The United States Supreme Court heard oral arguments Wednesday in the Bladensburg Peace Cross case (Case Nos. 17-1717 and 18-18).
Justice Sotomayor started off the questioning by noting the size of the memorial and the park, and comparing it to other similar parks around the country, some of which may have created additional memorials merely as a “pretext” to justify their own cross-shaped memorials. MNCPPC attorney Neal Katyal noted that other memorials at the Peace Cross location went back as far as the early 1980s.
Justice Sotomayor also mentioned the possibilities of transferring ownership back to the American Legion, or moving the memorial off government-owned property. These options were rejected by Katyal, because the memorial sits in the middle of a dangerous and busy intersection, and would most likely be destroyed if anyone actually tried to move it.
Justice Kagan asked if a similar memorial could be created today, either to honor WWI veterans, or as a memorial for other purposes. Justice Ginsburg added the possibility of a similar memorial honoring victims of other disasters.
Justice Ginsburg’s line of questioning brought up the concept of a “community standard” regarding such memorials. Justice Kagan questioned whether it would be acceptable for a community to put a cross up in front of a school or other public institution that had been the victim of a mass tragedy, such as a school shooting.
Justice Kavanaugh asked whether Jewish soldiers would be offended to be memorialized with a cross. Justice Sotomayor noted that even deeply religious Christians might be offended by secularizing the cross for use in such a memorial. Attorney Katyal responded, “I don’t think we let those objectors dictate that. If that were the rule, you’d be tearing down crosses at Arlington Cemetery and nationwide […] and sow religious divisions.”
Attorney Michael A. Carvin urged the court to extend the Town of Greece “coercion test” to the Peace Cross, noting that there is no entanglement with a church involved with the Peace Cross memorial. “It’s just a cross,” noted Justice Kagan, alluding to the fact that aside from its Latin-cross shape, there is no religious content whatsoever in the memorial itself.
There was some discussion about surrounding communities also putting up crosses of their own, and whether that would constitute proselytizing. “Suppose after this case Hyattsville puts up a cross, and College Park puts up a cross,” speculated Justice Kavanaugh.
Justice Alito later revisited the concept of a “community standard” regarding memorials, asking whether it would be acceptable for a community to erect a religious symbol as a memorial in the wake of a tragedy, if the community specifically requested such a symbol.
Justice Gorsuch kept coming back to the sticking point of where to draw the line between using a religious symbol in a secular memorial, and proselytizing. “The Lemon test is a dog’s breakfast,” he noted, referring to a long-existing 3-prong standard sometimes used by the court to determine if the use of a religious symbol is permissible.
Many of the attorneys noted that under the existing standards, the Peace Cross should be an “easy case” for the Supreme Court to decide. If the questions asked by the justices are any indication, they seem to be trying to come up with a better test for cases like this, where a government entity finds itself in ownership of a religiously-themed piece, either by intent, or by accident. There seems to be a leaning of opinion that the way a community decides to memorialize and honor its dead is best left up to that community, unless there is some form of physical or financial coercion involved.
Here’s hoping the justices come to a well-considered opinion.
You can listen to the oral argument here: https://www.supremecourt.gov/oral_arguments/audio/2018/17-1717
All the relevant documents can be found here:
You can read the transcript of the arguments here: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/17-1717_0pl1.pdf