In January 1919, a local group got the consent of the Commissioners of the Town of Bladensburg to erect a cross on government property at the center of Town. The group's intent was to erect a "mammoth cross, a likeness of the Cross of Calvary, as described in the Bible" to commemorate Town citizens who died in World War I. Despite its highfalutin goals, however, the group faced fundraising difficulties and the edifice sat uncompleted for several years.
The campaign was taken over in 1922 by the American Legion, which succeeded in raising funds for the Cross's completion. The Cross was dedicated on July 12, 1925, at a public ceremony attended by government officials and Christian clergy. The keynote speaker, a Maryland Representative, declared in his remarks that "by the token of this cross, symbolic of Calvary, let us keep fresh the memory of our boys who died for a righteous cause." A Roman Catholic priest and a Baptist minister delivered prayers. (There is some dispute about whether the land was deeded to the American Legion in 1922 and then later re-deeded back to the government, or never left the government's hands. It is undisputed, however that the government has owned the property since at least 1961.)
Standing over 40 feet tall at a busy intersection traversed by thousands of motorists each day, the Cross is the Town's most prominent symbol. On one of its facades is a plaque listing the names of 49 men from Prince George's County who died in World War I. The Cross is the only monument on the traffic island but, over the years, the Town has erected (or allowed private groups to erect) other smaller secular memorials in a separate area across the highway and further afield.
Since the Cross's erection, many events have been held at the site. Most of those events have been in commemoration of Memorial Day or Veterans Day and many of them have been sponsored by the Town. The events have generally included prayers delivered by local Christian clergy. The Cross is in a state of disrepair and the Town has devoted substantial funds--$100,000 and counting--to maintain and light the monument. After a 1985 renovation, the Commission rededicated the Cross to veterans of all wars in a ceremony that likewise included Christian prayers.
The Cross was challenged in 2014 by residents who pass by it on a regular basis. They argued that the Cross runs afoul of the Establishment Clause of the First Amendment to the federal Constitution. They sued the Maryland-National Capital Park and Planning Commission, which is the state agency that owns the land. The American Legion intervened in the lawsuit.
The district court granted summary judgment to the Commission, relying on the traditional Establishment Clause framework provided by the "Lemon" test, which asks whether the display was erected with a predominantly secular purpose, whether it has a predominantly secular effect, and whether it engenders excessive entanglement between government and religion. The Fourth Circuit reversed, again applying the Lemon test but reaching a different conclusion. That teed the case up for Supreme Court review.
With over 40 amicus briefs filed on one side alone, the arguments before the High Court are all over the place. The Commission argues that the Court need not overrule Lemon to allow the Cross to remain in place. In its view, "every Member of the Court ... has agreed that, at minimum, an Establishment Clause challenge to a passive display fails out of the gate if both the government's purpose in maintaining the display and the objective meaning of the display are predominantly secular" or the display "maps closely on to a history of displays that have been erected and maintained without meaningful controversy for an extended period." Comm'n Br. at 26, 33. The Commission argues that the Cross passes muster under either framework because the Latin cross is a universal symbol for commemorating World War I soldiers (Comm'n Br. at 21, 34-35) and there's a longstanding history in this country of using the cross as a symbol of valor and sacrifice (Comm'n Br. at 21, 44-49).
The American Legion's arguments are more sweeping. Supported by many amici, the organization asks the Court to replace the Lemon test with a "coercion" test that asks whether a practice "c
oerce[s] belief in, observance of, or financial support for religion." Am. Legion Br. at 53. The Legion asserts that a display will not be found to violate this test unless it "compels anyone to make a religious profession, has been exploited to excessively proselytize, mandates any form of religious exercise, or involves any other historically grounded form of coercion.
" Id. The Legion concedes that, under its test, "passive displays like the Peace Cross will almost never be coercive precisely because they are 'passive.'" Id.
The challengers, in turn, argue that, whether or not the Lemon test remains in place, the Cross should be struck down under the longstanding and noncontroversial principle that the government may not align itself with a single religion. AHA Br. at 26-66. They argue that Jews, Muslims, and other religious minorities have made it plain that a Latin cross is not a universal symbol and that using it to memorialize the war dead demeans the sacrifices they have made for the country. The challengers further argue that replacing the Lemon test with a "coercion" or "history" test would upend decades of Establishment Clause jurisprudence, raise more questions than it would answer, and invite troubling and even horrific results. AHA Br. at 66-93.
So why is the case a blockbuster? Establishment Clause cases often sit at the juncture of our country's culture wars. This case is especially noteworthy because the U.S. Supreme Court hasn't decided a religious-display case on the merits since 2005. And in the ensuing thirteen years, six of the Court's nine Justices have been replaced.
Whether the Court's decision will turn out to be a blockbuster depends in large part on how broadly or narrowly the Court rules.
There are many ways for the challengers to lose: The Court could go big, upending the Lemon test for Establishment Clause cases generally; it could land somewhere in the middle, jettisoning Lemon for purposes of religious-display cases only; or it could go small, upholding the monument under Lemon, as the trial court did. There are also many ways for the challengers to win: the Court could strike down the monument under Lemon, as the Fourth Circuit did; or it could adopt a "coercion" or "history" test, but conclude that the Cross still doesn't pass muster.
Whatever it does is unlikely to be done with unanimity.
We'll get an inkling of where the Court is headed at the oral argument on February 27, 2019. And we'll find out where the Court lands by the end of June. But don't hold your breath: I won't be surprised if this one is released on the last day of the Term.
