Supreme Court Seems Ready to Allow Cross Honoring War Dead

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.

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. “We’re a different country now,” he said.

Justice Ruth Bader Ginsburg appeared skeptical. “It is the pre-eminent symbol of Christianity,” she said of the cross.

Other 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.”

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.

It 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.

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