Justices said they would be reluctant to uphold a city’s decision to erect a cross today, however…
(David G. Savage, Los Angeles Times) WASHINGTON — The Supreme Court with new Justice Brett M. Kavanaugh faced its first church-state dispute Wednesday and sounded ready to keep in place a nearly century-old cross that honors soldiers who died in World War I.
The justices, both liberal and conservative, said the so-called Peace Cross should not be torn down or moved.
The 40-foot cross sits at a busy intersection in suburban Maryland.
Justice Elena Kagan said the history of the era shows why the cross should be able to stand.
She said the “rows and rows of white crosses” near the battlefields of World War I made the cross the “preeminent symbol” of sacrifice in America in the decade after the war.
But Kagan and most of the justices said they would be reluctant to uphold a city’s decision to erect a cross today as a dominant symbol on public property.
Deputy Solicitor General Jeffrey Wall, representing the Trump administration, said the Bladensburg, Md., cross should be allowed because it is a war memorial, but he said it would be “problematic” if a city today said it wanted to erect a “naked, unadorned” cross on public property.
That would be harder to defend, he said.
However, during the back-and-forth argument, the justices conceded they are still struggling with how to devise a legal rule that clarifies when public displays of religion go too far and violate the First Amendment’s ban on an “establishment of religion.”
While the Peace Cross was built with private funds in the 1920s to honor 49 dead local soldiers, it has been maintained on public land and with public funds since 1961.
Several residents sued along with the American Humanist Association, and they won a ruling from the 4th Circuit Court in Richmond, Va.
In a 2-1 decision, the appeals court ruled that because the cross was the core symbol of Christianity, its prominent display on public property was an unconstitutional “endorsement” of religion.
In mid-October, just as Kavanaugh joined the court, the justices agreed to hear an appeal from the American Legion, which helped build the cross, and from the Maryland park commission that maintains it.
The principle of church-state separation has waxed and waned in recent decades.
Conservative groups are urging a broad ruling that would sweep aside past restrictions and allow small towns and school districts to display religious symbols.
And in a separate line of cases, they seek to give conservative Christians a religious liberty right to refuse to serve same-sex couples or to refuse to provide contraceptives for female employees.
©2019 Los Angeles Times. Distributed by Tribune Content Agency, LLC.