WASHINGTON (CN) – A World War I memorial left the Supreme Court conflicted Wednesday on where to take its establishment clause case law, even while all the justices appeared intent on not disturbing the massive stone cross that inspired the arguments.
Trying to figure out the limits for government displays of religious symbols, the justices spent much of the 70-minute hearing quizzing attorneys in the case about numerous hypothetical memorials.
While some supporters of the cross argued that religious symbols should be permitted on public property so long as they do not coerce participation in a religion, their proposed test drew little favor from the bench.
“It seems to me that you are taking us right back to the dog’s breakfast you’ve warned us against,” Justice Neil Gorsuch said.
Gorsuch also wondered whether the court should abandon the so-called Lemon test, the most prominent – and perhaps most criticized – test the court has used to evaluate establishment clause cases.
“Is it time for this court to thank Lemon for its services and send it on its way?” Gorsuch asked.
Justice Stephen Breyer meanwhile appeared particularly curious about a test that focuses more on the historical context surrounding a monument featuring a religious symbol, allowing old monuments to stand while being more skeptical of new ones.
“So what about saying past is past, if you go back 93 years, but no more,” Breyer said. “We’re now 54 religions. We’re now everything under the sun, and people will take offense.”
Still others appeared skeptical that history alone could justify the use of religious symbols in displays.
“It can’t be that all sectarian symbols, whether it’s a cross or Jesus Christ or some other symbol, is within our tradition merely because we say ‘in God we trust,'” Justice Sonia Sotomayor said.
Dedicated in 1925, the 40-foot-tall cross that started the case sits in the middle of a three-way interchange just across the Maryland border with Washington, D.C.
When the Maryland-National Capital Park and Planning Commission took over maintenance of the cross in 1961, the agency noted among other things that the monument’s home in the middle of a busy intersection raised safety concerns.
It would be more than a half-century later before the American Humanist Association alleged in court that the government’s involvement with the cross violated the establishment clause of the First Amendment.
Their challenge led the American Legion to intervene as a defendant, and the case made its way to Supreme Court last year after the Fourth Circuit found that the cross unconstitutionally entangled the government with religion.
That the cross should remain where it is was common theme for attorneys representing the Maryland-National Capital Park and Planning Commission, the American Legion and the U.S. government. Each party differed, however, on what test the court should use to reach that result.
Hogan Lovells attorney Neal Katyal, arguing for the commission, said the justices should allow the memorial to stand because crosses were seen as a symbol for fallen veterans at the time the monument was built.
Citing the famous John McCrae poem “In Flanders Fields,” Katyal said the symbol of the Latin cross took on additional meaning when it was used to mark the graves of soldiers overseas.
“But I think the dominant image of the time, everything from the poem to art, to the war bond advertisements that the United States government put [out], to the 1924 congressional resolution, all did use this cross,” Katyal said.
Acting Solicitor General Jeffrey Wall sided most closely with Katyal, saying the cross at the time had a separate, secular connotation.
Michael Carvin, an attorney with Jones Day who argued for the American Legion, went further, however, saying that all establishment-clause cases should consider whether participation in a specific religion is being coerced.
“Under our test, all symbolic – including sectarian – symbols would be presumptively valid except in the rare circumstance where they’ve been misused to proselytize, whereas, under the endorsement test, all sectarian symbols are unconstitutional,” Carvin said.
Carvin’s proposal faced harsh questioning from the justices, who appeared skeptical it would be workable. Chief Justice John Roberts in particular said the test Carvin proposed was far from the simple inquiry he sold it as.
“I was just going to say, you start out with what you advertise is a pretty concise test, but it degenerates pretty quickly into, well, I need to know about this, I need to know about that, and it becomes kind of a fact-specific test rather than the crisper one that you propose in your brief,” Roberts said.
Monica Miller, an attorney for the American Humanist Association, seized on the justices’ skepticism of the coercion standard and said they should instead determine whether a monument is advancing one religion over another, and then the degree of government involvement in that effort.
Miller said allowing monuments such as the cross to stand would alienate people who believe in a different religion or in no religion at all.
“The commission is here arguing today, as well as the other petitioners, that it is, you know, telling Jews, telling Muslims, telling humanists that the cross honors them, when they emphatically say it does not,” Miller said.
But Gorsuch was skeptical of this argument as well, saying it would drag courts into difficult fights over how much somebody is offended by a particular display.
“There aren’t many places in the law where we allow someone to make a federal case out of their offensiveness about a symbol being too loud for them,” Gorsuch said. “We accept that people have to sometimes live in a world in which other people’s speech offend them. We have to tolerate one another.”