Supreme Court seems inclined to retain cross on public land

Focused Practice

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 the justices heard arguments in is being closely watched because it involves the place of religious symbols in public life. But the particular memorial at issue 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.

Before arguments in the case, it seemed that the memorial's supporters, including the Trump administration, had the upper hand based on the court's conservative makeup and its decision to take up the matter. On Wednesday, even liberal justices Elena Kagan and Stephen Breyer suggested that they could join a narrow ruling upholding this particular memorial.

Kagan noted that the cross is a symbol linked with soldiers killed in World War I.

"When you go into a World War I battlefield, there are Stars of David there, but because those battlefields were just rows and rows and rows of crosses, the cross became, in people's minds, the pre-eminent symbol of how to memorialize World War I dead," she said, adding that there are no religious words on the Maryland cross and that it sits in an area with other war memorials. She asked, "So why in a case like that can we not say essentially the religious content has been stripped of this monument?"

Breyer, for his part, asked a lawyer arguing for the cross' challengers what she thought about saying that "history counts" and that "We're not going to have people trying to tear down historical monuments even here."

"What about saying past is past?" he said at another point during arguments conducted in a courtroom whose friezes include depictions of Moses and Muhammed and that began, as always, with the marshal's cry: "God save the United States and this honorable court."

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.

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