WASHINGTON — The Supreme Court on Wednesday considered the fate of the Bladensburg cross, a 40-foot-tall World War I memorial in Maryland maintained with government funds.
Just outside the Supreme Court, Maryland resident Mike Moore reflected on where he'd be if that cross was never built.
"When I was 13, my dad took me by the cross" to talk about honoring the service and sacrifice of veterans, he said. "That stuck with me to the extent that when I graduated from the University of Maryland, I enlisted in the Army."
Rather than a government-sponsored religious display, Moore says the so-called "Peace Cross," which was dedicated in 1925, is a fitting tribute to those willing to die for their country.
"It is just beyond my understanding why anybody would want to take it down," said Moore, who helps lead the Greenbelt American Legion in Greenbelt, Maryland.
Twenty yards away, around 50 people were trying to explain it to him. Participants in the Honor Them All rally said the Peace Cross is an affront to non-Christian soldiers and an unlawful display of religious favoritism.
"The government has no role to play in establishing a preference for any religion or for no religion. That's not just a good idea, it's the law," said Rabbi Jack Moline, president of Interfaith Alliance, during his remarks at the rally.
The Supreme Court weighed these competing claims Wednesday during oral arguments in The American Legion, et al. v. American Humanist Association, which centers on the Constitution's establishment clause.
Justices debated a variety of hypothetical cross-shaped memorials, questioning which types would violate the legal mandate to treat all faiths equally. It seemed likely after the arguments that the court would rule narrowly in favor of the Bladensburg cross, but some justices were wary of establishing a precedent that allows governments to build more religious displays.
"What do you say to the Jewish war veterans … (who say) the government's decision to honor only the salvation that Christians believe is hurtful, wrong and not in keeping with the promise of the Constitution?" asked Justice Brett Kavanaugh early in the proceedings.
Supporters of the cross pointed to its historical significance, arguing that it wasn't just Christians who thought of the cross as a symbol of the sacrifices made during WWI.
However, some justices took issue with this line of argument, noting that Christians submitted briefs to the court saying the cross is never entirely secular.
"It's not just Jewish people or Hindu people who might be offended. It could be Christians as well," Justice Sonia Sotomayor said.
Neal Katyal, who argued on behalf of the Maryland-National Capital Park and Planning Commission, which has overseen the care of the Bladensburg cross since the 1960s, said the Constitution doesn't say Americans should never be offended.
"I don't think we let those objectors" dictate whether a cross-shaped WWI memorial is constitutional, he said. "If that were the rule, you'd be tearing down crosses at Arlington Cemetery and nationwide."
Justices asked Monica Miller, who was arguing against the cross on behalf of the American Humanist Association, to address that idea and articulate a clear standard for religious symbols in the public square.
"This is the only area I can think of … where we allow people to sue over an offense because, for them, it is too loud," said Justice Neil Gorsuch. "We have a Ten Commandments display just above you, which may be too loud for many."
Miller responded that the case is not about protecting non-Christians from all Christian messages and symbols, but, instead, about ensuring that the government is neutral when it comes to religion.
In this case, "we're talking about the government being the speaker and essentially giving you the message as the non-Christian in your community that you are a lesser citizen," she said.
The discussion during oral arguments showed that the case is more complicated than it may at first appear. Members of the same faith group or military branch often answer the legal questions involved very differently.
Moore, of the Greenbelt American Legion, was joined by dozens of other American Legion members as he stood in support of the Bladensburg cross in front of the Supreme Court. But there were also veterans speaking at the Honor Them All rally.
The American Legion, et al. v. American Humanist Association originated in 2014 when the association sued the Maryland-National Capital Park and Planning Commission. The cross' original owner, the American Legion, joined the lawsuit soon after it began.
The American Humanist Association argues that the government should avoid religious symbols, even when they have a secular purpose.
"The government's Christian cross war memorial honors Christians to the exclusion of everyone else," said Miller, senior counsel for the association, in a statement.
The commission and American Legion, on the other hand, say that the government shouldn't be condemned for honoring soldiers.
"We agree with our friends on the other side of the courtroom that … the separation of church and state are foundational American values," Katyal said. "Surely the shapes of our memorials that are used to honor the war dead do not in and of themselves create a constitutional problem."
The American Humanist Association initially lost at the district court level, but the 4th Circuit Court of Appeals later ruled against the cross.
During oral arguments on Wednesday, justices appeared interested in finding a way to protect the cross without dramatically closing the gap between church and state. They acknowledged the Bladensburg cross' historical significance, but also the risk of allowing new crosses to be constructed with government funds.
"What about saying past is past … but no more?" asked Justice Stephen Breyer, noting that the U.S. is now much more religiously diverse than it was when the Bladensburg cross was constructed.
Comments like these foreshadow a narrow ruling, which would apply to the Bladensburg cross but not address rising tension over government-sponsored religious symbols elsewhere.49 comments on this story
Attorneys for the American Legion and other cross supporters have argued that the Supreme Court should issue a broad ruling and clear up confusion over the establishment clause.
"We are hopeful the court will not only end the attacks on this memorial, but will clarify the law and put an end on the attacks on memorials nationwide," said Kelly Shackelford, president, CEO and chief counsel for First Liberty Institute, in a statement after oral arguments concluded.
A ruling in The American Legion, et al. v. American Humanist Association is expected by the end of June.