IN 1947, when the Supreme Court first interpreted the constitution’s bar on laws “respecting an establishment of religion”, the justices consulted Thomas Jefferson. The First Amendment erects “a wall of separation between church and state,” the third president had written in 1802. This means, the court said a century and a half later, that the government may neither “prefer one religion over another”, take part in the “affairs of any religious organisations” nor impose taxes to support “religious activities or institutions.” Justice Hugo Black explained in a 5-4 decision why this wall did not stand in the way of a New Jersey law covering the bus fares of Catholic-school students. In dissent, Justice Robert Jackson called the majority opinion “utterly discordant”. The ruling, for him, brought to mind “Julia who, according to Byron’s reports, ‘whispering I will ne’er consent,’—consented.’”
The battle over the church-state line is no less divisive—and even more muddled—70 years on. Prayer in school was tossed out in the 1960s. Stand-alone nativity scenes inside government buildings were struck down in the 1980s. But other Biblical verses, crosses and menorahs in the public square have won the court’s blessing. On one day in 2005, the Supreme Court upheld a Ten Commandments monument near a capitol building while rejecting another outside a courthouse. When the justices last ruled on the matter in 2014, they found no trouble with a town board launching its meetings with Christian prayers. As long as the government does not relentlessly “denigrate” or “proselytise” dissenters, Justice Anthony Kennedy wrote—again, for a 5-4 majority—it respects America’s church-state balance.
On February 27th a new flashpoint came before the court in the guise of an old memorial to first-world-war soldiers. Since 1925 Bladensburg in Maryland has been home to a 40-foot Latin cross honouring 49 men from Prince George’s County who died in the fighting. Upon its rededication in 1985, the Peace Cross’s reach was extended to veterans of all wars. For Rachel Laser, president of Americans United for Separation of Church and State, it is “remarkable” that the cross, which stands at the intersection of two big motorways on public ground, “is thought to be anything but a clear violation of the establishment clause.” The memorial is a sectarian symbol, she says, and denies “equal dignity” to non-Christian soldiers who died.
When the Fourth Circuit Court of Appeals ruled against the cross in 2017 it invoked a precedent set in Lemon v Kurtzman, a 1971 ruling that states could not pay the salaries of teachers at private Catholic schools in Pennsylvania. Justice Antonin Scalia once likened Lemon to a “ghoul in a late night horror movie” that just won’t die. At the Sumpreme Court hearing Justices Neil Gorsuch and Brett Kavanaugh both professed a desire to drive a stake through its heart. Whether or not Lemon gets the squeeze, the oral arguments added credence to the widespread hunch that the Supreme Court will save the Peace Cross. The question is how bold the justices will be.
Late in the hearing, inklings of possible compromise came from Justices Elena Kagan and Stephen Breyer. In 2005, Justice Breyer had found it “determinative” that 40 years passed before anyone raised an objection to a Ten Commandments display in Texas. His vote saved that monument. Likewise, the historical context of the Peace Cross counts, he said. What message would it send, he asked, if people “see crosses all over the country being knocked down?” Justice Kagan said she, too, finds “something quite different” about the “historic moment in time” when the cross was built. Perhaps the justices could let the Maryland memorial stand while saying “no more” to future crosses on public land?
A third way could avoid bulldozed crosses while respecting America’s religious diversity—as Justice Ginsburg pointed out, 30% of the country now identifies as something other than Christian. Gregory Lipper, author of a brief criticising the cross, thinks Justice Breyer’s proposal could form the basis of a deal between the liberal justices and Chief Justice Roberts; it may, he says, ward off “more grievous harm.” But with the court’s new conservative majority, the chief may be tempted to make a more dramatic statement when the decision comes this spring. Thomas Jefferson’s wall could be up for a redo.