In Honor of the United States Armed Services

[BullNBear52]

Good one.

More on the cross from the court's argument. This guy Neal K. Katyal is very sharp. RBG's vote doesn't surprise me and I liked Gorsuch's argument as well. My concern is someday some idiot will come along and want to rub out the symbols on veterans tombstones.

https://en.wikipedia.org/wiki/United_States_Department_of_Veterans_Affairs_emblems_for_headstones_and_markers


Supreme Court Seems Ready to Allow Cross Honoring War Dead

By Adam Liptak
Feb. 27, 2019

WASHINGTON — The Supreme Court seemed ready on Wednesday to allow a 40-foot cross honoring soldiers who died in World War I to remain in place on public land in Maryland.

But the unusually vigorous and at times heated argument over the issue revealed deep divisions among the justices on the more general question of what role religion may play in public life.

A majority of the justices appeared inclined to rule that the particular cross at issue in the case, which is part of a memorial to 49 fallen soldiers from Prince George’s County, did not run afoul of the First Amendment’s ban on government establishment of religion by sending a message of favoritism to Christianity.

Justice Elena Kagan noted that the memorial was 93 years old and was erected at a time when crosses were a common way to honor the fallen in the Great War. She added that other war memorials stood nearby and that the challenged memorial did not feature religious language.

“So why in a case like that can we not say essentially the religious content has been stripped of this monument?” she asked.

Justice Stephen G. Breyer also stressed the memorial’s age. “History counts,” he said. But he suggested that the erection of a similar memorial today would not be acceptable.

“And so, yes, O.K., but no more,” he said. “But no more. We’re a different country. We are a different country now, and there are 50 more different religions.”

Justice Ruth Bader Ginsburg appeared skeptical that the cross could survive constitutional scrutiny. “It is the pre-eminent symbol of Christianity,” she said. “People wear crosses to show their devotion to the Christian faith.”

The eventual decision is likely to feature competing rationales for upholding the cross, which sits on a highway median at a busy intersection in Bladensburg, in the suburbs of Washington.


Some justices said the court should use its decision in what might appear to be a relatively easy case to clarify its confusing jurisprudence on the separation of church and state, which Justice Neil M. Gorsuch called “a dog’s breakfast.”

Justice Gorsuch suggested that courts should not be called upon to resolve disputes over religious symbols.

“We accept that people have to sometimes live in a world in which other people’s speech offends them,” he said. “We have to tolerate one another.”

He pointed to a frieze in the courtroom. “We have a Ten Commandments display just above you, which may be too loud for many,” he said to Monica L. Miller, a lawyer for the American Humanist Society, which is challenging the Bladensburg memorial.

Justice Samuel A. Alito Jr. said the court’s intervention could lead to divisiveness. “This sort of thing is being handled today in a pluralistic society in which ordinary people get along pretty well and are not at each other’s throats about religious divisions,” he said.

Much of the argument in the case, American Legion v. American Humanist Association, No. 17-1717, was an effort to distinguish permissible uses of religious symbols from unconstitutional ones.

Justice Kagan asked whether a cross on government land would be constitutional if erected today to memorialize World War I, a more recent war, a school shooting or Christian values. The four lawyers who argued the case gave a variety of answers.

Jeffrey B. Wall, a lawyer for the Trump administration who argued in favor of retaining the memorial, said war memorials were permissible. So were, he said, “the cross that commemorates the school shooting or the Star of David that commemorates the Holocaust.”

A cross unconnected to a memorial, he said, was a different matter. “The last strikes me as potentially quite problematic,” he said.

Justice Kagan pressed a lawyer for the American Legion, which helped pay for the memorial. “Suppose a city erected a cross not for purposes of memorializing the war dead but just to emphasize the values of Christianity,” she said.

After quite a bit of back and forth, the lawyer, Michael A. Carvin, said that kind of cross could present a constitutional problem. “If that’s the announced purpose and effect — of aligning ourselves with Christianity — then I would think it would sound much like proselytizing,” he said.

Later in the argument, Justice Kagan used similar language to suggest that the court could adopt a straightforward legal test: “Does erecting a symbol like this align the government with a particular religion and not align it with every other religion?”

Mr. Wall said the nation’s history was a point in favor of retaining the cross.

“The memorial cross is permissible because it falls within our nation’s long tradition of accommodating religious speech or symbols in civic life,” he said.

Justice Sonia Sotomayor questioned that assertion. “I don’t know of a founding father, town or state that put up a 40-foot cross on government property,” she said. “So we don’t have a long tradition of that.”

Justice Ginsburg said that, in any event, things are different these days in the United States. “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,” she said.

Justice Sotomayor asked whether it was significant that all 49 men named on the memorial appeared to be Christians. Lawyers on both sides said the case should not turn on that point, if indeed it was true.

Neal K. Katyal, a lawyer for the state commission that owns and maintains the memorial, said four factors made the case an easy one: the age of the memorial, the presence on it of an American legion symbol and words like valor and courage, the absence of religious language and the nearby memorials.

The memorial was completed in 1925, using contributions from local families and the American Legion. The state took over the monument and the land under it in 1961. Since then, the state has spent more than $117,000 to maintain and repair the memorial.

The American Humanist Association and several area residents sued to remove the cross in 2014, saying they were offended by what they said was its endorsement of Christianity.

A divided three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled that the cross sent an unconstitutional message of government approval of a particular religion, breaching the wall between church and state. The full Fourth Circuit declined to rehear the case by an 8-to-6 vote.

https://www.nytimes.com/2019/02/27/us/politics/bladensburg-cross-supreme-court.html