A 40-foot Latin cross in Maryland has become the latest flashpoint in America's constitutional duty to separate church and state
, 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.
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 Fourth Circuit Court of Appeals ruled against the cross in 2017 it invoked a precedent set in, a 1971 ruling that states could not pay the salaries of teachers at private Catholic schools in Pennsylvania. Justice Antonin Scalia once likenedto 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.
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.
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.
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