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Could Peace Cross Case Go Much Bigger and Decide the Fate of Many Religious Displays?

02-27-2019
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Advocates for both sides of the Peace Cross case surround the US Supreme Court building on Wednesday, Feb. 27, 2019. (Photo by Patrick Robertson, CBN News.)
Advocates for both sides of the Peace Cross case surround the US Supreme Court building on Wednesday, Feb. 27, 2019. (Photo by Patrick Robertson, CBN News.)

US SUPREME COURT — On Wednesday the Supreme Court heard arguments in a religious liberty case that was over just one cross dominating a World War I memorial on government land in Bladensburg, Maryland since 1925.  

But lawyers defending the Peace Cross urged the justices use this opportunity to come up with a simpler, clearer way to decide these cases involving government and religious displays, symbols or actions.

For decades, the court has applied a so-called Lemon Test. It's a murky three-prong standard from a 1971 opinion which states (1) the action, display or symbol must have a mostly secular purpose, (2) its primary effect must neither advance or inhibit religion and (3) it must not foster excessive government entanglement with religion.

Texas Could Keep the Ten Commandments…Kentucky Couldn't

This has led to results like one day in 2005 when the high court said that the Texas state capitol could display the Ten Commandments, but a Kentucky courthouse could not. In another case, the justices said that a city in Rhode Island could have a Nativity scene on city property.  But five years later, announced a Pennsylvania county could have a menorah and Christmas tree, but not a Nativity scene on county land.

"It's very difficult for lower court judges to make decisions because the Supreme Court has not been clear on what the standard is," explained Alexandra McPhee of the Family Research Council.
 
Inside the courtroom, defenders of the Peace Cross argued for a new standard: coercion.  Does the government action coerce belief in religion? Legal team member Kelly Shackelford of First Liberty Institute told CBN News that's what the Founding Fathers wanted.
 
'The Founders Would be Appalled'

"It wasn't to engage in some sort of religious cleansing of religious monuments across our country," Shackelford said. "The Founders would be appalled at that concept.  It was they didn't want there to be an established national church and they didn't want the government coercing people with regard to their religion."
 
Those who originally brought the case say the cross upsets them and is clearly a harmful entanglement of Christianity and government.

Original plaintiff Fred Edwords told CBN News, "We humanists have always said that when you mix church and state, what you do is damaging both."
 
Defenders contend the cross simply acts as a grave marker honoring World War I soldiers' sacrifice. Not so, say the opponents.

'This is a Memorial to Christianity'

"This is predominantly a religious symbol," said Steven Lowe, another original plaintiff.  "In fact, this is a memorial to Christianity."

Shackelford argued these outraged or hurt feelings of those offended by the cross should not be reason enough to threaten the memorial.

"All of us in America are offended by some things," Shackelford said.  "We don't tear things down because somebody's offended."

The Cross Will Stand…or Will It?

The Liberty Counsel's Mat Staver came out of the battle inside the Court believing the cross will stand.

"I can't see the Court overruling and causing a 93-year-old cross to be destroyed," Staver commented. "And I don't think the Court is going to continue with an unworkable test called the Lemon Test."

But those who originally brought the case opposing the cross back in 2014 felt confident as well after attending the hearing.

Edwords remarked, "I went in with the idea that this was going to be a 5-to-4 decision one way or the other.  But I came away really optimistic that it's going to be a bigger win on our side by the way the justices were asking really pointed questions, particularly of the other side and weren't really buying a lot of the other side's arguments."

So it appears both sides came out of the courtroom feeling like the justices were on their side.  Which probably means the justices are going to have a tough time deciding this case over the Peace Cross.   

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