Culture wars heat up at the Supreme Court as justices consider whether giant World War I memorial cross can stay

  • The justices on Wednesday are set to hear arguments over whether a giant, four-story WWI memorial cross located in a busy Maryland intersection and maintained by the government can remain standing.
  • The litigation concerns a 40-foot-tall, 16-ton cross-shaped memorial to veterans of the first World War. The cross sits at the entrance to the town of Bladensburg, where it has been since 1925.
  • Opponents say the monument should be transferred to private property or reshaped into an obelisk by lopping off its crossbar.
The World War I memorial cross in Bladensburg, Maryland -- near the nation's capital Washington -- is seen on February 08, 2019. The US government asked the Supreme Court to rule in favor of the cross that serves as a war memorial, which critics say is an unconstitutional state religious endorsement. Arguments are scheduled to be heard on February 27, 2019.
Eric Baradat | AFP | Getty Images
The World War I memorial cross in Bladensburg, Maryland -- near the nation's capital Washington -- is seen on February 08, 2019. The US government asked the Supreme Court to rule in favor of the cross that serves as a war memorial, which critics say is an unconstitutional state religious endorsement. Arguments are scheduled to be heard on February 27, 2019.

If the U.S. Supreme Court took a light touch on cultural issues following the contentious confirmation hearings of Justice Brett Kavanaugh this fall, the period of restraint didn't last long.

The justices on Wednesday are set to hear arguments over whether a giant, four-story World War I memorial cross located in a busy Maryland intersection and maintained by the government can remain standing.

The case, which touches at the core of the First Amendment's Establishment Clause, is the most significant dispute over a public monument to reach the top court since Chief Justice John Roberts took the helm.

It comes before the court in the wake of controversial orders connected to abortion and a Muslim inmate's religious rights during execution, and just a month after the justices said they would hear their first major gun-control case in nearly a decade.

The case also comes amid heightened focus on the First Amendment. Earlier this month, Chief Justice John Roberts declared himself "the most aggressive defender" of the First Amendment in public remarks, while Justice Clarence Thomas took aim at one of the court's most important press freedom rulings.

The litigation concerns a 40-foot-tall, 16-ton cross-shaped memorial to veterans of the first World War. The cross sits at the entrance to the town of Bladensburg, where it has been since 1925. Its maintenance is funded by a government agency that has spent just over $100,000 on the monument since 1985.

Opponents of the cross say it violates the Constitution's wall of separation between government and religion. They include humanists, whose philosophy rejects theism, and Jewish veterans.

In 2014, the American Humanist Association and several local humanists challenged the monument, arguing that the cross demonstrated government favoritism of Christianity over other religions. They say that the monument must be transferred to private property or reshaped into an obelisk by lopping off its crossbar.

The American Legion and the Maryland-National Capital Park and Planning Commission are arguing that the monument should stay. The cross, though it incorporates religious imagery, is a "powerful symbol of the fallen," they say.

Lined up behind the defenders of the cross are a host of veterans groups and more than 80 members of Congress, including two dozen U.S. senators led by Republican Ted Cruz of Texas, as well as more than two dozen U.S. states.

In a brief, the lawmakers quote a 1952 Establishment Clause case to argue that they were elected to represent "religious people whose institutions presuppose a Supreme Being."

The lawmakers and others defending the cross said that an unfavorable ruling could jeopardize hundreds of monuments across the country, such as the Ground Zero Cross in Manhattan and prominent crosses in Arlington National Cemetery.

Meanwhile, a Jewish veterans group has told the court that for Jewish veterans, the memorial serves as a "reminder of the promise of salvation that they do not accept and from which they are excluded."

"No one would think that a war memorial consisting of a large Star of David was intended to honor the sacrifice of Christian soldiers," they wrote.

A 'sleeper' case that could change everything

While the case hasn't earned as much attention as last term's blockbuster religion cases involving the president's travel ban and a Colorado baker who declined to serve gay customers, it could have broad ramifications on how lower courts treat the government's involvement in religious issues, experts say.

"There's a tradition of sleeper cases, where suddenly the court makes a major shift in constitutional law in a case that hasn't gotten much attention," said Carl Esbeck, an expert on church-state relations and a professor of law at the University of Missouri. "There are forces urging that to happen here."

Both sides are urging the justices to clean up the court's previous holdings on the Establishment Clause, which over the decades have become a mix of conflicting tests and judgments.

The most lasting precedent the court has provided is the so-called "Lemon test," established in a 1971 case that struck down state laws permitting indirect government funding of religious schools.

To pass the test, a law must have a secular purpose, neither advance nor inhibit religion, and refrain from so-called "excessive entanglement" between religion and the government.

But there are at least two other relevant tests that could be applied, or a new one could be created altogether.

In the 1980s, then-Justice Sandra Day O'Connor devised the so-called "endorsement test," which bars the government from taking actions that a reasonable observer would interpret as endorsing a particular religion.

And in the 1990s, Justice Anthony Kennedy, who retired in July, formulated a narrower "coercion test," applied largely to cases involving prayer in public schools, which forbids laws that could make people feel as though they are being forced to participate in religion against their will.

Kavanaugh and Gorsuch are big question marks

It is possible that the court could limit the reach of the Establishment Clause even further, and some justices seemed poised to do so.

Under Roberts, the court is "gradually withdrawing from the scene" when it comes to Establishment Clause issues, according to a 2014 article in the Stanford Law and Policy Review written by Marc DeGirolami, a law professor at St. John's University.

Willy Jay, a former assistant to the solicitor general and a partner at the law firm Goodwin Procter, said it would be interesting to see if Justices Neil Gorsuch and Brett Kavanaugh, who have not yet made their views on the Establishment Clause clear, side with Thomas, whose views on the Establishment Clause represent a dramatic departure from the current interpretation.

"Justice Thomas has for a long time advanced the view that the Establishment Clause is a prohibition on establishing an official church," Jay said.

Justice Stephen Breyer could also be key, Jay said. In a set of Establishment Clause cases in 2005 that were decided on the same day, the court permitted the display of the Ten Commandments on the grounds of Texas' state capitol building, but prohibited Ten Commandments displays in courthouses and public schools. Breyer was the swing vote in each 5-4 decision.

"Justice Breyer said essentially, eh, we can't resolve this case using any test from our prior cases," Jay said, regarding the Texas state capitol case.

A recent dispute involving a town in New York whose governing board began its official meetings with a prayer could also shed some light on where the justices stand. In that case, decided 5-4 along party lines, the court applied Kennedy's coercion test and said that practices with longstanding ties to American traditions were generally acceptable.

Law professor DeGirolami, in an interview, said adopting that test in this case would be a "major revision of the existing approach." He said it was also possible that the court could decide the case on much narrower grounds or dismiss the challenge on the basis that the humanists cannot prove that they have standing or have suffered as a result of the monument's presence.

Regarding the outsized attention from lawmakers the case was getting, DeGirolami noted that the issues at stake extended beyond doctrinal disputes.

"I think the issue of monuments — it's a larger one, that I think the country is confronting now more broadly," he said. "Which monuments should stay up? Which should go down? Who should we honor? What's the symbolism that we want attached to America?"