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SCOTUS Watch: War Memorial or Religious Display

Prof. Glenn Smith

Does a 93-year-old memorial to American servicemembers who lost their lives in World War I violate the Establishment Clause because the memorial bears the shape of a cross?

That is the controversy at the center of the U.S. Supreme Court’s oral argument taking place today around the companion cases of The American Legion v. American Humanist Ass’n, No. 17-1717, and Maryland-National Capital Park & Planning Comm’n v. American Humanist Ass’n, No 18-18.

The cases pose the constitutionality of the 93-year-old, 40-foot-tall concrete Latin cross erected on public land in the center of a busy intersection at the entrance to Bladensburg, Maryland. Installed in the aftermath of World War I, and originally intended to memorialize 49 locals who died in the Great War, early fundraising efforts and later events at the cross site also featured Christian prayers and speakers.

This controversy is important for three major reasons writes California Western’s Professor Glenn Smith in an op-ed published in the LA Daily Journal.

First, the Court is on schedule to decide the constitutionality of a type of religious display occupying an especially vexing corner of Establishment Clause jurisprudence.

Second, San Diegans and others familiar with the Mt. Soledad cross will experience a special kind of déjà vu.

Third, the Court is being invited to use the AHA dispute to significantly realign the constitutional dividing lines between acceptable intermixing of government and religion and forbidden unconstitutionality.

As with other Establishment Clause cases, writes Professor Smith, substantial uncertainty exists in applying to the Bladensburg cross the approach that decided the fate of the last religious monument the Court upheld in a 2005 decision—whether the “reasonable observer” would interpret the Bladensburg cross as expressing a message of religious favoritism. On the one hand, the Latin cross is a clearly Christian-only symbol and its presence as the dominant symbol towering over all others arguably distinguishes it from the Ten Commandments monument upheld in 2005. On the other hand, defenders argue that the reasonable observer knows that crosses have long been used as symbols to memorialize war dead; to cross supporters, it is irrelevant that other uses are crosses marking individual graves, often chosen by the deceased’s family.

Professor Smith notes the many striking similarities between the Bladensburg cross and the Mt. Soledad cross that has sat for more than 60 years high atop the Mt. Soledad Park in La Jolla.

The broadest question about the AHA challenge is whether the Court will use the Bladensburg cross as a vehicle for moving Establishment Clause goalposts in a much more religion-friendly direction.

Whether a majority of the Court, which now includes six justices not on the 2005 Court approving the Ten Commandments monument, makes major doctrinal changes will also reveal further clues about many interesting Court-watching questions. Will Justices Gorsuch and Kavanaugh follow their mentors? (Justice Scalia was a big fan of the coercion test, while Justice Kennedy pursued a wavering, but sometimes cautious path.) Is Justice Alito, who replaced Justice O’Connor, inclined to replace her “endorsement” approach as well? If so, will Chief Justice Roberts’ occasional cautiousness prevent him from casting a decisive fifth vote for major change?

Read Professor Smith’s complete op-ed here: https://www.dailyjournal.com/users/sign_in