Supreme Court Struggles With Test For Separation of Church And State The American Humanist Association is challenging the existence of a 40-foot cross on government-owned land, but the Trump administration hopes a newly conservative majority will agree to let it stand.

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Supreme Court Appears Ready To Let Cross Stand But Struggles With Church-State Test

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STEVE INSKEEP, HOST:

A giant, concrete cross standing in the middle of a busy median strip is a symbol at the center of a constitutional fight. It's a fight over the concept of separation of church and state. The Founding Fathers included in the First Amendment a ban on the government establishment of religion. So what counts as an establishment of religion? Today the U.S. Supreme Court takes up that issue. Here's NPR's legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: One-hundred years ago, bereaved mothers in Bladensburg, Md., decided to build a World War I memorial to honor their fallen sons. When they ran out of money, the American Legion took over the project. But roughly a decade later, the county took over the war memorial and its maintenance. Today it sits at a busy five-way intersection. Now, listen to how lawyers in the case describe it. Michael Carvin represents the American Legion.

MICHAEL CARVIN: It evokes the cemeteries in Europe that became a universally acknowledged symbol of the World War I dead because of the European graveyards.

TOTENBERG: Neal Katyal represents the Maryland Parks and Planning Commission that maintains the concrete cross.

NEAL KATYAL: The first thing you notice when you see the cross is these four words at the base of the monument - valor, endurance, courage, devotion.

MONICA MILLER: I mean, that's silly.

TOTENBERG: Monica Miller is senior counsel for the American Humanist Association, which is challenging the cross.

MILLER: It's a giant, 40-foot Latin cross. There's no other meaning to the Latin cross other than Christianity. At the dedication ceremony, they underscored this fact by calling it a Calvary Cross, by evoking this message of Jesus Christ.

TOTENBERG: Fred Edwords first saw the cross years ago.

FRED EDWORDS: I happened to be driving through Bladensburg, and there it was. And it blatantly looked like it was on government land. I mean, it was on a highway median. And I thought, what is that doing there?

TOTENBERG: He and the Humanist Association asked the Maryland Parks Commission to move the cross to a private location and to stop using taxpayer money to maintain it. The parks commission said no. And a federal appeals court ruled that the cross should be moved. That upset some of the descendants of the 49 men whose names are on the memorial. Alvergia Guyton never knew her uncle. But as a child, she used to talk to the photo of her uncle that her mother kept in the living room.

ALVERGIA GUYTON: I feel its history, and the younger generation should know what has happened. And when they start taking down things, they miss all of this. So I'm very sad about that.

TOTENBERG: That won't happen until and unless the Supreme Court says so. The odds are that the court will allow the cross to stand, the question is what the court's opinion will say about the future. And even the lawyers defending the cross don't agree on what the standard should be. The parks commission's Katyal will tell the justices that they don't have to break new legal ground because this is an easy case.

KATYAL: The law has never been that a government agency cannot display a religious symbol.

TOTENBERG: Indeed, U.S. dollar bills say in God we trust. There are prayers at the opening of legislative sessions. Even the Supreme Court chamber itself is adorned by a frieze of Moses holding the Ten Commandments - though, only commandments six through ten, the ones considered most secular, are visible.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #1: Oyez, oyez, oyez.

TOTENBERG: Not to mention the invocation of God as the Supreme Court opens each public session.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #1: God save the United States and this honorable court.

TOTENBERG: That, however, is not the argument the American Legion and the Trump administration are making. They want a sharp break with the many decisions of the past 50 years. For most of that time, the court has used a variety of tests - is the purpose of the contested symbol or program religious or not? Does it entangle government with religion? Does the government's action appear to endorse religion?

But conservatives on and off the Supreme Court have been pushing something called the coercion test, the idea being that public expressions of religion or taxpayer support for religious entities are constitutional, unless they coerce religious minorities into believing something that's against their principles. Today the American Legion's Carvin will tell the justices the test should be whether a religious minority has been tangibly hurt.

CARVIN: So religious speech is presumptively valid, except in the rare cases where it constitutes proselytization.

TOTENBERG: Anything else, he maintains, would mean a hostility to religion and discrimination against religion.

Monica Miller of the American Humanist Association.

MILLER: It's scary. I think their real motive is they want prayers back in school. I think they want Bible readings. You know, as long as it's optional, funding to parochial schools - I'm sure that's one of the motivating factors.

TOTENBERG: We drove out to the cross to see for ourselves what it looks like.

Oh, my goodness. There it is.

It is big. But in truth, it's more grungy than grand - the concrete is crumbling, a canvas tarp is strapped to the top to try to protect it from the rain. Lawyer Katyal, who's defending the cross, ruefully points out how unreligious the setting is.

KATYAL: Next to it is Kelley's Muffler Shop (ph). The shop has this huge sign that says 301-HOT-RIDE for calls.

TOTENBERG: But the most prominent feature on the block is the big, orange King's Pawn Shop (ph) sign.

Hey there. So I'm doing a story about the cross.

We went in, and the store clerk told us that people find their way to the pawnshop using the cross as their guide.

UNIDENTIFIED PERSON #2: They know where we are because of that because that been there for a long time. I mean, it don't bother nobody. I don't know why they try to take it down.

TOTENBERG: Fred Edwords, who helped bring the cross challenge, concedes that his objections may seem small now. But, he says, if you don't object to small incursions on your liberties...

EDWORDS: People will use them as a precedent to make another abuse and another one. And the other ones will be big, and you'll feel them. But it'll be too late.

TOTENBERG: A decision in the case is expected by summer. Nina Totenberg, NPR News, Washington.

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