WASHINGTON — The Supreme Court seemed inclined Wednesday to rule that a 40-foot-tall cross that stands on public land in Maryland is constitutional, but shy away from a sweeping ruling.
The case is being closely watched because it involves the place of religious symbols in public life, but the particular memorial at issue in the case is a nearly 100-year-old cross that was built in a Washington, D.C., suburb as a memorial to area residents who died in World War I.
Even before arguments in the case, it appeared that the memorial’s supporters, including the Trump administration, had the upper hand based on the court’s decision to take up the matter and the court’s conservative makeup. But on Wednesday even some of the liberal justices suggested that they could join a narrow ruling upholding this particular memorial, even as they talked about the cross as a major symbol of Christianity.
Justice Elena Kagan noted that the cross became a particular symbol associated with those killed in World War I while Justice Stephen Breyer asked about the importance of historical context to this case.
The bigger question might be whether there are enough votes to rule in a way that would allow governments to erect more religious symbols on public property. But several conservative justices sounded skeptical of adopting a broad approach advocated by the lawyer for The American Legion. The veterans’ organization raised money for the cross and completed it in 1925.
The cross’s challengers include three area residents and the District of Columbia-based American Humanist Association, a group that includes atheists and agnostics. They argue that the cross’s location on public land violates the First Amendment’s establishment clause, which prohibits the government from favoring one religion over others. They say the cross should be moved to private property or modified into a nonreligious monument such as a slab or obelisk. The group lost the first round in court, but in 2017 an appeals court ruled the cross unconstitutional.
In addition to The American Legion, the cross’s defenders include Maryland officials who took over maintenance of the cross nearly 60 years ago to preserve it and address traffic safety concerns. Maryland officials say that the cross doesn’t violate the Constitution because it has a secular purpose and meaning.
Those defending the cross say a ruling against them could spell the “doom of hundreds of war memorials that use crosses to commemorate the fallen.” Justice Samuel Alito picked up on that concern during arguments, telling a lawyer for the American Humanist Association that there are lots of cross memorials all over the country and asking: “Do you want them all taken down?”
The Supreme Court has been criticized for being less than clear in explaining how to analyze so-called passive displays, like Maryland’s cross, that are challenged as violating the Constitution’s establishment clause. In 1971 the court announced a test for use in such cases, which asks whether the government’s action has a secular purpose, advances or inhibits religion or fosters “an excessive government entanglement with religion.” But in the decades since, the court hasn’t always followed that test, and several former and current justices have criticized it.
Justice Neil Gorsuch asked Wednesday if it wasn’t time to get rid of the test, and Justice Brett Kavanaugh suggested that lower courts deserve more clarity from the Supreme Court.
Monuments that are similar to Maryland’s cross, meanwhile, have met with a mixed fate at the high court. For example, on the same day in 2005 the court upheld a Ten Commandments monument on the grounds of the Texas state Capitol while striking down Ten Commandments displays in Kentucky courthouses. Justice Breyer, whose vote made the difference in the outcome in both cases, said the Texas display had a primarily nonreligious purpose while the history of the Kentucky courthouse displays demonstrated a government effort to promote religion.
A decision in the Maryland case is expected by the end of June.
