2 Potential Supreme Court Cases Christians Should Know About
By , CP Reporter | Sep 21, 2018 7:48 AM 1 / 3 Expand | Collapse (Photo: Liberty Institute)A veterans memorial located in Bladensburg, Maryland.
Prominent conservative religious freedom lawyers and a lawyer from one of the nation‘s leading secular legal groups debated two cases that could potentially be taken up by the U.S. Supreme Court on Tuesday.
Alex J. Luchenitser, the associate legal director for Americans United for Separation of Church of State, was the lone secular legal advocate on a panel Tuesday at the Jones Day office in Washington, D.C.
The panel discussed the prospects that two Establishment Clause cases that were decided by the U.S. Fourth Circuit Court of Appeals last year will be taken up by the nation‘s top court this year.
The first case is . Earlier this year, the en banc Fourth Circuit ruled 10-5 that the commissioners of Rowan County, North Carolina, violated the Establishment Clause of the First Amendment by holding commissioner-led prayers at the beginning of their twice-monthly public meetings.
The second case is , a case in which the constitutionality of a 40-foot cross‘ existence as a World War I memorial on public land is challenged. As the cross was erected in 1925 by local citizens in a rural town outside of Washington, D.C., the cross is now noticeably visible from a busy D.C. suburban intersection. Last year, the Fourth Circuit ruled that the the giant cross on public land is unconstitutional.
“Those cases are going to be up before the justices at their conference next Monday,” Amy Howe, founder of SCOTUSBlog and moderator of the panel, said. “So we could hear something if the Supreme Court sort of follows the practice that it has for the last couple of years, we could hear something as soon as Thursday Sept. 27.”
Expand | Collapse (Photo: Rowan County Board of Commissioners)J. Newton Cohen, Sr. Rowan County Administration Building, meeting place of the Rowan County, North Carolina Board of Commissioners.
Rowan County v. Lund
The case centers around the commissioners of the North Carolina county, who begin their twice-monthly meetings with a prayer.
The commissioners take turns leading the prayers and the prayers usually begin with a call for invocation — a statement like: “let us bow our heads and pray.”
Because a number of community members objected to the prayer, which is usually Christian in nature, a lawsuit was filed in federal district court on grounds that citizens felt coerced to pray.
The district court ruled that the practice did violate the Establishment Clause. After a three judge panel of the Fourth Circuit ruled that the prayer practice did not violate the Constitution, the case was then taken up en banc before the entire Fourth Circuit. The en banc Fourth Circuit the prayer.
The Fourth Circuit‘s ruling comes as the U.S. Sixth Circuit Court of Appeals , Michigan, last year when their prayer practice was challenged.
This summer, however, the Supreme Court both the Rowan County case and the Jackson County case despite the differing outcomes between the circuits.
“How does it work out where you have one circuit that says a similar type of legislative prayer violates the Establishment Clause but you go a couple of states away and it doesn‘t?” ADF Senior Counsel David Courtman asked. “I was a little bit surprised that the court didn‘t take up those cases because whenever you have somewhere around 30 appellate court justices disagreeing on an issue, that‘s a perfect invitation for the court to take the case and clarify and clean up that conflict that is there so that the law is uniform for how to engage in that practice.”
Courtman said that cases like Rowan County and Jackson County are simply part of a progression in legislative prayer cases that the nation has seen play out of the last several decades. He said that in the 1980s, there was the case of Mash v. Chambers, which tackled the base question of whether legislative prayer cases are constitutional and the prayers were upheld in that case.
“[Then the] challenge was maybe you can have [the prayers] but you can‘t have them if they are sectarian, you can‘t have them if they are Christian,” Courtman said. “The Supreme Court ruled in the  [case] that is permissible.”
Courtman asserts that the next question in the progression trying to be answered in the Rowan County case and Jackson County case is “who can pray.”
“Now, it‘s OK if you have prayer and its OK if they are sectarian but now the question is who can pray,” he added. “[The argument is] it is OK to bring in outside people or bring in a chaplain but if you have the commissioners themselves do it, well now, it is unconstitutional. The next question that is being litigated is who can pray?”
Luchenitser offered his thoughts on why the court didn‘t grant a review this summer in the Rowan case.
“Maybe the court thought it was too soon after Greece to take another legislative prayer case,” Luchenitser said. “Maybe it wanted to wait and see how other circuits would address similar issues in the future. Maybe there just weren‘t four justices that were troubled by the result. The court didn‘t want to take the Bormuth [v. Jackson County] case because there were issues about what was properly in the record in that case.”
Expand | Collapse (Photo: American Humanist Association)A 40-foot tall cross on government property in Bladensburg, Maryland.
The American Legion v. American Humanist Association
Last October, the Fourth Circuit ruled that the gigantic Bladensburg cross has the primary “effect of endorsing religion and excessively entangles the government in religion.” The cross sits on public property as part of a war memorial and is hard for drivers to miss as they go by on the local street.
Although a district court ruled in favor of the American Legion and the Maryland-National Capital Park and Planning Commission, the Fourth Circuit that the “the Latin cross is the core symbol of Christianity” and essentially is unmistakable as an endorsement of religion.
“Two of the most prominent World War I memorials at Arlington Cemetery, which is federal land, are in the shape of a Latin cross,” Jeffrey Harris, a partner with Consovoy McCarthy Park PLLC who is involved in the Supreme Court petition, said. “The Fourth Circuit tried to distinguish those on fact-specific grounds in part because they are smaller. So 40 feet verses 20 feet or 30 feet. I found that extremely unpersuasive. I think the court was really straining to say why this cross has to go but the ones in Arlington Cemetery are fine. I think if we reach a world where you can have a World War I cross on federal land in Arlington Cemetery but not on state land in the war memorial park in Bladensburg, it is more of an indictment of the doctrine more than anything else.”
Harris highlighted another problem he has with the Fourth Circuit‘s ruling.
“I think that leads to some really odd outcomes,” Harris said. “As a result of that reasoning is that Bladensburg would essentially have to do is pick World War I out of every armed conflict of the 20th and 21st century and essentially pick that one for removal from this area of all the monuments just because the people who commissioned the monument designed it in the shape of a Latin cross.”
“Through no fault or intentional acts of the government, now that area is very developed, now it is kind of in the middle of an urban area at a major intersection,” he continued. “So all of a sudden, it went from this memorial kind of off by itself to kind of in the middle of things. I think we have this weird dynamic and I think it‘s a radical proposition that something could essentially evolve into an Establishment Clause violation based on changes in the surrounding area that had nothing.
Earlier this week, the city of Pensacola, Florida, also to the Supreme Court, challenging the Eleventh Circuit‘s ruling that the city‘s failure to remove a cross that has been in a city park for over 75 years violates the Establishment Clause.
In response to the Bladensburg cross case, Luchenitser said that it is “hard to predict” if the Supreme Court will choose to review it.
“The court has passed on other cross cases over the years. I don‘t know whether that will mean that they think it is time to take one or they will keep passing,” he said. “I don‘t really see a solid case that there is a circuit split here. No circuit has upheld the display of such a large prominent cross such as this one. There are also some problems of the procedural posture of this case that may weigh against Supreme Court review. There is no final judgment and no remedy has been ordered. The court may want to see and wait to see what the remedy will be.”
Luchenitser explained that perhaps, the cross could be sold to a private party or other objects could be added to the area around the cross to reflect the veterans of other faiths and of no faith. He rejected Harris‘ argument that it is unfair to require the removal of the Bladensburg cross and protect the crosses at Arlington Cemetery because the cemetery also features other structures that reflect fallen soldiers of other faiths.
“Indeed, the state added two 38-foot tall soldier statues near the cross while the case was on appeal. So the display is now different from the one the Fourth Circuit considered on the record for the panel,” Luchenitser said. “The Supreme Court might want to give the circuit the opportunity to consider whether these statues change the result. Also, the cross is in poor condition. Some chunks have fallen off, there are some cracks. It appears that the state isn‘t sure whether it is physically or economically feasible to repair it. There might be other changes to the display while the case is pending.”
In July, over 100 members of Congress urging the Supreme Court to take on the Bladensburg cross case.
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