In Peace Cross of Bladensburg, Elena Kagan of the Supreme Court could play a central role



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Judge Elena Kagan has emerged as one of the Supreme Court's most powerful voices in favor of the separation of church and state, often reproaching her Conservative colleagues for allowing government actions that, according to they favor one religion over another.

But the last time the judges considered the fate of a cross built on public land, Kagan was on the other side of the bench and on one side of the issue.

As Solicitor General of President Barack Obama, Kagan successfully defended a cross in the Mojave National Reserve, convincing court conservatives that what she has always called a "war memorial" should remain a tribute to the sacrifice of the death of the First World War.

There is a restart of the question Wednesday, this time with Kagan as justice of the peace: another cross dedicated to Americans killed during the First World War, a massive structure located on public land in Maryland, about five miles northeast of the Supreme Court.

The legal battle around the Bladensburg Peace Cross could provide a more precise definition of the court's blurred jurisprudence on cases where religious symbols on public lands violate the constitutional prohibitions of establishing a religion by the government. This is one of the major causes of this term and Kagan could play a central role.

This is an intriguing place for this 58-year-old lawyer, who was appointed by Obama and confirmed by the Senate in 2010 to replace outgoing Liberal Justice John Paul Stevens. One of the four women to sit on the Supreme Court, Kagan is the least public. Although she is constantly to the left of the court, she crosses more times than the famous judges Ruth Bader Ginsburg and Sonia Sotomayor.


Judge Elena Kagan was a solicitor general prior to her appointment to the Supreme Court. (Alex Wong / Getty Images)

But she is a favorite of those who follow and practice in court. Lawyers who support conservative causes say that it is the most likely justice to probe the weak points of their case. And law professors from across the ideological spectrum praise his clear and often familiar writing style.

Ginsburg, the left-wing high court, relies on Kagan to draft dissidences that she and other liberals can support, which often happens when the disagreement is about religion.

Ginsburg, Sotomayor and Judge Stephen G. Breyer joined Kagan's strong dissent when the court's conservatives recently authorized the execution of a Muslim prisoner in Alabama, who was denied an imam's death.

The majority's decision that Domineque Ray filed his complaint too late in the process was "deeply flawed".

According to Alabama policy, "a Christian prisoner may have a minister of his own religion who will accompany him to the execution room to say his last sacraments," writes Kagan.

"But if a prisoner practices a different religion – whether it's Islam, Judaism or any other – he can not die with a minister of his own faith at his side . This treatment runs counter to the fundamental principle of denominational neutrality set out in the Constitution Clause. "

When Kagan discussed the cross case with Mojave, the roles were reversed. She won the support of conservative judges and none of the Liberals.

It may just be the case of a lawyer who vigorously represents a client. Salazar c. Buono This is only the second case in the Supreme Court, Kagan asserted after being confirmed solicitor general in 2009. The courts told him that the small cross erected decades ago was to fall, Kagan was defending an agreement reached by the Congress. By exchanging land on which the cross represented private property elsewhere in the reserve, the cross would be located on private land, said Kagan, resolving the constitutional problem.

"I do not know her personal point of view one way or another, I just know that she was working hard," said Hiram Sasser, general counsel of the legal organization conservative First Liberty, also involved in this case. The group represented veterans of foreign wars, who had agreed to take charge of the maintenance of the cross, which Congress had declared dead as an official monument. Sasser was part of the team of lawyers who prepared Kagan.

Dennis Schramm, then superintendent of the reserve, was surprised when he received a call saying that Kagan was leaving Washington to go to the scene. Years of litigation had preceded the battle of the Supreme Court, he said, and none of the other lawyers involved had yet joined the Sunrise Rock.

Kagan's preparation is mentioned in a handbook for Supreme Court practitioners preparing for pleadings, and she uses her knowledge of the desert in her court presentation. "I was there three or four weeks ago," she said. "The director drove me to the site."

Kagan told Ginsburg that it would be easy to place signs on the single road leading to the cross to indicate that it was on private property. And she described how the reserve was sprinkled with more than 1,000 private properties, so the visitor never really knew if she was looking at public or private property.

The argument does not convince the court liberals, including Stevens, that Justice Kagan will eventually replace him.

"I certainly agree that the nation should commemorate the service of those who fought and died during the First World War," Stevens wrote, "but she can not do it legally by continuing to to support a sectarian message.

The justice that Kagan faces is different from that presented by the government lawyer, Kagan. But in the small world of Supreme Court litigation, the distribution is similar.

Kagan will be on the bench. His chief deputy in the solicitor general's office, Neal K. Katyal, is now a lawyer representing the Maryland-National Capital Park and the Planning Commission, which owns the median of the road on which the Bladensburg Peace Cross is erected. . And Jeffrey B. Wall, who accompanied Kagan to the Mojave in 2009, is the Acting Solicitor General in this case.

The Peace Cross, built of granite and cement and built in 1925, was built in 1925 as a tribute to the men of Prince George County, Maryland, who died during the First World War. It was paid for by families, businesses and the American Legion. .

The land on which it is located was transferred in 1961 to the government commission, which provides maintenance and upkeep.

The cross bears a plaque listing the 49 dead; ahead of his time, he lists African Americans and Whites tied. VALUE; ENDURANCE; COURAGE; DEVOTION are inscribed on its four sides. At his consecration, the monument was compared to the cross of Calvary, where Jesus was crucified, and research showed that all the men he honored were Christians.

In 2014, the American Humanist Association challenged the constitutionality of displaying the preeminent symbol of Christianity on government property.

A Federal District Judge ruled against the organization. The Supreme Court has not ruled out historical demonstrations of religious symbols, said the judge, adding that she met the criteria of the court: her "first effect" was religious neutrality and the absence Excessive entanglement between government and religion. .

The US Court of Appeals for the 4th Circuit did not agree and ordered the commission to remove, move or redesign the memorial.

The "sectarian elements easily submerge the secular elements," said the court of appeal, adding that "the cross is by far the most prominent monument of the region, prominently at a busy intersection."

Few people expect the Supreme Court, which is more conservative, to agree with the opinion of the 4th Circuit. The question is whether it will want to settle the case closely, based on precedents, or develop a new criterion that could give more definitive guidance to the lower courts and avoid further litigation on a case-by-case basis.

Richard Garnett, an expert in religious and constitutional law at the University of Notre Dame Law School, said Mr. Kagan may wish to participate in these efforts. Earlier votes showed that Kagan was more tenacious to denominational neutrality than to the strict separation boundaries between churches and states that Ginsburg and Sotomayor approved.

"I think Judge Kagan may want to find a place at the center that is not limited to" we know it when we see it, "Garnett said.

That said, Kagan has shown firmness when she thinks one religion has been favored by the government at the expense of another.

She wrote a scathing dissent in 2014 when conservatives of the court found that prayers given almost entirely by Christian chaplains prior to the meetings of the Greek city council, N.Y., did not violate constitutional norms.

Kagan said that the practice of the city betrayed "the breathtaking constitutional idea that our public institutions belong no less to the Buddhist or the Hindu than to a Methodist or an Episcopalian".

She suggested that the city had simple means to comply with constitutional norms, which led Judge Samuel A. Alito Jr. to write that Kagan's objections were basically "negative".

She's bristling. That "Alito" thinks my objection to this is "really pretty mediocre" says all there is to say about the difference between our respective points of view, "she wrote.

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