Court signals it may change church-state doctrine

WASHINGTON (BP) — The U.S. Supreme Court gave hope Wednesday to at least some defenders of a 40-foot cross on public land that it might not only protect the memorial but clarify its doctrine on government establishment of religion.

The justices heard oral arguments in the appeal of a Fourth Circuit Court of Appeals decision that a Latin cross in memory of World War I soldiers promotes Christianity, thus violating the Establishment Clause of the First Amendment under a nearly 50-year-old test. The American Humanist Association (AHA) challenged the constitutionality of the Bladensburg, Md., cross, which was completed in 1925 to memorialize 49 soldiers from Prince George’s County, Md.

It is the latest in a long line of cases in which the high court has sought to interpret a much-debated clause that says, “Congress shall make no law respecting an establishment of religion.” The cases have included such considerations as Ten Commandments displays on public property, school prayers and government prayers.

Members of the Supreme Court acknowledged in the Feb. 27 arguments they have not followed their own 1971 test in recent decades while appeals courts have often continued to apply it. While a majority of the justices appeared likely to support the memorial in this case, some also proposed it was time to move on to another test to provide guidance for lower courts.

Southern Baptist religious freedom leader Russell Moore told Baptist Press the justices “should see through this attempt to amend the Establishment Clause to mean what [James] Madison did not write.”

“A judiciary that finds an illusory pathway in the Constitution to establish a secularized state hostile to faith is dangerous,” said Moore, president of the Ethics & Religious Liberty Commission (ERLC), in written comments. “As we submitted in our brief to the court, maintaining a nearly century-old memorial is hardly an official declaration in law for Christianity.”

Other proponents of the constitutionality of the Bladensburg cross predicted the high court will provide a way forward on Establishment Clause cases.

“One thing that was probably the most clear of the day is how confused and troubled the law is right now, and that the justices are all aware of that, and that they’re ready to do something about that,” said Kelly Shackelford, president and chief counsel of First Liberty Institute, in an interview with BP outside the court building. “They obviously were going back and forth with how to do that, but I think it’s clear they know something needs to be done and the law needs to be clarified.

“That gives us a lot of hope,” Shackelford said, “because No. 1, if we clear things up, we can stop a lot of these attacks upon veterans memorials and religious symbols across the country.”

Mathew Staver, founder of Liberty Counsel, told reporters outside the court after the arguments he thinks the justices demonstrated “enough concern to jettison an unworkable test and create an entirely new test, so there’s clarity as to whether words like ‘In God We Trust,’ nativity scenes on public property, crosses or memorials are constitutional or whether they violate the Establishment Clause.”

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