WASHINGTON – It’s hard to tell where the US Supreme Court will come down in an important religious liberty case about whether crosses can stand on public lands.
The high court hears the case Wednesday, February 27, about whether it’s constitutional for the Peace Cross in Bladensburg, Maryland to remain as a memorial to 49 area soldiers killed in World War I.
It’s on public land, which opponents argue violates the so-called separation of church and state.
In such cases, the Supreme Court has sometimes ruled one way, sometimes the direct opposite, according to Haley Proctor, a legal expert with the law firm Cooper & Kirk, which filed a brief in the case on behalf of 84 U.S. senators and representatives.
That led Proctor to say on a media call about the case, “As Justice Thomas has said, ‘under the Court’s decisions, the constitutionality of displays of religious imagery on government property is anyone’s guess.'”
Proctor pointed out, “On the same day in 2005, the Supreme Court decided two cases involving challenges to displays of the Ten Commandments. It found one display constitutional and another set unconstitutional.”
Another example of contradictory rulings involves Nativity scenes.
“In the same decision in 1989, the Court held that the County of Allegheny, Pennsylvania could display a menorah and Christmas tree on county property, but not a Nativity scene,” Proctor recalled. “And that decision came just five years after the Court held that the city of Pawtucket, Rhode Island could erect its own Nativity scene.”
The Lemon Test Often Sours on Gov’t Entangling with Religion
Proctor explained what usually guides courts in deciding these cases that have something to do with church and state.
First, the Lemon Test, which she labelled controversial since it was first applied in 1971 to whether government actions violate the First Amendment’s Establishment Clause. That clause forbids government endorsing any particular sect or denomination.
To not be a violation under Lemon, Proctor explained, “The government action must have a significant secular purpose, cannot have a primary effect of advancing or inhibiting religion, and must not foster an extensive entanglement between government and religion.”
Courts sometimes add to the Lemon Test the Endorsement Test.
Proctor said that test, “Asks the court to stand in the shoes of a reasonable observer who supposedly knows all the facts about the context and the history of the government action at issue, and from the perspective of that reasonable observer, to decide whether the government action appears to have a purpose or effect of endorsing religion.”
The American Humanist Association argues in its case against the Peace Cross at Bladensburg that it is unconstitutional because it places the imprimatur of the state on an overtly sectarian symbol, the cross.
And a lower court agreed, ruling the Peace Cross appears to endorse and entangle the government with religion.
New Standard: Coercion
The American Legion is fighting for the Peace Cross.
In its appeal to the Supreme Court, Proctor pointed out, “The American Legion takes square aim at Lemon and the Endorsement Test, arguing that coercion rather than endorsement is the touchstone of the Establishment Clause as it was originally understood.”
She continued, “The American Legion argues that the Peace Cross is constitutional because it does not coerce the acceptance of any creed or the practice of any form of worship.”
The government of the United States endorsed this “coercion standard,” saying in a brief filed in the case, “The Peace Cross is constitutional under the original understanding of the Establishment Clause because it does not coerce adherence to a particular creed.”
Long-Standing American Tradition
Speaking of her law firm’s argument in the case, Proctor said, “Our brief describes countless federal monuments, buildings and traditions that incorporate religious imagery and words, from freestanding Latin crosses in Arlington National Cemetery to the ‘In God We Trust’ inscription that appears in or at the entrance to both chambers of Congress.”
It also points out the Peace Cross is consistent with deep-seated traditions of using crosses to commemorate sacrifice and service.
And it argues, as Proctor put it, “This Court should look to this country’s history and traditions rather than mechanically applying the Lemon factors or the Endorsement Test.”
CBN News asked Proctor what she considers most harmful about the Court’s scattershot rulings over the decades when it comes to religious displays.
“It makes the law unpredictable. And it leads to a lot of litigation over practices,” she replied. “And then sometimes it leads local, states and even the federal government to discontinue practices that might be constitutional simply to avoid the threat of litigation.”