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tv   American Legion v. American Humanist Assn. Oral Argument  CSPAN  March 2, 2019 4:51am-6:07am EST

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watch the tucson festival of books on booktv on c-span2. on wednesday, the supreme court heard an oral argument in the case about the status of a world war i memorial in prince george's county, maryland, just outside of washington, d.c. the american humanist association is challenging. we will hear first from the attorney representing the local government in this case. >> we are hearing an argument 1717, theing a case 17 american legion association against the american humanist association, and the consolidated case maryland national park and planning commission against the american humanist association. >> thank you, mr. chief justice, and may it please the court. there are four reasons why it
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should not be destroyed. 93 years was created ago to commemorate those who gave their lives in world war i. second, it is no ordinary cross. heart, atter, and its the american legion symbol, it is gigantic. "d database are the words valor, endurance, courage, devotion." ofrd, not a single word religious content is anywhere from a rather at the base of the nine-foot plaque. and third, it is centered at veterans memorial park underneath a war memorial. >> do you know how many other parts are like this one? i looked at pictures, and it is an unusual park, because there are major highways dividing it up. city oughtt like the
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to officially decide an area accomplish other plaques and declare it a part, but you cannot really tell that this cross is with anything else. four, ae three or on one side, iy am told you cannot even get out to walk to this cross. yal: actually, you can. i disagree with that assessment. sinceas been in place 1943. and you canmayor: move it or you can transfer the land to private entities, correct? al: those would be hypothetically -- justice sotomayor: so is this. mr. katyal: if you move it,
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because of the cracked in this cross, it may very well be destroyed. they have an email in this case saying they know that maryland cannot do this because of the concerns, they cannot give it to a private entity. they canotomayor: speak to that, but putting that aside, are you relying on the least one at all, at brief claims that all 49 soldiers named on this plaque or for whom this plaque were our christian? mr. katyal: not at all, your honor. this memorial, from start to finish up, has been about honoring those 49 plus all -- justice sotomayor: are you just grandfathering this, or are you saying today that for the vietnam war, any government can
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40 feet high, and not put in the emblem on or some sectarian emblem, and say we are dedicating this to all soldiers who died in the vietnam war? we are not saying it is grandfathered in. this case, because of its 93-year decision, is an easy one. justice sotomayor: but answer my question. what is the tradition? in worldradition that war ii, a cross was used, or is it traditions that the government can put up sectarian symbols, like crosses or a picture of jesus christ, in , because that is within the nation's tradition? mr. katyal: justice sotomayor, those are two different things. 86 of them without challenge, and for reason justice breyer's
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opinion in the border of plurality, that would make this cross constitutional. your question is what about this tradition of crosses in general, and it is true, we have a second argument which says that if there is a long tradition of the type of display, that would make it constitutional. notably, however, it does not make your hypothetical constitutional. your hypothetical is an actual case. laklake county is a circuit withwith a huge cross jesus in the center of in a public park. it has been there since 1965, and it is protested, and the seventh circuit said that is unconstitutional, and we agreed. all of theomayor: facts you gave for the same except for the 93 years, in other words, a community decides for whatever reason we do not have a world war i memorial. up exactly this to memorial be war dead from
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world war i, but now. mr. katyal: we do think it will because additional. be some there has to skepticism. you just want to make sure it and it didretext, not look like the cross as describing about lake county. but justice kagan, we do think -- justice kagan: and if that answer apply not just to world war ir soldiers but to memorials for soldiers from any armed conflict? mr. katyal: i think that it probably would, that there is a tradition of using these crosses. ,ustice ginsburg: mr. katyal what about not a war memorial but a memorial to a tragic event, let's say, a mass shooting at a school. could the local community then decide it wants to put up a
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cross in front of that school to honor the children and the teachers who died in the mass shooting? it is,yal: i think justice ginsburg, whether there is an independent sector or protest. take a real case, like the one that came out of the world trade steel beamse two were discovered in the rubble, and they were put up in the shape of a cross. now if that were in a public park, i think that would be permissible, because it has independent historic value showing values of resilience and courage. justice ginsburg: it was not found in the rubble, it is just the community wants to recognize the dead in this terrible tragedy. it has a secular purpose. i did not think you can harken back to the same tradition for these world war i crosses nationally justice ginsburg: the purpose is to
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honor those who died in the tragedy. mr. katyal: i do not think courte is what the came to. the board of plurality. >> i thought you just said it was a secular purpose. "wall street journal what is the mr. katyal: objective meaning of this display? --text is always faster always that. justice ginsburg: so then it would be ok? mr. katyal: i think we need to hear more facts from that hypothetical. justice sotomayor: here are some facts, and you can understand how they come about, that people want to memorialize the dead come up one in a religious tradition and a dominant one in many communities in this country, the preeminent symbol d isemorialize the dea
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the latin cross, so they gravitate toward that symbol as a way to memorialize that dead, but at the same time, for members a way to memorialize the dead. question thathe justice ginsburg is asking, for many people, this is a very natural way to do exactly what they wanted to do, for others not. thekatyal: if it does has same hallmarks as this type of cross, we think that would be permissible. it has a natural consequence of what this court has already said. justice roberts: i read your brief to put a lot of weight on the cross here that it has more than a sectarian meaning. forth, thestory sets cross was a symbol throughout the battlefields of world war i. that does not why limit your argument so that in
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such a case as justin kagan hypothesized, he would not accept that. mr. katyal: we certainly agree that the tradition makes this a very easy case. all of the graves marked by crosses? not graves marked by stars of david? mr. katyal: the dominant image of the time to the war bound advertisements of the united states government to the 1924 congressional resolution, they all used this cross. visitedginsburg i have some of those battlefields and there are stars of david marking the graves of jewish soldiers. there is a secular meaning with respect --
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justice roberts: what do you say to the jewish war veterans and the governments decision to honor only the salvation that christians believe? what you say to that? mr. katyal: the first is that factually, one of the main proponents for fundraisers of second,ticular cross -- there was a contrary tradition veterans weresh buried under the cross and wanted to be. third, i don't think this court has ever adopted the view that if some people disagree with something that it itself establishes a violation. >> if the chief would permit me, there is a brief here that says deeply religious christian, sector rising the cross is blasphemy. christ died on the cross and was
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resurrected from his grave. view people don't , it isizing the cross not just jewish people or hindu people that could be offended, he could be christians, as well. mr. katyal: i don't think we let those objectives dictate that. if that were the rule, you would be tearing down crosses in arlington cemetery and nationwide. create more would of an establishment clause and religious divisions. >> it may please the court, the peace clause should be upheld any analysis. we should submit the court that for a announce us --
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number of reasons. we think this is the simplest route. religious speech to symbolic speech and would provide a situation for the chances were coition -- coercion are much less. this coercion theory that you are urging us to adopt. if that is what the establishment cost prohibits, how does it offer -- how does this differ from the clause? can you suggest a practice that would be unconstitutionally coercive under the establishment inoffensiveet be under the free exercise clause? >> forcing us to pay three pence to a minister.
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it would not violate any religious tenets or might ability to pursue the religion i want. it creates a negative liberty not to support coercively religion you cannot support. i would also point out that the standard is the correct one under the history establishment clause because when they were discussing all the hallmarks of establishment, but they were talking about was tangible interference. proselytizings to in the allegheny county dissent. >> what counts as proselytizing? i think i understand what coercion means better than proselytizing. test -- the definition is preaching conversion. >> what is the difference between that and endorsement? nobody knows how to apply.
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certain courts are confused. torsion replace it with . we think there is a fundamental difference. it is symbolic, including sectarian symbols, except in the rare simple -- rare circumstance where they have been misused. >> supposed the city erected across not for purposes of moralizing the war dead, but just to emphasize the values of christianity. with that be proselytizing? >> i think that states very close to the hypothetical that justice kennedy put in allegheny going to set, where you have >> a permit cross. >>this is not on top of city hall. this is in a park. >> they have other symbols there. >> this is just across.
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they want to emphasize the values of pristine entity so they put up cross. >> unless you are conditioning access to government services like one on city hall would certainly suggest, that would either constitute the fecteau establishment or defective coercion. it could be misused for proselytizing purposes. i think the endorsement standard -- >> what i was trying to suggest is that this was something that indicated the city was aligning itself with one particular religion. we are putting up across, we are not putting up any other religious symbols because we believe in the values that the cross indicates. it is not on top of city hall, it is on a street, it is in a park. a beta are two crosses, maybe there could be 10 crosses in different parts of the city. -- everybody
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recognizes what a cross is. >> right. a legitimate non-proselytizing purpose. these circumstances i need to know. was this suggested by people who were honoring the victims of a school shooting. >> it is just across. it really is. these values are important to this committee. the values of christianity. we would like to put up some crosses around town. >> if that is the purpose and effect of aligning ourselves with christianity, -- ,> suppose after this case hyattsville puts up across and college park puts up across and surrounding communities put up crosses. there are mixed purposes. some people do it because they want to sober christianity. some people do it because they said they want to celebrate the war dead.
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proselytizing or not proselytizing? that presumption can be overcome. a -- you show there is not advertise this as a concise test but it degenerates quickly into i need to know about this, i need to know about that. it becomes a fact specific test rather than the crisper one you propose in your brief. formal coercion is prohibited, but i don't think this would satisfy this court. the danger of the establishment because could be reached indirectly through the sorts of things i am talking about. it is true that every test that this court adopts needs to focus on context, purpose and effect. you are asking a different question than what you are under the endorsement test. >> i am stuck.
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betweenthe difference saying i endorse something and i promote something? it seems you are taking this right back to the dog's breakfast he warned us against. i do understand the coercion test, but i don't understand your benefit of it? >> in god we trust endorses religion, no question. it is not an effort to proselytize. he said what would happen if it said in jesus christ we trust? >> that is a nice distinction. .e have endorsement of religion on day two, we have in jesus we trust. what message is the government sending? you can't trust this jewish guy. you have to take sides in a dispute with jesus.
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if they are taking sides in a centering dispute, that is precisely what constitutes an establishment. i am proselytizing religion in a more generic sense? >> the difference between promoting religion and promoting -- i think the sectarian point would lend itself to proselytizing. in this context, i do want to emphasize that all symbols are sectarian. there is no such thing as a nondenominational -- >> what is your answer to the cross on city hall? is that constitutional or unconstitutional? in dataset, he said a cross on city hall would be unconstitutional. >> because it constitutes
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proselytizing. you need to be careful with context. mexico, there new matter, as a general putting up crosses and every courtroom and dmv, i can certainly understand why somebody would believe they are trying to convert you to christianity. the hallmark of the article isnt and seeking to uphold certain religious beliefs. brief highlights six things. it starts out with the government establishing a church. we will give you that. requiring people to pay for the church. prohibiting imposing burdens on people who don't believe. that are stark items underlie the establishment clause when it was adopted.
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i don't understand your position to be women today that way. >> we could say that direct formal course and is the only thing reached by the establishment cause. both opinions we rely on happened in allegheny county. we want to make sure we are not creating the same dangers where the government is trying to create indirectly what it could not do directly. so we go back to justice courses. -- ir you using doored the you using doored -- word defacto. it is the endorsement test. you might make an argument like your colleague that this has to do with tradition more so than coercion, but it is endorsement.
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test, a the endorsement sectarian symbol is no good. under our test, is perfectly fine. i would endorse the test that says sectarian prayer is ok. >> you endorse the test, you proselytize for it. adopting the word proselytize from the town of greece. context, it is not of real-world consequence because all symbols are sectarian. if you ban sectarian symbols, you are banning all religious symbols. >> thank you, counsel. >> three points, the moral cross
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is permissible because it falls ofhin our nation's habit accommodating speech and civic life. i don't know of a founding , that putwn or state up a 40 foot cross on government property. we don't have a long tradition of that. it is sectarian. we have a lot of founding fathers, including george washington, who is exceedingly careful to ensure references to god or as neutral as possible to as many religions as possible. it can't be that all sectarian symbols, whether a cross or jesus christ or some other symbol, is within our tradition, merely because we say in god we trust. >> two things.
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first, this symbol has a unique history born a plurality for the dfw brief. ,o the world war i generation that was a civic meaning for that generation. >> you limited your point to one generalized point that we could put it up today to memorialize all vietnam vets despite the fact that all vietnam vets were not christian. feel --them would the cross atput ground zero in the rubble, that became a ache shift shrine in the weeks after 9/11. i don't think that violated the establishment cross. -- establishment clause. i understand the allegheny county dissent to say you trace the practice back to see whether it is akin to the kind of acknowledgment that the founders of the early generation found
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permissible. you ask whether it presents any greater danger than that. crosses have been memorials a sense the founding. the change from the founding -- overwhelmingly christian country. told that 30% of the u.s. population does not adhere to a christian faith. does that change make any difference? whether the cross took on the wake of the great war took on a secular meaning and that is the meaning for the mothers correcting it. canada gave us the canadian cross of sacrifice who honored americans who went north to join the canadians to fight in the war. i have no reason to believe all of those americans were christian or the canadian stop they were.
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or that the cross with a sword running down it in arlington would commemorate alden. the board of raleigh correctly said in a context -- >> i have pictures of this cross. it is only -- it is the only thing that is that high. it dwarfs buildings. under the more observatory test. having been out to the site, it is certainly a tall cross but it has words on it that are visible from hundreds of feet away that are secular words. it is among other memorials you can see. it has been part of the moria park are decades before -- it has been part of the memorial park decades before litigation was brought. where you want to draw the
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line. i am going to give you example. cross a world war i erected many years ago. another is a world war i cross erected now. another war memorial cross. a fourth is a memorial cross that has nothing to do with any war. a fifth, are we up to five? a fifth is not a memorial cross at all. just a cross. it is a cross because a community must put up a cross. are they all ok? are some not ok? >> the first three are permissible. that commemorates the school shooting or the star of david that commemorates the holocaust, that is perfectly permissible. the last one strikes me as potentially quite problematic.
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when justice kennedy says in allegheny county that you cannot proselytize, that is a much -- i understand that as are you threatening damnation. are you trying to force people into the pews? if towns start putting up naked unadorned crosses -- believeive crosses i are the same. articulated -- the crosses are all the same. you are saying it depends on the implicit purpose or reason it was put up. >> maybe i misunderstood the hypothetical. all of the examples make that clear in some way. the argon cross for those who
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perished in france. i took the fifth one to be the naked, unadorned cross. >> a war memorial that does not have words around it, that has to come down? willstice cavanagh, i grant you that that is the hardest case. the town that says we are putting it up as a war memorial, it may be permissible as long as the other side will granted. you can't find a single one that looks like that. all of the current cases are hard. this case, which should have been easy, we have expert witnesses -- >> could you take the examples i made that are neither the first or the fifth, just the memorial crosses, but no particular relationship to world war i and direct them now? are thoseeory permissible? theory that this is a
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universal symbol, the theory that this is a secular symbol? adoptperfectly fine to one religious symbol rather than another? what is the theory? >> the theory is the cross at ground zero -- >> i think that is an odd case. let's not talk about that one. let's talk about your ordinary decision to erect -- not anything that is found. a municipal decision to erect a cross to memorialize some group of citizens. my only point was there are not a lot of war memorials going on. that is a new cross that i feel is perfectly permissible because it creates no dangers. if you took a new war memorial, if bladensburg tomorrow wanted to erect a memorial like this one, i would find it permissible
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and an honorable thing. >> why is that? is it because the cross is a symbol that is universal? is that would your claim is? >> it has taken on a secular meaning associated with locality, for death, a , a state can decide to use it for that meaning. >> it is the foremost symbol of christianity, isn't it? claimokes the theological of christianity, that jesus christ, the son of god died on the cross for humanity's sins and he rose from the dead. this is why christians use crosses, as a way to memorialize the dead. does it connect to the centralized belief? >> i am not going to dispute it is a symbol for christianity. the question is whether it has taken on a secular meaning. to set it only has that religious meeting -- meaning.
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does it matter in this particular case that this cross was put up to commemorate the deaths of 49 real people and that this was done in the wake of world war i? >> i think it makes it an easier have four basic buckets of litigation in state and federal courts. you have war memorials, 10 commandments, holiday displays and other forms of symbolic displays. i don't think the reasoning is specific just to the cross bucket, though i think it would take care of the vast bulk of war memorials. that we are urging the court to apply in this context is to any of those present greater dangers than acknowledgment of religion in
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the public sphere that have been there since religion. those honors to rest in peace. >> thank you. >> mr. chief justice, i think we can all agree that the establishment clause at very least prohibits the government from preferring one religion over another religion. the commission is arguing essentially that it's cross does not violate the central command of the clause. i don't think anyone here would deny that it would be unconstitutional and inappropriate to go into arlington and place a crave over the cross of every person there irrespective of their religion. in 1924, everyone in a congressional debate about overseas markers was in
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agreement it would be inappropriate, even sacrilegious to put a cross over the burial of a jewish fallen soldier. the commission is here arguing -- tellingit is juice, telling muslims that the cross honors them, when they say it is not. it is telling christians that their most sacred symbol, jesus christ, actually, in fact, also symbolizes atheism. let's say there is a shooting at a church and christians are targeted and killed. there is a shooting at a synagogue and juice are targeted and killed. shooting at a mosque and muslims are targeted and killed. are time the town says we outraged by this and we want a monument to express our
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solidarity with the families and communities that they represent. they asked those people what kind of monument would you like and they all say it is very important for us to put up something of religious significance. the town does that. those towns do that. that be a violation of the establishment cause? >> your honor, i think it depends on context. --we are talking about a 40 45 foot star of david in the middle-of-the-road way, i think that would be a problem. i think the commemorative purpose would need to predominate over the sectarian -- a that answer raises for me question about standing. is it too loud? is the star of david too loud? is it too offensive? there are many places in the law
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or we allow someone to make federal case out of their offensiveness of a symbol being too loud for them. we accept that people have to sometimes live in a world where other people's speech offend them. we have to tolerate one another. this is the only area i can think of like that where we allow people to sue over an offense because for them it is too loud. we get into as a result having to dictate taste with respect to displays. we have a 10 commandments display just above you, which may be too loud for many. why shouldn't we apply our normal standing rules and require more than mere offense to make a federal case out of these? >> yes, your honor. i don't think it is mere offense. it is about being a citizen and your own committee. we are not talking about private speech. we are talking about the government being the speaker and giving you the message as the
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non-christian and your community that you are a lesser citizen. if you look at our record in the letters sent to the commission by self-proclaimed christians that were outraged that the cross has to be removed, you see that monuments like this contribute to the idea that non-christians are in fear. we are christians, we can do this wherever we want to. if you hadw up, what one letter from one person who reported to be offended. debbie enough to support your argument? bei think it would have to that you are a member of the saysnity -- valley forge you cannot be someone in another state that read about it. you have to be personally affected by it. , ifou are in the community you were to feel marginalized by the display. all plaintiffs are individuals who are non-christian, who say
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when they encounter the government symbol saying that christians have valor, christians have courage, christians have devotion, that's -- that's something to them. if you look back to the record weree 1920's, jews fighting immense discrimination. a jewish a letter from soldier who had to put on his own rosh hashanah because they would not accommodate -- >> some of those 49 soldiers whose names were associated with ors monument were jewish muslim or some other non-christian faith and the town insisted on putting their names on the cross. there is no evidence that happen here. is that right? religioust know the beliefs of those on the cross. what we know is about 14 of
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them, seven who are buried in arlington, who don't have a cross on their stone. >> that is speculation but we don't know if anyone objected, or if there was any family who objected to this form of memorial, do we? >> i think there is an inference that can be made the government records referred to 52 prince georgians that died in world war i and are only 49 names on the cross. publicng this elaborate isedication ceremony -- that how the town has treated it. this is an everyone memorial. >> there are cross monuments all over the country. many of them are quite old. do you want them all taken down? >> no, your honor. there is a lot of exaggeration going on. >> which ones can stand?
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>> certainly the two in arlington. practice or the town created a forum for private citizens to deliver prayers of their own idiom, there are statues in arlington that don't opportunity for people to place their own monuments in arlington, subject to our rules. in a pluralistic society, and which ordinary people get along pretty well. and they are not at each other's throats. let me ask you about some others. how about the irish monument in gettysburg? it was put up in 1888. of 3000 monuments in gettysburg park. it presents itself as almost an object in a museum.
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a museum context can always negate the government -- it seems that that context that government is more like a curator of a museum that it is putting it up. this was put up by the town of bladensburg. ask, is going to understand native american totems have spiritual and religious experience. if one of those is on federal property, doesn't have to be torn down? >> i would say no, your honor. we would need some expert testimony to talk about what that needs. significanceritual for native americans, similar to religious symbols like the star of david on the cross. >> it is difficult. i know the ninth circuit had a case that dealt with an aztec symbol and they concluded it debt not -- they did not violate the establishment clause. commemorate mexican
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culture. i think context would matter. >> if the local government and the committee were native american or a native village in alaska, that would make a difference? >> you have to understand the symbolism and what it means. if there is a dual secular meaning, like with the 10 commandments, like it is shorthand for life itself. it is intended -- it is hard to say. this cross, ms. miller, it is very old. it was erected 100 years ago. it has two fallen soldiers from world war i and world war i does have a history, that this is how soldiers work memorialized in world war i.
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it is true that not all soldiers when you go into a world war i battlefield, there are stars of david there. because those battlefields were rows and rows of crosses, the cross became in peoples's minds the preeminent symbol of how to memorialize world war i dead. ,hen you have these other facts there are other four memorials around the park. there are no religious words on the memorial, quite the opposite. all the words on the memorial are about military valor and so forth. why in a case like that can we not say, essentially the religious content has been stripped of this monument? with a particular religious content. i am not aware of any case to set a large latin cross can be stripped of its religious
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meaning. i don't think it needs special works to announce it is a religious symbol. >> just a moment ago you told us the 10 commitments could be stripped of their religious significance and an indian totem pole can be stripped of its religious significance. why not so to hear? aware of any secondary meaning from a latin cross. it's meaning as a war memorial is to stickley for christians. strictly for christians. >> i think there is something quite different about this historic moment in time. if you look at all the crosses that are war memorials, they are basically world war i memorials. battlefields and the way the crosses were erected there, this became the preeminent symbol of how to memorialize the war dead at this time. why is that not important? theactually speaking,
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doughboy statue is by far the most common. i am only aware of six other crosses that are world war i memorials on government land. there are a few others on the site that are on private land. one in baltimore has jesus christ written on it. at the same time, the blatant bird cross being put up, other world war i memorials were being put up in direct recognition of jesus christ. the understanding at the time was these were legit symbols. the government's argument is not that the is able to symbol, it ,s that it they represent jews atheists and muslims. community andist all the other groups that represent millions of christians across the country find that argument deeply offensive and could potentially degrade the religion. >> i take your point that that
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is a religious symbol. i want to speak that at all. our cases have withheld religious displays and religious words in cases like marsh, cases like the 10 commandments, cases like town of greece legislation of prayer before a meeting. position inr your casesase, and in those that have upheld religious symbols, displays or words and government properties. grace is akinn of to arlington cemetery. takes a government handoff position to the secretary and content, it is not to say that it is private speech the government is not being a mouthpiece for the secretary and message. when the government is the mouthpiece, -- >> the 10 commandments.
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>> with respect to the 10 commandments, i know that is something this court has recognized as a dual meaning symbol. there are commandments that are certainly religious, the court has seen it something -- where those statutes built by private people and placed in the park? >> i believe the eagles was the primary donator. my understanding was that the fact that the 10 commandments did not predominate in the setting, they were in line with these other displays, that the secular aspect of the 10 commandments, the one that says this is how while was founded, but there is nothing in the plurality that i read to say that context can strip a latin cross of it secretary and meaning. examples of 54
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things that people might bring cases, and if you win, tear them down. there could be more, there could be fewer. what you think of saying look at the historical context? history counts. yes, ok, no more. that is what justice ginsburg was bringing up. we are a different country. we are a different country now. there are 50 more different religions and therefore no more. we are not going to have people trying to tear down historical monuments, even here. ok. what do you think of that? i am not suggesting i am fort. i want to know what you think of it. >> the exaggeration on the record that there is somehow 50 or 100 pub -- crosses on public
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land. 50 examples of something that is not a cross. it is a boot with a rifle and a the commission's reply brief on page 17, they refer to a cross in louisville, north carolina. they cite crosses on private land. i counted 15 of them on private land. i said there is something closer to 10 or 20. that is inclusive of crosses that are quite small. with respect to history, there are a lot of reasons why -- inous minorities and christian dominated societies would not feel safe challenging and actively used war memorial that is the town's most prominent symbol. my clients a been threatened, i have received death threats and i believe it was a lot safer 90 years ago that it is today. also, you can't say that people don't take note of this.
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if you look at the record, look at the letters of how people are processing a monument like this. sort of like a billboard, it ingrained in your mind there is an association between being christian and having valor and having courage, and the message that sends to the religious minorities and christian members of the society that are the majority. >> that is one of the main criticisms of the lemon test different people will process that in different ways. you heard from an of your friends on the other side that one of the major fundraisers was a jewish individual. it or obviously observing anticipating it in a different way. cannot takehat we one person's example, someone who is probably one of the only jewish people in the county in a time when there was an active businessesg jewish at a time when atheists could
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not run for office. believedto swear they in the afterlife to qualify. >> there are 12 african-american soldiers among the 49? do you think the situation of african-americans in prince georges county at the time was better than the situation for jews? >> the names on the plaque are the same names on the one put up in upper marlboro. i don't believe there is evidence that the town of bladensburg knew who was on the cross. they named some guy in philadelphia with no connection here. i don't know how they got the names. some of these questions about how people process these symbols and what messages they convey. you sort of accepted this idea that this is what we should be thinking about. why is it not enough to say that
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erecting a symbol like this would align the government with a particular religion and not align it with every other religion? test that were the put forth in our brief. -- the reasonable observer test in some situations might be helpful, especially need to put yourself in someone else's shoes. it is a proxy for facts. look at the facts. there is a 40 foot cross in the middle of the highway. it dominates the newer displays the town has put up recently. there are bushes obscuring the plaque. to the --alkways there are no walkways to the cross. i am curious in response to justice kagan, you say should mon in this case.
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the courts of appeals continue thereed and use it and reasonable observers process things in all sorts of different ways. it has resulted in a welter of confusion, i think, by anyone's admission, including your own. toit time for this court thank lemon for its services and set it on its way? >> no, your honor. i think there is a difference between lemon and a reasonable observer. i think the reasonable observer -- >> if you don't find it useful in this case and you don't want the court to apply to this case, what about all those poor court of appeals judges who are left with confusion. we have not overruled it but we never use it, except for when we might have 25 years ago. i think a majority of this court
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, though never at the same time, has advocated for leominster dismissal.lemon's lemon is veryt useful. you heard the arguments earlier today. that is the crux. >> how could it be useful when we have not used it in the most important cases that are on point here? orton? marsha v chambers? the lower courts need some clarity about that, that would suggest that the test does not work. >> i would submit that the court has not had the proper opportunity to apply it --
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>> town of greece was certainly a case. the court comes back to saying for instance trump versus hawaii that reiterating the -- that case relies on lemon. everyoneantly, i think agrees that purpose and effect are critical inquiries under the establishment clause. they long predate lemon. --re were 14 cases per 11 , thewanted to ask distinction between the 10 commitments on the cross. >> it is two fold. it has a dual meaning as a symbol of law.
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alongside --nveyed the clear fact is or the impression is that this is a law symbol. when it is displayed in isolation or for one -- for instance, if it was just at the christian version, i am not sure what that looks like, that might be a problem. the reason we say court does not need lemon this case, there is an easier route and that is the notion of one religion over another can't be preferred. >> would it be a violation of the establishment clause for the state to promote secularism or humanism as opposed to religion? >> humanism, yes. if the government decide to put -- ifappy human symbol
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they decide to replace the cross at the happy humanist, i think that would be a problem. mean interesting question to and your response was he was wrong on the numbers. i have pictures with lots of crosses that are on public land. assuming for the sick of argument that there are 50 or a lot of them. we sick, you have to take down all of the crosses. what message does that send when people see that on tv? they see crosses all over the country being knocked down? >> i don't think the need to be knocked down. our preferred remedy is the least divisive as an outcome of the case, to move into private land. >> moved, taken down, but they are taken down, one way or the other. what messages that? that might promote a particular worldview, is that consistent with the establishment clause? >> i think we are forgetting the
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third option, transferring to underlying property. >> we are fighting the hypothetical. i love doing that, too. let's stick with the hypothetical. you can't transfer it, you can't move it. you have to tear down. roadside crosses along public highways, for example. in some places, they have been ruled to be unconstitutional, including in my own court because -- old court. back to the question, if you can answer it, that would help me. again, ik the message, want to set another option, which is creating an open forum. with respect to bulldozing 50 crosses, people will get the message that you can't prefer christianity. this cortes always rejected the idea that restoring a government to a place of neutrality -- i
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think that argument is directly cut against their argument that this is not a religious symbol. to say he would be so hostile to religion to move into private land, to transfer land underneath it, really damages their argument in a way -- >> it is not just an argument. it is partly guidance. interested in your reaction -- i did not hear an answer. i think the hypotheticals are difficult. >> it is not a hypothetical. a very good book, the law and its compass, all good ideas come from freedom of religion. you have your religion, i have mine and we are not going to kill each other. ok? we say history counts. past is past?ing
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if you go back 93 years, no more. there are now 54 religions. we are now everything under the sun. people will take offense. how do i do that? is that sensible? is it ridiculous? what you think? >> i think there are ways to cross is athe 9/11 perfect example. it sets an exhibit panel with other pieces of rubble and facts about how it came to be. if this were not being actively used by the town as an annual war memorial that every year after year the town is saying this is how we honor our veterans, this giant cross. it is a constant message, not a historical artifact. >> what if other cities replicated the 9/11 cross? it is a different world, it is a different time. history has changed.
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here is an example of a cross that has a very contemporary meaning to a lot of people. which you prohibit cities and states from duplicating that cross on their public morals to 9/11? a cross that looks like a piece of rubble, i think it depends on how they are displaying it. it does not exist in isolation. >> my question is it is a 9/11 memorial and that is the predominant thing and there might be some names on it, just like our bladensburg cross. >> that would be a problem. that would be across that is displayed as the governments war memorial, not an artifact that is a museum context. >> it was said that the only way
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to have a remedy here is to destroy -- change the cross or destroyed. he said you cannot move it because it will fall apart and you cannot give it to the legion because of safety concerns. do you agree with that position? >> i don't agree. we don't have any statements about moving it -- there is one statement that says it might be hard to move. we have testimony saying the state has moved a large historic houses, i have a large time house is more difficult to move. i do understand that the cross is falling apart and has to be fixed, anyway. whether it is fixed and moves or is fixed in place, it is irrelevant. it still has to be fixed. >> that is right. they are ignoring the key problem their own experts have wondered about. remedy,our preferred
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which is moving it somewhere else, is the best situation for the cross. it can be placed in a location per people don't have to risk their lives to reach it. questiongo back to the that has been underlying some of my colleagues points and points you been trying to make. , the contextual endorsement test is always contextual. according to you, contextually, the 50 crosses the justices are worried about -- you still think it might be only 10 or 20. i accept that. given the nature of the issue, given that the other side concedes there are extreme proselytization -- there has to be, the first amendment, there has to be defacto coercion to
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make any sense of the establishment clause. involvealways going to context. you were given up the reasonable observer test. you were talking about an objective factors test, could you go into that a little bit more? >> are brief details disparate all the founders relate to the government. once you have accepted we have a simple that only honors one isigion, you are testing this a sectarian symbol? does it prefer one religion? is it the government putting his hands on it? the arlington crosses, it is not. one was donated by canada. to how muchrelate government support is there? matter and it can how enthusiastic the city is about it.
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if you had a 90 foot cross and a two foot star of david, it would say we really like christians and we only kind of like jews. the more prominent it is, the more it begs the question, why isn't there? i once was a lower court judge and if i gave that kind of analysis and threw my hands up, those are 20 different facts. how big is it? where is it? maybe that is the best we can do. you have something more concise about the test you would apply beyond looking at all the contextual factors, history and all that? >> i think it is very difficult and i think it is why the court has not come up with a singular test because cases are complex. that is the establishment clause. one is of value weighted with specific facts. i know that it's not the best answer you want to hear but the
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reality is no one has come up with a better test than lemon. we don't need the reasonable observer would we can look at facts. >> you said no other crosses have to be torn down. would you like us to write that in the opinion? [laughter] we are going to write an opinion and be set this cross is particularly bad. this one has to be moved, torn down, transferred or so forth. but every other crosses fine. >> that is not what i said. ill-suited for categorical rules. when the court says not every crosses being torn down, not every cross is going to be upheld. i think that is an appropriate way to leave room for exceptions. >> your argument sounds in liberty. thinking about a liberty claim, i think the constitution tilts
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toward liberty in its structure and one way it does so is there are lots of avenues, the bladensburg council could change its approach. the maryland legislature could say no more. the maryland constitution or the maryland courts could prohibit -- with that in mind, the establishment clause test in reference to historical practice could be thought of as setting a floor. there are other ways the constitution tilts toward liberty and other avenues. should we think about that at all or is that irrelevant? >> liberty is absolutely important and that is where the brief of the joint committee and all christian groups -- saying upholding this cause would definitely degrade and damage their free exercise or their religious liberty believes. it's respect to a test, the court talks about not allowing a policy that excludes or
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discriminates against nonbelievers. in that regard, it goes further in favor of nonbelievers in march because some justices interpreted parched to >> i guess my question was, in thinking about our role, should it matter that we know that the bladensburg council, the state legislature of maryland, are all there or is that irrelevant? >> you have a couple of minutes left. -- iw maryland decides guess i am not understanding the question. >> the fact that there are other ways in which the cross, other bodies can decide that the cross is too much, the local counsel could in the local legislature and i am not saying that is the right answer but i am wondering if that is relevant. maryland legislature
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decides that the cross is universal? >> no, that the cross should come down. the maryland state court, the court of appeals could decide. >> the remedy? it is relevant. i don't know if that plays into the question. >> i think the question is different. i think the question is, do we think that since there were other avenues available that the constitution does not require floor as a constitutional floor for an establishment cause violation. i think that is the question being asked. >> than the answer is no come i do not think it is relevant at all. thank you, counsel. you had three minutes. >> ours is a middle path between
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my three excellent friends. the easy way to resolve this case is to say in the wake of world war i, crosses like this one had an independent, secular meeting. as justice kavanagh said before, this court has recognized that symbols have dual meanings. how does it have a dual meaning? it is an evident symbol of christianity. people wear crosses to show their devotion to the christian faith. >> we do not disagree with any of that, justice ginsburg. is point of plurality made crosses, particularly world war secondary meaning. ther approach would risk destruction of this 93-year-old
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memorial which has the long tradition going back to the p.o.w.. >> there is a call in the of substituting something like a coercion test with or without limits -- what position are you taking? >> we profoundly disagree. we think it is unnecessary and unwise. it is unnecessary because as their own brief says, they say the existing test makes this an easy case to save the test. if you are concerned about lemon, wait for a case in which it has a bite. here, whatever test is applied -- >> you are in the same boat. keep lemon around for a rainy day but please do not apply lemon to this case. with you happy
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applying lemon, that is constitutional. but it is a passive monument. >> what if we think it is unconstitutional under lemon? >> i think it would be impossible for reasons that we have explained. >> what if it is unconstitutional under lemon? . if it is unconstitutional, then we would say you should take a look at lemon because then it would necessarily be prevented. >> you would have to do so much work to get there, just as kavanaugh, that it would be a distortion of lemon. my friends say there are disagreements in the lower courts. our test results that. viewerlves the objective disputes. to take this case and go further
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particularly because as the chief justice said, they are selling you a clean test but in the end, they have indirect coercion, proselytization and all of these other things. the one thing we do know it prevent that it will crosses like the one in the park with jesus nailed it to the center of it. >> thank you, counsel. the case is submitted. >> c-span's "washington journal" live every day with news and policy issues that impact you. coming up this morning, young -- young americans for freedom national chair, grant strobl talks about issues important to young conservatives and how they view they trump presidency. fromteven shepard politico. on do overs. and then dan puskar from the
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public lands alliance looks at the act passed by congress this week. be sure to watch c-span's "washington journal" live at 7:00 eastern this morning. join the discussion. on c-span's q&a, the u.s. army veteran eileen rivers on her book "the on the call" about three women that went beyond their regular duties to help women in afghanistan and further the mission. >> one experience that she me was that she felt like there were men trying to break her. they had really heavy gear and weapons and they were carrying it on this road march. she pulled her women aside and said, no matter what happens, do not start crying and keep up because i hava

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