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Why Supreme Court ruled removing cross memorial would be hostile to religion

A Maryland World War I memorial in the form of a cross will remain on public land, after the Supreme Court overturned a lower court’s ruling, 7 to 2. What does the decision mean for hundreds of challenges pending in lower courts over religious monuments on public lands, which critics say violate the First Amendment's Establishment Clause? John Yang talks to Scotusblog.com's Tom Goldstein.

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  • Judy Woodruff:

    A Maryland World War I memorial in the form of a cross will stay in place on public land after the Supreme Court overturned a lower court's ruling in a 7-2 decision today.

    As John Yang explains, the case comes as hundreds of challenges are pending in lower courts over objections to religious monuments on public lands.

  • John Yang:

    Judy, the 40-foot-high monument known as the Peace Cross was built in 1925 to honor 49 county residents who died in World War I. Five years ago, a group of local residents sued, saying the cross, which is maintained by the state, violates the First Amendment's Establishment Clause, which bars government from favoring one religion over another.

    Today, Supreme Court Justice Samuel Alito wrote in the majority opinion that the monument has become a prominent community landmark and that removing it now would be seen by many not as a neutral act, but as the manifestation of a hostility toward religion.

    Tom Goldstein, publisher of SCOTUSblog.com, and helps us understand all of.

    So, Tom, this is a part of a long debate about religious symbols in public space. What's the significance of today's ruling?

  • Tom Goldstein:

    Well, you're exactly right that, around the country, there are hundreds of, for example, crosses like these or Ten Commandments monuments.

    And people who are not of a particular faith or atheists really do feel it excludes them. The decision today basically says, we're going to put an end to all of these fights about old monuments, this one having been around this, as you say, almost 100 years.

    Justice Alito and a majority of the court say those now really are understood to be essentially monuments to valor. They're not about religion. We're going to let them be.

  • John Yang:

    So this is sort of trying to draw a line under this debate and end it.

    And will this result in lower courts throwing out other cases?

  • Tom Goldstein:

    Well, it depends on the nature of the case.

    If you have other cases that are about monuments like these, something that's been around for many decades, then pretty much so, unless there's some special indication that it was really discriminatory when it was first put up. If it's like this one, and it seems to have been neutral, even if it was embodied in a religious symbol, old ones are OK.

    But that doesn't mean that a state or local government could put up a new cross today.

  • John Yang:

    The majority decision that we read a little bit of, he spoke of hostility toward religion. This is also the phrase that was used in the case involving a Colorado baker who refused to design a cake for a same-sex couple. And their state penalty was overturned by the Supreme Court.

    Is this a new way of looking at it or is this a new thought among this Supreme Court?

  • Tom Goldstein:

    That's right.

    As the Supreme Court has gotten more conservative, it's gotten more concerned that the government not discriminate against religion, that at the very least it wants it to be neutral. Now, those who favor the separation of church and state say that's not even an issue here.

    But the majority today is concerned that, if you do take this monument down, and they regard it as neutral, then you are being hostile to religion. And they think that's a big problem.

  • John Yang:

    Justice Ginsburg dissented. She was joined by Justice Sotomayor.

    And Justice Ginsburg took the unusual step of reading her dissent from the bench. And she said, in part: "By maintaining the Peace Cross on a public highway, the commission elevates Christianity over other faiths and religion over nonreligion."

    What's the significance of her taking that step?

  • Tom Goldstein:

    Sure.

    So you have the procedural thing that she did actually read from the dissent, which is incredibly unusual. It happens two, three, four times every year. And it's really the one thing that a Supreme Court justice who is dissenting can do to signal, I see a huge problem here.

    Then, with what she was doing and how she was writing and analyzing the problem, she wasn't really taking a look back, and how has this monument become understood over the course of many decades and almost a century? She looks at it today, as if she was driving down the street to see this 40-foot cross and say, that is absolutely the government putting up a religious monument.

  • John Yang:

    But in spite of her strong dissent, this is the Supreme Court saying full stop on this issue?

  • Tom Goldstein:

    That's right, and not just full stop, but full stop by a pretty wide majority. Two of the more liberal justices joined Justice Alito.

    Now, they may have kept the opinion from being incredibly broad and have it only been about the monuments that are decades-old. But both Justice Breyer and Justice Kagan, who are Democratic appointees, agreed that this monument could stay.

  • John Yang:

    Tom Goldstein of SCOTUSblog.com, thank you very much.

  • Tom Goldstein:

    Thanks for having me.

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