The Supreme Court will hear arguments in a highly publicized case from Maryland about the possible demolition of a memorial cross monument on public property.
Without comment in orders on Friday, at least four Justices granted the hearing request for two cases that will be consolidated for arguments: Maryland-National Capital Park and Planning Commission v. American Humanist Association and The American Legion v. American Humanist Association.
The dispute is about the Bladensburg Peace Cross. The American Legion and local families paid for the 40-foot-high monument in 1925 as a tribute to 49 veterans. The Maryland cases had been at the Court since late June.
The Maryland-National Capital Park petition presented to one question the Supreme Court: “Whether the Establishment Clause requires the removal or destruction of a 93-year-old memorial to American servicemen who died in World War I solely because the memorial bears the shape of a cross.”
The American Legion petition presented two additional questions: Whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
The memorial was erected on private property, but a planning commission later acquired the property due to traffic concerns. A split Fourth Circuit federal appeals court ordered the cross’s removal from the current property.
The petitioners have argued the Fourth Circuit Court misapplied a constitutional test in its decision. The majority applied the Lemon test to determine if the monument was permitted on public property. In 1971, the Supreme Court ruled in Lemon v. Kurtzman that a government action can violate the First Amendment’s Establishment Clause unless it has a significant secular purpose, doesn’t have the primary effect of advancing or inhibiting religion, and doesn’t foster an excessive entanglement between government and religion. The majority in the Maryland cross case said the monument failed the second and third parts of the Lemon test because it closely resembled a cross.
The petitioners point to other Supreme Court decisions they believe contradict the Lemon test in this situation, including Van Orden v. Perry from 2005. In Van Orden, Justice Stephen Breyer said the presence of a Ten Commandments monument was permissible on public property because several factors showed that it served “a primarily nonreligious purpose.”
The American Humanist Association believes there isn’t a conflict between the Lemon test used by the Fourth Circuit and the Van Orden decision, and the cross is a religious symbol that dominates its location due to its size.
Scott Bomboy is the editor in chief of the National Constitution Center.