Written by Don Byrd
[UPDATE: Listen to a new BJC podcast featuring a discussion of the arguments with Amanda Tyler and Holly Hollman]
Today, the U.S. Supreme Court heard oral arguments in American Legion v. American Humanist Association, a constitutional challenge to a large memorial cross in a public space in Bladensburg, Maryland. The court’s questions reflected a wide array of concerns: Which test should judges use in cases like this? Should it matter how long the cross has been standing, or which war it commemorates? Or that the makeup of the country is markedly more religiously diverse than when this memorial was erected? Would the cross have to be destroyed if ruled unconstitutional? Importantly the court also spent a significant amount of time addressing a core issue raised by the Baptist Joint Committee in its brief: that the cross is the preeminent symbol of Christianity and should not be secularized or otherwise stripped of its religious content to justify maintaining it on government land. (See the BJC’s press release issued after today’s hearing.)
The BJC’s brief and reasoning were evoked several times in the course of the argument. Below are extended excerpts from the transcript focused on exchanges addressing the question of the cross’s meaning and its implications in a pluralistic democracy committed to religious liberty for all. (For context, Neal Katyal represents the Maryland-National Capital Park and Planning Commission, Michael Carvin represents the American Legion, and Jeffrey Wall represents the United States, all of whom argue that the Bladensburg Cross in this case is constitutional. Monica Miller, representing the American Humanist Association, argues that it is unconstitutional.)
JUSTICE SOTOMAYOR: There is a brief here that says that, to deeply religious Christians, secularizing the cross is blasphemy. Christ died on the cross. He was resurrected from his grave. So those people don’t view secularizing the cross as something — it’s not just Jewish people or Hindu people who might be offended. It could be Christians as well.
MR. KATYAL: Justice Sotomayor… 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. The U.S. brief at page 29 says that. And I think that would actually inject this Court and create more of an Establishment Clause problem and sew religious divisions.
JUSTICE KAGAN: [Y]ou can understand how something like this can come about, that people want to memorialize the dead, and in one religious tradition, and a dominant one in many, many communities of this country, the preeminent symbol to memorialize the dead is the Latin cross. And… so they gravitate toward that symbol as a way to memorialize the dead. But, at the same time, for members of other faiths, that symbol is not a way to memorialize the dead and does not have that meaning. So I think…for many people, this is a very natural way to do exactly what they want to do. For others, not.
JUSTICE GINSBURG: Does it make any difference… the change from the founding, this was an almost overwhelmingly Christian country, but now we’re told that 30 percent of the U.S. population does not adhere to a Christian faith, does — does that change make any difference?
GENERAL WALL: I don’t think it affects whether the cross took on in the wake of the Great War a secular meaning and whether that’s the meaning for which the mothers erected it and the commission now maintains it.
JUSTICE KAGAN: On what theory are [newly erected crosses] permissible? … Is the theory that this is a secular symbol? Is the theory that this is a religious symbol, but that’s perfectly fine, to adopt one religious symbol rather than another? What’s the theory?
GENERAL WALL: …[I]f you took a new war memorial, if Bladensburg tomorrow wanted to erect a memorial like this one, we think that would be perfectly permissible and, indeed, an honorable thing for a locality to do.
JUSTICE KAGAN: And — and I guess I ask, why is that? Is it because the cross has become a symbol that’s universal? Is that what your — your claim is?
GENERAL WALL: I think because… it has taken on a secular meaning associated with sacrifice or — or death or commemoration. And a locality, a state can decide to use it for that meaning.
JUSTICE KAGAN: I mean, it is the foremost symbol of Christianity, isn’t it? It invokes the central theological claim of Christianity, that Jesus Christ, the Son of God, died on the cross for humanity’s sins and that he rose from the dead. This is why Christians use crosses as a way to memorialize the dead. Is it because it connects to that central theological belief, isn’t that correct?
GENERAL WALL: So I’m not going to dispute that, obviously, it’s the preeminent symbol of Christianity….The question is whether it’s also taken on a secular meaning, because to say the cross has only that religious meaning I think would condemn every cross in the public sphere, including the ones that sit in Arlington, which even Respondents say we don’t have to take down.
JUSTICE KAGAN: When you go into a World War I battlefield, there are Stars of David there, but because those battlefields were just rows and rows and rows of crosses, the cross became, in people’s minds, the preeminent symbol of how to memorialize World War I dead…. So why in a case like that can we not say essentially the religious content has been stripped of this monument?
MS. MILLER: …I’m not aware of any case or reason to say that a large Latin cross can be stripped of its religious meaning. I don’t think it needs special words to — to announce that this is a — a religious symbol. I think that the —
JUSTICE GORSUCH: Well, hold on. Just a moment ago, you told us the Ten Commandments can be stripped of their religious significance and that an Indian totem pole may be stripped of its religious significance. Why — why not so too here?
MS. MILLER: Well, as far as I’m concerned, I’m not aware of any secondary meaning that’s derived from the Latin cross. Its meaning as a war memorial is distinctly for Christians….
JUSTICE KAGAN: And I really did mean to confine it to this World War I context, because I think there’s something quite different about this historic moment in time when — so if you look — you know, if you look at all the crosses that are war memorials, they’re basically all World War I memorials… because of the battlefields and the way the crosses were erected there, this became the preeminent symbol for how to memorialize the war dead at that time. Why isn’t that important?
MS. MILLER: …[A]t the same time Bladensburg cross was being put up, other World War I memorials were being put up in direct recognition of Jesus Christ. That was the understanding at the time. These are Christian symbols. …the government’s argument in this case is not that this is a Christian symbol anymore but that it, in fact, represents Jews and atheists and Muslims. And I think that there’s no history whatsoever of anyone using Latin crosses to honor Jews, Muslims, and atheists. And as the brief of the Joint — Baptist Community and — and all the other, you know, representative groups that represent millions of Christians in this country, find that argument deeply offensive and — and could potentially degrade their religion —
JUSTICE KAVANAUGH: You raise an important liberty argument. In thinking about a liberty claim, I think the Constitution tilts toward liberty in its structure, and one of the ways it does so is there are lots of avenues for you to — the Bladensburg counsel could change its approach here. The Maryland legislature could say no more. The Maryland constitution… or the Maryland courts could prohibit it. With that in mind, the Establishment Clause test… can be thought of as setting a floor, an important one, but there are other ways the Constitution tilts toward liberty and other avenues. How should we think about that, or should we think about that at all, or is that irrelevant to us?
MS. MILLER: I mean, liberty’s absolutely important. And I think that’s where the brief of the Baptist Joint Committee and all of the Christian groups, you know, joined saying that a ruling upholding this cross would definitely degrade and damage their — their free exercise of their religious liberty beliefs.
MR. KATYAL: The easiest way to resolve this case… is to say, in the wake of World War I, crosses like this one have an independent secular meaning. As Justice Kavanaugh said before, this Court’s decisions recognize that symbols, including religious symbols, have dual meanings…
JUSTICE GINSBURG: But does… the cross really have a dual meaning, Mr. Katyal? It is the preeminent symbol of Christianity. People wear crosses as — to show their devotion to the Christian faith.
MR. KATYAL: We don’t disagree with any of that, Justice Ginsburg. Our only point… is that crosses, particularly World War I ones… have a second meaning, and that meaning is what makes it constitutional. That’s why we disagree with my friends here, because we think that their approach would — what — would risk the destruction of this 93-year-old memorial, which, you know — which — which has that real long tradition going back to the field of Flanders.
For more background and helpful information, see the Baptist Joint Committee’s resource page on this case.