Legal Docket: A constitutional cross

NICK EICHER, HOST: Good Monday morning! The first Monday of the month when spring starts. It’s the 4th of March 2019, and this is The World and Everything in It from listener-supported WORLD Radio.

Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Today, I’ll cover the biggest religious establishment case this term at the Supreme Court: the Bladensburg World War I Memorial arguments heard last week.

EICHER: But before we get to that, four rulings last week from the Supreme Court.

First, a death row inmate wins a reprieve from execution.

Vernon Madison doesn’t remember that he killed a police officer in 1985. A series of strokes wiped the memory. His lawyers argue that executing him now violates the Eighth Amendment’s ban on cruel and unusual punishment.

Justice Elena Kagan wrote the majority opinion here. She said that imposing the death penalty on someone with a mental disorder is not always unconstitutional. But that in Madison’s case, legal errors in the courts below have to be corrected.

The only question now is whether Madison can understand why the sentence was imposed on him. So, case remanded to the Alabama state court for further proceedings.

REICHARD: It’s notable that Chief Justice John Roberts joined the liberal wing of the court to make the majority five. In dissent, conservative justices Samuel Alito, Clarence Thomas, and Neil Gorsuch said opponents of the death penalty are gaming the system, and now the majority rewards them.

EICHER: OK, the second ruling: A man who claimed a dietary supplement failed to perform as advertised has been let down once again. The Supreme Court decided unanimously that certain time limitations can’t be extended as they pertain to certifying a class action suit. His lawyers may be able to find other legal grounds to pursue a claim, and so the court also remands this case to a lower court.

REICHARD: A third ruling is a win for a man whose lawyer didn’t carry out his instructions. The man wanted his lawyer to appeal his criminal convictions, but he didn’t and he had his reasons.

But six justices agreed the client “owns” the decision whether to appeal, not the lawyer. So now that case returns to lower court.

EICHER: And finally, a 7-1 decision that opens up lawsuits against some international organizations that are based in the United States.

The International Finance Corporation loans money to poor and developing nations. The law that created the IFC after World War II shielded it from litigation.

IFC lent millions of dollars to build a power plant in India, with provisions not to harm the environment. Some local people alleged environmental harm did occur, and they sued. The court decided the IFC is not absolutely immune from suit, and under certain circumstances, plaintiffs may sue to recover damages.

REICHARD: And one other interesting tidbit: in a case not argued, called a per curiam opinion, the justices decided that a judge who died before a decision is issued cannot be counted in the final vote tally. This, even though the judge wrote the opinion and then died a few days later. There’s some wit in this opinion. It says: “Federal judges are appointed for life, not for eternity.”

EICHER: OK, now onto the biggest religious Establishment Clause case this term. It’s titled: The American Legion versus American Humanist Association.

Briefly, the facts: A World War I memorial in the shape of a cross stands 40 feet tall in Bladensburg, Maryland.

The American Legion helped complete its construction back in 1925, and got the help of the mothers of 49 men who died in the Great War.

The structure sits where three major roads converge and public funds help maintain it.

Since 1961, the Maryland park and planning commission has handled maintenance.

And for nearly half a century, the memorial stood without incident.

REICHARD: Until, that is, several non-Christians found the cross offensive.

Along with backing of American Humanist Association, they sued, alleging the monument violates the First Amendment prohibition of an established government religion.

The argument was 70 minutes. I’ll try my best to give you the flavor of both sides with extended audio clips I’ve edited for brevity, while keeping intact the speakers’ intent.

I’ll start with the aggrieved parties. Lawyer Monica Miller argued that the way the cross is being used at Bladensburg offends just about everyone, including, she said, Christians. You’ll hear her first, and then you’ll hear Justices Samuel Alito, Neil Gorsuch, and Chief Justice Roberts follow up with her. You will hear Miller refer to “the commission.” What she means by that, essentially, is the state. Have a listen.

MILLER: But the commission is here arguing today….that it is, you know, telling Jews, telling Muslims, telling humanists that the cross honors them, when they emphatically say it does not. And it’s telling Christians that their most preeminent and—and sacred symbol of Jesus Christ actually, in fact, also symbolizes atheism.

ALITO: Can I ask a question….So let’s say there is a shooting at a church, and Christians are targeted and killed. There is a shooting at a synagogue, and Jews are targeted and killed. There is a shooting at a mosque, and Muslims are targeted and killed. In each case the town says we are outraged by this. We want to put up a monument to express sympathy and solidarity…. They ask those people what kind of monument would you like, and they all say it’s very important for us to put up something of religious significance….And those towns do that. Would that be a violation of the Establishment Clause?

MILLER: If, say, like an obelisk with maybe a Star of David, that’s not as loud, you know, not—we’re actually trying to, you know—I think the commemorative purpose would need to predominate over the sectarian.

GORSUCH: Well, that answer raises for me a question about standing. Is it too loud? Is the Star of David too loud? Is it too offensive? There aren’t many places in the law where we allow someone to make a federal case out of their offensiveness about a symbol being too loud for them…. And we get into, as a result, having to dictate taste with respect to displays. We have a Ten Commandments display just above you, which may be too loud for many. Why shouldn’t we apply our normal standing rules and require more than mere offense to make a federal case out of these?

MILLER: Yes, Your Honor. Well, I don’t think that it’s mere offense. It’s—it’s about being a citizen in your own community. It’s not private speech we’re talking about. We’re talking about the government being the speaker…

ROBERTS: Well, just to follow up on Justice Gorsuch’s question, what if you had one letter from one person who purported to be offended by it? Would that be enough to support your argument?

MILLER: Well… well, no, Your Honor….

Most of Miller’s time in argument was focused on whether governments will have to remove all religious symbols if her clients win. She had a really tough time articulating an easy test to figure out which ones get to stay and which ones have to go.

Lawyer for the American Legion, Michael Carvin, argued for simplicity: Expand the court’s prior ruling in a case called Town of Greece. That allowed religious prayers to open up a town hall meeting. So long as it doesn’t cross over into “proselytizing,” religious symbols are fine. Just as were those opening prayers. The first voice is Justice Gorsuch.

GORSUCH: You endorse the test. Do you proselytize for it? [laughter]

CARVIN: We are actually adopting the word proselytize from the Town of Greece test. And again my final point on all of this is in the symbolic context, this distinction is not of real world consequence because 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.

The problem behind all this is a hot mess of Supreme Court rulings from 2005. The court said two framed copies of the Ten Commandments on display in a couple of Kentucky courthouses violated the Establishment Clause.

But another six-foot-tall granite Ten Commandments display on the grounds of the capitol of Texas did not. That one was set among dozens of other monuments.

The difference in those two rulings? The Texas monument had stood for decades, unchallenged. The Kentucky framed copies stemmed from trying to promote religion, according to Justice Breyer.

Back to this case. Lawyer for Maryland, Neal Katyal, also argued in favor of letting the Bladensburg Cross stand. He cited tradition and the passage of time. That, along with a “secular meaning” that attached to the cross during World War I.

You’ll hear Justices Kavanaugh and then Sotomayor question him.

KATYAL: There is a secular meaning with respect to these crosses.

KAVANAUGH: What do you say to the Jewish war veterans brief that says, and for those Jewish soldiers, the government’s decision to honor only the salvation that Christians believe is hurtful, wrong, and not in keeping with the promise of the Constitution? What do you say to them?

KATYAL: I’d say three things… First is that factually, one of the main proponents for fundraisers of this particular cross was J. Moses Eldovich, who himself was a Jewish veteran… (later)…I don’t think this court has ever adopted the vie that, if some people disagree with something, that that itself creates an Establishment Clause violation.

SOTOMAYOR: There is a brief here that says to deeply religious Christians, secularizing the cross is blasphemy.

The Trump administration wants to keep the cross as it is. Deputy Solicitor General Jeffrey Wall put it this way, with a rejoinder from Justice Sotomayor.

WALL: The memorial cross is permissible because it falls within our nation’s long tradition of accommodating religious speech or symbols in civic life.

SOTOMAYOR: In all places? Meaning I don’t know of a founding father, a town or state, that put up a 40-foot cross on government property. So we don’t have a long tradition of that. It’s sectarian.

I’ll end with what I think are two truths at play here.

One with a capital T.

First, Justice Ruth Bader Ginsburg’s take on our changing demographics in the United States.

Deputy Solicitor General Wall answers her, and then Justice Kagan sums up Christian doctrine—succinctly!

GINSBURG: 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. Does that change make any difference?

WALL: I don’t think it affects whether the cross took on in the wake of the Great War a secular meaning and whether that’s the meaning for which the mothers erected it and the commission now maintains it.  

KAGAN: I mean, it is the foremost symbol of Christianity, isn’t it? It invokes the central theological claim of Christianity, that Jesus Christ, the Son of God, died on the cross for humanity’s sins and that he rose from the dead. This is why Christians use crosses as a way to memorialize the dead. Is it because it connects to that central theological belief, isn’t that correct?

WALL: So I’m not going to dispute that, obviously, it’s the preeminent symbol of Christianity.

To sum up the big questions here:

One, is displaying and maintaining this cross unconstitutional?

And two, what test should we use to decide that?

My best guess is the justices will rule narrowly, to say old memorials that reflect Christian symbols may stay as part of American history. But new memorials must not be a symbol of any religion if it is on public land and maintained by public funds, unless exceptions for individual choice exist such as at Arlington.

Not very satisfying, I know.

Nobody ever said keeping a republic was going to be easy.

And that’s this week’s Legal Docket.

(AP Photo/Orlin Wagner) A cross, erected in memory of Fray Juan de Padilla, stands along US56 near Lyons, Kan., Tuesday, Feb. 12, 2019. 

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