Courthouse Steps Oral Argument: The World War I Cross Cases

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Religious Liberties Practice Group, was recorded on Thursday, February, 28, 2019, during a live teleforum conference call held exclusively for Federalist Society members.        

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is a Courthouse Steps Oral Argument on the World War I Cross Case. My name is Micah Wallen, and I'm the Assistant Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the expert on today's call.

 

Today we are fortunate to have with us Mark Rienzi, who is President of The Becket Fund and the Director for the Center for Religious Liberty at the Catholic University of America, Columbus School of Law. After our speaker gives his remarks, we will then go to audience Q&A. Thank you for sharing with us today. Mark, the floor is yours.

 

Mark Rienzi:  Great. Thank you, Micah, and thank you, everybody, for being on the call. We're going to discuss yesterday's argument in the American Legion v. American Humanist Association case about the Bladensburg cross, sometimes called the Peace Cross, a World War I memorial in Bladensburg, Maryland. I should say, in the spirit of full disclosure, as I go through the oral argument that I had an unexpected change of plans yesterday and could not be there personally, so I am basing this off of reading the transcript and paying plenty of attention to my colleagues who were in the courtroom, but I was not.

 

I think the key takeaway from yesterday's argument is that it looks quite likely that the Bladensburg cross will be upheld as constitutional, that the Court will not find it to be a violation of the Establishment Clause. I think there's a good likelihood that the Supreme Court will decide that the Lemon test, which has been around for about 40 years, that the Court will decide that that test is no longer helpful for Establishment Clause cases, but that the real question is what the Court might replace it with.

 

The argument started with Neal Katyal representing the Maryland Government Association, which was one of the defendants in the case. Katyal presented an argument that suggested that the Court should look closely at the particular facts of this particular cross – its age, its genesis as a World War I memorial, the use of the cross as a widespread symbol in the World War I era, not simply of Christianity, but of sacrifice and commemorating death in the war. So Katyal presented an argument that was very fact and context specific about this particular cross. He argued that the Court should not overturn the Lemon test. He said, essentially, this case is an easy case under any test, and that it's unnecessary and divisive to use this opportunity to tear down the Lemon test.

 

Katyal's first questions came from Justice Sotomayor. She was immediately interested in whether the cross could simply be moved to some other spot; in other words, could it be taken off of government land, moved to private land, and thereby can we get past the Establishment Clause problem without destroying the cross, or as one of the lower court judges suggested maybe just slicing off its arms so that it would be an obelisk instead of a cross. Katyal responded that the State commission did not think it could be moved. The cross was quite old and that they were very concerned that if they moved it, it would be damaged in the process. And so you would effectively destroy it if you moved it elsewhere.

 

After Justice Sotomayor, there was the beginning of some questioning by Justice Kagan, who was a pretty active questioner of several of the attorneys. Justice Kagan repeatedly asked lawyers questions about, "Suppose it's this cross but with a couple different facts changed. So the first variation of that that Justice Kagan pushed was, well, suppose it was a brand-new World War I memorial, in other words not one that has stood unchallenged for 93 years in the community but a brand new one put up tomorrow. And Justice Ginsburg jumped in with a question about, well, suppose it wasn't even a war memorial. Suppose it was a cross that was put up after a school shooting or something like that, some other cross as memorial example.

 

Katyal's answer for the government was that what you have to look at in each case is whether there is an objective secular meaning to the cross, and he said as long as there were crosses as memorials, he thought in those situations they would be permissible. The Justices pushed on how much weight to put on the fact that this was 93 years old and that there is a special World War I meaning to the use of the cross, that that was used widely, not just in the United States but in other countries as a symbol, not just simply for Christians but as a symbol to the sacrifice of the war dead. And essentially, Katyal's argument was well, those facts make this case really easy, but they're not necessary to win; in order words, if it were a new cross, not a 93-year-old cross, if it still had that objective secular meaning, it would be okay.

 

Toward the end of his argument, the Justices pushed Katyal on suppose the cross is offensive to some people who are not Christian. One of the hypotheticals was what about Jewish citizens or Jewish soldiers who took offense? Another variation on that question was what about Christians who take offense who say, "You shouldn't be secularizing the cross." In response to both sets of questions, Katyal said, essentially -- well, on the Jewish point, he pointed out that actually one of the chief fundraisers for the cross was a Jewish veteran of World War II and there were many Jewish soldiers who had no objection to the cross being used as a memorial marker at the time. But ultimately, Katyal's answer for both groups of potentially offended people was that as a general matter, we simply don’t allow the offense of somebody to dictate whether other people or government can use the symbol. Essentially, we don't get a heckler's veto.

 

After Katyal, Michael Carvin argued on behalf of the American Legion. The American Legion had been involved in putting up and maintaining the cross at different points in time. And Carvin took a much stronger line towards the Lemon test than Katyal had. Carvin's view -- so Carvin and Katyal are both on the same side; both think the cross should be upheld as permissible. Katyal said but it's easy so no need to touch Lemon and it would be a bad idea to touch Lemon. Carvin had the exact opposite approach. He said, "Look, Lemon's been around for a long time. It's been widely criticized. It had led to lower courts having all sorts of disparate outcomes where it really is kind of the eye of the beholder for the judge in terms of figuring how much is too much religion, and that the factors are all very open ended and lead to all sorts of conflicting and confusing results in the lower court. Carvin said, "Therefore, you should go ahead and finish the job and clearly get rid of the Lemon test." And what Carvin and the American Legion advocated for was replacing it with a coercion test.

                 

In the opening brief for the American Legion, it seemed like it was strictly a coercion test. In the reply brief, I think it expanded, or at least it was explained in a little bit more detail to be something that looked like no coercion and no proselytization; in other words, the government can't coerce people, and it also can't proselytize to people.

 

That extension of the test to proselytization is really where Carvin got the most questions from the Court. There was pushing, first from Justice Kagan and then a lot from Justice Gorsuch, over the question of -- they both essentially said, "Look, understand what you mean and what you meant by coercion, the government can't coerce people, and that seems relatively straightforward. But I'm having a hard time understanding what you mean by no proselytizing, and in particular, what's the difference between a no proselytizing test and Lemon's test, which you're telling me is really difficult?"

 

Carvin responded that the difference is that where the government is simply endorsing religion, and one example he used here is simply "In God We Trust" as the national moto, that that is not a violation of the Establishment Clause. That doesn't establish any religion. There's nothing that's even kind of coercive about that. But that if the government drifts into proselytizing, and his example for proselytizing is if you decided tomorrow you were going to change the moto from "In God We Trust" to "In Jesus Christ We Trust" such that, as Carvin explained it, you would be picking one particular sect, one particular view of God as saying the government thinks this is the right one, and implicitly the government thinks the others are wrong ones. At that point, Carvin argued that's when you would cross the line into proselytizing. But overall, Carvin's point was that essentially static monuments are very likely to run afoul of this, and that there were not real-world examples of monuments that would cross that line.

 

Carvin also referred to Michael McConnell's argument about the historical attributes of what an establishment is. Professor McConnell had put in a brief along with my organization, The Becket Fund, arguing that the Court can use historical meaning and, essentially, the historical attributes of what the Founders would have understood an establishment to be, and that the Court should simply look to see "Is whatever is going on like an establishment?" Chief Justice Roberts picked up on that line of argument and asked Mike Carvin questions about McConnell's six-factor test. And Carvin responded that the point of the test is to stop establishments which are designed by the government to inculcate a certain, widely shared set of beliefs, and that the Court had, in cases such as Town of Greece and the County of Allegany dissenting opinion, the Court had made clear that proselytizing was also one of the things that the Court thought was one of the things impermissible under the Establishment Clause.

 

At one point in the argument, Justice Sotomayor said, "I really think this is all just the endorsement test"; in other words, your crisp or coercion test doesn't seem any different from the endorsement test. At one point in the argument, Justice Gorsuch seemed to actually be poking fun about the test where Mike Carvin said he would endorse the Town of Greece test. Justice Gorsuch interrupted and said, "But you proselytize that test?" essentially emphasizing that Justice Gorsuch -- he was having a hard time seeing the difference.

 

After Mike Carvin, we got Jeff Wall, the Deputy Solicitor General arguing on behalf of the United States. Like Carvin and Katyal, Wall was arguing in favor of keeping the cross. So the United States' position was I think closest to the American Legion's position. The position of the United States was pretty similar in saying that, at least because the monument is not coercive and is not proselytizing, it should be okay.

 

Wall's argument started out of the gate emphasizing history, and in particular, the historical use of the cross as a memorial generally and as a war memorial specifically. Justice Sotomayor questioned him on the size and prominence of the cross; said, "Well, this is a particularly large cross. It's right in the middle of the highway. Doesn't that make it different from, say, a cross in the cemetery some place or a smaller cross?" The Deputy Solicitor General Wall responded saying, "Well, you have to consider the context. You have to keep in mind that this is in a memorial park with other war memorials around the cross. It doesn't have any other religious words or religious indication about it. It has a big American Legion seal in the middle of it. It had words such as, I think, valor and courage, clearly secular words, written in large type around the base." And so his argument was, well, if you consider the context, this is not a problem under the Establishment Clause.

 

Justice Kagan then jumped in with what, I think, has to be interpreted as just a five-part hypothetical. She said, "Well, let's think about a bunch of different crosses, and you tell me where all these should shake out." She said, "Suppose one is this case, a World War I memorial erected many years ago. The second is a World War I memorial erected right now. The third is a different war memorial cross. The fourth is a memorial cross that has nothing to do with a war. And the fifth is just a cross. The community just wanted to put up a cross; it's not a memorial for anything."

 

The position of the United States was the first three are easy – an old World War I cross, a new World War I cross, and any other war memorial cross – those are all easy, and in none of those situations is anyone being coerced or proselytized, and the cross has an obvious, secular meaning in those contexts. The fourth cross—so that's a memorial for something other than a war—the government said was also probably okay. He said, "A cross to commemorate a school shooting or a Star of David in a monument to commemorate the Holocaust, for example, is also not problematic." It was only the fifth one—so just the community wants to put up just any old cross that's not a memorial for anything—there, the government said it could be a problem if it's being used for proselytizing.

 

And, again, like Mike Carvin for the American Legion, the argument was drawn from the Town of Greece and the Allegany County dissent argument. And Wall said you need more than mere offense; that's why you need some sort of proselytizing, arguing that people of some other faiths are damned or outcast in some way and arguing that people should come join your faith, or you're using it as an opportunity to fill the pews, then it would be okay -- I'm sorry, then that's when you would get to an Establishment Clause problem.

 

After Deputy Solicitor General Wall, Ms. Miller got up for the American Humanist Association, arguing that the cross is unconstitutional and needed to either be moved to private land or removed, or taken down from, at least, from the government land. Justice Alito asked, "Would there be a problem if there's a school shooting at a Christian school and you put up a cross as a monument, at a Jewish school, you put up a Star of David monument, at a Muslim school or a mosque and you put up some Muslim symbol as part of the monument, would that really be a constitutional problem?" The answer from the American Humanist Association was it depends. It'll just depend on the context. It'll depend on the size. It'll depend on whether the religious display is too loud.

 

Justice Gorsuch jumped in at this point and said, "Well, that reference to 'too loud' " -- figuring out when the religious reference is too loud made him think about standing problems, and he compared it to other areas of the law, saying, "In all other areas of the law, just thinking that some other statement by the government or somebody else is too much, is too loud, is not really grounds for being able to bring a case. Usually, you need to show that you're actually harmed in some way other than you think what somebody else did was too loud or over the top." And Chief Justice Roberts jumped in a little bit with a similar standing question after Justice Gorsuch. Miller's answer was that you do need somebody who's from the community and who's affected by the presence of the cross, but I think the argument still comes down to, essentially, she's arguing for offended observer standard. In other words, you see the cross, you live in the town, you're bothered, you feel excluded by the cross. The argument is that that ought to be enough for standing.

 

The argument then shifted into the question of, "Well, what else would have to come down if we rule for you?" Ms. Miller said, "Well, the crosses in Arlington Cemetery, those wouldn't have to come down because there are lots of different religious markers in Arlington Cemetery." Chief Justice Roberts said, "Well, what about a Native American totem pole? Those have religious significance." Justice Gorsuch said, "What about Ten Commandments monuments like we've already upheld? Don't those have religious significance?" In all of those cases, Miller's answer was context. You have to look at the circumstances. In certain circumstances, they could be stripped of religious meaning or not have any religious meaning that would be improper for the government to be putting up.

 

Justice Breyer asked the question that you might have imagined he'd ask from his Van Orden opinion. He said, "Well, can we look at this and say this one's okay, but no more?" In other words, say, "Well, look, the country really did used to be at least mostly Christian, and so these symbols may have become widespread symbols at the time, but it's a very different country than it was 93 years ago, so we should say this cross is okay but nothing more."

 

Justice Kavanaugh asked Ms. Miller about whether the fact that there might be other ways to deal with potential religious exclusion, short of constitutional cases, such as they could convince the town to take it down, the state government, the state legislature, he asked whether the availability of those other ways to deal with problems should change the analysis. And Miller's answer was no, it's unconstitutional and it doesn't make a difference if there might also be other ways to address the unconstitutionality.

 

Justice Gorsuch then put the focus again on whether the Lemon test should be retained or not. He pointed out that the American Humanist Association was not actually asking the Court to apply Lemon here. And he said, "Well, if you're not asking us to apply Lemon here, shouldn't we just thank Lemon for its service and send it on its way?" Miller's answer was that we shouldn't. Her answer was that this case is easy, and you don't need to get to Lemon because you can just say the cross prefers one religious view to others, and therefore, you don't even need to get to Lemon, but that sometimes the Lemon test is a useful way to take into account different factors and history, and therefore -- factors and context, I'm sorry -- and therefore, she thought Lemon should still be retained.

 

Chief Justice Roberts, at one point in this questioning, said, essentially, "Well," -- and actually, he started this during the questioning of one of the topside lawyers. I think he started with a question for the American Legion Lawyer, Mike Carvin. He said, "Well, a lot of these tests just seem to get me back to a long list of factors trying to figure out how this factor cuts and that factor cuts. And isn't that really the same problem that we've always run into with Lemon?" So there were additional voices there. I think each of Gorsuch, Kavanaugh, and the Chief voiced some serious dissatisfaction with Lemon and indications that maybe they thought it was time for Lemon to be retired.

 

In the rebuttal, Katyal, Neal Katyal, stood up again. He defended the cross. He explained why he thought it was constitutional, and he ended with a plea not to eliminate the Lemon test. Again, his view is that it's an easy enough case. It can be won without the Court needing to go take down the Lemon test and find something new, and therefore, he urged the Court to stop there.

 

So, in a nutshell, what I think you had is there were strong indications that the cross will be deemed constitutional, that it is not going to be considered a violation of the Establishment Clause. And the real interesting question that we'll have to wait until June for is how exactly is the Court going to do that analysis? They could do it without saying anything about Lemon. That's something that they've done many times over the last 40 years. They've had a lot of Supreme Court cases in which the Court decides Establishment Clause questions, doesn't say a word about Lemon, but also doesn't overrule Lemon.

 

There was significant concern from the bench out loud, though, that the continued existence of Lemon is a problem, which may indicate that they will go ahead and get rid of the Lemon test. But then you have the question of whether there are five votes that agree on what the next test should be, and whether it's coercion or coercion plus proselytization, or the historical argument that the Chief cited Michael McConnell for. That's the piece that is difficult to predict because not everybody put all their cards on the table during the argument.

 

Let me stop there. Micah, I know you said you can open it up for questions, so let me give you a minute. You want to open it up? I'm happy to take some questions.

 

Micah Wallen:  All right, let's go to audience questions.

 

Mark Rienzi:  And while we're waiting for those, I'll editorialize for 30 seconds. I think one of the things that the Court may end up having to wrestle with is that this is a cross that under almost any conceivable test ought to be upheld as constitutional, and so I think they're going to have to wrestle with do they have a good occasion to get rid of Lemon, and can they get to agreement on what would replace it, and how do they do that if they've got -- I mean, the interesting thing will be if there are seven or eight votes to uphold the cross, but then fewer votes to change Lemon, do we get kind of a broad opinion with seven, eight, or nine Justices on it but that doesn't get much change done in the law, or do we get a narrower opinion, a smaller group opinion of 5-4 or something like that that works big change in the law? I think that's the thing I'll at least be looking at to see what we get when this eventually comes out.

 

Micah Wallen:  Thank you, Mark. And without further ado, we will go to our first question.

 

Caller 1:  Hi. Great presentation. I had a question. I think you mentioned Neal Katyal made a point about the reaction of the Orthodox and religious Jewish community, and I recollect that one of the amicus briefs was filed by Nathan Lewin on behalf of the Orthodox Jewish community arguing in favor of the cross. I wonder whether he made any reference to that. I would have thought that he might, but I don't know if he noted it, or what else was said about that.

 

Mark Rienzi:  I don't think he said it by name, but I think he certainly did say that there were some Jewish groups that were perfectly fine with it and did not see it as a problem. So I'm pretty sure both he and the Court knew that he was talking about that brief, among other sources, but -- so, yeah, I think he did. I just don't think he said it by name.

 

Micah Wallen:  Let's now go to our next question.

 

Caller 2:  Hi. Thank you for the presentation. You mentioned the historical argument advanced by Mr. McConnell. Could you speculate on what a replacement Lemon test would look like if it was based on that historical argument?

 

Mark Rienzi:  So -- and this is the brief that Professor McConnell put in was on behalf of the Becket fund, and so I have some involvement with that. The historical argument goes as follows: It says, look, what the Framers banned was the establishment of religion, and an establishment actually had a meaning to the people who wrote those words. It wasn't just how much religion is too much, it wasn't just eye of the beholder, but they actually meant to ban a particular thing, which was the establishment of religion. And so the historical test would say that if a plaintiff wants to say something violates the Establishment Clause, the plaintiff has the burden of showing that it, in some way, looks like and is like the establishments of religion that the Framers were talking about. And historically, you can know what those are because there was the British establishment that obviously all or most of the colonists were pretty familiar with, and 9 of the original 13 states had established churches.

 

And so what the McConnell article does is it goes through and says, okay, we can look at the establishment that this generation of people knew, and we can see what the thing is that they were actually trying to ban, and we can see what the basic qualities of those establishments were. And they varied. Some of them were more coercive than others, but they had things like the government writing prayers, and the government setting religious doctrine, and the government taxing people to pay for the church, and giving the church important civil functions, and things like that. Sometimes it had the punishment of religious dissenters as part of an establishment.

 

And so the way it would function is that in any given Establishment Clause case, the plaintiff would have to come forward and say, "Here is why this new practice or this new thing sort of fits the mold of an establishment that the Framers were intending to ban." So in a case like this, it would be quite easy, which is religious monuments of this type, nobody at the time would have understood that to be an establishment of religion. It doesn't do any of the things that the establishments did. But a case like Engle v. Vitale, the case where the New York state government was writing a prayer for all the kids to say in school, well, that, yes, that is the way established religions behave with the government telling people how to pray and so forth, so that would be a problem. So that's how that test would work, in a nutshell.

 

Caller 2:  So one of the things established churches did was education, particularly in England back 200 years ago. If the test that we were just talking about was adopted by the Court, what would the impact be on various states or jurisdictions like my own that give money to, say, a Catholic school as part of a tuition for private school sort of thing? I mean, that seems like getting close to the sort of establishment -- the historical view of an establishment you're talking about.

 

Mark Rienzi:  I don't think so. McConnell would know the history better than I would, but I don't think that the history maps quite that way. I think if what you had was a city or a state that gave the educational function solely to some church, and said, "You get to run our education system," then you've got the handoff of civic function from government to church. And that, I think, would look like an establishment. But religious groups running their own schools or religious groups being able to participate on equal terms with everybody else, I don't think that actually would look like an establishment in historical terms.

 

Micah Wallen:  Not seeing any further questions in the queue as of right now. Mark, did you have anything else you wanted to expand on while wait for another question?

 

Mark Rienzi:   Sure. I'll just say one high-level point which I didn't get when I was just going through the blow-by-blow of the arguments. You had a bunch of very, very smart, good lawyers on this case trying to wrestle through some difficult things, so they had their different tests, and they all took fire at different times, but you had some very high-quality legal thinking going into all the presentations that the Court heard yesterday.

 

Micah Wallen:  And we have two more questions lined up, so without further ado, we'll go to our next question.

 

Caller 3:  Thanks. Terrific presentation. I'm sorry, I came in a little bit late, but was there discussion of standing and any reference to the § 1983 claim of the 14th Amendment?

 

Mark Rienzi:  There was a little bit of discussion of standing. Justice Gorsuch brought it up, and Chief Justice Roberts asked one question. The Court didn't ask for briefing on standing, so it wasn't -- I mean, obviously, they can always consider standing, but they didn't take a cert question based on standing. Gorsuch brought it up and basically said, "Well, this is really just people being offended by something, and that doesn't seem like it ought to be enough to make a constitutional case." And the Chief had a question along those lines. So there's no doubt standing is at least on the minds of some of them, but it probably occupied a couple of minutes over the hour and ten minutes. So it did not get a ton of focus, nor did it get a ton of focus in the briefs.

 

Micah Wallen:  All right, we'll now move to our next question.

 

Caller 4:  I wondered if there were any surprises or if you were surprised by any of the questions from the Justices, if any of the Justices went in a direction that surprised you? For instance, if Kagan pursued a line that you didn't anticipate, or Gorsuch did, something like that.

 

Mark Rienzi:  Let me think for 30 seconds, but I think my answer is that everybody was relatively where you might expect them to be. The Justices on the right, if you want to call it a surprise, although it's not terribly surprising at this point, they were pretty direct about their view that Lemon should be jettisoned, at least several of them. Again, Lemon has been criticized so severely by so many Justices and so many commentators over the past 40 years that that's not terribly surprising.

 

Kagan and Breyer both asked questions that I think suggest that they may well think that this cross is constitutional, but that others would not be. I think that's why Justice Kagan was asking the five-layer hypothetical of tell me this cross, now this cross, now this cross, now this cross. And Justice Breyer had, again, similar to his Van Orden Ten Commandments opinion a decade or a decade and a half ago, had this view that, well, maybe this particularly old one is okay, but new ones wouldn't be. Justice Sotomayor and Justice Ginsburg -- they didn't give a really strong indication of where they are. So in the grand scheme of things, no, I don't think there were any wild surprises. Again, I think the real takeaway is there's a lot of feeling that Lemon should go, and what was unclear is whether there's going to be five votes to agree on some particular new way of doing it.

 

Micah Wallen:  We'll now go to our next question.

 

Caller 5:  Couldn't the argument be made that over time, religious monuments, Christian monuments, would result not just in offending dissenters, but in their actual marginalization in society?

 

Mark Rienzi:  So I think that was certainly the gist of Monica Miller's argument for the American Humanist Association is that that is how people would feel upon seeing these monuments. And so the Establishment Clause question would be whether the government continuing to allow this war memorial to remain, whether that violates the Establishment Clause of the Constitution, whether it constitutes an establishment of religion. That's where I don't think there was significant support from the Court to say, "Yes, that is the establishment of religion." So there was certainly -- Justice Ginsburg and Justice Breyer both asked questions along the lines of, "Well, back then, there was a much larger Christian majority than there is now, and so aren't things different today?" So there was certainly some of that tenor in some of the questions.

 

Caller 5:  Isn't it possible that dissenters will actually be mistreated if this becomes the prevailing view in society?

 

Mark Rienzi:  If you're asking me do I think it's possible that people who don't like the Bladensburg Cross would be mistreated, I suppose anytime people disagree about anything, there's always that possibility. The lawyer for the American Humanist Association did say she's received threats for opposing the cross, so that is certainly something that is an argument that is there that people could make. I think the legal question is going to be does it mean that the government has established religion? And particularly with this cross, one interesting historical fact about this cross is it wasn't actually put up by the government. It was put up by private people. Then later, as the government expanded a highway, the government took the land and kept the cross on the land. Whether that amounts to the government establishing religion is the question the Court's going to decide.

 

Micah Wallen:  We'll now go to our next question.

 

Caller 6:  Hi. I just want to come to the point of dissent. If Ms. Miller was -- if people received threats, I don't think it was because of opposition. I think it was because they tried to knock down the cross. This cross means a lot to our community and our county, and my own view is that the Humanists did not know what they were getting themselves into. And I think that if she was indeed threatened, I mean, that's unfortunate. I certainly don't support that. But it's not because of opposition, it's because they tried to knock it down, okay? And there's a significant difference. Forgive me for pointing it out, but I live in the county, and this has been quite an unpleasant experience for us, and there's a lot of passion here. But I certainly don't support threats, but the simple fact of opposition is not what's going on here. It's an attempt to knock something down that's been in our community for a long time and means a lot to people. Forgive me for that clarification.

 

Mark Rienzi:  And I'll just refer to something Justice Breyer has pointed out over the years as a concern. And first, I certainly agree, and I think threats like that are terrible, evil, awful, and wrong. Justice Breyer has pointed out in his Van Orden opinion, and I think he was hinting at a little bit yesterday, that sometimes, the Court getting involved and making people take down an old religious monument is actually more divisive and creates more disunity than allowing it to stay up. And that's what I think is, in part, behind Justice Breyer's suggestion that maybe, well, this old one is okay, but he would have a different view on a new one.

 

Micah Wallen:  All right, we'll now go to our next question.

 

Brittany:  Hi, Professor Renzi. It's actually Brittany. I got into the argument, and I have a quick question about the argument that there were Christian groups who said calling a cross nonreligious is sacrilegious. If you could kind of go into that, and I apologize if this was already touched on.

 

Mark Rienzi:  Sure. So I think the Baptist Joint Committee brief by Doug Laycock, and I think there may have been one other, made the argument that a cross is a deeply religious symbol to Christians and that it is actually offensive to Christians to secularize the cross or to purport to secularize the cross and say that you can strip a deeply important religious symbol of its religious meaning. That was the argument presented. I forget which Justice raised it directly with Neal Katyal, but again, Katyal's response was -- it was in line with his response about whether there were some Jewish veterans who may have been offended. He said in both cases, the answer is that type of offense is simply not enough to control what the community might do, or to control what the government does, or to make it amount to an establishment of religion. So I think there's no doubt that argument is there, and it did get a little bit of airtime, although not much.

 

Micah Wallen:  One question just came in. We will now go to that caller.

 

Caller 8:  Hi. Thank you. I wondered if any of the attorneys or Justices mentioned or discussed the secular benefits of religion, and then more broadly, what do you think of the place of the analysis of secular benefits in Establishment Clause jurisprudence should be?

 

Mark Rienzi:  I'm trying to think. I do not think there were any questions specifically that said let's talk about the secular benefits of religion. There was a lot of argument, particularly from the Neal Katyal and some from Jeff Wall through the United States about the fact that the religious symbol also had a secular meaning and a secular purpose. In other words, a secular purpose being to commemorate the war dead, and that that is a permissible secular purpose. So there were certainly arguments that there were some permissible secular purposes here, but there was not really a discussion of what the secular benefits of religion itself -- what those benefits are.

 

In terms of where secular benefits from religion would fit in Establishment Clause jurisprudence more broadly, I take the McConnell view that the Establishment Clause is meant to prohibit certain things, things that look to the Framers like an establishment of religion, and that the way you figure that out is by looking at what establishments were, looking at what the thing is they were trying to ban. And so you don't necessarily need to sit there and do a cost-benefit analysis and say how good is this thing or how bad is this thing? The question is, really, is this thing that we're looking at now an establishment? Is it the kind of thing that the Framers meant to ban? So I think that's actually the best way to do the analysis, and not let's think about what are the benefits of religion? I think there are actually many benefits of religion, I just think that the Establishment Clause analysis isn't really a cost-benefit analysis, it's more of a historical question of what is the thing that the Framers agreed to ban.

 

Micah Wallen:  We will now go to our next question.

 

Caller 9:  Hello. I'm a layman, but I have one quick question. Say we get a ruling not affecting Lemon at all. What would that ruling -- so a ruling for keeping the cross – how would that ruling affect the protection of other possibly religious monuments going into the future if the Humanist Society decided to take this to another public monument?

 

Mark Rienzi:  I think that's exactly what the Justices will be wrestling with because they could issue a broad opinion that says this cross is fine but that doesn't really lay down much analysis for how other courts should do it. And the result of that would probably be a continuation of what we have now, which is under the Lemon test, we have some pretty wildly inconsistent results, and very judge-specific results, and not a lot of really good guidance for the lower courts. So it's certainly possible that they'd do the broad ruling that just says, "This cross is okay, and we're not going to do the rest of the details now."

 

      The consequence of that would probably be more continued confusion in the lower courts. There is another cross case right behind this one at the Supreme Court about a cross in Pensacola, Florida, so it's possible that they would just take another case next and clear it up next, but I do think they're probably looking at it and thinking that, and several of the Justices have said this, that the lower courts do need some guidance here. So I think that's going to be part of why they will feel some push to give some clear rules and not simply to have a broad ruling that doesn't tell anybody anything about how to do the analysis.

 

Caller 9:  What do you think -- just off your gut, do you think we could see a 5-4 to get rid of Lemon, or to replace Lemon, rather?

 

Mark Rienzi:  Sure. I think that's one of the potential outcomes is a 5-4, or a 6-3, or something that says, "The Lemon test is not doing the job. We need to replace it.” But I think the $64,000 question with that type of result is just how many Justices can you get on board to figure out one single new test that they're going to say, "This replaces Lemon." That's the piece that, just from watching them ask questions for an hour, it's not obvious what they all think about it.

 

Micah Wallen:  We'll now move to the next caller.

 

Jack Park:  Thank you, Mark. This is Jack Park. I was going to mention Kondrat'yev, which is the Pensacola case. One option would be just reverse the Fourth Circuit and just say, "Well, they got their Lemon analysis wrong because their reasonable observer was not a reasonable observer." I guess the big question is do you see the 5-4 alignment? And then one reason for that would be in Town of Greece, Breyer, Ginsburg, Sotomayor, and Kagan were all in the dissent. In Van Orden, I think Thomas was on the Court in the majority, Breyer had his own opinion, and Ginsburg was in the dissent, so you don't really see -- do you see anybody moving is my question?

 

Mark Rienzi:  Hard to tell, but the three vocal opponents of Lemon, the three critics of Lemon who made their views know yesterday were Gorsuch, Kavanaugh, and the Chief, and Justices Alito and Thomas have pretty squarely criticized Lemon in the past. So right there, that's five folks who have made clear they don't think Lemon is a good test. Breyer has certainly issued plenty of decisions without relying on Lemon, so it's not out of the question that he also thinks Lemon is a lousy test. So you don't really know, but there's at least five who I'd say by yesterday are now on record as saying they don't think Lemon's a good test, and they think Lemon causes a lot of trouble in the lower courts, so if you had to -- if you were looking to count the five, there's your five. Whether they vote and think that this case is the right one to do it and whether they can agree on something to replace it with, that's the big question. But they have certainly criticized it in public now.

 

Jack Park:  And I guess if it went that way, you could also get a concurrence in the judgement from Breyer or Kagan, or both.

 

Mark Rienzi:  Sure. I think that's certainly possible, again, is that you'd have seven, or you could even have nine votes for "this cross is okay," and then much sharper splits over exactly what the right reasoning would be. That's a possibility.

 

Micah Wallen:  I'm not seeing any other questions lined up in the queue. Mark, did you want to take a minute or two for some closing remarks?

 

Mark Rienzi:  I think I've probably summed up everything I have to say about it, so I don't mind waiting another 30 seconds to see if there's a last question, but I'm out of my own material.

 

Micah Wallen:  All right. Well, on behalf of The Federalist Society, I want to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.