The American Legion, represented by the conservative lawyer Michael A. Carvin, filed by far the most radical brief. It asks the Court to scrap all existing establishment-clause jurisprudence and adopt a Cooper-style pure “coercion” test across the board. Nonbelievers may object to government religious speech, but their views are irrelevant: “By making a constitutional claim out of feelings of offense and exclusion, the endorsement test grants a heckler’s veto over speech supportive of religion that does not apply to any other form of government speech,” the brief argues. It’s a huge reach, and unlikely to attract five votes. But it will smoke out the attitudes of Justices Neil Gorsuch and Brett Kavanaugh, who haven’t yet been part of the Court’s religious wars. Both are expected to be solid votes for greater government latitude in establishment disputes. Barring the unlikely event—one hesitates to use the word miracle in this context—of a decision against the cross, the Court has a lot of paths through this litigation, and the question is how far the new majority wants to go. Regardless of the path it chooses, it is liable to provide a boost to conservative advocates of government-endorsed faith. In descending order of sweepingness, here are the major contenders:
• A number of conservative amici are urging the Court to hold that objectors to displays like the Peace Cross will no longer have “standing to sue” to block them, which would end most establishment cases before they begin.
• The legion’s pure “coercion” test would clear the deck for a wide variety of government practices—in public ceremonies, symbols, and prayers, and in other areas such as education—embodying majority beliefs.
• The solicitor general’s test would make public religious displays harder to challenge.
• The commission’s approach would, in essence, legitimize the display of crosses only in the war-memorial context.
Finally, two prominent constitutional lawyers, former Deputy Assistant Attorney General Martin Lederman and former acting Solicitor General Walter Dellinger, have filed a brief urging the Court to stay out of the doctrinal wars and approve only this cross, on the grounds that “it memorializes 49 former residents of Prince George’s County who were, in all likelihood, all Christians.” Thus, it would be a permissible memorial to those individuals alone—much the way a cross placed on the gravestone of an individual serviceperson represents that individual, not the nation as a whole.
The simplest solution might be to ask religious folk to keep their observances distinct from public ceremony and symbol, much the way James Madison sometimes suggested, to protect both the integrity of government and the purity of conscience. Such is not the law, however, and probably can’t be, simply because our nation has by now so much history of blending Christian symbolism with patriotic display. And given that history, every dispute in this area is agonizing.