MARY LOUISE KELLY, HOST:
In a major separation of church and state case today, the U.S. Supreme Court seemed inclined to let a 40-foot cross-shaped war memorial stay on government land. But the justices did not seem inclined to embrace a new constitutional test that would apply to other religious symbols currently on public land. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The giant cross at the center of today's case has stood on public property in Bladensburg, Md., for almost a century. But in 2012, a federal appeals court ruled that the World War I memorial violates the Constitution's ban on government establishment of religion and that it must be moved to private property. Today outside the Supreme Court, there was a polite cacophony of disagreement about this and other similar memorials with religious symbols. Mary Fenwick LaQuay's (ph) uncle is one of the 49 fallen soldiers whose name is on the Bladensburg memorial.
MARY ANN LAQUAY: Every time I go by that cross, I think of my uncle. And it would be like desecrating a memorial to a fallen veteran.
TOTENBERG: Lawyers representing LaQuay and the American Legion contend that banning crosses like this one amounts to discrimination against religion. But Holly Hollman, general counsel for the Baptist Joint Committee for Religious Liberty, has a different view.
HOLLY HOLLMAN: When the government gets involved in religion, it necessarily waters it down or distorts its meaning.
TOTENBERG: The Supreme Court justices would clearly love to have a clear legal test for the lower courts to apply on the question of when government may support a religious symbol or program. But today that test once again seemed to elude them. Representing the Maryland Parks Commission, lawyer Neal Katyal argued that the cross became the symbol of the dead in World War I when battlefields were marked with rows and rows of crosses, signaling the graves of the fallen. Thus the cross, Katyal contended, had a dual meaning, both secular and sectarian.
Justice Ginsburg interrupted. Does the cross really have a dual meaning, Mr. Katyal? It is the preeminent symbol of Christianity. People wear crosses to show their devotion to their faith. Justice Kavanaugh - what do you say to the Jewish War Veterans brief which says that the government's decision to honor only the salvation of Christians is hurtful, wrong and not in keeping with the promise of the Constitution?
Following Katyal to the lectern was Michael Carvin representing the American Legion. He urged the court to adopt the so-called coercion test. He defined it as allowing government support for religion as long as there is no proselytizing. Justice Kagan - what counts as proselytizing? Answer - advocating conversion from one sect to another. But peppered by questions from the justices, Carvin dodged and weaved, saying the definition would depend on the situation. Chief Justice Roberts - you advertised your standard as a pretty concise test, but it degenerates pretty quickly into a fact-specific test.
The Trump administration's Jeffrey Wall was up next defending the cross. Justice Sotomayor - could we put up a cross memorial today to honor Vietnam veterans even though they weren't all Christian? Answer - that would be perfectly permissible. Justice Kagan, incredulous - and why is that? Is your claim that the cross has become a symbol that's universal rather than the foremost symbol of Christianity? Justice Ginsburg - at the founding, we were an overwhelmingly Christian country, but now we're told 30 percent of the population are not Christian believers.
Still looking for a standard that makes sense, the justices heard from those challenging the cross represented by lawyer Monica Miller. But she didn't have a standard either. Suppose, asked Justice Alito, that there's a mass shooting at a synagogue or a mosque and a city wants to put up a memorial in solidarity with those who died and it wants to include religious symbols. Would that be unconstitutional? Miller said that a 40-foot Star of David in the middle of town would be a problem, but an obelisk containing a Star of David that's not so, quote, "loud" would not be a problem because the commemorative purpose would predominate over the sectarian. Justice Breyer then floated the idea of grandfathering in old memorials like this one. But that didn't seem to fly either.
Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.