In this “Legal Spirits” podcast, Center Director Mark Movsesian and Associate Director Marc DeGirolami talk about the Supreme Court’s grant earlier this month in The American Legion v. American Humanist Association, the Peace Cross case. The Court will decide whether a 90-year old war memorial in Maryland, pictured above, violates the Establishment Clause. Mark and Marc discuss the ins-and-outs of the case and speculate whether the Court will finally clear up some of the confusion surrounding religious displays on public property.
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Dear Mark and Marc,
I’ve been listening to your new podcast, which is interesting and entertaining — congratulations! I plan to listen regularly, and I encourage others to do so as well!
I have a quick question about this particular episode, on the Bladensburg cross case. When you briefly mention AMK’s Town of Greece test near the end, you refer to it as a coercion test. AMK also says that the prayer in Greece does not “denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion,” suggesting that a government prayer that did any of those things would be impermissible. And in Allegheny, Justice Kennedy explained that under his approach, “I doubt not, for example, that the Clause forbids a city to permit the permanent erection of a large Latin cross on the roof of city hall. This is not because government speech about religion is per se suspect, as the majority would have it, but because such an obtrusive year-round religious display would place the government’s weight behind an obvious effort to proselytize on behalf of a particular religion.”
My question is this: under Justice Kennedy’s approach, wouldn’t a large government-displayed Latin cross be impermissible, even if it is located not on town hall but in another location? Curious to know your reaction (and I apologize if this question is addressed in the briefs, which I have not yet read).
– Nelson
Hi, Nelson. I don’t think Justice Kennedy is talking about coercion in that except from the Allegheny case. A cross on city hall wouldn’t coerce anyone. His concern is proselytism by the state. I think he’d say that the danger of proselytism isn’t present when the cross is used as a war memorial. His plurality opinion in Salazar v. Buono suggests as much. –Mark