Why Is This Cross-Shaped Memorial Constitutional?

Source: The Atlantic

By Garrett Epps; Professor of constitutional law at the University of Baltimore

Could the United States put “In Jesus Christ We Trust” on its coins?

Justice Antonin Scalia asked the conservative lawyer Charles Cooper that question during an oral argument on November 6, 1991, in a high-profile Church-state case called Lee v. Weisman.

“I don’t think we would put that on the coins,” Cooper replied. “But I think that is because, at this stage, that would not be politically possible …”

US-CONSTITUTION-JUSTICE-RELIGION

The World War I memorial cross in Bladensburg, Maryland — near the nation’s capital Washington — is seen on February 08,2019. – The US government asked the Supreme Court to rule in favor of the cross that serves as a war memorial, which critics say is an unconstitutional state religious endorsement. Arguments are scheduled to be heard on February 27, 2019. Any ruling by the top court will have implications for numerous monuments across the country, including two other crosses situated inside the Arlington military cemetery on the edge of Washington. The cross is built on public land and its maintenance is paid for with public funds and for that reason, the Washington-based American Humanist Association (AHA) holds that the monument violates the US Constitution’s First Amendment forbidding the government from favoring any one religion. (Photo by Eric BARADAT / AFP) (Photo credit should read ERIC BARADAT/AFP/Getty Images)

That answer—which startled even Scalia then and is still startling today—is in the background of American Humanist Association v. American Legion, which will be argued in the high court on February 27. Formally at stake is the fate of a 40-foot-high concrete Latin cross, designated as a memorial to the local World War I dead, which sits on public land in the midst of a busy traffic circle in Prince George’s County, Maryland. The result may help resolve disputes over local memorials around the country. Beyond that, it will tell us a lot about the new conservative Supreme Court majority’s approach to the First Amendment’s establishment clause.

Wajahat Ali: The religious-liberty claim the justices didn’t want to hear

Cooper lost Lee v. Weisman in 1991, and the “Jesus on the money” answer surely didn’t help. He was representing a local school board that planned to open its graduation ceremonies with religious invocations by local clergy. The invocations were constitutional, Cooper told the Court, because students were not required to attend their graduation ceremony.

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