Arguments over WWI cross showcase stark religious divide at Supreme Court, and possible split between Trump's two justices

  • A fiery debate at the U.S. Supreme Court on Wednesday showcased a stark divide among the justices over which monuments containing religious symbolism should be permitted stand on public ground.
  • Justice Ruth Bader Ginsburg, one of three Jewish justices, took a firm stance on the sectarian meaning of the cross, noting that people wear them "to show their devotion" to their religion.
  • Justices Brett Kavanaugh and Neil Gorsuch seemed split in their thinking, with Gorsuch expressing skepticism about whether those opposing the cross even have standing and Kavanaugh asking tough questions of the cross's defenders.
Roy Speckhardt, American Humanist Association's Executive Director answers journalists questions next to the World War I memorial cross in Bladensburg, Maryland. The cross is built on public land and its maintenance is paid for with public funds and for that reason, the Washington-based American Humanist Association (AHA) holds that the monument violates the US Constitution's First Amendment forbidding the government from favoring any one religion.
Eric Baradat | AFP | Getty Images
Roy Speckhardt, American Humanist Association's Executive Director answers journalists questions next to the World War I memorial cross in Bladensburg, Maryland. The cross is built on public land and its maintenance is paid for with public funds and for that reason, the Washington-based American Humanist Association (AHA) holds that the monument violates the US Constitution's First Amendment forbidding the government from favoring any one religion.

A fiery debate at the U.S. Supreme Court on Wednesday showcased a stark divide among the justices over which monuments containing religious symbolism should be permitted stand on public ground.

The justices sparred over the meaning of a Latin cross erected in 1925 that looms large over a crowded Maryland intersection in the suburbs of the nation's capital. The cross, put up to memorialize men who died in the First World War, was envisioned by mothers of the fallen but is now maintained by a government agency.

Justice Ruth Bader Ginsburg, one of three Jewish justices, took a firm stance on the sectarian meaning of the cross, noting that people wear them "to show their devotion" to their religion. In response to arguments that the cross was tied to the World War I war dead, Ginsburg remarked that she herself had traveled to Flanders Fields.

"Are there not graves marked by Stars of David?" Ginsburg asked rhetorically.

Meanwhile, the two newest members on the bench, Justices Brett Kavanaugh and Neil Gorsuch seemed split in their thinking, with Gorsuch expressing skepticism about whether those opposing the cross even have standing and Kavanaugh asking tough questions of the cross' defenders.

The nation's top court has never established a clear and enduring test for when such displays violate the Constitution's Establishment Clause of the First Amendment, which stipulates that Congress may not pass a law "respecting an establishment of religion" and has been interpreted in different and at times conflicting forms.

The "Lemon test"

The most lasting of the court's approaches is known as the "Lemon test" after the 1971 case in which it was articulated.

The Lemon test established three prongs for determining whether a law can pass: The law must have a secular purpose, neither primarily inhibit nor advance religion, and avoid excessive entanglement between government and religion.

After 70 minutes of arguments, it's not clear if the test, despised by many of the justices, will be formally erased, though the court did seem sympathetic to the arguments in favor of retaining the cross.

Justice Stephen Breyer, a liberal who has been the swing vote in key Establishment Clause cases, suggested that he was open to letting the cross remain on public land because it was built so long ago, but opposed to similar memorials being erected in the present day.

But Gorsuch, Trump's first nominee to the bench, went on the attack against the doctrine, all but demanding that the court revisit it and labeling it a "welter of confusion."

"Is it time for this court to thank Lemon for its services and send it on its way?" Gorsuch asked of the attorney for the American Humanist Association, Monica Miller.

One of the key arguments in defense of the cross, that it is in line with historical practice, is just one of the factors that the court should consider, Kavanaugh suggested, and probed for other factors.

Kavanaugh asked Neal Katyal, an attorney who represented the government agency maintaining the cross, what he would tell the Jewish veterans who feel excluded by the cross. In a brief, a Jewish veterans group told the court that the cross served as a "reminder of the promise of salvation that they do not accept and from which they are excluded."

Katyal responded that one of the men who helped raise the funds for the construction of the cross was Jewish, and argued that the court does not have a rule barring laws if "some people" disagree with them.

Gorsuch seemed to expand on that line of thought in a back-and-forth with Miller. Gorsuch said the area of law in dispute was "the only area I can think of like that where we allow people to sue over an offense because, for them, it is too loud."

"We have to tolerate one another," Gorsuch said.

Kavanaugh, like Gorsuch also questioned the Lemon test. But Kavanaugh seemed less intent on doing away with the test, asking Katyal what his argument would be "if we think [the cross] is unconstitutional under Lemon? What's your view then?"

Katyal, who had earlier said that it would be "unnecessary and unwise" to come up with a new test, told Kavanaugh that, in the case the court found the cross unconstitutional under Lemon, it would be time to "take another look at Lemon."

He also seemed to respond to an earlier statement in which Kavanaugh said he agreed with the notion that the cross was clearly a religious symbol. Katyal said that religious symbols are not automatically impermissible.

"Just look up" and the justices would see religious symbols in the courtroom, Katyal said.

Trump administration's view

The Trump administration took a side in the case in defense of the cross. Jeffrey Wall represented the Department of Justice in the matter, using his 10 minutes to argue that the cross is a symbol of loss with deep ties to American tradition, not simply a symbol of Christianity.

Ginsburg asked Wall if it made any difference that "this was an overwhelmingly Christian country" in the past, but now was less so. Ginsburg is one of three Jewish justices, in addition to Justice Elena Kagan and Stephen Breyer. The rest of the court is Christian.

Justice Sonia Sotomayor, one of the court's Catholics, noted that it was not "just Jewish people or Hindu people" who could be offended by displays like the cross. Christians, she said, could also be offended by the appropriation of their religious symbol for secular purposes.

The arguments were some of the most hotly anticipated of the court's term. The outcome of the case could unfurl not just a new standard for lower courts to interpret the Establishment Clause, but could also shed new light on the jurisprudence of the two newest members of the bench.

More than 80 members of Congress, including two dozen U.S. senators led by Republican Ted Cruz of Texas and a host of U.S. states wrote briefs in support of the cross.

As an illustration of how closely the case is being watched, as early as 48 hours before arguments, paid line-standers could be seen in front of the court's historic building, reserving a spot for those hoping for one of the few seats available to the public.

And though the court's arguments were only interrupted by a few brief moments of laughter, shortly before they began, a protester's muffled words could be heard from the courtroom.

"This is the house of Satan. You will burn in hell," people outside heard the protester say.

Minutes later, those inside heard the court's traditional chant of "God save the United States and this Honorable Court!"