The U.S. Supreme Court seemed poised during oral arguments Wednesday to let a 93-year-old war memorial cross stand, although it remains uncertain how far the justices will go in their legal reasoning.
At issue is a 40-foot cross-shaped World War I memorial on public property in Bladensburg, Md., that was erected in 1925 but has been targeted in the courts by atheist groups who say it violates the U.S. Constitution’s prohibition on government establishment of religion.
Wednesday’s hearing was the first major church-state case before a new bloc of conservative justices that includes President Trump’s two nominees, Brett Kavanaugh and Neil Gorsuch.
Multiple court observers said the justices appear certain to let the cross stand. The question is whether they will tinker with the three-pronged Lemon test, which the court has used since 1971 to determine the constitutionality of a law or action. According to the test, a law is constitutional if it: 1) has a secular purpose, 2) neither advances nor inhibits religion, and, 3) doesn’t foster government “entanglement” with religion.
Kelly Shackelford, president and chief counsel of the First Liberty Institute, said Wednesday after oral arguments that he found the justices’ comments and questions “very encouraging.” First Liberty is representing the American Legion, which erected the cross.
“Everybody recognizes that the Lemon test and the current approach that’s being used is in hopeless disarray,” Shackelford said. “It’s creating confusion throughout the courts, and it’s causing all these attacks on veteran memorials and monuments. … I think the court really clearly wants to change that. We’ll wait and see what they do, but we were very encouraged by the way things went.”
Shackelford said it was a “disgrace” that the war memorial could be removed.
“We’ve got a choice of two Americas that are being presented in front of us right now – an America where we begin not only tearing down this memorial, but that would just be the beginning of the religious cleansing that would start,” Shackelford said, referencing memorials across the country that could be “under attack” if the court rules against the cross. “On the other hand, we could have an America which I think is where we’re going – where the court cleans up the law in this area, making clear that these attacks on veteran memorials and religious monuments around the country are not what our laws propose or support or our Founders ever intended.”
Amy Howe, who contributes to the popular StotusBlog.com website, said she expects the court to side with the cross.
“No real surprise, but 93-year-old ‘peace cross’ seems likely to survive (although in need of repairs) after oral argument at #SCOTUS today. Only real question is how broadly the Court rules,” Howe tweeted.
Steven Mazie, who covers the Supreme Court for The Economist, agreed.
“It would be a miracle if a majority rules the cross must be taken down,” Mazie wrote.
A ruling is expected by the end of the court’s session in June.
Michael Foust is a freelance writer. Visit his blog, MichaelFoust.com.
Photo courtesy: First Liberty Institute
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