administration says opponents of religious displays on public property should have to show that the government is coercing people.

“History shows that the Framers understood the Establishment Clause as prohibiting the coercion of religious belief or adherence, but not the acknowledgment of religion in public life,” Deputy Solicitor General Jeffrey Wall argued in court papers. “Passive displays generally fall on the permissible side of that line.”

The American Legion is urging the court to discard a test favored by Justice Sandra Day O’Connor, once the court’s swing vote on questions involving religion. In two cases during the 1980s, O’Connor said the key question was whether a display amounted to an “endorsement” of religion. The court hasn’t used the test since O’Connor’s 2006 retirement.

There is a “a whole lot of confusion, and I think it’s confusion that’s unhealthy,” said Rick Garnett, a constitutional law professor at the University of Notre Dame. “Justice O’Connor has been off the court for 13 years now, and the court has not told us in these 13 years what the status of that test is.”

The American Humanist Association and three area residents are challenging the cross, saying it commemorates Christians to the exclusion of others.

‘Watershed Change’

Richard Katskee, legal director for Americans United for Separation of Church and State, said a ruling backing the cross would require a “watershed change in the law.” He said justices from across the ideological spectrum have said that the government can’t favor one religion over another.

“When the government chooses to honor people who made the ultimate sacrifice for our country, it should recognize them all equally,” Katskee said.

The court’s conservative leanings could make that a tough argument to win. Garnett says he doubts any of the court’s nine members will fully embrace the challenge to the cross.

“I’m pretty confident that not one of the justices will say that this memorial has to come down,” he said.

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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