The Supreme Court has agreed to hear an appeal of a 4th Circuit decision involving a Maryland cross-shaped WWI memorial. In 2017, the 4th US Circuit Court of Appeals held 2-1 that the structure, erected in 1925, “has the primary effect of excessively endorsing religion and excessively entangles the government in religion.”
The structure, which was built by the American Legion using private donations stands on public land at a busy intersection and is maintained with government funds. The Maryland-National Capital Park and Planning Commission obtained ownership of the property in 1961.
The American Humanist Association filed the case on behalf of non-Christian residents in Prince George’s County claimed that the cross “breaches the wall of separation between Church and State.”
At the trial level, the District Court ruled that the memorial was constitutional and granted summary judgment in favor of the American Legion and the Commission.
In the 4th Circuit opinion, the two judges writing for the majority indicated that the remedy might not involve complete removal of the cross, but the judges proposed an alternative such as removing the arms to create an obelisk, a concept that horrified the Christian groups defending the cross.
Monuments on public land that reference religion and symbolic acts such as traditional invocations at government meetings have been a perennial topic of dispute and litigants have drawn lines between the government acknowledging the existence of religious adherents and actively promoting a particular religious belief. Based on precedent in Van Order v. Perry, 545 U.S. 677 (2005) involving the Ten Commandments on public property and Town of Greece v. Galloway, 134 S. Ct. 1811 (2014) involving invocations at city meetings, it is likely that the Court will find in favor of the American Legion.
One of the key hurdles in bringing Establishment Clause cases forward is whether those who are offended have sufficient standing to sue. For example, in Hein v. Freedom from Religion Foundation the Supreme Court ruled 5-4 that citizens did not have sufficient standing as taxpayers to bring Establishment Clause challenges against Executive Branch programs. While this involves a state issue, a similar analysis might be applied, although it also seems likely that in granting certiorari, the Court will dispense with the issue of standing and address the public display issue head-on as it did in Van Orden and Galloway.