Supreme Court hears case to decide fate of WWI memorial In today’s oral argument, Chief Justice Roberts raises Becket argument, says Establishment Clause best understood according to historical meaning

WASHINGTON, D.C. – Moments ago, the U.S. Supreme Court heard arguments in American Legion v. American Humanist Association, where a group of anti-religious atheists sued to tear down a World War I memorial in Maryland. During oral argument, Chief Justice Roberts raised the argument Becket had urged in its friend-of-the-court brief, suggesting that a historical approach offers a clear way for resolving disputes about religious symbols in the public square.

In October 2017, the U.S. Court of Appeals for the Fourth Circuit ruled against the Bladensburg Peace Cross memorial using the notorious Lemon test, a vague legal standard that requires courts to guess whether the government is trying to “endorse” religion whenever it mentions God or religion. In its brief to the Supreme Court, Becket urged it to abandon the Lemon test and uphold the cross based on the historical understanding of what constituted an “establishment” of religion at the time of the nation’s founding.

“The nation’s founders knew what an unconstitutional establishment of religion looked like, and a passive symbol like a memorial cross wasn’t it,” said Eric Baxter, vice president and senior counsel at Becket. “The Supreme Court should drive a pencil through the monstrous Lemon test’s heart once and for all and recognize the important role of religious symbols in our nation’s history, culture, and in the public square.”

The Bladensburg memorial was designed by mothers who lost their sons in the World War I and was erected in 1925 on private land with funds raised by the American Legion, a military veterans association. The cross shape is an internationally recognized symbol of sacrifice and loss and a frequently used symbol to honor fallen soldiers. The American Humanist Association, an anti-religious activist group, is suing to take the memorial down.

The Maryland-National Capital Park and Planning Commission, which maintains the cross, is represented by Hogan Lovells. The American Legion is represented by Jones Day. Becket was represented on its brief by Stanford law professor and former Tenth Circuit Judge Michael W. McConnell. The Supreme Court is expected to issue a decision this summer.