U.S. Supreme Court justices appear to be struggling with whether a 40-foot tall cross honoring the veterans of World War I should be removed from a memorial, according to supporters and opponents who attended oral arguments today.
Last November, the Supreme Court agreed to hear oral arguments in the consolidated cases of America Legion, et al. v. American Humanist Association and Maryland-National Capital Park v. American Humanist Association, et al. Those arguments were held on Wednesday morning.
Alexandra McPhee, director of Religious Freedom Advocacy at the Family Research Council, helped draft their amicus brief and attended the oral arguments.
In an interview with The Christian Post following oral arguments, McPhee explained that the Supreme Court justices appeared to be searching for a “limiting principle,” which involves finding clear limits on government powers.
“What I found interesting was the idea of where to draw the line is so unclear in current Establishment Clause law,” explained McPhee.
McPhee said the American Legion, which is arguing in defense of the Bladensburg Cross, was supporting a more “objective standard” which has “greater historical grounding.”
McPhee cited Town of Greece v. Galloway, the 2014 Supreme Court decision which concluded that town meetings could open with sectarian prayers, noting that in that case the high court “looked at the nation’s traditions, especially at the time of the founding.”
“And what the American Legion argued was that at the time of the founding something like a religious display would not be a violation of the Establishment Clause unless it was somehow coercive,” continued McPhee.
Richard B. Katskee, legal director at Americans United for Separation of Church and State who also attended oral arguments Wednesday morning, told CP that he believed the high court was unpersuaded by the American Legion.
“The justices clearly were not buying the argument from the American Legion for a simple clear test. ‘You can just look for coercion and that settles everything.’ They were frustrated by that,” said Katskee.
“I think in general the justices were struggling to figure out whether there is or can be one clear simple test, and I think that they came out with the same questions they went in with.”
In 2012, the American Humanist Association told the Maryland National Park and Planning Commission to remove the cross from the memorial.
In February 2014, the AHA sued the Planning Commission on behalf of two members who lived in the area and another person who lived in Beltsville.
U.S. District Judge Deborah K. Chasanow ruled in November 2015 that the cross fulfilled a secular purpose of honoring fallen soldiers and was therefore constitutional.
AHA appealed Chasanow's decision and in October 2017, a three-judge panel of the Fourth Circuit Court of Appeals ruled 2-1 in favor of removing the cross.
In March of last year, the Fourth Circuit voted 8-6 to reject an appeal in the case, in a decision that Hiram Sasser of the First Liberty Institute labeled “dangerous.”
"The decision of the three-judge panel sets dangerous precedent for veterans' memorials and cemeteries across America, and we cannot allow it to be the final word," Sasser said last year.
"If this decision stands, other memorials — including those in nearby Arlington Cemetery — will be targeted for destruction as well. The American Legion will appeal this case to the U.S. Supreme Court."