On Wednesday, a majority of the Supreme Court seemed to be looking for a way – a narrow means, most likely – to allow a historic cross commemorating the deaths of the First World War to remain where it had been for nearly 100 years.
Two of the four court liberals suggested that the unique history of the Peace Cross in Bladensburg, Maryland, Washington, could be a way of adapting to its position on public lands in Washington. a motorway median.
But more than an hour of litigation showed how difficult it was for the court to decide whether the government's involvement in a religious symbol had an acceptable denominational purpose or whether it unconstitutionally embraced religion.
The Bladensburg Peace Cross, made of granite and cement, was built in 1925 and paid for by local families, businesses and the American Legion. But the 40-foot cross is on land owned since 1961 by a state commission that takes charge of its upkeep.
The court challenge began with the American Humanist Association, a non-profit atheist organization that has launched similar lawsuits across the country.
For decades, the Supreme Court – whose marshal opens proceedings with the appeal of "God saves the United States and this honorable court" – has made every effort to come up with a clear test according to which actions or demonstrations would violate the government's prohibition of the constitution of establishing a religion by the government.
The National Capital Park and Maryland Commission, which inherited the monument, said the court did not need to break any new legal bases to allow the Bladensburg Monument to remain.
The cross has "an independent secular significance," which makes it constitutional, Judges Neal K. Katyal, a Washington lawyer representing the commission, said. In addition to being a symbol uniquely associated with the First World War, the cross is located among other monuments dedicated to veterans, he said.
In the past, the court ruled that religious symbols can be constitutional in their context, he said, adding, "Just look up.
In the frieze above the judges' heads, in the ornate courtroom, is a representation of the Ten Commandments.
In questioning Monica L. Miller, representative of the challengers of the cross, Judge Elena Kagan also evoked an association between the First World War and the cross that is "really very different" from the use of the cross in other contexts . "Why is not that so important?" She asked.
And Judge Stephen G. Breyer, another member of the Liberal wing of the court who opposed in the past blurring the line between church and state, also questioned history.
To pose a cross today would be problematic, he suggested, but perhaps that did not mean that everyone had to come down. And if the court said, "Yes. D & # 39; agreement. No more, "he said, adding," We are a different country now. "
Judges Sonia Sotomayor and Ruth Bader Ginsburg seemed to think that there was no way to disconnect the preeminent symbol of Christianity from its religious roots. Christians carry the cross as a symbol of their devotion, said Ginsburg.
And Sotomayor said about the size of the cross "dwarven buildings, he dwarfs people."
Miller clarified that the monument did not need to be destroyed, but could be moved elsewhere or that the land on which it sits could be returned to a private organization such as the American Legion, involved in its construction.
But the way it dominates a busy intersection used by thousands of commuters each day sends an unconstitutional message that the government favors one religion over another.
Defenders of the monument stated that a Maryland judge had understood that the cross had withstood the controversy for decades and that it was responding to the court's test that its primary purpose was secular, its "first effect "was the religious neutrality and not excessive entanglement of government and religion.
The Panel's brief tells the court: "Virtually all members of the court have agreed that the government can at least display symbols associated with religion when the object and meaning of this manifestation are primarily secular, or when the display fits into a long national tradition of similar practices. "
But a panel of the US Court of Appeals for the 4th Circuit considered the same facts and the same test and found the opposite.
"The display enlarges the Latin cross in a way that tells any reasonable observer that the commission places Christianity above other religions, with the American and Christian viewpoints only one, or both, "said the panel in a letter to two. 1 decision.
That's the key, says the American Humanist Association in his memoir.
While neither the commission nor the association are asking the court to adopt a new test, the US Legion and the Trump administration are doing it: determine if the government's action is "coercive" .
The Legion says in its submission that government practices should violate the settlement clause only if they "constrain a belief, practice, or financial support, whether by profession or enforced compliance, by excessive proselytism." or by other means based on historical bases ".
A passive display like the Peace Cross would rarely meet such a test, says the memoir.
But even the conservative judges they would need to change the court's precedents seemed to think that a standard of restraint would not be more viable than the court's confused jurisprudence on religious symbols and acts, which Neil J. Mr. Gorsuch referred to it twice as "dog's breakfast".
Combined cases are The American Legion c. American Humanist Association and Maryland-National Capital Park and Planning Commission c. American Humanist Association.