...
1. What Message Does the Peace Cross Convey?
Katyal was the first up to the podium, and he got only a few sentences in before Justices Sonia Sotomayor and Elena Kagan jumped in, wanting to know more about the Peace Cross and its message.
Katyal explained that the American Legion’s symbol is featured prominently on the cross and there is no other religious content in the park where it sits. It’s located on a median within a busy traffic roundabout. This wasn’t always the case, but over the years, the roads around the Peace Cross were expanded, to the point that the state of Maryland became concerned about traffic safety and acquired the site from the American Legion....
...
2. Kagan’s Five Crosses
Kagan suggested that if a local government tried to put up a cross like this today, it would be problematic. She posed a hypothetical with five different kinds of crosses: a World War I memorial cross erected 93 years ago, a World War I memorial cross erected today, a generic war memorial cross, a cross memorializing those who died in some other kind of tragedy, and a cross that was unrelated to any war or tragedy and didn’t memorialize anyone. She wanted to know which of these crosses are permissible under the First Amendment’s establishment clause, and why....
...
3. ‘Is It Too Loud?’
Alito asked Miller what kind of monument a town could put up to memorialize those who died in a shooting at a synagogue. She responded that an obelisk with a Star of David would be permissible, but a 40-foot Star of David would be problematic.
She continued, “Is it too loud?” or does “the commemorative purpose predominate?”
Justice Neil Gorsuch then jumped at the opportunity to bring up standing to bring a lawsuit in the first place. He said, “We have to tolerate one another” in this country, but this is the “only area [of the law where] we allow people to sue over offense” alone. “Why shouldn’t we apply normal standing rules that require more than offense?” Gorsuch asked....
...
4. How Should the Supreme Court Determine What an ‘Establishment’ of Religion Is?
Time and again, the conversation came back to which test the Supreme Court should use to evaluate monuments like the Peace Cross for an establishment clause violation.
The Constitution commands that “Congress shall make no law respecting an establishment of religion,” and this extends to the states through the 14th Amendment.
To determine whether a government action runs afoul of this prohibition, the Supreme Court has developed a number of tests that look for “excessive entanglement” of government with religion, an endorsement or disparagement of a particular faith tradition, or government coercion, while also weighing the history and context of the challenged religious practice or display....
...
5. Should the Supreme Court Overrule the Lemon Test?
Gorsuch brought up the unworkable multi-factor Lemon test (named for the Supreme Court’s decision in Lemon v. Kurtzman) that Justice Antonin Scalia once compared to a “ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried.”
Gorsuch pointed out that the Supreme Court hasn’t used this test in years, although the lower courts continue to use it and sorely need guidance on this point....
...
6. What’s the Real-World Impact of This Case?
If the Supreme Court rules that the Peace Cross is unconstitutional, it will put at risk dozens of other monuments throughout the country.
Alito asked Miller, “What message does it send knocking down crosses across the country?” She refused to answer, saying the Peace Cross could be moved to private land....
The Law and Justice Room
Reply With Quote
