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tv   American Legion v. American Humanist Assn. Oral Argument  CSPAN  June 20, 2019 10:52pm-12:07am EDT

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homosexual it is beautiful. i was sorry not to see those. i think lindsay should have made it his point to be here today as well as, possibly, some of the movement organizers themselves. >> watch the 50th anniversary of the stonewall riot this sunday on c-span 3 history tv . in a 7-2 decision the supreme court ruled that a cross is constitutional honoring world war i veterans and can replaying -- remain in place. local residents and the american humanist association filed a lawsuit arguing the cross violates the first amendment establishment prohibiting congress from establishing an official religion. this oral argument is in hour and 15 minutes.
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>> we will hear argument this morning on k 1717 the american legion verses the american humanist association and the consolidated case maryland national park and planning commission verses the american humanist association. >> thank you. there are 4 important facts about the piece cross that explains why it should not be dismembered or destroyed. first, families built it 93 years ago to commemorate 49 brave souls who gave their lives in world war i and it has stood the test of time without challenge. second, it is no ordinary cross. at its center in its heart, are the american legion symbol that is gigantic. huge capital metals, valor, endurance, courage devotion. not a single word of voracious content appears anywhere the bases a nine foot plat
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listing the 49 names with an inscription and forth, the monument is situated at the veterans memorial park alongside other war memorials. >> how many other parks like this one? i have looked at pictures and it has been an unusual part. there are major highways dividing it up it is almost as if the city of designed an area that is huge to encompass other facts plaques and designed it apart. you can't really tell that this crosses with anything else. there are 3-46 lane highways on one side and another highway on the other. i am told you can even get off the highway to walk to this cross. >> you actually can. i have done it there is parking.
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i disagree with that representation. veterans memorial park has been there for a long time in the record shows it has been there since 1983. this is not where pretextual stuff is added later. >> you said dismembered way destroyed? you can move it. you can transfer the land to private entities. correct? >> those would be hypothetically possible but the record shows -- >> obstruction or anything else? >> a joint appendix states if you move it because of the cracks in the cross it very well may be destroyed. >> give it back to the legion? >> give it back to the legion as our petition, they have an email in the case saying they know that maryland can't do that because of the traffic concerns. they can't give it to a private entity. >> they can speak to that. putting that aside, are you relying on the fact that, at all, at least one
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brief claims all 49 soldiers named on this plaque or for whom this were christians? >> nodded all. this is a memorial from start to finish and it is about honoring those 49 and all world war i veterans. >> are you grandfathering this or claiming that today let's say for the vietnam war that any government local or state could build across 40 feet high and not put any emblem on it and say we are dedicating this to all the soldiers who have died in vietnam were? >> we are not at all saying that grand fire the ring or anything like this. because of the 93 year tradition it is an easier one. >> would you answer my question? what is the tradition? is the tradition that in world war ii a cross was
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used? is the tradition that the government can put up sectarian symbols like crosses or a picture of jesus christ in honor of anyone because that is within the nation's tradition? >> these are two different arguments. one is in respect of this cross that has stood for 93 years, 86 of them without challenge. that would make this cross constitutional. your question is what about this tradition of crosses in general? it is true we have a second argument about if there is a long tradition of the type of displays that would make it constitutional. notably it does not make your hypothetical constitution. that is actually a real case.
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the seventh circuit case in 1993 is a huge cross with jesus cross nailed in the center of it in a public park. it has been there since 1955 and it was protested then. the seventh circuit said that is unconstitutional and we agreed. >> what would happen if all the facts you gave for the same except for the 93 years? in other words a community decides for whatever reason we do not have a world war i memorial and we want to put up exactly this to memorialize the war dead from world war i but now. >> since it's a world memorial it would be constitutional. there may be some skepticism to make sure there was no pretext and it was across like this one, same facts we do think of that. >> does that answer apply not to memorials from world war i soldiers but to memorials for soldiers from any armed conflict? >> well, i think it
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probably would. there is a tradition of using these crosses with respect to any conflict. >> what a bout not a world war or any war memorial but a memorial to a tragic event? let's say a mass shooting? could the local community then decide it wants to put up across in front of that school to honor the children and teachers who died in the mass shooting? >> i think it would be if there was an independent, secular purpose. take a real case like the one that came out of the world trade center, the second circuit case from 2014, 2 steel beams were discovered in the rubble and put up in the shape of a cross. if that were in a public park, i think that would be permissible because it has an independent historic value and
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independent secular value. >> nothing that was found in the rubble. it is just a local community deciding it wants to honor the dead in this terrible tragedy. >> the test would be if there was an independent, secular purpose. i don't think you could harken back to the same tradition that you could with respect to these world war i crosses. >> the purpose is to honor those who died. those who died in the tragedy. >> i don't think purpose is what this court decision is about. the objective meeting. >> i thought you said the test is if there is a secular purpose? >> objective meaning. the test is your opinion. what is the objective meaning of this display? sometimes purpose is relevant to that and the court looks to it. the test is always to that. >> without the okay
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then to put up in front of the public? >> i think we need to know more about the facts of that particular hypothetical. >> here are some facts from this hypothetical you can understand how this could come about. people want to memorialize the dead and, in one religious tradition and a dominant one in many communities of this country, the preeminent symbol to memorialize the dead is the latin cross. they gravitate towards that symbol as a way to memorialize the dead. at the same time, for members of other faiths, that symbol is not a way to memorialize the dead and does not have that meaning. i think the question that justice ginsburg is asking, for many people this is a very natural way to do exactly what they want to do. for others it is not. >> justice, if it does have the same hallmarks as this
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type of cross we think that would be permissible. we think it is a natural consequence of what this court has already said in the van orden opinion. >> i read your brief to poke a lot of weight to put the cross here as more than a sectarian meaning because as history sets forth, the cross was a symbol throughout the battlefield of world war i. i am wondering why that doesn't limit your argument so that in such a case that was hypothesized he would not accept that? >> chief justice that is a tradition and it makes this a very easy case we don't think you need to go further than that. >> in the fields of flanders are all of the graves marked by crosses? >> there certainly are some but the dominant image of the time, everything
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all did use this cross. that is why we agree -- >> some of those battlefields and there are stars of david marking the graves of jewish. we are just saying here that there is a secular meeting with respect to these crosses. >> what you say to the jewish war veterans or for those jewish soldiers to only honor the salvation that christians believe is hurtful wrong and not in keeping of the constitution. >> i say three things and then if i could reserve the balance of my current time. >> factually, one of the main proponents of fundraisers is from a jewish veteran. there is a contrary tradition that the retired flag officers says some jewish vets were
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buried under the cross and wanted to be. third, i don't think this court has ever adopted the view that some people disagree with something that that itself creates a violation. >> if the chief would permit me. there is a brief here that says that to deeply religious christians, secular lysing the cross is blasphemy. christ died on the cross and he was resurrected from his grave. those people don't view secularizing the cross as something that jewish people or hindu people would be offended it could be christians as well. >> i don't think we let those objectives dictate that. if that were the rule you would be tearing down crosses at arlington cemetery and nationwide. i think that would actually inject this court and create more of a establishment
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clause problem. >> thank you counsel. >> mr. chief justice may it please the court the peace cross should be upheld. we submit the court should analyze which prohibits tangible interference with the religious liberty. for a number of reasons we think this is the simplest route, you would extend symbolic speech and provide, in a situation where the chances for coercion are much less -- >> could you explain about coercion theory that you think you are urging us to adopt? if that is what the established prohibits, only coercion how does
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it offer -- how does this office differ from the exercise clause. can you suggest a practice that would be unconstitutionally coercive under the clause and yet be inoffensive under the free exercise clause? >> yes forcing us to pay a minister that would not violate my negative liberty not to support i didn't want to but it wouldn't violate any religious pennants to pursue the religion i did want to. it creates a negative liberty to not support religions you do not support. i would stand out that under the text and history clause, when they were discussing local hallmarks what they were talking about was tangible interference. it also extends to proselytizing and other court decisions in other
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both towns in allegheny county. >> what counts as proselytizing. i think i understand what counts is coercion better than proselytizing? >> preaching were aggressively advocating conversion from one sec to another. >> what is the difference between that and endorsement. >> lemons endorsement test has become a dogs breakfast. circuit courts are confused you tell us and then you replace it with coercion but now may be proselytizing. i don't see the difference between proselytizing and endorsement. >> under our test all symbolic including sectarian symbols would be valid except in the rare circumstances where they have been misused to proselytize. under the endorsement test sectarian symbols are unconstitutional. >> if the city
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erected the cross not for the purpose of memorializing but to emphasize the values of christianity without be proselytizing or would that not be proselytizing. >> again it stays very close to the hypothetical. you have a permit latin cross on top. >> this would not be on top of city hall it would be in a park. >> i think it is very much where there are other symbols. >> it is just across they want to emphasize the value of christianity so they put up across. >> i think it would be a very rare case unless you are conditioning access to government services like city hall, that would either constitute the fact or establishment of coercion. i don't think the other side can provide a real board hypothetical involving a cross that could be misused for proselytizing purposes. this is why i think the endorsement standard --
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>> what i was trying to suggest was this is something that indicated the city was aligning itself with one particular religion by putting up across or not putting up any other religious symbols because we believe in the values that the cross indicates. it is not on top of city hall it is in the street or in a park maybe there are two crosses or 10 crosses, different parks in the city. that is why the city is in it and everyone recognizes what a cross is. >> if we could be straight forward, in the circumstances i need to know was this for example suggested by people who are honoring the victims of a school shooting or was it simply for genesis. >> it is just across. it really is. these values are important to the community. the values of christianity. we would like to put up some crosses around town.
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>> if that is the announced purpose and effect of aligning ourselves with christianity -- >> suppose after this case, it puts up across in college park and the surrounding communities put up crosses and there is mixed purposes. people do it because they want to celebrate christianity and some people want to celebrate war dead there are mixed purposes. proselytizing are not proselytizing. >> i think sectarian symbols are presumptuously valid. >> if you show there isn't a legitimate non- proselytizing. >> you start out with advertising a concise test but it generates pretty quick into knowing about this or that and becomes a specific test rather than a crisp one you propose in
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your brief. >> formal coercion is prohibited but i don't think this would satisfy this court because the danger of the court could be reached indirectly through the things indirectly. the key point is you are asking different questions verses the endorsement test. >> i indoor something what is the difference between i and or something and i proselytize or promote, perhaps, another synonym. you are taking this back to the dogs breakfast you warned us against. i understand the coercion test but i don't understand your abandonment of it. >> in god we trust endorses religion but it is not an effort to
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proselytize. >> justice scalia once asked a question when someone gave that example, what would happen if a court had said in jesus christ we trust. >> that is a nice illustration of the distinction. in god we trust is promoting religion and in day two we have in jesus we trust what messages the government sending you can't trust a jewish god you have to take sides in a sectarian dispute. if they are taking sides in a sectarian dispute, that is precisely the definition of what constitutes an establishment. >> why am i not proselytizing religion when i say in god we trust but i am in jesus christ we trust? >> that is fair enough, the difference between promoting religion or one sec to another, i think
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the sectarian point would obviously lend itself to proselytizing. in this context i want to emphasize that all symbols are sectarian. there is not a thing . >> what is your answer to the cross on city hall i didn't get if your answer was unconstitutional or constitutional. >> we would like the court to adopt -- >> in the dissent he said a cross on city hall would be unconstitutional, do you agree? >> because it constitutes proselytizing and we do agree. again it was a legitimate non- proselytizing. we use the permit cross but as a general matter, sure. if they are putting up crosses in every courtroom and dmv and all the hypotheticals i can certainly understand why someone would believe they are trying to convert you to christianity. after all the hallmark of this establishment is
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seeking to palpate certain religious or sectarian belief. >> this brief highlights 6 things and it starts out with the government establishing a church. we will give you that. requiring people to pay for the church. prohibiting imposing burdens on people. ready stark items that underlay the establishment cause when adopted. i don't understand your position to be limited in that way. >> we could say that direct form of coercion is the only thing reached by the clause. allegany county goes a bit further saying in the real word we are not creating dangers when the government is trying to create indirectly what it couldn't do directly. this would be a rare exception not providing a real- world hypothetical. >> we go back and i hear you using the word the fact oh de
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facto coercion proselytization it is the endorsement test. you may make an argument like your colleague that this has to do more with tradition then coercion it is coercion. >> under the endorsement test the sectarian symbol of the cross is no good but under our test it is. >> you would return allegheny? >> sectarian prayer, purely sectarian prayer is okay. sectarian speech -- >> what qualifies that test. you endorsed the test you proselytize for it. we are actually adopting the word
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proselytize from the test. in the symbolic context this distinction is not a real word context because all symbols are sectarian and if you been sectarian symbols you are necessarily banning all religious symbols which starts tension. >> thank you counsel. >> mr. chief justice may it please the court. under the memorial court it falls within our nation's long tradition of accommodating speech and civic life. it could easily resolve -- >> i don't know the founding father, town or state that put up a 40 foot cross on government property. we don't have a long tradition of that it is sectarian. we have a lot of founding fathers including george washington who is
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exceedingly careful to ensure that references to god were as neutral as possible to as many religions as possible. it can't be that all sectarian symbols, whether it is across or jesus christ or some other symbol is within our tradition. merely because we say in god we trust. >> two different things. first, obviously this symbol has a unique history of plurality. the vfw brief does a nice job of this. the world war i generation, distant in time, that was a secular and civic meaning to that generation. >> you gave one generalized point, you could put it up today to memorialize all vietnam vets despite the fact that all vietnam vets were not christian. many of them would -- >> when they put
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the cross at ground zero in the rubble and it became a makeshift shrine in the weeks after 9/11 i don't think that violated the establishment clause just as it sits now. the second thing, i understand the allegany county, trace the practice back to the founding or if it can be acknowledged that the founders in the early generations thought were permissible and you ask if it presents a greater danger than that. crosses have been memorials for the founding and they have been war memorials since the post-civil war generation that have incorporated -- >> this was overwhelmingly a christian country. now, we are told 30% of the u.s. population is not adhering to a christian faith. does that change or
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make any difference? >> i don't think it affects whether the cross took on the week of the great war, a secular meeting and if that is the meaning for which the mothers erected it. when canada gave us the canadian cross of sacrifice to honor americans that joined the canadian forces, i have no reason to believe that all of those americans work christian or that canada thought they were. they thought that a cross with the sword running down it at arlington would commemorate them. that is the meaning that the plurality correctly set in that context. >> isn't that substance cemetery different than a cross that is 40 foot high. i have pictures of this crossett is the only thing that is that high it works people and buildings. >> with all respect, this is under the reasonable observer test and we have asked the court.
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having been out to the site it is certainly a tall cross. it has words on it that are visible from hundreds of feet away that are secular words. it is in the mists of another memorial i understand the concern. if you look at the size, that ignores the size and the plaque in the words. >> where you want to draw the line? i'm to give you an example of a bunch of different crosses. the world war i cross erected many years ago. and other is world war i cross erected now. 1/3 is another war memorial and the fourth is a memorial cross that had nothing to do with any war. the fifth, are we up to five? not a memorial cross at all,
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across. a community wants to put up across. are they all okay? are some not okay? >> i think the first three are clearly permissible and the fourth acknowledges a non- more purpose. across that commemorates a school shooting were holocaust, it is perfectly permissible and no more coercive or proselytizing. the last strikes me as problematic. when justice kennedy says and allegheny county, you can't proselytize and it understands that eddie higher standard.. it understands it as trying to force people into the pews. if a town starts putting up naked unadorned crosses for no secular reason. >> all five crosses are the same in this hypothetical.
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>> no -- >> articulated stated or stated might be different. the crosses are the same and you're saying it depends on the implicit purpose or reason it was put up. >> maybe i misunderstood the hypothetical. across dedicated to some other secular or civic reason. all of the examples i am aware of make that clear in some way. i've took the fifth one to be the naked, unadorned cross. that seems to be -- >> a war memorial but no words that has to come down? >> i will grant you that that is the hardest case. the town says we are putting it up as a war memorial it may be permissible as long as the other side will grant. all of the hard cases on this are
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imaginary. we can find a single one that looks like that. the problem with the current law is all of the current cases are hard. this case which should've been easy has a four volume ja. amounts of discovery. >> can you take the examples i gave that are not the first of the fifth. just the memorial crosses but not any particular relationship to world war i? erected now. on what theory are those permissible? in other words, is the theory that this is a universal symbol, is the theory that this is a secular symbol? a religious symbol? it is perfectly fine to adopt one religious symbol rather than another? what is the theory? >> the theory is the cross at ground zero. eyepoint the court to the second -- >> i think that is an odd case let's not talk about that one. let's talk about your ordinary decision to erect, not anything that
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is found, a municipal decision to erect across as a way to memorialize some group of citizens. >> my only point was there are not a lot of these war memorials. that is a new cross that i think is perfectly permissible because it presents no greater dangers than the kind of religion that has been present since the founding. if you wanted to erect a memorial i think it would be perfectly permissible and an honorable thing. >> why is that? is it because the cross has become a symbol that is universal? is that what you are claiming? >> as the plurality said it has taken on a secular meaning associated with sacrifice or death or commemoration at a locality a state can decide to use it if it is for that meaning. >> it is the foremost symbol of christianity, isn't
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it? it evokes the theological claim of christianity, that jesus christ, the son of god died on the cross for humanity's sins and he rose from the dead. this is why christians use crosses as a way to memorialize the dead . is it because it connects to that central theological belief? isn't that correct? >> i am not going to dispute that it is a symbol of christianity. the question is is if it has taken on a secular meaning. to say that cross only has that religious meaning, every cross in the public including those in arlington, we know the context matters. >> it does not matter in this particular case, this cross was put up to commemorate the depths of 49 real people. this was done in the wake of world war i. >> i think it makes it an easier case but what i would say is, we have 4 basic buckets of displays you have war memorials, 10
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commandments, power displays and other forms of symbolic expressions such as mottos or seals. i don't think the reason here is specific to the cross bucket. i do think it would take care of the vast bulk of war memorials that are being litigated. applying in the context, do any of those present greater dangers than the acknowledgment of religion in the public spirit of existence in the founding. because of not, we would ask the court to allow the cross to remain and allow those it honors to rest in peace. >> thank you general. >> mr. chief justice and may it please the court. i think we can agree the establishment clause prohibits the government from preferring one religion over another. the commission's arguing that it's
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cross does not violate the central command of these clauses because it is a nonreligious, non-christian symbol honoring everyone. i don't think anyone would deny that it would be unconstitutional or inappropriate to go into arlington and put the latin cross over the grave of anyone there, any fallen soldier irrespective of their religion. in 1924 everyone in the congressional debate was in agreement that it would be completely inappropriate and sacrilegious to put across over the burial of the jewish fallen soldier. the commission is here arguing today, as well as the other petitioners that it is -- telling jewish people and muslims and that it honors them and it does not. the most sacred symbol of jesus christ actually, in fact symbolizes -- >> can i ask a
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question that was asked earlier? let's say there is a shooting at a church and christians are targeted and killed. there is a shooting at a synagogue and jewish people are targeted and killed. there is a shooting at a mosque and muslims are targeted and killed. in each case the town says we are outraged by this and we want to put up a monument to express our solidarity and sympathy with the families and the communities that they represent. they ask those people what kind of monument they would like and they all say it is very important for them to put up something of religious significance. towns do that. would that be a violation of the establishment clause? >> your honor, it depends on the context. for instance if we are talking about a 45 foot star of
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david in the middle of the roadway i think that would be a problem. and obelisk with the star of david, that is not as loud, i think the commemorative predominate over the sectarian. >> that raises a question about standing, is it too loud? is the star of david too loud? is it too offensive? there are many places in the law where we allow someone to make a federal case out of their offensiveness about a simple being too loud for them. we accept that people have to sometimes live in a world in which other people's speech offends them. we have to tolerate one another. this is the only area i can think of, like that, where we allow people to sue over an offense. because, for them it is too loud. we get into, as a result, having to dictate taste with respect to display.
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we have a 10 commandments display just above you which may be too loud for many. why shouldn't we apply our normal standing rules and require more than mere offense to make a federal case out of these? >> yes, your honor. i don't think it is mere offense it is about being a citizen in your own community. it is not private speech we are talking about we are talking about the government being the speaker and giving you the message you are a lesser citizen. if you look at our record and the letters that were sent to the commission by self proclaimed christians that were outraged by the notion that the cross has to be removed. you see that monuments like this contribute to the idea that non- christians are inferior. we are christians we can put across whatever we want to. >> to follow-up on the question what if you had one letter from one person who reported
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to be offended by it without be enough to support your argument? >> no, your honor. i think it would have to be that you are a member of the community and had the encounter. valley forge says you cannot be someone in another state that read about it in a newspaper you have to be personally affected by the message. if you are a citizen in the community you are literally within the zone of interest that would take offense or feel marginalized by the display. all the plaintiffs are individuals that are non- christian that say when they encounter the government symbol saying that christians have valor and christians have courage and christians have devotion christians have endurance that says something to them. when you look back at the record in 1920s, jewish people were fighting amidst discrimination. a lot of them joined the war to combat this statement that they were considered cowards.
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>> this would be a different case. >> yes. some of those 49 soldiers whose names are associated with this monument were jewish or muslim or a member of some other non-christian faith in the town insisted on putting their names on a monument in the form of a cross. there is no evidence that that is what happened here. is that right? >> we don't know the religious believes of those on the cross. we know there are about 14 of them, 7 are buried at arlington that do not have a cross on their headstone even though arlington has the cross. >> speculation, we don't know if there was anyone who objected or if any family objected to having this form of a memorial for their fallen family member, do we? >> there is an inference that can be made from the government's record 52-54 that died in world war i and there are only 49
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names on the cross. the government forwarded that argument by having this elaborate public rededication ceremony to rededicate the cross as a memorial for all veterans of all wars. that is how the town has treated it and the commission is here today saying this is and everyone more memorial. >> many crosses all over the country many quite old you want them all taken down? >> there is a lot of exaggeration going on. >> which ones can stand? >> certainly the ones in arlington. several reasons, much like the practice where the town created a form for private citizens, there is a statute in arlington that says that they can create a nondiscriminatory neutral opportunity for people to place their own monuments in arlington subject to rules. >> the way this is being handled today in a pluralistic society in which
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ordinary people get along pretty well. they are not at each other's throats about religious divisions. let me ask you about some others how about the irish brigade monument in gettysburg. it was put up in 1888. >> yes, your honor. it is one of 3000 monuments in gettysburg park. it presents itself as an object in a museum. it is not in a museum context that could negate the government. in that context the government is more like a curator of a museum than it is of putting it up. this was put up by the town of williamsburg. >> what about this cross? >> i understand native american totems have spiritual and religious significance. if one of those is on a federal property does not have to be torn down? >> i would say no
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but i think we need some sort of expert testimony to talk about that. >> spiritual and significance religion for native americans, religious symbols, star of david, cross. >> it is difficult. i know the ninth circuit had a case that dealt with in aztecs symbol and they -- no one would reasonably think that the government was erecting -- mexican culture commemoration, that they would be trying to endorse the aztec religion. context would matter. >> if the local government in your community were native american, whether it's on the reservation or a native village in alaska that would make a difference? >> you would have to understand more about the symbolism and what it means. a dual/secular meaning. shorthand and in context it is intended to
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predominate, perhaps. >> i'm sorry. >> this cross, ms. miller, it is very old and was erected 100 years ago, right after world war i. it does have 2 fallen soldiers from world war i and world war i has this history, this is how soldiers were memorialized in world war i. not all soldiers, when you go into a world war i battlefield, there are stars of david there. because those battlefields were rows and rows and rows of crosses, the cross became in people's minds, the preeminent symbol of how to memorialize world war i dead. then you have these other facts that we started off with, other war memorials around the park and no religious words on the memorial,
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quite the opposite. the words on the memorial are words for military valor. why, in a case like that, can we not say, essentially the religious content has been stripped of this monument? >> your honor, i don't think you can say that. >> i'm not aware of any case or reason that -- i don't think it needs special words to announce this is a religious simple. >> hold on. just a moment ago you told us the 10 commandments could be stripped of their religious significance and a totem pole may be stripped of their religious significance why not here? >> i am not aware of any secondary meaning that is derived from the latin cross. it is distinctly for christians. there is no evidence. >> i really did
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mean to confine it, this world war i context. there is something quite different about this is stored moment in time. if you look at all the crosses that our war memorials, basically it is all world war i memorials. because of the battlefield in the way the crosses were erected, this became the preeminent symbol for how to memorialize the war dead. why isn't that important? >> it is factually speaking, the doughboy statue was the most common. six under crosses inclusive of arlington that were world war i memorials on government land. the few others they cite are on private land and the ones in baltimore, one has jesus christ written on it. at the same time crosses were being put up other world war i memorials were being put up indirect recognition of jesus christ. that was the understanding at the time. the government's argument in this case is not that
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this is a christian simple anymore but that, in fact, it represents jewish people, it atheist and muslims. there is no history of using crosses to honor jewish people, muslim and atheists. they find that argument deeply offensive and could potentially degrade their religion. >> i take your point that it is a religious simple i am not going to dispute that it all. our cases have upheld this religious display and congress and prayer, 10 commandments, legislative prayer, how do you square your position in this case with those cases which have upheld
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religious symbols, displays or words in government property or government events? >> i would start, when the government takes a handoff position in respect to the sectarian content of the prayers that is not to say it is private speech but the government isn't being the mouthpiece for the sectarian message. when the government is the mouthpiece and when it is 100% the government -- >> what about the 10 commandments. >> with respect to the 10 commandments, that is something this court has routinely recognized as a dual meaning symbol although yes there are commandments that are certainly religious. >> were those statues built by private people in parks? >> the 10 commandments? >> yes. >> my understanding
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is that the fact that the 10 commandments didn't predominate in this setting, they weren't the largest and they were in line with these other displays, though secular aspects of the 10 commandments, this is how law was founded, there is nothing in the plurality to say that context could strip a latin cross of its sectarian meaning. >> 54 examples of things people might bring cases and if you win tear them down. there may be more or fewer, what do you think of saying, yes look at the historical context here. history counts. yes, okay but no more. that is what justice ginsburg is bringing up. no more. we are a different
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country. we are a different country now and there are 50 more different religions and therefore, no more. we are not going to have people trying to tear down historical monuments even here. okay? what you think of that? i am not suggesting i am for it i want to know what you think of it. >> sure, your honor, two things. the exaggeration that is going on that there are some how 50 or 100 crosses that are on public land. they cite, for instance, something that is not across. it is a boot with a rifle and a helmet and it is cited in the petitioner's reply brief on page 17, they refer to a cross in louisville, north carolina and it is not across. they cite crosses on private land like counted about 15. i would say this comes closer to 10- 20 that is
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inclusive of crosses that are quite small. with respect to history, there are a lot of reasons why religious minorities and christian dominated societies would not feel safe challenging and actively used war memorial that is the town's most prominent symbol. my clients have been threatened, i have received death threats and i bet it was a lot safer 90 years ago than it is today. i don't think this is a passive display that people don't take note of. look at the letters of people and how people are processing a moment moment monument like this. there is an association between being christian, having valor, having courage and what message that sends to the minorities. >> that is one of the main criticisms of the lemon test, different people are going to process that in different ways.
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you heard from one of your friends on the other side, one of the major fundraisers was a jewish individual. he was obviously observing it or anticipating it in a different way. >> i think that we cannot take one person's example. may be someone who is one of the only jewish people in that time at a time when there was an active plan of earning crosses, burning jewish businesses, at a time when atheists could not run for office. you had to swear that you believed in the afterlife in order to qualify. >> either 12 african american soldiers among the 49? >> do you think the situation of african-americans in prince george's county was worse or better than the situation for jewish people? >> here is what i will say. the names on the plaque are the same names that are in
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upper marlboro. i don't think there is any evidence that the town knew who was on the cross. the third of the men have no connection to prince georges county. the names a guy in philadelphia who had no connection here. i don't know how they got the names. >> some of these questions about how people process these symbols and what messages they convey, you have accepted the idea that this is what we should be thinking about? why isn't enough to just say does erecting a symbol like this align the government with the particular religion and not align it with every other religion? >> that's right. that is more the text we put in our brief. we notably don't use the observer test. in some situations it might be helpful especially when you need to put yourself in other shoes. it is a proxy for fax. we are saying look at the facts. there is a 40 foot cross in the middle of the highway it
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dominates all the other displays that the town has put up recently. there are no walkways to the cross. you have to risk life and limb to get over that through traffic. >> you do suggest various points we should consider how people process things and if they are offended and elsewhere you don't. i am curious in response, you are saying we should not apply lemon? it has been a long time since this court has applied lemon. yet, the court of appeals continues to cite it and use it. processing things and all sorts of ways. it is resulting in a welter of confusion including your own. is it time for this court to thank lemon for its services and send it on its way? >> no i do not think so. i think there is a difference between lemon and the
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reasonable server. i think the reasonable observer -- >> if you don't find it useful in this case and you don't want the court to apply it in this case what about all those court of appeals judges who are left with confusion. we haven't overruled it but we don't use it anymore except for when we might have. i think a majority of this court, never at the same time has advocated for lemons dismissal. is it really fair that we don't provide and answer to lemon. >> i think lemon is very useful they talked about purpose and effect >> how can it be useful when we haven't used it in the most important cases on point.
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these cases are on point. school 40 years the lower courts need some clarity about that. that would suggest that the test doesn't use for that context. >> your honor i would submit that the court really hasn't had the proper opportunity to apply lemon since van orden although remember van orden -- >> town of greece was a case. the court comes back to saying that reiterating the test --:case relies on lemon. more importantly, i think everyone
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agrees that purpose and effect are critical inquiries. i think there was something like 14 cases that were purpose and effect cases. lemon enshrined the cases. >> the distinction between the 10 commandments in the cross? >> one it has a dual meaning, a symbol of law. when it is conveyed , moses with 18 other lawmakers, the impression is this is a lost symbol. when it is displayed in isolation or for one denomination i think justice scalia had good points about this about how he perceives the 10 commandments as being -- if it was just a christian version, that might be a problem. the reason we say the court doesn't
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need to reach it in this case is there is an easier route and that is the notion of one religion over a another can't be preferred. >> would it be a violation of the establishment for the state to promote secularism were humanism. >> humanism yes. if the government decided to put up a happy humanist symbol if they decided to replace the cross with the happy humanist, i think that would be a problem. >> this is an interesting question. your response was he is wrong on the numbers. i have pictures of lots of crosses that are on public land. assuming for the sake of argument there are 50 or a lot and we say you have to take down all of the crosses, what message does
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that send? when people see that on tv and they see crosses all over the country being not down? >> i don't think they need to be knocked down. i think it is the least divisive outcome of this case which is to move it to private land. >> taken, moved, they are taken down one way or the other. what message is that? that may promote a particular worldview. is that consistent with the establishment clause. >> if we are getting the third option, >> hypothetical counsel, i love doing that to. let's just stick with the hypothetical. you can't transfer it and you can't move it you have to tear down. roadside crosses along public highways, for example. those are many and in some places they have been ruled to be unconstitutional including in my own court. they endorse
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religion. back to the question, if you could answer it i would be grateful and that would help me. >> i think the message, again i want to say an option that is creating an open forum, with respect to bulldozing 50 crosses, people will get the message that you prefer christianity. this court has always rejected the idea that restoring the government to a place of neutrality is hostile to religion. that argument cuts directly against their argument that is not a direct religious symbol. it would be hostile to move it to private land and transfer the land underneath it i think it damages the argument and away. >> it's not just an argument it is partly guidance, this is a tough area. i am interested in your reaction, i did not hear an answer. >> with respect, i
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think the hype ascetical is difficult. >> it is not a hypothetical. a very good book, the law and its compass. all of our liberties come from freedom of religion. you have your religion i have mine. we are not going to kill each other. okay? we say history counts. now, what you raises a problem? what about saying past is past. if you go back 93 years but no more. we are now 54 religion. we are now everything under the sun and people will take offense. how do i do that? is that sensible? is it ridiculous? what do you think? >> i think there are ways to display ahistorical cross in a way that is not the government being a mouthpiece for that sectarian speech. this is a perfect example, it is an exhibit panel along
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with other pieces of rubble and a plaque of how it came to be. if this was not being actively used as a annual war memorial that every year after year the town is saying this is how we honor our veterans, this giant cross. that is a constant message that is not a historical artifact. >> what if other cities replicated the 9/11 cross. it is a different world it is a different time history has changed. here is an example of a cross that has very contemporary meeting. to a lot of people, would you prohibit the cities and states from duplicating that cross on their public memorials to 9/11? >> just so i understand they commission across that looks like the piece of rubble and i think it depends on how they are displaying it. >>'s splendid
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isolation? >> my question is it is a 9/11 memorial and that is the predominant thing. there may be some names on it. >> that would be a problem. that would be a cross that is being displayed as the governments war memorial not as a piece of artifact in a exhibit in a museum. >> can we go back to the hypotheticals, the only way to have a remedy here is to destroy, change the cross or destroy it. he says you can't move it because it will fall apart and you can go to the legion because of safety concerns dude agree with his decision? >> we don't have any statements that say. we have one statement in the test position testimony saying the state has moved large, historic houses i have a
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hard time imagining that house is harder to move. the reality is. >> i understand that the cross is falling apart and has to be fixed anyway? whether it is fixed and moved or fixed in place is irrelevant. it still has to be fixed. >> that's right, exactly. they are ignoring the key problem that their experts have warned them about. the current location. moving the cross is the best situation for the cross. they can be in a place where people don't have to risk their lives. they can pay their respects and it can be more private. >> may i go back to the question that has been underlying some of my colleagues points. it is contextual the endorsement test is always contextual. according to you, the 50 crosses that
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they are worried about you don't think it is 50 you think it may only be 10-20? i accept that. can we given the nature of the issue, given that the other side can see there is extreme proselytization, there has to be. the first amendment, coercion to make any sense of the establish cause. it will always involve context. you are giving up her reasonable observer test you are talking about an objective factors test. could you go into that more? >> part one of our brief details these factors. all the factors relate to the government. once you have
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accepted we have a symbol that honors one religion. you are testing this is a sectarian symbol. is the government putting his hands on it. the arlington crosses it's not. it is donated by canada and it is pursuant to the statue. how much government support is there? when you see it, the size of it can matter and how enthusiastic the city is. a 90 foot cross and a two foot star of david it would show that we really like christians and we are okay with jewish people. the placement and the most prominent parcel of land, the more prominent it is the more it begs the question why did the government allow this. >> i was a lower court judge and if i get that kind of analysis i'm going to throw my hands up. those are 20 different facts. that is the best we can do but do you
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have something more concise about the test you would apply beyond looking at all the contextual factors and history? >> i think it is very difficult and i think that's why the court hasn't come up with a singular test. the pieces are complex. i think it helps us deal with each process saying you don't have to tear down any crosses. each one is evaluated with a specific fact. i know that is not the best answer you want to hear but the reality is that no one has come up with a better test. we don't need the reasonable observer we can look at facts. >> no other cross has to be turned down, this one? would you like us to write that in the opinion. >> with respect, this court has done that. in this case they say they are not deciding anything more. this is a perfect example. >> we are going to write an opinion and we are going to say this cross is particularly bad, this one needs to
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be moved, torn down or transferred but every other cross is fine. is that what you just said? >> no. cases are ill- suited for categorical rule. when the court says that it says not every cross is going to be torn down and not every cross is going to be upheld. that is an appropriate way to leave room for exception. >> your argument sounds in liberty. you raise an important liberty argument. laying a claim, the constitution towards liberty. there are lots of avenues. we could change our approach, the maryland legislature could say no more. the maryland constitution could prohibit it. with that in mind, the establishment clause test reference to historical practice
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could be thought of as setting an important one. the constitution tilts towards liberty and other avenues how should we think about that? should we think about that at all? is it irrelevant? >> liberty is important. that is where the brief of the committee and christian groups join in saying that a willing upholding this cross would degrade and damage their free exercise and religious liberty believe. with respect to a test, the court talks about not allowing policy that excludes or discriminates against nonbelievers. in that regard it goes in favor of nonbelievers. i believe some justices interpreted marsh to believe you could interpret atheist. >> and thinking about our role what is the role of this court in a case like this? should it matter that we know that the council and the state legislature of maryland.
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