Updated at 3:55 p.m. ET
The U.S. Supreme Court appeared ready to let stand a 40-foot cross on public land in Maryland, but the justices struggled Wednesday to come up with a test to clarify the separation of church and state in this country.
Over the past half-century, the court has used a variety of tests — is the purpose of the contested symbol or program religious or not? Does it entangle government with religion? Does the government's action appear to endorse religion?
On Wednesday, arguments were made with three potential paths for tests, but the justices appeared skeptical of all of them:
1. The American Humanist Association, which brought the challenge to the cross, argued to get rid of it, move it to private land with private funding and that the cross should not be paid for by the government. The humanists essentially argued that public religious displays have to be looked at in context.
A giant Latin cross, it argued, doesn't pass the test of what should be permissible because it's clearly Christian. The Ten Commandments or a cross or other Christian symbols, though, could be OK if other religious monuments accompanied it.
The justices pressed lawyer Monica Miller, who argued for the humanist association.
Suppose, asked Justice Samuel Alito, that there is a mass shooting at a synagogue or a mosque, and a city wants to put up a memorial in solidarity with those faiths, and it wants to include religious symbols. Would that be unconstitutional?
Miller replied that a 40-foot Star of David in the middle of a town might be a problem, but an obelisk containing a star of David that is not so "loud" would not be a problem, because "the commemorative purpose... would predominate over the sectarian."
Similarly, she contended, a Ten Commandments monument would be permissible, because it has a dual meaning, one alluding to laws.
Neither of those arguments sold well as a standard with the justices, prompting Justice Stephen Breyer to float another idea. Suppose the court were to say "the past is the past" — World War I memorials that go back 93 years can remain. But "no more" of these memorials now.
That, however, didn't seem to fly either.
2. The American Legion and the Trump administration argued in favor of what's known as "the coercion test." That would allow public expressions of religion or taxpayer support for religious entities — unless the government support coerces religious minorities to believe something that is against their principles. The test should be, they argue, whether a religious minority has been "tangibly hurt."
That standard would allow public support for religious speech unless it constitutes "proselytizing." If adopted, it would significantly broaden the category of permissable government support for religious symbols and programs. Anything else, the Legion argues, would amount to hostility toward and discrimination against religion.
Attorney Michael Carvin, arguing for the Legion, urged the court to adopt the coercion test. But it was he who was tested on his definition of proselytizing.
Justice Elena Kagan asked him to define it.
Carvin answered: "preaching conversion, advocating conversion from one sect to another.
So what if a town put up a cross as a symbol of Christian values, would that be OK, asked Kagan.
Carvin dodged and weaved, saying it would depend.
"You advertise [your standard] as a pretty concise test, but it degenerates pretty quickly ... into a fact-specific test," Chief Justice John Roberts said.
The Trump administration's Jeffrey Wall was next up, defending the Bladensburg cross.
He faced a question from Justice Sonia Sotomayor. Could the government put up a cross memorial today to honor Vietnam veterans, even though they weren't all Christian? That, he replied, "would be perfectly permissable."
Kagan was incredulous. "And why is that?" she asked. "Is your claim that the cross has become 'a symbol that's universal' rather than 'the foremost symbol of Christianity'?"
Justice Ruth Bader Ginsburg followed up, noting that at the founding, the country was overwhelmingly Christian. But now, she said, "we are told ....that 30 per cent of the population are not christian believers."
3. The Maryland Parks Commission tried to strike a middle ground, which the court also treated with skepticism. It argued that the cross is constitutional because its purpose is predominantly not religious and it fits within a long-standing tradition.
Representing the parks commission was lawyer Neal Katyal, who argued that the cross became the symbol of war 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.
Ginsburg interrupted. "Does the cross really have a dual meaning?" she asked, noting that it is "the pre-eminent symbol of Christianity" and that "people wear crosses to show their devotion to their faith."
But Katyal insisted that World War I memorial crosses have a secular, a non-religious, purpose.
Even conservative Brett Kavanaugh, a Catholic, seemed to disagree, saying the cross is obviously Christian. He asked: "What do you say to the Jewish war veterans who believe this dishonors their service?"
Nearly 100 years ago, bereaved mothers in Bladensburg, Md., decided to build a World War I memorial to honor their fallen sons. When they ran out of money, the county took over the cross-shape memorial and its maintenance.
Today, the cross sits at a busy five-way intersection, and the message it conveys all depends on whom you ask.
As far as is known, nobody lodged any objection to that arrangement until the American Humanist Association went to court seeking the removal of the memorial to private land and an end to taxpayer funding for its maintenance.
The association won in the lower courts, and in 2012, a federal appeals court ruled that the World War I memorial violates the Constitution's ban on government establishment of religion and must be moved to private property.
But now the case is before the Supreme Court and offers an opportunity for a newly constituted conservative court majority to draw a new, more religion-friendly line.
Carvin, the lawyer for the American Legion, argues the cross "evokes the cemeteries in Europe that became a universally acknowledged symbol of World War I dead because of European graveyards."
Others, such as Miller, the attorney for the American Humanist Association, see its meaning as plain and obvious as the cross is large.
"It's a giant 40-foot Latin cross," she said. "There's no other meaning to the Latin cross other than Christianity."
Still, the odds are the court will allow the cross to stand. The question is what the court's opinion will say about how to judge the standard for religious symbols and programs in the future. A decision is expected by summer.
STEVE INSKEEP, HOST:
A giant, concrete cross standing in the middle of a busy median strip is a symbol at the center of a constitutional fight. It's a fight over the concept of separation of church and state. The Founding Fathers included in the First Amendment a ban on the government establishment of religion. So what counts as an establishment of religion? Today the U.S. Supreme Court takes up that issue. Here's NPR's legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: One-hundred years ago, bereaved mothers in Bladensburg, Md., decided to build a World War I memorial to honor their fallen sons. When they ran out of money, the American Legion took over the project. But roughly a decade later, the county took over the war memorial and its maintenance. Today it sits at a busy five-way intersection. Now, listen to how lawyers in the case describe it. Michael Carvin represents the American Legion.
MICHAEL CARVIN: It evokes the cemeteries in Europe that became a universally acknowledged symbol of the World War I dead because of the European graveyards.
TOTENBERG: Neal Katyal represents the Maryland Parks and Planning Commission that maintains the concrete cross.
NEAL KATYAL: The first thing you notice when you see the cross is these four words at the base of the monument - valor, endurance, courage, devotion.
MONICA MILLER: I mean, that's silly.
TOTENBERG: Monica Miller is senior counsel for the American Humanist Association, which is challenging the cross.
MILLER: It's a giant, 40-foot Latin cross. There's no other meaning to the Latin cross other than Christianity. At the dedication ceremony, they underscored this fact by calling it a Calvary Cross, by evoking this message of Jesus Christ.
TOTENBERG: Fred Edwords first saw the cross years ago.
FRED EDWORDS: I happened to be driving through Bladensburg, and there it was. And it blatantly looked like it was on government land. I mean, it was on a highway median. And I thought, what is that doing there?
TOTENBERG: He and the Humanist Association asked the Maryland Parks Commission to move the cross to a private location and to stop using taxpayer money to maintain it. The parks commission said no. And a federal appeals court ruled that the cross should be moved. That upset some of the descendants of the 49 men whose names are on the memorial. Alvergia Guyton never knew her uncle. But as a child, she used to talk to the photo of her uncle that her mother kept in the living room.
ALVERGIA GUYTON: I feel its history, and the younger generation should know what has happened. And when they start taking down things, they miss all of this. So I'm very sad about that.
TOTENBERG: That won't happen until and unless the Supreme Court says so. The odds are that the court will allow the cross to stand, the question is what the court's opinion will say about the future. And even the lawyers defending the cross don't agree on what the standard should be. The parks commission's Katyal will tell the justices that they don't have to break new legal ground because this is an easy case.
KATYAL: The law has never been that a government agency cannot display a religious symbol.
TOTENBERG: Indeed, U.S. dollar bills say in God we trust. There are prayers at the opening of legislative sessions. Even the Supreme Court chamber itself is adorned by a frieze of Moses holding the Ten Commandments - though, only commandments six through ten, the ones considered most secular, are visible.
(SOUNDBITE OF ARCHIVED RECORDING)
UNIDENTIFIED PERSON #1: Oyez, oyez, oyez.
TOTENBERG: Not to mention the invocation of God as the Supreme Court opens each public session.
(SOUNDBITE OF ARCHIVED RECORDING)
UNIDENTIFIED PERSON #1: God save the United States and this honorable court.
TOTENBERG: That, however, is not the argument the American Legion and the Trump administration are making. They want a sharp break with the many decisions of the past 50 years. For most of that time, the court has used a variety of tests - is the purpose of the contested symbol or program religious or not? Does it entangle government with religion? Does the government's action appear to endorse religion?
But conservatives on and off the Supreme Court have been pushing something called the coercion test, the idea being that public expressions of religion or taxpayer support for religious entities are constitutional, unless they coerce religious minorities into believing something that's against their principles. Today the American Legion's Carvin will tell the justices the test should be whether a religious minority has been tangibly hurt.
CARVIN: So religious speech is presumptively valid, except in the rare cases where it constitutes proselytization.
TOTENBERG: Anything else, he maintains, would mean a hostility to religion and discrimination against religion.
Monica Miller of the American Humanist Association.
MILLER: It's scary. I think their real motive is they want prayers back in school. I think they want Bible readings. You know, as long as it's optional, funding to parochial schools - I'm sure that's one of the motivating factors.
TOTENBERG: We drove out to the cross to see for ourselves what it looks like.
Oh, my goodness. There it is.
It is big. But in truth, it's more grungy than grand - the concrete is crumbling, a canvas tarp is strapped to the top to try to protect it from the rain. Lawyer Katyal, who's defending the cross, ruefully points out how unreligious the setting is.
KATYAL: Next to it is Kelley's Muffler Shop (ph). The shop has this huge sign that says 301-HOT-RIDE for calls.
TOTENBERG: But the most prominent feature on the block is the big, orange King's Pawn Shop (ph) sign.
Hey there. So I'm doing a story about the cross.
We went in, and the store clerk told us that people find their way to the pawnshop using the cross as their guide.
UNIDENTIFIED PERSON #2: They know where we are because of that because that been there for a long time. I mean, it don't bother nobody. I don't know why they try to take it down.
TOTENBERG: Fred Edwords, who helped bring the cross challenge, concedes that his objections may seem small now. But, he says, if you don't object to small incursions on your liberties...
EDWORDS: People will use them as a precedent to make another abuse and another one. And the other ones will be big, and you'll feel them. But it'll be too late.
TOTENBERG: A decision in the case is expected by summer. Nina Totenberg, NPR News, Washington.
(SOUNDBITE OF FOLLOWED BY GHOSTS' "THROUGH LEADEN CLOUDS") Transcript provided by NPR, Copyright NPR.