This week the United States Supreme Court heard oral arguments in The American Legion v. American Humanist Association. The case deals with a 93-year-old World War I memorial shaped like a cross that was erected to honor fallen soldiers. The memorial stood for 80-plus years without challenge, but now it offends the American Humanist Association (AHA), so they sued the state of Maryland and have gotten all the way to the Supreme Court to have it removed.
There are reasons for optimism. The arguments in favor of allowing the cross to stand were powerfully presented by Neal K. Katyal, representing the Maryland-National Capital Park and Planning Commission; Michael Carvin, representing the American Legion which erected the monument in the first place; and Jeffrey Wall, Acting-Solicitor General of the U.S.
Mr. Katyal, who previously worked at the solicitor general’s office under Justice Kagan’s leadership in the Obama years, focused on the uniqueness of the cross. He argued (1) it was built 93 years ago, (2) it has at its center the American Legion’s symbol and at its base the memorial words, “Valor, Endurance, Courage, Devotion,” (3) there are no other religious symbols or words associated with it, and (4) it is situated in the city’s Veterans Memorial Park, alongside other war memorials. He also highlighted that the Court has never adopted a view that the mere fact that some people disagree with something would create an Establishment Clause violation. When Justice Sotomayor pointed to some briefs of deeply religious people who regarded “secularizing the cross” as blasphemy, he replied, “I don’t think we let those objectors dictate that.”
Mr. Carvin was more expansive in his defense of religious liberty. He argued, as did our brief, against the use of the unworkable Lemon Test, which has been largely abandoned by the Court. He argued instead that the Court should adopt the coercion test it used in Town of Greece v. Galloway, “which prohibits tangible interference with religious liberty, as well as proselytizing.” Under such a test, “all symbolic, including sectarian, symbols would be presumptively valid except in the rare circumstances where they’ve been misused to proselytize.” When questioned, it was also important that he reminded the Court that, “all symbols are sectarian, and if you ban sectarian symbols, then you are necessarily banning all religious symbols, which evinces hostility and is in stark tension with the Free Exercise and Free Speech Clause.”
Acting-Solicitor General Wall also argued for adhering to Town of Greece. He explained that under that test there is a much higher standard than, “are you offended or excluded? … Are you trying to force people into the pews, are you denigrating another faith?”
But what stood out most at oral arguments was the palpable hostility towards religion, and indeed Christianity in particular, from the American Humanist Association’s (AHA) counsel Monica Miller. “We’re talking about the government being the speaker and essentially giving you the message, as the non-Christian in your community, that you are a lesser citizen,” she explained. She argued the monument would, “contribute to the idea that non-Christians are inferior.” One is left puzzled by such characterizations. How can anyone take a WWI memorial display in this manner? To a reasonable observer, this is a symbol that honors the sacrifice of these men giving their lives for their fellow men. But to the AHA it says only that “Christians have valor, Christians have courage, Christians have devotion, Christians have endurance …”
The size is also a problem for them. Miss Miller seemed to argue for a sort of “loudness test,” where a display that is “not as loud” would be okay. But as Justice Gorsuch quickly pointed out, the Court would have to get into “having to dictate taste with respect to displays.” He said, “We have a Ten Commandments display just above you, which may be too loud for many.”
Miss Miller acknowledged that the Ten Commandments, “it’s basically shorthand for law itself.” But she draws the line at the cross, somehow. It apparently cannot have a dual meaning of sacrifice, aside from the desire of Christians to proselytize.
The hostility, again, seemed aimed at Christianity in particular. Chief Justice Roberts asked at one point about Native American totems with their “spiritual and religious significance.” Would they need to be torn down? The answer was, “no.” No problem there. She tried to argue this based on the fact that the Court did not find a violation in a similar case because the community was predominantly Christian, but the Chief went on to ask her in the context of a predominantly Native American community. She was unwilling to say that it would be a violation.
Clearly, there is some animosity towards the nation’s Christian heritage that undergirds the AHA’s argument.
At one point, Chief Justice Roberts pointed out that people process these displays in different ways. And the fact that some Jewish people object doesn’t mean all object. He reminded her that “one of the major fundraisers of [the cross] was a Jewish individual. So, he was obviously observing it or anticipating it in a different way.” Miss Miller’s hostility, again, was stark. She said, “Well, Your Honor, I think that we cannot take one person’s example, again, someone who is probably one of maybe the only Jewish people in that county at a time when there was an active Klan burning crosses, burning Jewish buildings or Jewish, you know, businesses at the time when atheists couldn’t run for office, Jews had to swear that they believed in an afterlife in order to qualify, I mean …” At this bizarre comment, there was a bit of a commotion. Justice Kagan was heard saying, “Why does it even matter?”
But Miss Miller was undeterred. Justice Alito reminded her that, “There were 12 African-American soldiers among the 49,” who are honored at the memorial. Yet she dismissed that, speculating that those who placed the names didn’t even know who was honored there. At one point she claimed, “there [are] bushes obscuring the plaque.”
Some might miss it, but the implications of the AHA’s arguments are horrendous. To attribute some malicious, bigoted, Christian discrimination to this memorial without any proof of such hideous intent is unwarranted and reprehensible.
We hope the Court renders a decision that upholds this memorial and others similar to it and sends a clear message for the protection of religious liberty in our nation. The lower courts are in desperate need of guidance on this area of the law. We need a decision that will be helpful in future cases, not just in the protection of this cross.
Miss Miller was blunt in asking the Court to limit its decision and leave every other display to be attacked and litigated by themselves. If the Court heeds her call, it will leave states to continue to be harassed for honorable displays that should be celebrated and respected, instead of smeared and litigated. The Court should not play along. It should stand for religious liberty and our country’s rich religious liberty heritage.