The U.S. Supreme Court spent this morning grappling with the question of whether a cross can be a secular symbol.
I had a seat in the press gallery for the oral arguments in the case American Legion v. American Humanist Association, and although I’m not an attorney, the case to me seems like a no-brainer: The cross is the preeminent symbol of the Christian faith. Of course it’s not secular. Yet during the argument, I repeatedly heard claims that it is.
The high court is considering a case challenging the government’s ownership and display of a 40-foot-tall cross in Bladensburg, Md. The cross was originally erected in 1925 to honor 49 Maryland men who died in World War I but was rededicated in 1985 to honor all veterans.
The problem is, the cross doesn’t do that. It can’t do that – it’s a cross. It does not represent non-Christian veterans.
Nevertheless, Neal K. Katyal, one of three attorneys who argued in favor of the cross, began by asserting that the Bladensburg Cross has no real religious content because plaques on it merely list names alongside words like “Valor” and “Honor.”
It struck me as a mind-boggling argument. Words and plaques on the cross hardly dilute its religious meaning – a meaning that this towering symbol of the Christian faith robustly projects. But Katyal went beyond that. Under questioning from Justice Elena Kagan, Katyal argued that communities should be free to erect crosses as memorials today, as long as there is a secular purpose. He continued to insist that a cross can have a secular meaning, a claim that drew skepticism from Justice Ruth Bader Ginsburg.
The two other attorneys who argued on behalf of the cross, Michael A. Carvin and Jeffrey B. Wall, acting solicitor general, echoed that argument. When Kagan asserted that the cross is “the foremost symbol of the Christian faith,” Wall conceded that it is but quickly added, “It has also taken on a secular meaning.”
Not surprisingly, Monica Miller, the attorney arguing the case for the American Humanist Association (AHA), disputed those claims. It would be highly insensitive, she argued, to put crosses on every grave marker at Arlington National Cemetery, and it’s equally wrong to use a giant cross to memorialize all veterans. Crosses, Miller rightly pointed out, only represent Christians.
Miller encountered aggressive questioning from the court’s conservative wing, with Justice Samuel Alito leading the charge. Alito asserted that if the AHA prevails in this case, dozens of other crosses will have to come down.
But as Miller countered, that’s not necessarily true. The number of crosses that would be affected by this case is subject to debate and may be substantially smaller than what Alito suggested. In any event, the problem with crosses similar to the one at issue in this case is not that they are visible, it’s that they’re owned and maintained by the government and described as memorials to all veterans when they’re not. They don’t have to be torn down; they could be moved to private property, or the land around them could be sold to private parties. Such solutions have worked elsewhere.
What will happen in this case? I don’t pretend to be a prognosticator, but we do know that the high court has a conservative slant, and that means church-state cases like this can face tough sledding. Yet the possibility of a kind of split ruling does exist. Kagan seemed interested in the idea that this particular cross could be permitted due to the unique, World War I-era practices that led to its display. Justice Stephen Breyer toyed with the idea as well, suggesting a standard that would grandfather in the Bladensburg Cross but would not permit a community today to erect such a blatantly sectarian symbol as a war memorial.
Justice Neil Gorsuch went in the other direction. He’d clearly have no qualms about using this case to redraw church-state law – Gorsuch took several potshots at a test the high court has used to determine church-state violations that goes back to 1971 – but it’s not likely he has four other justices willing to engage in that kind of wholesale destruction of court precedent.
The court will issue its decision by the end of June. No matter what happens, Americans United will continue to argue the obvious: Crosses are religious symbols that don’t memorialize all of our war dead. We best honor all by using symbols that honor all.
P.S. Several other Americans United staffers were at the court this morning. AU Legal Director Richard B. Katskee observed the argument along with Associate Legal Director Alex J. Luchenitser and Senior Litigation Counsel Ken Upton. AU staffers were present outside the court as well. President and CEO Rachel Laser spoke at a rally sponsored by the AHA, and several other staff members attended. After the argument, Laser and Katskee did a Facebook Live event from the steps of the court. You can see it on AU’s Facebook page.