Podcast: The Bladensburg Peace Cross Case

Jeffrey Rosen: [00:00:02] I'm Jeffrey Rosen president and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. On this episode we'll dive into one of the most interesting Supreme Court cases of the year. American Legion versus American Humanist Association. The case centers around a constitutional challenge to a 40 foot cross that's part of a veterans memorial in Maryland. It was built by the American Legion after World War 1 and it's being challenged by the American Humanist Association and Maryland citizens who say that it unconstitutionally promotes Christianity. It's being defended by a cross partisan coalition of citizens and lawyers who say that it does not and it's just a wonderful opportunity to explore the current state of the Establishment Clause and the nature of religious freedom in America. We're so honored to be joined by advocates on both sides of this fascinating case and it's just great to have them both. Ken Klukowski is representing the American Legion on behalf of First Liberty where he's senior counsel and director of Strategic Affairs. He's also senior legal editor for Breitbart news network and previously served as team leader for the constitutional rights team on the presidential transition team of President Trump. Ken thank you so much for joining.

Ken Klukowski: [00:01:34] Jeff thanks so much for having us.

Rosen: [00:01:36] And Monica Miller is counsel of record in this case for the American Humanist Association where she is senior counsel. Since joining the American Humanist council in 2012, Monica Miller has litigated many establishment clause cases and is a frequent media commentator. Monica it's an honor to have you as well.

Monica Miller: [00:01:54] It's a pleasure to be here. Thank you very much.

Rosen: [00:01:56] Ken let's jump right in. You can briefly state the facts as Professor Kingsfield used to say but the most interesting thing about this case is it was built on private land but the land at some point was bought by the state of Maryland so it's now on public land and then tell us what the lower court says some of them applied this so-called Lemon Test which we're going to talk a lot about and others apply a test from a case called Van Orden. So tell us about how lower courts differed about whether or not this cross violates the Establishment Clause.

Klukowski: [00:02:27] Happy to. In the 1920s the American Legion worked with the families of 49 Maryland citizens from a county in Maryland who had made the ultimate sacrifice in World War 1, had actually lost their lives defending the country overseas. And so a memorial was erected in the shape and configuration of a battlefield memorial that you can find even now in World War 1 cemeteries on European soil. That being a cross-shaped memorial with words emblazoned around the base like courage and valor and a large bronze plaque that explains what this memorial is all about who it is commemorating and that was set up again by a private organization on private land in the 1920s. Decades later the state of Maryland was expanding a nearby highway exercising the power of eminent domain and in doing so actually acquired title to the parcel of land where this memorial was located. Even so the memorial went on for roughly another half century without anyone having any objections to it until our friends on the other side of this case filed a lawsuit saying that the mere presence of this war memorial, this long standing war memorial, on land that had since become public land was in and of itself a violation of the Establishment Clause of the Constitution. That's the provision of the First Amendment that says that Congress shall make no law respecting an establishment of religion. First Liberty Institute came in representing the American Legion who intervened in the case and then we defended the war memorial in U.S. District Court for the District of Maryland. The case was assigned to a federal district judge who happened to be appointed by President Bill Clinton. And on summary judgment that judge held that, the judge noted that there are some questions regarding exactly what the standard is required by the Establishment Clause, what test a court should apply as it's trying to determine whether the clause has been violated. But the judge determined that under any of the tests that the Supreme Court had used through the years this war memorial clearly passed constitutional muster under any of those tests, so much so that the judge did not even require oral argument, just decided on the briefs on summary judgment. That was the decision in the district court. It then went up to the U.S. Court of Appeals for the 4th Circuit where the plaintiffs in the case prevailed by a 2 to 1 divided decision. Then the full en banc court all the judges of the 4th Circuit declined to rehear the case by an 8 to 6 split decision with several vigorous dissents. And now the US Supreme Court has granted certiorari to hear the case possibly in February of 2019 regarding whether this war memorial is permitted under the Constitution's Establishment Clause.

Rosen: [00:05:52] Thank you for that wonderful and clear summary both of the facts and the lower court holdings. Monica, please add anything to the facts you think relevant and then tell us more about the 4th Circuit ruling. Writing for the majority Judge Thacker applied the so-called Lemon Test, which we're going to hear a lot about, and held that the cross satisfied the first prong of a Lemon Test as it was put up for secular purposes maintaining safety in the intersection and honoring World War 1, soldiers but that it failed the second and third prongs of the Lemon test because it endorsed Christianity in a manner that excluded other faiths. So disaggregate and tell us more about that decision and whether you think it was right.

Miller: [00:06:36] Sure. So I'll start with the facts and we actually see we have a different iteration of the facts. And one of those facts is that the cross actually commenced construction began on property that was owned by the town and we know this because ultimately the cross, after it had been erected but hadn't been completed, the town actually transferred the care of that land and the completion of the cross to the American Legion. And that was around was in the mid- you know I think it was 1923, about then. So the cross had actually already been put up and then the Legion just happened to finish it. So it did start on public land. This is again this is a 40 foot Christian cross. It's concrete. It has some slight arching at the, where the bars meet. It doesn't look like the white small crosses in foreign battlefields. It's a dominating cross. It towers over one of the county's busiest intersections. It's unavoidable to passersby. At the time that the reason one of the reasons why it couldn't be completed is because it competed for funding with a secular and non-religious war memorial that had just been put up at the county courthouse for World War One veterans of Prince George's County, the very same county the cross was in. And so many citizens didn't want to support the cross because they had just supported this other non-religious war memorial. And that's, that goes into the fact that most World War I memorials did not use the cross. They usually consist of the secular doughboy at that sort of a bronze statue and that's the vastly common display that's used for World War One. The cross, you know, is a religious symbol, it honors Christian veterans but no other war dead are honored by the cross other than Christians. And so when you have these federal cases that a challenge crosses you see a landscape of courts consistently recognizing that the cross doesn't recognize other individuals and so when it sees this as a war memorial it sends a sharp message of exclusion to those who served our country, died for a country, but are not honored and practically forgotten when a cross is used to symbolize the war dead. And so there are about 30 federal cases that have struck down crosses either if they were used as a memorial or just you know used for some other purpose. And there are really only three outliers. So that kind of gives you the way that the courts have ruled. So the district court in this case that ruled that upheld the cross was actually kind of in it was in the minority of the courts that have addressed cross displays. So when we appealed up to the 4th Circuit Court of Appeals we did prevail there and the judge, Judge Thacker who wrote the opinion for the majority, said that you know using a cross to commemorate the war dead is exactly what I just said: it just doesn't commemorate all of the war dead. And so it actually is it's it just because it's a war memorial just doesn't make it secular it actually just it's using a religious symbol to accomplish that end. And so for that reason it was violate of the Establishment Clause.

Rosen: [00:09:52] Thank you so much for that. Ken so let's delve into the Lemon Test, much criticized by some, defended by others, Justice Scalia once described it like the ghoul rising up from the end of a horror movie which keeps coming back to be invoked by the court even though often justices don't like to cite it. But it was a case decided in 1971 and it had three prongs. It said that in order not to violate the Establishment Clause a statute must have a secular legislative purpose. Second, its primary or principal effect must be one that neither promotes nor inhibits religion. And third, that it must not foster excessive government entanglement with religion. And in this case as Monica suggested, Judge Thacker said that although the cross was erected for a secular purpose, it represented excessive entanglement of the church and state for two reasons: because the commission spent money to maintain the cross and the cross overwhelmed its surrounding and contained no symbols of other religions. And Judge Thacker also noted that religious services have been held over the years at the side of the cross. So tell us about whether you think the cross fails the Lemon test and whether do you think the court should apply the Lemon test or not and if and if not what other tests did it apply.

Klukowski: [00:11:07] Great questions. Let me weigh in on both parts of that. I guess the only supplemental fact that I would add before we get there is also within the jurisdiction of the Fourth Circuit. You have Arlington National Cemetery and there you will find a large twenty four-foot standalone cross, the Canadian cross of sacrifice, and another large standalone 13-foot cross, the Argon Cross. Those have been highlighted by the amicus briefs filed on behalf of numerous and a bipartisan group of members of Congress who filed a brief in the case and also a separate brief filed by the Veterans of Foreign Wars, also making the point that we do have these large stand-alone, these towering crosses as part of war memorials in other parts of the jurisdiction of the 4th Circuit, which certainly the only difference or perhaps the most prominent difference between this cross and those crosses is that this this crosses a little over 10 feet higher than the twenty four foot cross, the Canadian Cross of Sacrifice. And so it's difficult to say how the Constitution would say that that a 40 foot cross is unconstitutional but a 24 foot cross is constitutional. How those additional feet somehow make a constitutional difference. And I think that perhaps the reason that now the constitutionality of Arlington is jeopardized by the 4th Circuit's decision might account for one of the reasons that the High Court has decided to review this case. But getting into the actual facts I would start out by saying that we would contend that Lemon is actually not the right test to be applied here. There are three tests that the court could look at. We would say that the test that the court recently articulated and reinforced in Town of Greece versus Galloway is actually the correct rule for decision. But let me directly speak to what you ask regarding Lemon. We believe that the memorial is constitutional under any of the three tests that the court could look at: Town of Greece, or a separate case, Van Orden v. Perry, or the Lemon test, either under its original iteration or under its modern revision called the endorsement test. Regarding Lemon, you have this three prong test. We agree with the reasoning of the district court and the dissenting judges in the in the 4th Circuit proceeding, both at the panel stage and before the before the court. That the principal effect of this is not to advance religion. That the principal effect, speaking of the second prong of Lemon here, is to commemorate those who made the ultimate sacrifice during war. We would also say for the for the same reason that any degree of entanglement between the government and faith in that regard is not excessive and that that's why the third prong of Lemon is not offended either. To put that in the modern context where the Supreme Court in 1989 in the case county of Allegheny versus ACLU Greater Pittsburgh Chapter, revised Lemon starting with the second prong but really expanding out over the years to get to purpose and entanglement as well, say that the essentially that the Establishment Clause is violated under Lemon whenever a hypothetical reasonable observer, a person who is aware of community traditions aware of history aware of contextualizing facts, whether such a reasonable observer would come to the conclusion that the government is endorsing religion. Now while it's possible that that a hyper-sensitive observer might get such an impression, we believe a reasonable observer, someone who understands how common of a symbol this is to commemorate war dead including people of other faiths by the way, and that's included in the record we have. There are record citations to people of other faiths, including for example the Jewish faith, some of whom have been commemorated for example with tombstones with the Star of David but others who have voluntarily chosen and embraced being represented by a symbol that was the same as all of their other comrades in arms. We would say that a reasonable observer who is aware of how common it is for soldiers of various faiths or even no faith at all, to be represented by this symbol that that resembles battlefield markers. Including, for example, soldiers of the Jewish faith some of whom are commemorated with tombstones that feature the Star of David but others as the record shows in the amicus brief show in this case who chose, even though it's not as a symbol of their faith, to be commemorated by the same war memorial symbol that their comrades in arms were also being represented by. Choosing as a matter of solidarity, for everyone to be represented under the same symbol that a reasonable observer would understand that this is a way to commemorate and honor those who have sacrificed for this country. Not to try to impress a specific sectarian religious message.

Rosen: [00:17:03] Thank you so much for that. And thank you for giving us so much great constitutional law doctrine. Dear We the People listeners you must understand there's not a whole lot of doctrine in constitutional law. And when I teach in New York I'll just give you the whole thing for free when you're studying the 14th amendment Equal Protection clause, here's all the doctrine really that you need to know—if a law implicates a suspect classification like race or national origin it's subject to strict scrutiny which means that the law has to be necessary to achieve a compelling governmental interest. If it's an ordinary economic legislation it's subject to what's called rational basis review which means it has to be rationally related to a legitimate governmental interest. And if it's intermediate scrutiny like gender then it's has to be substantially related to an important governmental interests. I did it from memory and I gave you that just as a I hope will be a delightful bonus because Ken ran through these three First Amendment tests which are so doctrinal in which lawyers love cause you can actually apply the prongs. So Monica with apologies for that commercial interruption, I would love it if you now could run through the three tests that Ken mentioned. We have the Lemon test with the three prongs, we have this Van Orden test which asks about the perspective of a reasonable observer and also asked whether a practice has been subject to challenge over a period of time or not. And then he mentioned the Town of Greece case which involved a legislative prayer and the question there was, has the practice in question been compatible with longstanding historical practice. So thanks for your thoughts on each of those steps.

Miller: [00:18:52] So the Lemon test, really it enshrines sort of fundamental precepts of the Establishment Clause. So what the court is saying when it when it enshrines that test in the Lemon case, it was actually going off of the decades of jurisprudence prior to Lemon where the court had looked to, you know purpose and said you know the Establishment Clause clearly prohibits the government from acting with a religious motive like a can't no intend to convert citizens to Christianity. So when the government acts with an unconstitutional, with a religious purpose or motivation, that violates sort of prong one of Lemon. Prong two of course is that the government can't sponsor religion or make it appear to citizens that it's favoring one religion over others. And that's again an unquestionable precept of the Establishment Clause that goes back to the court's earliest Establishment Clause cases that one religion can't be favored over others. And lastly you get into entanglement which sometimes overlaps with that second prong about effect but it does have its own precepts that that goes to the heart of what the Establishment Clause prevents, which is interference with it from the government with religion and vice versa. And here we have an instance where the government has spent already over a hundred thousand dollars on this cross through various restoration projects and ongoing maintenance and it's now set aside another hundred thousand dollars because the cross is in critical condition. There's cracks. It's crumbling. One of the commission's employees said it might just come down on its own during deposition. And so we know that we're looking at a lot more entanglement with the government and this massive Christian display. So that's sort of where the three prongs of Lemon kind of come into play. The so-called historical test is not a test at all. The court in the Town of Grace case look to whether a legislative prayer practice that was being done by a local town fit within the tradition that the court previously upheld in Marsh vs. Chambers—that was a 1980s case. So it wasn't applying a test as much as it was saying can a can a town's prayer practice be consistent with something that we upheld for state and for the federal government and it held that it could. But there was no actual test that the court applied. It was a very unique analysis that hasn't been applicable outside of the legislative prayer context. And so here we're just saying I don't even know how you would apply that because it doesn't—the inquiry was very focused on who's delivering the prayers, what the audience is doing with respect to the you know the government giving the prayers, is who's the one giving the prayer. It's all very focused on prayer and can't really apply outside of that. And then lastly we get to the Van Orden case which again doesn't actually give us a test. You had a plurality decision so you had a splintered court and what ended up happening was Justice Breyer provided this concurring opinion which is considered the controlling opinion. But in it Justice Breyer says that Lemon is still very useful and we're going to continue to apply it in a religious display cases. Not only did he say that he did it the very same day Van Orden was decided the Supreme Court in a majority applied Lemon to strike down another Ten Commandments display which was in the McCreary case. And Justice Breyer was in that majority block. He just said that you know this was almost like a one off situation. Texas had a Ten Commandments that was in line with about 17 monuments and historical markers all which were the same size it had been added to the display. So unlike the cross here that was proposed and installed in isolation was until years later other structures were built around it. The Ten Commandments in that case was integrated and both the plurality the justices that said you know we were not sure if we like Lemon, and Justice Breyer agreed that the reason Ten Commandments are sort of different is because they have an undeniable historic meaning tied to our nation, our foundations of law and lawmaking. And so when the Ten Commandments are displayed in a legal historical context, which was the case there in Texas, it's less likely to be perceived as you know the government putting its hands on religion, unlike something that's you know, a quintessential and the preeminent symbol of Christianity, which is a cross. And to the point about Jewish soldiers using the cross it's- I'm not familiar with, that maybe it's an exception. But the Jewish Welfare Board was a staunch opposer of using crosses in overseas graves and actually testified before Congress saying it was very deeply offensive that some Jewish soldiers graves were being used with crosses and not Stars of David. And the Jewish War Veterans organization has been the plaintiff in many of these cross lawsuits seeking to remove federal crosses as war memorials on the basis that they don't represent them. So the general consensus amongst Jews and non-Christian groups is that the cross is not representative and does not honor or memorialize them in any way.

Rosen: [00:24:00] Thank you so much for that. Ken, help us understand how the Supreme Court may approach these conflicting tests. Justices Thomas and Gorsuch have noted the disagreement among the circuits on the question of whether a particular religious symbol would be perceived by a reasonable observer. Justice Thomas says it's entirely unpredictable whether given the court's hypothetical observer would be any beholder or the average beholder. And the circuits have disagreed as well. The 10th and fourth circuits have understood the reasonable observers and ordinary passerby, but the third, sixth, and 11th Circuit have rejected this definition and said that the reasonable observer as a person is presumed to have an understanding of the general history of the display. So given Justice Thomas and Gorsuch's preference for examining the text and original understanding of the clause, rather than precedents they think are inconsistent with that, how are they likely to approach this case and how do you think they should approach this case.

Klukowski: [00:25:08] Well in fact Jeff rather than just focus on those two justices all expanded out to a majority of the court. If you look at Town of Greece which was written by Justice Kennedy and that was a 5-4 decision of the court. So five justices on here. The Obama administration in Town of Greece had asked the Supreme Court to only hold that the prayers at issue there were consistent with what the Supreme Court had previously upheld in 1983 case involving legislative prayer, a case called Marsh v. Chambers. And the Obama administration had said these prayer practices here are permissible under Marsh. The court should just hold that that is the case and not get into broader issues regarding the Establishment Clause. A majority of the court brushed aside that argument and they in fact went big and they noted at the outset, the first thing that they noted is that yes, the prayers here are consistent with those upheld in Marsh v. Chambers. But rather than just stop with a very short opinion there, Justice Kennedy went on to say Marsh is sometimes described as carving out an exception to the court's Establishment Clause jurisprudence because it sustained legislative prayer without subjecting the practice to any of the formal tests that have traditionally structured this inquiry. He then goes on later to say, and this is a majority of the court speaking quote, “Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation. The case teaches instead that the Establishment Clause must be interpreted by reference to historical practices and understanding.” Later on in the decision, he goes on to say the court the full court goes on to say any test the court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change. The court goes on for a number of pages and in doing so it casts serious doubt on this whole reasonable observer concept. This whole endorsement test concept and it goes on to say that when the court is to is reviewing the Establishment Clause, consistent with what it does with other provisions of the Constitution, whether it's a First Amendment provision like the Free Speech Clause, or the Second Amendment right to keep and bear arms, that the court needs to look to the historical contours of the clause which it goes on to explain that there were historical hallmarks of religious establishments—like laws telling you that you had to attend church on Sunday, laws telling you which church you had to attend a tax system that would be a mandatory tithe that's only given to the government's preferred church, government licenses for what teachings you can make and that you would be in risk of fines or even imprisonment if you were teaching a doctrine other than that which was approved by the government. One of the bestselling books of all time is Pilgrim's Progress by John Bunyan. He wrote that when he spent years in the British prison because he was teaching doctrines that deviated from those that were authorized by the Church of England. And so in Town of Greece the court explains you look at all these historical hallmarks and that in a modern context it comes down to coercion. Is the government coercing any person to participate in a religious activity that violates their conscience? And when it comes to a passive display like this, no one is making you bow to it. No one's making you pray to or to put money in a box next to. There is therefore no coercion. Even though a person might not, might think that there is a religious message there, they might decide they don't agree with that religious message. As Justice Kennedy said in Town of Greece, he said if you're hearing something like a prayer that you disagree with, you may find that offensive, he said but offence does not equate to coercion. When it comes to the Establishment Clause what you're looking at is history and whether someone is being coerced and that that's the line that is drawn. And that that we believe is the correct line of decision. And I believe that that's a line that the majority of the court including Justices Thomas and Gorsuch are going to be applying in this case.

Rosen: [00:29:44] Thank you so much for that. Monica do you believe that this coercion test is the correct test to apply if the court does embrace it, how dramatic a change in the jurisprudence would that represent? And do you believe the court will embrace this coercion test?

Miller: [00:30:21] So my answer is no to all of that. No. I don't believe that the Supreme Court will embrace, the majority of Supreme Court won't embrace, the coercion test as the primary, only test for these kind of cases. And I don't think it's the correct test for several reasons. First of all, the court has repeatedly rejected the notion that coercion is the only value that the establishment clause protects. In fact it's said that that's really the role of the free exercise clause. So if that was the sole purpose for the establishment clause it would be redundant. And this is based off the court looking back at the legislative history leading up to the establishment clause, the intent of Madison, the intent of Thomas Jefferson, know the primary founders of the clause. It goes back to some of the early Supreme Court cases as I mentioned. Even in the most recent case I think it was in McCreary, the court specifically said that that coercion alone is not going to be the test and religious display cases. When you get into it when you get into Town of Greece, the court is saying that in this narrow context of legislative prayer that's when we're going to say you know we're already upholding legislative prayer as even if it's not an exception as something that's not that is religious, but it's not in our normal course of what we would uphold. It's saying, even then some prayers will still be unconstitutional if there is a pattern of proselytizing or coercion or some evidence to that effect. But it had said that same premise in the Marsh decision and other cases and subsequently used I mean turn back to Lemon after the Marsh case when it looked to that more narrow view. And in the Town of Grace case, Justice Kennedy relies heavily on his concurrence in the Allegheny decision and his concurrence in the Allegheny decision specifically said that he had no doubt that you know the Establishment Clause prohibits the government from erecting a large permanent massive, you know, Latin cross on city hall and he used that example specifically and he said he would find that unconstitutional even if you didn't apply Lemon because there would be an obvious effort to proselytize on behalf of a particular faith. And an underlying principle in the legislative prayer cases as well as the Ten Commandments cases, is the notion that yes our history does accept and acknowledge some general references to God or theism, but when it comes to promoting Christianity specifically or one religion over another that's when the line is crossed. And Justice Scalia is one of the, he's always advocated a narrow view of the establishment clause and a very originalist view. Even he recognized the distinction between symbols that you recognize that are embraced by multiple different religions like the Ten Commandments which has been embraced by Judaism Islam and Christianity. He found that that's consistent with our historical understandings. Whereas he said that you know a reference to Jesus Christ or something more sectarian is not consistent with our history and with the establishment clause as general principle against prohibiting the government from favoring one religion over another. And I think that's really where the line is drawn and so because this is such a potent sectarian symbol something that the justices have consistently recognized this is something different than a generic symbol or something that's benign like a prayer a legislative prayer that's delivered by a local citizen and not even the government. There's a big difference between the two.

Rosen: [00:33:51] Thanks for that very much. Ken as Monica said the court might distinguish between the Ten Commandments which is a symbol embraced by many faiths and not necessarily sectarian and a cross. On the other hand it could decide this case quite narrowly by saying that you know a cross that's been up for a long time historically on land that was originally private but was now public and so forth could basically tailor the facts to cover this cross but not other ones. And indeed this case as you suggested is supported by a bipartisan coalition in the state of Maryland as represented by my brother in law Neal Katyal who is no conservative. So if you were to try to figure out how the liberal Justices would vote in this case could you imagine a, say a 7 to 2 decision with Justices Kagan and Breyer joining the conservatives as they did in the recent cases involving sorry in the name of the, that's the question again the rubber playground case was Trinity Lutheran.

Klukowski: [00:35:41] Those are great questions Jeff and not only could I see a 7 to 2 victory for the American Legion here, I could see potentially a nine to zero unanimous victory like we had in Hosanna Taper in 2012. That was an issue where a lot of commentators at the time were thinking this could be a 5 4 decision it could go either way. Instead it was a 9 0 decision not just with Justices Breyer and Kagan but also with justices Ginsburg and Sotomayor where the court held that it was unconstitutional for the EEOC to apply a federal anti-discrimination law against a church against a church school telling them the who the teachers had to be at the ministerial exception to federal nondiscrimination laws. I think here that the coercion issue, far from seeing that as redundant, I actually think it's the common denominator for the First Amendment. Coercion is the touchstone for compelled speech under the Free Speech Clause. It's the touchstone for restrictions on speech under the Free Speech Clause. It is the touchstone for the free exercise clause when the government is telling you that you cannot exercise your own faith. Conversely, it is also the touchstone for the Establishment Clause where the government is choosing its own fate and then coercing citizens to participate in it. So I think what we see here in Town of Greece, far from some sort of one off anomaly, and again I think that Justice Kennedy made it explicit at the outset of the decision that this was not any sort of set aside, I think it instead reintegrates the Establishment Clause with the entirety of the First Amendment. The six clauses of the First Amendment, all of which turned to one degree or other this concept of coercion and the historical hallmarks from the founding to the present of where we see that being relevant. Now if I move on, also as you said to the Ten Commandments, I would actually say that the religious message here is less than you would find with the Ten Commandments. I believe the Ten Commandments are fully constitutional as well. And I think it's the plurality opinion in Van Orden that put forth the right rule of decision there. But in that case you have big bold print. You know “I am the Lord thy God you shall have no other gods before me.” The plaintiffs in those Ten Commandments cases were making the same arguments that my friend Monica is making today. They were making those same arguments against the Ten Commandments in those 2005 cases. And again in Van Orden five of the justices didn't buy it. There were also a version of those same arguments made in Town of Greece itself. The plaintiffs there noting that almost all of the prayer givers in the Town of Greece were Christian. Many of the prayers, in fact most of the prayers made sectarian references to Jesus Christ, and all of these issues about this this sectarian message. Those were actually the lead arguments in Town of Greece. The Supreme Court heard all of those arguments and they rejected them. And in fact if you read the dissenting one of the dissenting opinions in Town of Greece written by Justice Elena Kagan she makes exactly those same points that you're hearing from my friend today. Those were made in dissent in Town of Greece. You can read that in the second part of the opinion. And so I think the Supreme Court as a whole has heard these arguments before. They did not buy them in the context of legislative prayer and I don't think they're going to buy them with respects to this long standing passive war memorial either.

Rosen: [00:39:26] Monica, what is your response to that claim that the court has been more tolerant of religious symbols that have been up for a long time and seem to have a strict sanction that even the liberal justices have joined the conservatives in upholding them? And what do you want to say to We The People listeners about why these longstanding historical monuments do in fact violate the Establishment Clause and in your view and then why you think they should be struck down.

Miller: [00:39:52] Sure. I mean the Supreme Court has never said that you know history alone is a basis for upholding an otherwise unconstitutional display our practice in fact that's exactly what we heard earlier today when the Supreme Court said in Town of Greece that it wasn't upholding legislative prayer simply because it was old. It was actually looking to a lot of other variables and one of which was the notion that Congress, just days after passing the First Amendment, was engaged in the practice of legislative prayer. The very specific practice. And the reason it was upheld was had a lot to do with the fact that it was an internal practice and it is to remain an internal practice for the benefit of lawmakers. So when, and the court says this in Town of Greece, when a practice starts becoming a public practice when there is evidence that the government is actually doing a legislative prayer to promote religious observance among the public, for instance if it says everyone stand all say our prayer does the sign of the Cross has the government doing these gestures towards the citizenry versus you know doing a prayer for themselves, that's where even a legislative prayer will cross the line. The court also said that this is a benign acknowledgment to religion. Yes there might be more Christian prayers here. But that was a product of demographics. The county had a practice of nondiscrimination and the Supreme Court specifically said we're upholding legislative prayer here because it is a non-discriminatory practice. Anyone can give an invocation including an atheist. The court was really specific to say that if a practice over time looks like it's denigrating nonbelievers or is preferring some religions over others that's going to be unconstitutional and that's even in the narrow legislative prayer context. Here again we have a massive 40 foot Christian cross that represents Christians to the exclusion of everyone else. It's not a benign reference to religion. It's not monotheistic or it's not a product of you know a private fleeting prayer. It is a massive permanent Christian cross that that people pass by on a daily basis in the middle of a busy intersection. So this is much more like a promotion of religion to the public it's not an internal act. It's not benign. You know as Judge Wynne said in his concurring opinion in the, in the denial of the en banc he said it's very offensive to him as a Christian to say that this is anything but a Christian symbol. It denigrates the religious meaning of the cross to call it anything other than Christian. Some have said that the use of a cross as you know for military purposes is blasphemous and it actually you know co-ops spiritual content for government purposes in a way that they feel is inconsistent with what Jesus Christ would have represented to them. So I think you know this just goes to the heart of why government and religion really should remain in their separate spheres especially when the government's using such a potently sectarian symbol for honoring veterans.

Rosen: [00:42:47] Many thanks for that. Ken from the other side what would you say to listeners who wonder whether this coercion test that you're advocating really would represent a dramatic change in the court's jurisprudence and might open the door to non-coercive prayer which the court has previously rejected. And in the course of answering that you might give us your thoughts about whether Justice Kavanaugh is likely to view these questions differently than Justice Kennedy.

Klukowski: [00:43:17] Sure to make sure I understand your question what's your reference to non-coercive prayer opening the door to that.

Rosen: [00:43:24] Well in upholding in striking down school prayer in the Abington case and then in striking down a graduation, Justice Kennedy has said that even prayer that's ostensibly voluntary may as effectively be coercive because of the social pressure that kids feel to participate in. And the question is whether the coercion test you're advocating would change that.

Klukowski: [00:43:47] Right. And I think if we look at those three if we look at those three cases you have the Engel vs. Vitale in 1963 regarding school prayer. You have Lee versus Weisman regarding high school graduation ceremonies prayers there in 1992. And then the Santa Fe case involving prayer at Friday night football games in the year 2000. Each of those were each of those were divided decisions. Lee versus, Lee for example was a 5 to 4 decision. So I think some of the justices might consider it a close call when there are children present. And this was heavily briefed in the Town of Greece issue because the Supreme Court level the central thrust of the plaintiff's argument was that under Lee v. Weissman, these local prayers where people who were appearing before the commissioners that the commissioners could clearly see whether they were participating in the prayers, whether they were perhaps rejecting the prayer opportunity that that was inherently coercive. That argument was centrally made in Town of Greece. It looks like Justice Kennedy who of course is now retired from the court, Justice Kennedy was careful to draw a line for coercion between adults and children. And he goes on in other cases especially in the free speech context to say that adults in American society need to be expected to hear and to be able to tolerate or see expressions of faith or expressions of anything perhaps political ideas that they disagree with and need to learn to tolerate that. But that children, when they're subjected to a captive audience scenario to a religious expression, that children unlike adults can feel coerced in terms of peer pressure to be able to participate. So otherwise put, Justice Kennedy said peer pressure is coercive for children in a public school context but not for adults in society at large. And so I think that a majority of the court will clearly understand the limits to that coercion principle there. So all of those prayer cases I would say we're still about coercion. It's just that Justice Kennedy, disagreed with some of his conservative colleagues on this issue that the coercion line moves when you're talking about children in public school. Now in terms of how that would play out in the larger context could you repeat the rest of your question?

Klukowski: [00:46:29] The question is whether Justice Kavanaugh might approach this differently than Justice Kennedy and more directly whether five justices on this court might interpret coercion more strictly than Justice Kennedy did and allow for school prayer even for kids as long as it's not formally coercive.

Klukowski: [00:46:52] In that regard Justice Kavanaugh of course is not yet at the Supreme Court level weighed in on an Establishment Clause case. So I'm not going to speculate as to exactly where he might share the view or differ from the view of Justice Kennedy in that regard. I do believe that that whether he has the same view or a different view even under Justice Kennedy's view I do not think that this would be regarded as coercive in a constitutional sense. And again I think if we look at cases like the Janus case from the end of last term, various free speech cases where Justice Kennedy has unpacked these coercion contexts these courtroom principles in a different context, I do believe that Justice Kennedy, and we saw this also in the Citizens United case in 2010, where he said the solution to speech you disagree with is more speech not less. It is not to silence the voices you disagree with. It is to have a free opportunity to express your own competing voice that contradicts the voice that you disagree with. So I think that Justice Kennedy and what we've seen with the majority of the court is that this is that it's not the role of the government to shelter people, to shelter at least adults, in society at large from being exposed to ideas or concepts that they might disagree with. And I think that that broader coercion context would not apply, those coercion tripwires don't apply anywhere in this context. I think even in for example even in the legislative prayer context the en banc 6th Circuit, meaning all the judges of the 6th Circuit, just a little over a year ago in a case I was involved with, it was a county out of Michigan where the presiding officer would say “please stand and assume a reverent position.” Would say that to the room. The full sixth circuit said, that that's not coercive either. That that kind of even broad inviting language where you're not threatening some sort of adverse government action if you don't. But even that sort of inviting language to maintain to maintain decorum and respect, which people can choose to reject without of course without any threat of punishment, but even those sorts of expressions do not cross the line for coercion especially not when you're talking about grown adults. I mean America is about advanced citizenry. I mean a democratic system involves people hearing things every day that they might disagree with and even disagree with strongly but that doesn't mean it is the role of unelected judges to come in and shelter everyone from expressions or sides that they might not personally agree with.

Rosen: [00:49:48] Thanks so much for that. Monica, version of the same question for you and then we'll have closing arguments. Are you concerned that this new court with the addition of Justice Kavanaugh might embrace a version of the coercion test which allowed for more prayer and more public religious expression than the Supreme Court has previously tolerated.

Miller: [00:50:09] You know it's obviously hard to say but we actually do have some indication that Justice Kavanaugh is looking at religious displays differently than say other ceremonial deistic practices such as in God we trust in the motto and that comes from his concurring decision in Newdow versus Roberts. And there he actually goes out of his way to say that unlike these practices like legislative prayer or “in God we trust” he says because of their fixed qualities displays have caused somewhat more concern and spoken words which by their nature are fleeting. And he cites to several opinions one of which is Justice Kennedy's concurring decision in Allegheny which I spoke of earlier where Justice Kennedy said in this quote is provided in Kavanaugh's opinion, “I do not doubt for example that the Establishment Clause forbade the city to permit the permanent erection of a large Latin cross on a on the roof of City Hall. This is not because the government speech about religion is per say suspect as the majority would have it, but because such an intrusive year-round religious display would place the government's weight behind an obvious effort to proselytize on behalf of a particular religion.” And so we know that's Kennedy's view and now we have you know Justice Kavanaugh putting it in the concurring opinion where he's distinguishing again a benign religious practice something referencing God to a permanent religious display like the cross. So I think it's definitely going to, you know I don't think we can say for certain which way any of the justices will go, but I do think that there is an indication that they're not all going to be on board with this—just looking at coercion versus you know other tests or just the government's preference. I mean yes the government doesn't need to shelter citizens from religious symbols or things that might be offensive to them but certainly the government can't place its hands on the scales and be the one promoting those religions or putting those displays up on government property. And that's where the rubber meets the road for that. So we'll have to see where they land. But I do think that just consistent with all the other establishment clause cases I think the most likely outcome will be something narrow that you know won't necessarily apply outside of the religious display setting and might not even apply to other crosses. So we'll just have to you know present our arguments and see how the courts rule.

Rosen: [00:52:39] Thank you so much for that. Well it is time for closing arguments in this wonderful and illuminating discussion. And Ken the first one is to you. And the question is the obvious one. Do you believe that the Bladensburg Peace Cross violates the Establishment Clause of the First Amendment. And why should We the People listeners care about this case.

Klukowski: [00:53:00] Jeff, the Bladensburg World War One veterans memorial is completely consistent with the U.S. Constitution under any of the tests that the U.S. Supreme Court has applied over the years in terms of what sort of line amounts to an establishment of religion in violation of the First Amendment. Whether it is the history and coercion standard that the court recently brought to the fore in Town of Greece versus Galloway which we believe is the correct rule of decision, or if it is the approach that the court used in Van Orden v. Perry in 2005, or even the Lemon test either the original Lemon from 1971 or its endorsement tests variation the reasonable observer test from 1989, under any of those approaches we would agree that as the district court judge said in this case under any of those tests this is fully consistent with the Establishment Clause. And I don't believe this is a close case either. I believe a solid majority of the court will conclude that an almost century old passive war memorial is indistinguishable in critical regards from countless other war memorials both here in the US and around the world are fully consistent with the establishment clause that the Constitution permits the honoring of those who have given their lives in defense of this country.

Rosen: [00:54:30] Thank you so much for that Monica. Last word to you. Do you believe that the Bladensburg Peace Cross violates the Establishment Clause of the First Amendment. And why should We The People listeners care about this case?

Miller: [00:54:44] Sure, the Bladensburg cross, the 40 foot Latin cross that towers over the busiest intersection in Prince Georges County, clearly violates the Establishment Clause. I would argue under any of the tests that the court has applied to date and that includes Justice Breyer's concurrence and Van Orden. It's dominating its surroundings, there's no other cross that's like this that we're aware of. The Arlington crosses are in the context of a cemetery, they're smaller, and they're not by any means the dominant displays in that context and they're surrounded by religious symbols representing individual soldiers of many different faiths whereas here real Christianity is singularly and exclusively represented and that's backed by like I said over a hundred thousand dollars in government funds and which potentially can be you know another hundred thousand dollars just to restore it. So I think that the Supreme Court will look at this not just as a benign or historic display but one that is potently sectarian, that doesn't represent everyone and I think that's really the core principle here is the government's neutrality with respect to religion and whether this giant Christian cross is consistent with the government's requirement that it maintain a neutral stance when it comes to religious matters. So for that reason I do think it would violate the Establishment Clause.

Rosen: [00:56:05] Thank you so much Monica Miller and Ken Klukowski for an illuminating educational and deep discussion of this crucially important first amendment case. Thank you for spreading light about the meaning of the establishment clause and helping our listeners make up their own mind about the central meaning of religious freedom and the Constitution. Ken. Monica thank you so much for joining.

Klukowski: [00:56:31] Thanks so much Jeff.

Miller: [00:56:33] Yes. Thank you.

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