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Justices Take up Case of ‘Peace Cross’ on Public Land

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The U.S. Supreme Court announced Friday that it would take up a church-state case that could reshape its interpretation of the Establishment Clause of the First Amendment.

The justices granted certiorari in two related cases: Maryland-National Capital Park and Planning Commission v. American Humanist Association and The American Legion v. American Humanist Association, both involving a war memorial in the shape of the cross on public land in Maryland and whether it violates the Establishment Clause, which bars laws “respecting an establishment of religion.”

The U.S. Court of Appeals for the Fourth Circuit ruled last year that the 93-year-old World War I “Peace Cross” memorial in Bladensburg, Maryland, which is visible from a busy highway, “has the primary effect of endorsing religion and excessively entangles the government in religion.” The full appeals court in March denied en banc review by an 8-6 vote. Three other circuits have ruled differently in similar cases.

“Left undisturbed, the decision below will have enormous consequences,” and could jeopardize hundreds of other cross-shaped memorials, Jones Day partner Michael Carvin wrote in his petition for the American Legion.

“If permitted to stand, the Fourth Circuit’s decision will compel the removal or dismemberment of a cherished war memorial that has served as a site of solemn commemoration and civic unity for nearly a century.,” wrote Hogan Lovells partner Neal Katyal in his petition on behalf of the Maryland-National Capital Park and Planning Commission, which acquired the cross in 1961.

The fact that Carvin, a conservative lawyer, and Katyal, the former acting U.S. solicitor general in the Obama administration, are on the same side of the case, reflects the wide interest it has garnered. The cases are likely to be argued late this year or early next year.

“It strikes a lot of nerves,” said Baker Botts partner Aaron Streett, author of an amicus brief in the case along with Reagan administration Attorney General Edwin Meese III, on behalf of retired generals and flag officers. “It’s one of the few interesting cases this term.”

Other veteran advocates supporting the memorial in amicus briefs include Paul Clement of Kirkland & Ellis for the Veterans of Foreign Wars and Charles Cooper of Cooper & Kirk for 109 senators and House members. Monica Miller, senior counsel for the humanist group, wrote the briefs opposing certiorari.

Carvin’s petition invited the court to adopt a new test for determining whether a government action or statute – in this case the Maryland commission’s ownership and maintenance of the cross -- violates the Establishment Clause.

The strict Lemon test—named after the 1971 Lemon v. Kurtzman precedent—asks whether there is a genuine non-religious purpose, whether the government action advances religion, and whether it excessively entangles government with religion. Carvin urges the court adopt a more permissive standard that mainly asks whether government is coercing religious practice.