Peace Cross in Bladensburg, Maryland. Credit: wikimedia.

So far, few marquee cases are lighting up the U.S. Supreme Court's docket for next term. But an important pair of cert petitions and accompanying amicus briefs, festooned with the names of notable lawyers, could energize the coming argument season.

The case tests the constitutionality of a cross-shaped memorial on public land in Maryland. “It strikes a lot of nerves,” said Baker Botts partner Aaron Streett, author of an amicus brief in the case along with Reagan administration Attorney General Edwin Meese III. “It's one of the few interesting cases this term.”

At issue is a 2017 ruling by the U.S. Court of Appeals for the Fourth Circuit finding that the 93-year-old World War I “Peace Cross” memorial in Bladensburg, Maryland, violates the Establishment Clause of the First Amendment. The panel asserted that the memorial, visible from a busy Route 1 intersection, “has the primary effect of endorsing religion and excessively entangles the government in religion.” The full court in March denied en banc review by an 8-6 vote. Three other circuits have ruled differently in similar cases.

“Left undisturbed, the decision below will have enormous consequences,” and could jeopardize hundreds of other cross-shaped memorials, Jones Day partner Michael Carvin wrote in a petition for the American Legion. The case is American Legion v. American Humanist Association.

“That decision is, to be blunt, grievously incorrect,” wrote Hogan Lovells partner Neal Katyal in a parallel petition in Maryland-National Capital Park and Planning Commission v. American Humanist Association. The commission acquired the cross in 1961.

Yes, Carvin, the conservative lawyer, is on the same side as Katyal, the former Obama administration acting U.S. solicitor general. If the cases are granted review, it is not certain which one will argue in favor of the memorial, though the justices tend to prefer hearing from government agencies rather than private groups.

Michael Carvin after arguing for the plaintiffs in “King v. Burwell,” March 4, 2015. Credit: Diego M. Radzinschi / NLJ

Other veteran advocates supporting the memorial in amicus briefs include Paul Clement of Kirkland & Ellis for the Veterans of Foreign Wars and Charles Cooper of Cooper & Kirk for 109 senators and members of Congress. Representing the humanist group in opposition to cert is its senior counsel, Monica Miller.

Here are some other notable aspects of the case:

>> Test for Brett Kavanaugh: If the memorial cases are granted and Kavanaugh is confirmed, it will be his first church-state case as a justice. On the D.C. Circuit, Kavanaugh wrote a concurrence in 2010 asserting that “so help me God” in the presidential inauguration oath was permissible. “Inaugural prayers,” he wrote, “typically include many references to God, Lord, and the like, which are considered non-sectarian for these purposes.”

>> A surprise amicus: William Suter has gone from clerk of the court to friend of the court. He is one of dozens of retired generals and flag officers signing onto Streett's amicus brief in favor of preserving the memorial. The court's clerk from 1991 to 2013, Suter was previously a judge advocate general for the U.S. Army. Suter said in an interview that he joined the brief as one of many military leaders who “believe deeply” that the Maryland memorial is an important symbol that should be preserved.

>> Fresh look at “Lemon test”: Carvin's petition invited the court to adopt a new test for determining whether a government action or statute violates the Establishment Clause. The strict Lemon test—named after the 1971 Lemon v. Kurtzman precedent—has been scorned by numerous justices, including the late Antonin Scalia, whose sentiment was memorialized in his bobblehead. Carvin, like others, wants a more permissive standard that mainly tests whether government is coercing religious practice.

>> Nonsecular Sekulow: A key member of President Donald Trump's legal team, Jay Sekulow, is still finding time to write amicus briefs for his organization American Center for Law and Justice, where he has argued numerous Establishment Clause cases in the past. His brief cites his “considerable legal expertise” in the issues raised by the Peace Cross case.

 

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