we'll hear argument this morning in case seventeen seventeen seventeen the american legion versus the american humanist association and number eight hundred eighteen the consolidated case maryland national capital park and planning commission vs the american humanist association mr cox thank you mr chief justice and may it please the court there for important facts about the memorial at issue the peace cross that explain why it should not be dismembered or destroyed first families in the legion built at ninety three years ago to commemorate forty nine brave souls who gave their lives in world war one and it is stood for the since that time without challenge second it's no ordinary cross at its center in its heart or as the american legion symbol it's gigantic and at the base and for cap huge capital letters or words valor in durance courage devotion third not a single word of religious content appears anywhere rather the base has a nine foot plaque listing the forty nine names with an inscription to them and fourth the monument is situated in veterans memorial park alongside other war memorials do you know how many other parks are like this one i've looked at pictures and sinan usual park because there's nature highways dividing it up it's almost as if the city artificially just signed an area that's huge to encompass other plaques and declared it a park but you can't really tell that this cross is with anything else there's three or four or six lane highway on one side there's another highway on the other i'm told you can't even get off the highways to walk to this twelve points out they have an e mail in this case saying they know that maryland can't do that because of the traffic concerns they can't give it to a private entity the maryland brief before this court also make you can they could speak to that but putting that aside are you relying on the fact that at all that at least one brief claims that all forty nine grandfathering this or are you claiming that today let's say for them vietnam war that any government local or state could build across forty feet high not put any amblin on our some sectarian emblem and say we are dedicating this to all the soldiers who have died in vietnam war so we're not at all saying that grandfathering or anything like that this case because of its ninety three year tradition is an easy one and for reasons just as margaret answered my question what is the tradition is the tradition that in world war two across was used or is the tradition that the government can put up six hereon symbols like crosses or a picture of jesus christ in honor of anyone because that's within the nation's traditional justice system are make two different arguments one is with respect to this cross which has stood for ninety three years eighty six of them without challenge and for reasons justice briar's opinion and board van orden said and the that would make this cross constitutional now your question is well what about this tradition of crosses in general and it's true we have a second argument about town of greece which says that if there is a long tradition of the type of displays  that would make it constitutional notably however it doesn't make your hypothetical constitutional hypotheticals actually real case lake county the seventh circuit case in one thousand nine hundred three is a huge cross with jesus christ nailed in the center of it in a public park it's been there since the one nine hundred fifty five and it was protested right then and the seventh circuit said that is unconstitutional and we agree with the same except for the ninety three years in other words a community decides for whatever reason we don't have a world war one memorial we want to put up exactly this to memorialize the war dead from from world war one  now right so if it's a war memorial we do think that it would be constitutional we think that there might be some skepticism you just want to make sure that it wasn't a pretext and it didn't look like that crosses a describing about lake county but if it was across like this one honor children and the teachers who died in the mass well i think the test justice ginsburg would be whether there is a independent secular purpose so take a real case like the one that came out of the world trade centers the second circuit case from two thousand and fourteen were two steel beams were discovered in the rubble and they were put up and in the shape they were put up a in the shape of a cross now if that were in a public park i think that that would be permissible because it has an independent objective meaning i'm sorry mr chief justice the test is your opinion that you joined in bono said what is the objective meaning of this display now sometimes purpose is relevant to that and the court has looked to it but the test is always of that well ok then it would be ok to put up in front of the well i think we need to know more about the facts of that particular hypothetical here's some facts mr cartel from that hypothetical and you can understand how something like this can come about that people w ant to memorialize the dead and in one religious tradition and a dominant one in many many communities of this country the preeminent symbol to memorialize the dead is the latin cross and and so they gravitate toward that symbol as a way to memorialize the dead but at the same time for members of other faiths that symbol is not a way to memorialize the dead and does not have that meaning so i think that the question that justice ginsburg is asking you know for many people this is a very natural way to do exactly what they want to do for others not in justice kagan if it does have the same hallmarks is this type of cross we think that that would be permissible that is that i think that's a natural consequence of what this court's already said in borno in the plurality and the van orden opinion i thought i read your brief to put a lot of weight on the fact that the cross here has more then a sectarian meaning because as your history sets forth the cross was a symbol throughout the battlefields of world war one is i'm wondering why that doesn't limit your certainly are some but i think the dominant image of the time everything from that poem to art to the bond advertisements that the united states government put to the one nine hundred twenty four congressional resolution all did use this cross and that's why we plurality recognized and justice alito separate opinion that there is a secular meaning with respect to the what do you say to the jewish war veterans prefer that say and for those jewish soldiers the government's decision to honor only the salvation that christians believe is hurtful wrong and not in keeping with the promise of the constitution would you say to that i say three things just as kevin on than if i could reserve the balance of my time the first is that factually one of the main proponents and profound razor's of this particular cross was j vege who himself was a jewish veteran second there's a there's a contrary tradition that the retired flag officers briefing page nine says that some jewish votes were actually put in buried under the cross and wanted to be and third i don't think this court it's not just jewish people or hindu people who might be offended it could be christians as well just as or may or may be the same as a third party just as calvin i don't think we let those objectors dictate that if that were the rule you'd be tearing down crosses at arlington cemetery and nationwide the u s briefer page twenty nine says that and i think that would actually inject this court and create more of an establishment clause problem and so religious divisions thank you counsel religious liberty as well as proselytizing for a number of reasons we think this is the simplest route you would simply extend town of greece will for religious speech to symbolic speech and would provide in a situation where the chances for coercion violate my negative liberty not to support a church i don't want to but it wouldn't violate any religious tenets or my ability to pursue the religion i do want to so it creates a negative liberty not to support coercively religions which you do not support i would also point out that this standard is completely the correct one to the text in history and establishment clause because when they were discussing all the hallmarks of the stablish meant what they were talking about was tangible interference it also extends to there and they and they it's just across this is they want to emphasize the values of christianity so they put up a cross i think would be a very rare case for election or sort of condition access to government services like one on city hall would certainly suggest that guess what i was trying to suggest was that this was something that indicated that the city was aligning itself with one particular religion we're putting up a cross we're not putting up any other religious symbols because we believe in the values that the cross indicates that it's a dot on top of city hall it's on the street it's in a park so maybe there are two crosses maybe there could be ten crosses you know different parts of the city but that's why th suggested by people who were honoring the victims of the school shooting was it simply what was the genesis you need to look at it it's just across it really is so it's like it's we you know these values are important to this community the values of christianity so we would like to put up some crosses around town oh again if that's the that's the announced purpose in effect of aligning ourselves with christianity then i would think it would suppose it's not proselytize suppose after this case the  hyattsville puts up a cross in college park puts up a cross and the surrounding communities put up crosses and they and there's mixed purposes some people do it they want to support because they want to celebrate christianity some people do because they say we want to celebrate war dead there's than the crisper one that you propose in your brief your honor we could have bright lines has that only formal coersion is prohibited but i don't think that would satisfy this court because the dangers of the establishment as opposed by coercion which is tangible threat to liberty may could be reached indirectly through the sorts of things i'm talking about and it is true of course that every test that this court of dobson needs to focus on contest purpose in effect but the key point is you're asking a different question than you are under the endorsement religion no question about it but it's not a sin it's not an effort to proselytize justice scalia once justice scalia once asked a question when somebody gave that example he said what what would happen if a court had said in jesus christ we trust and again that's actually a very nice illustration the distinction one day one we've got in god we trust which is promoting endorsing religion is no good under the lemon test on day two we've got in jesus we trust what message is the government sending you can't trust those jewish god you've got it you've got to take sides in a sectarian jesus christ we trust i'm just proselytizing religion in a more generic sense that that's fair enough and i think justice lee would result in there we are not no but what's the difference between promoting religion versus your religion and promoting one another well i think the sectarian point would obviously lend itself to proselytizing in this context i do want to emphasize that all symbols are sectarian there's no such thing as a nonda naaman once will we what is your answer what's your answer to the cross on city hall i don't get whether your answer is that's unconstitutional or constitution again we're seeking to have this court adopt justice kennedy's dissent now again he can he in in that dissent he said that across from city hall would be unconstitutional because it's because agree because it constitutes proselytizing and we certainly do agree i think in all context you need to be careful if it was last crusade in mexico and again there was a legitimate non proselytizing reason for the permanent cause then the but as a general matter sure if they're putting up crosses in every courtroom every d m v window and all the parade of hypotheticals we've got on the other side i can certainly understand why somebody would believe is that they're trying to convert you to christianity after all the hallmark say would be and it starts out with the government establishing a church right i will give you that right you know that the requiring people to pay for the church prohibiting imposing burdens on people who don't believe i'm really a pretty stark items that that certainly under underlay the establishment clause when it was adopted yes but you're certainly i don't understand your position to be limited in that way again we could certainly say that kind of direct formal coercion is the only thing reached by the establishment clause both of the opinions we rely on town of greece in allegheny county gold but further in they say in the real world we want to make sure we're not creating the same dangers when the government is trying to create indirectly what he couldn't do directly again this will be a rare exception they can provide a real world hypothetical we can get to  excessive promotion of proselytisation it is the indorsement yes again now you may make an argument like your colleague that this has to do more with tradition than it does with wee wee it we're actually adopting the word proselytize from the town of greece test and again my final point on all of this is in the symbolic context this distinction is not of real world consequence because all symbols  sectarian and if you ban sectarian symbols and you are necessarily banning all religious symbols which events is still a big and instant start tension of the free exercise of free speech will thank you cons general to all mr chief justice and me please the court three points first undertone of greece the memorial cross is permissible because it falls within our nation's long tradition of accommodating religious speech or symbols in civic life second hearing t greece would easily resolved places meaning i don't know of a founding father sound or state that put up a forty foot cross on government property so we don't have a long tradition of that it's sectarian we have a lot of founding fathers including george washington who was exceedingly careful to ensure that references to god were as neutral as possible to as many religions as possible so it can't be that all sectarian symbols whether it's a cross or jesus christ or some other symbol is within our tradition merely time that was a secular or civic meaning that it would turn to that generation limited your point to one generalized point which means we could put it up to date and then the realized all vietnam vets despite the fact that all  not christian and that many of them would feel yes just as mr catchall said when they found the cross at ground zero in the rubble and that became a makeshift shrine in the weeks after nine eleven i don't think that that violated the establishment clause just as it doesn't now when it sits in the nine eleven museum owned by the port authority but the second point i'd make is i understand ton of greece in the allegheny county descent to say you either trace or practice back to the founding or you look to see whether it's akin to the kind of acknowledgment that the founders in the early generation thought were permissible and you ask for their present any greater dangers than that your crosses have been memorials since before the founding they have been war memorials since that post civil war generation t s population is not here to a christian faith that change make any difference i don't think it affects whether the cross took on in the week of the great war a secular meaning and whether that's the meaning for which the mothers arrested in the commission now maintains it so when canada gave us the canadian cross of sacrifice to honor americans who went north and joined the canadian forces to fight in the war before america entered i have no reason to believe that all of those americans were christian or that canada thought they were but it thought that a cross with a sword running down it in arlington would commemorate all of them and i think that's the meaning that the bono porosity correctly said in that context that  serious substantially different in the middle of a town where something is forty foot high well i mean i have pictures of this cross it's the only thing that sounds high it wharfs building this is george speak with you can barely see them in the pictures i mean with all respect just a sort of my own obviously this is more under the reasonable observer test we've asked the court to apply ton of greece but having been out to the site it is certainly a tall cross but it has words on it that are visible from hundreds of feet away there are secular words it's in the midst of a number of other memorials that you can see it's been part of a memorial park for decades before litigation was ever brought i understand the concern if you just look at the size but that ignores the fact that there's us on both sides of the cross the words the world war one cross erected now there it is another war memorial cross a fourth is a memorial cross that has nothing to do with any war the fifth and we have to five a fifth is not a memorial cross at all just a cross to cross because a community wants to put up a cross or they all ok or some not ok i think the first three are clearly permissible assuming the fourth acknowledges the non war purpose to which the cross is put to the cross that commemorates the school shooting or the star of david that commemorates the holocaust it seems to us perfectly permissible no more coercive or proselytizing than things that the founders thought were perfectly permissible the last strikes me is as potentially quite problematic when when either court when justice kennedy says in allegheny county and the court picks up on it on agrees that you can't proselytize it understands that justice course which is a much higher standard same you're saying it depends on the implicit purpose or reason it was put up maybe i misunderstood the hypotheticals when she just escaping was positing war memorials or crosses dedicated for some other secular civic reason all of the examples in the real world i'm aware of make that clear in some way they are going process to those who perished in france i took the fifth one to be the naked unadorned cross and that seems to me to sit and watch a double as a war memorial but it doesn't have the words around it that has to come down i just haven't i'll grant you that that's the hardest case and where the town just says we're putting it up as a war memorial it may be permissible as long as the other side will grant that all of the har cases on the staff for imaginary you can't find a single one that looks like that could a problem with the current law is that all of the current cases are hard this case which should have been easy has a four volume j if we had expert witnesses and mounds of discover is permissible in other words when when is the theory that this is a universal symbol is the theory that this is a secular symbol is the theory that this is a religious symbol but that's perfectly citizens my only point was that there are a lot of these war memorials going up that's a new cross that i think was perfectly permissible because it presents no greater dangers than the kinds of acknowledgement of religion that have existed since the founding but if you use it if for that meaning i mean it is the foremost symbol of christianity isn't it it invokes the central theological claim of christianity that jesus christ the son of god died on the cross humanity sins and that he rose from the dead this is why christians use crosses as a way to memorialize the dead is it because it connects to that central theological belief isn't that correct so i'm not going to dispute that obviously  of christianity i believe all of the members of the plurality and want to believe that too the question is whether it's also taken in the secular meaning because to say the cross has only that religious meaning i think would condemn every cross in the public sphere including the ones that sit in arlington which even responded say we don't have to take down and so we know that context has to matter that doesn't matter in this particular case that this cross was put up to commemorate the deaths of forty nine real people and that this was done in the wake of world war one i think justice alito it makes it an easier case but what i would say is we have four basic buckets of litigation over displays in the state and federal courts here at war memorials ten commandments how would a splays displays and other forms of symbolic expression like mottoes or seals i don't think the reasoning here is specific just to the cross pocket though i do think it would take care of the vast bulk of war memorials are being litigated i think the the logic that of town of greece that just to apply in this really to context is do any of those present greater dangers than the acknowledgements of religion in the public sphere that existed since the founding we would say that because they do not we would ask the court to allow the cross to remain and to allow those that honors to rest in peace thank you general miller mr chief justice and may it please the court i think we can all agree that the establishment clause of the very least perhaps the government from preferring one religion over another religion and the commission is arguing essentially that it's crossed does not violate the central command of the establishment clause because it's essentially a non religious non christian symbol that honors everyone irrespective of their religion yet i don't think anyone here would deny that it would be unconstitutional and inappropriate to go into arlington and place a latin crossed over the grave of every person there every fallen soldier irrespective of their religion in fact in one nine hundred twenty four everyone in the congressional debate about the overseas markers was in agreement that it would be completely inappropriate even sacrilegious to put a cross over the burial of a jewish fallen soldier but the commission is here arguing today as well as the other petitioners that it is you know telling jews telling muslims telling human that the cross honors them when they emphatically say it does not and is telling christians that their most preeminent and sacred symbol of jesus christ actually in fact also symbolizes atheism i could ask a question that picks up on a question that were asked earlier so let's say there is a shooting at a church and christians are targeting killed there is a shooting at the synagogue and jews are targeting killed there is a shooting at a mosque and muslims are targeting killed in each case the talmud says we are outraged by this we want to put up a monument to express our sympathy and solidarity with the families and with the communities that they represent they ask those people what kind of monument would you like and they all say it's very important for us to put up something of religious significance and that the town does that those towns do that would that be a violation of the establishment clause your honor i think it depends of course on the context but i think for instance if we're talking about a forty five foot cross in the middle of forty five foot start david in the middle of a road i think that that would be a problem if say like an obvious with maybe a star of david that's not as loud you know not we're actually trying to you know i think the commemorative purpose would need to predominate over the sectarian it raises for me that answer raises for me a question about standing it is it too loud this is stored david too loud is it too offensive there are many places in the law where we allow someone to make a federal case out of their offensiveness about a symbol being too loud for them we accept that people have to sometimes live in a world in which other people speech offend them we have to tolerate one another  this is the only area i can think of like that where we allow people to sue over an offense because for them it is too loud and we get into as a result having to dictate taste with respect to displays we have a ten commandments display just above you which may be too loud for many why shouldn't we apply our normal standing rules and require more than mere offense to make a federal case out of these honor i don't think that it's mere offense it's about being a citizen in your own community and it's not private speech we're talking about we're talking about the government being the speaker and the centrally giving you the message as the non christian in your community that you are  lesser citizen and i think if you look at our record and the letters that were sent to the commission by self proclaimed christians that were rage by the notion that their cross must have to be you know removed you see that monuments like this sort of contribute to the idea  christians are inferior you know we are christians we can put across wherever we want to well you just have to follow up and just discourse which is question what if you had one letter from one person who purported to be offended by would be enough to support your argument well well no your honor i think i think it would have to be that you are a member of the community that you witnessed the you've had the encounter i mean there's no you know valley forge says that you can't be someone in another state that read about a newspaper you have to personally affected by the message and if you are a citizen in  community you are usually you know within the zone of interest of someone that would take offense or feel marginalized by the display and hear all of the all of the plaintiffs are individuals who are non christian who say that when they encounter the government symbol saying you know christians have our christians have courage christians have devotion christians have insurance those words on the base that says something to them and i think you know when you look back at the record in one thousand twenties you know jews were fighting a men's discrimination a lot of them joined the war you know to combat the stigma that they were considered cowards and i think one of the amicus briefs even had a letter from a jewish soldier who had to put on his own rush on it because they would accommodate the jewish soldiers with their own i mean this would be a different case if  some of those forty nine soldiers whose names are associated with this monument were jewish or muslim or a member of some other non christian faith and the town insisted on putting their names on a monument in the form of a cross but there's no evidence that that's what happened here is that right two things your honor one we don't know the names we don't know the religious beliefs of those on the cross what we know is that there's about fourteen of them seven of whom are buried in arlington but do not have a cross on the headstone even though arlington had the cross as an available right when speculation we don't know that there was anybody who objected that there was any family who objected to having this form of a memorial there were their fallen family members do we i think there's an inference that can be made from the fact that the government's records refer to fifty two to fifty four prince georges who died in world war one and they holding up forty nine names on the cross but i would also submit that the government has basically forfeited that argument by having this elaborate public rededication ceremony to rededicate the cross as a memorial for all veterans of all wars that's how the town's treated that the commission's here today saying that this is that everyone morial for there are cross monuments all over the country many of them quite old do you want them all taken down no your honor and i actually would submit that there's a lot of exaggeration and destruction going on i think there's some which ones do you think can stand well certainly the two in arlington and there's several reasons one is that much like you know much like the practice that was in town of greece where the town created a forum for private citizens to deliver prayers of their own idiom there is a statute that governs monuments in arlington that says that it basically creates a nondiscriminatory religiously neutral opportunity for people to place their own monuments in arlington subject to a lot of rules but two of which you are going to stick with the sort of thing is being handled today and a pluralistic society in which we're married people get along pretty well and i'm not at each other's throats about religious divisions but let me ask you about some others that are not in arlington about the irish brigade and it's not to say the museum context can always negate the government's imprimatur but it seems in that context that government is more like a curator of a museum than it is putting it up i mean remember this was put up by the town of bladensburg i mean about this cross and i was just going to ask i understand native american totems have spiritual and religious significance if one of those is the founder on federal property does it have to be torn down i would say no honor but i would i would think that we need some sort of expert testimony to sort of talk about what that means i think in common it has spiritual and religious significance for native americans similar to let's say religious  cross it's difficult i know that the ninth circuit had a case that dealt with an aztec and ancient as tech symbol and they concluded that it didn't violate the establishment clause in part because no one would reasonably think that the government that was predominately i think christian in that community was ere was for it was to commemorate mexican culture you know would actually be trying to endorse the aztec religion so i think context would matter i think that show if the if the local government in the community were native american whether it's on reservation or native village in alaska that would make a difference you know i think you would have to understand more about the symbolism and what it means if there is some sort of dual secular meaning such as with the ten commandments how it's basically shorthand for a lot  world war one it does have its two fallen soldiers from world one in world war one does have this history that this is how soldiers were memorialized in world war one and it's not all soldiers when you go into a world war one battlefield there are stars of david there but because those battlefields were just rows and rows and rows of crosses the cross became set in people's minds the preeminent symbol religious words on the memorial quite the opposite all the words on the memorial are words about military valor and so forth so why in a case like that can we not say essentially the religious content has been stripped of this monument well your honor i don't think you can say with a particular religious content i don't think i'm not aware of any case or reason to say that a large latin cross can be stripped of it religious meaning i don't think it leaves special words to to announce that this is a religious symbol i think that the hold on just a moment ago you told us the ten commandments can be stripped of their religious significance and that an indian totem pole may be stripped of its religious significance why why not so to hear well as far as i'm concerned i'm not aware of any secondary meaning that's derived from the latin cross its meaning as a war memorial is distinctly for christians there is no evidence that well it just went on and i really didn't mean to confine it to this world war one context because i think there's something quite different about this historic moment in time when so if you look but you know if you look at all the crosses that are war memorials that basically or world war one memorial is that this was sort of the big because of the battlefields on the way the crosses were erected there this became the preeminent symbol for how to memorialize the war dead at that time why isn't that important well your honor i it's factually speaking the doughboy statue was the by far the most common in fact on this record i'm only aware of six other crosses inclusive of arlington that are war memorial world war one memorials on government land the few others out there that they cite are actually on privately and the ones in baltimore for instance one has jesus christ written on it so that says to us at the same time waynesburg crosses being put up other world war one memorials were being put up in direct recognition of jesus christ that was the understanding at the time these are christian symbols again they are the government's argument in this case is not that this is a christian symbol anymore but that in fact represents jews and atheists and muslims and i think that there's no history whatsoever of anyone using lot of promises to honor jews muslims an atheists and as the roof of the joint baptist community and all the other you know representative that represent millions of christians in this country find an argument deeply offensive and could potentially degrade their religion or take your point that it's a religious symbol not going to dispute that at all but our cases have upheld religious displays and religious words in cases like mourners chaplain in congress in the prayer cases like  ten commandments cases like town of greece legislative prayer before a meeting how do you square your position in this case with those cases which of held religious symbols displays or words in government property or government events yes your honor i would start with town of greece because i think town of greece is about as akin to say arlington cemetery as any case can be there the court was saying that when the government takes essentially a hands off position with respect to the sectarian content of the prayers you really is not to say that it's private speech but the government isn't being the mouthpiece for the sectarian message when the government is the the  one hundred percent the government at the time that i'm starting to put the ten commandments then with respect to the ten commandments i realize that that is something that this court has routinely recognize as a dual meaning symbol although yes there are commandments that are certainly commandments displays that issue you know and my understanding is especially in reading justice briar's concurrence was that the fact that the ten commandments didn't predominate in the setting you know they were the largest they were in line with all these other displays that th secular aspect of the ten commandments the one that says you know this is how law was founded this is symbolic of law predominated but there is nothing in that either the plurality or justice breyer's opinion that i read to say that that that context can somehow strip a latin cross of its sectarian meaning they have fifty four in the breeze fifty four examples of things that people might bring cases in a few when tear them down well there may be more there may be fewer what do you think of saying yes look at the historical context here history counts and so yes ok but no more that's what just  no more we're a different country we are a different country now and there are fifty more different religions and therefore no more we're not going to have people trying to tear down historical  monuments even here ok now what do you think of that i'm not suggesting i'm for it i want to know what you think of it sure you are i mean i think two things one is again because adoration that's going on the record that they're somehow fifty or hundreds we've got all sorts of numbers of crosses that are on public land they cite for instance fifty examples of something that's not across what it's a boot with a rifle and a helmet and it's cited in the respondents the petitioners there's something closer to about ten maybe twenty and that is inclusive of crosses that are quite small with respect to history there are a lot of reasons why religious minorities in christian dominated societies would not feel safe challenging an actively used war memorial that is the town's most prominent symbol you know my clients have been threatened i've received death threats and i bet you it was not safe for ninety years ago than it was to it is today also i don't think that you can say that this is just some sort of passive display that people don't take note of like i said if you look at the record look at the letters that people how people are processing a monument like this sort of like a billboard it kind of ingrained in your mind that there's this association between having being christian having valor having courage and what message that sense that religious minorities and christian you know members of the society there are the majority you know but that's one of the main criticisms of the lemon test that different people are going to process that in different ways i mean you heard from one of your friends on the other side of that one of the major fundraisers and this was a jewish individual so he was obviously process observing it or anticipating it in a different way well your honor i think that we cannot take one person's example again someone who is probably one of maybe the only jewish people in that county on a time when there was an act of cleaning and burning crosses burning jewish buildings forty nine i believe there are and i believe that the kind you think that the situation of african americans and prince george's county at that time was worse when it was better than the situation for jews here's what who had no connection here so i don't know how they got that mean or i've been struck struck some of these questions about how people process these symbols and what messages they convey that you sort of accepted this idea that that's what we should be thinking about but why isn't it enough to just say it is wrapped in the symbol like this on line the government with a particular religion and not align it with every other  religion that's where you are that is actually more the test that we put forth in our brief we notice like notably don't use the reasonable observer test i think that reasonable observer test in some situations might be helpful especially when you need to put yourself in someone else's shoes but it's really just a proxy for fact saying look at the facts there's a forty foot cross that's in the middle of the highway it dominates all the other newer displays at the city is put up or the towns put up recently you know there's bushes obscuring the park there are no walkways by the way to the cross you have to  over the fence of traffic you do that you do suggest we at various points we should consider how people process things and whether they're offended elsewhere you don't and i guess i am curious in response to justice kagan you say we shouldn't apply lemon in this case it's been a long time since this court has applied lemon but yet the courts of appeals continue to cite it and use it and and that they're reasonable observers process things in all sorts of different ways and it has resulted in a welter of confusion i think by anyone's admission including your own is it time for this court to thank women for its services and send it on its way no your honor i do not think so i think there's a difference between lemon and reasonable observer the reasonable observer is an overlay that comes from justice o'connor who's trying to acknowledge and reconcile the complexity of the cases and i think the reasonable observer is one but if you don't find it useful in this case and you don't want the court to apply in this case what about all those poor court of appeals judges were left still with confusion we haven't overruled it but we never use it anymore except for when we might have twenty five years ago i think a majority of this court though never at the same time has advocated for lemmons dismissal so what is it really fair on the lower court judges struggling to apply this court's dictates if we don't provide an answer or limit on the contrary your honor i think that lemon is very useful i think when you heard the arguments earlier today they talked about context they talked about purpose they talked about effect though that's the crux of marshfield chambers those are the cases that are on point they were school back forty years and we haven't used the tests and the justice course which is point the lower courts need some clarity about that if the test isn't being used that would suggest that the test doesn't one nomination can't be preferred to another and that case of rote relies on women but more importantly i think that like i said i think everyone agrees that purpose and effect are critical inquiries under the establishment clause they long pre date of lyme and i think there is something like fourteen is twofold one is that it has this dual meaning as you know symbol of law and so when it's conveyed say for instance you know alongside you know moses with eighteen other lawmakers the clear fact is or impression is this is a law symbol when in displayed in isolation or is for one denomination i think justice scalia had a lot of good points about this in his mccreary descent about how he perceives the ten commandments as being for embraced by judaism islam and christianity but for instance if it was just the christian version which i'm not sure what that looks like but assuming such could be the case that might be a problem well the reason why we say the court doesn't need to reach clement in this case is because there's this there's an easier route and that is the notion of one religion over another can't be prefer along those lines to would it be a violation of the establishment clause for the state to promote secularism or humanism as opposed to religion human and humanism yes if the government decided to put up a giant happy humanist symbol that's our it's like this man with a little hands if they decided to replace the cross with the hobby humanist forty feet tall and they said this is the humanist monument i think that would be a problem let me take you back to justice prior's question which is interesting question to me and your response was he's wrong on the numbers but i don't know i've got pictures of lots of crosses that are on public land so you know assuming for the sake of argument that there are fifty or there oh there are a lot of them and we say you got to take down all of the crosses what message does that send when people see that on on t v they see crosses all over the country being knocked down well i don't think your honor that they need to be knocked down at all in fact our preferred remedy i think is the least take that quite in the hypothetical ok well i love doing that too but let's just stick with the hypothetical you can't transfer it you can't move it you have to tear it down and roadside crosses along public highways for example those are many and in some places they've been ruled to be unconstitutional including in my old court because they endorse religion proselytize so back to the justice leaders question if you could answer i'd be grateful that would help me yes i mean i think that the message again i just want to say one fourth option which is creating an open forum something like ton of grief but with respect to bulldozing you say fifty crosses i mean certainly  people will get the message that you can't prefer christianity but this court has always rejected the idea that restoring the government to a place of neutrality is hostile to religion in fact i think that argument cuts directly against their argument that says this isn't a religious symbol to say that it would be so area ok so i'm interested in your reaction which you know that justice alito mentions that i did and i didn't hear an answer with respect to well i think the hypothetical so difficult  don't feel it's not a hypothetical ok i'm saying very good book the law in its compass lord radclyffe all our liberties come from freedom of religion you have your religion i have mine and we're not going to kill each other  k so we say history count now but he raises a problem so what about saying past his past if you go back ninety three years no more we're now fifty four religions we're now everything under the sun and people will take offense now how do i do that is that sensible is it ridiculous what do you think well i think that there are ways to display a historical cross in a way that isn't the government currently being the mouthpiece for that sectarian speech the nine eleven process that petitioners speak of as a perfect example it's an exhibit panel along with other pieces of rubble and explanatory plaque about how it came to be i think that if this were not being actively used by the town as an annual war memorial but every year after year the time of saying this is how we honor our veterans this giant cross that's a constant messages were not a historical artifact what if what if other cities replicated the nine eleven across it's a different world it's a different time history has changed but here's an example of a cross that has very contemporary meaning and to a lot of people would would you prohibit cities and states from duplicating that cross on on their on their public memorials to nine eleven so you just i understand your same a commission across that looks like question is it's a nine eleven memorial and that's the predominant thing there might be some names on it just like our planes per cross yes your honor with the now it certainly be a problem that would be across that's being displayed as the government's war memorial not as a piece of  change the cross or destroy it he says you can't move it because it'll for car and you can't give it to the legion because of safety concerns do you agree with his position on this i don't agree for one with respect to moving it we don't have any statements that say there's one statement in the deposition that says it might be hard to move but we also have deposition testimony saying that the state has moved large historic houses so hard time imagining that a house is more difficult to move there's two world war one more still has to be fixed that's that's right exactly and i think that they're narrowing the key problem that their own experts have warned them about which is that the current location is causing its demise and that's why i say that i think our preferred remedy which is moving it somewhere else is the best situation for the cross it can be placed in a place where people don't have to risk their lives across the street they can actually come here they respect they can do so maybe a little bit more private may i go back to the question that's going on july and some of my colleagues point to point you can try to  still think it may be only ten or twenty so i accept that can we given the nature of the right at issue given that the other side conce that there's extreme proselytisation that there is and there has to be because the first amendment there has to be defacto coercion to make any sense of the establishment clause and the finding that is always going to reek of involved contex you were giving up the reasonable observer to us you were talking about an object that factors to that you go into that a little bit more yes your honor i think part one of our brief details those factors and i think all the factors relate to the government's imprimatur so we once you've accepted that we have a symbol that only honors one religion because i see it as sort of two prongs you're testing how you know is this a sectarian symbol does it you know prefer one religion to another and then if so is that the government putting its hands on it i'd say the arlington crosses it's not because one's done it by canada it's pursuant to this like i said statute that allows anyone to put them up so the factors relate to how much the government support is there when you see it in the you know the size of it can matter insofar as it says how enthusiastic the city is about it if you had a ninety foot across and a two foot star of david it says we really like christians we're ok with with jews you know and so i think the court judge and i get that type of analysis i understand through my hands those are twenty different facts how big is it where you know locally maybe that's the best we can do but do you have something more concise about the test you would apply deal with each cross that's why it's easy to say you don't have to tear down any other cross that after this each one is evaluated with a specific facts and i know that that is not the best answer you want to hear but the reality is no one has come up with a better test than lemon we don't need the reason whatsoever when said so you just said we don't know whether cross has to be torn down just this one which i'd like us to write that in the opinion i mean with respect to this court has done i mean in its cases it says you know we're not we're not deciding anything more one is a perfect example i don't say we're going to write an opinion and say this cross is particularly bad this one has to be moved torn down transfer and so forth but every other questions five i don't know why don't you just said no you're on us no what i said what i said with emphasis on court says you know the cases are ill suited for sweeping pronouncements and categorical rules so when the course says that it says you know not every cross is going to be torn down not every person is going to be held up held and i think that's an appropriate way to leave room for exceptions and your argument sounds in liberty you raise an important liberty are you thinking about a liberty claim with the constitution tilts toward liberty in its structure and one of the ways it does so is there lots of  avenues for you to blame spring council could change its approach here the maryland legislature could say no more the maryland constitution has judge sudden would remind us could the maryland courts could p with that in mind the establishment clause test reference to historical practice can be thought of a setting a floor an important one but there are other ways the constitution tilts toward liberty in other avenues how should we think about that or should we think about that at all or set irrelevant to us i mean liberty is absolutely important and i think that's where the brief of the baptist joint committee and all the christian groups you know joined saying that a ruling upholding this cross would definitely degrade and damage free exercise of their religious liberty believe with respect to a test even when in town in greece the court talks about not allowing a policy that excludes or discriminate against non believers and i think in that regard it actually then goes farther decides to i guess i'm just not quite understanding the question is it the fact that there are other ways in which the cross other bodies that can decide the cross is too much american the local council could the maryland legislature and i'm not saying that's the right answer i'm saying is that relevant to how we think about our role in a case like this or not so it's like the maryland legislature decides that the cross is universal no that the cross should come down in other words the boids for counsel could transfer the property the maryland west later the maryland state courts the maryland court of appeals could decide the remedy is that what you're going to do yes i mean i think the remedy is certainly relevant to considering that that it doesn't need to be torn down but i don't know if that plays into the question of i think the question is different that think the question is do we think that sincere are other avenues available that the constitution doesn't require this or as a constitutional floor for an establishment close by lucian i think that's the question that's being asked oh and then the answer is no i don't think that that's relevant at all i mean the status of clause is you know trump statutes and is to say in the wake of world war one crosses like this one have an independent secular meaning as justice kavanagh said before this court's decisions recognize that symbols including religious symbols have dual meanings and you can look to van orden for devotion to the christian faith we don't disagree with any of that justice ginsburg or only point to the same one that the born a plurality made is that crosses particularly world war one ones have a set have a second meaning and that meaning is what makes it constitutional that's why we disagree with my friends here because we think that their approach would what would would risk the destruction of this ninety three year old memorial which you know which has that real long tradition limits what position are you taking we should be hard on that we profoundly disagree we think it's unnecessary unwise it's unnecessary because as their own brief say the best evidence of this is the last pages of each of the priests by the solicitor general in the legion they say they existing tests make this an easy case to save the cross so it's not presented here it's just a sky course that you're concerned about lemon wait for a case in which it has some bite here every test whatever test you result you're in the same boat of saying apply lemon x keep lemon keep it keep it around for a rainy day but please please please do not apply lemon to this case we're happy with you applying lemon our brief says that that would be explains to find what if what if it's unconstitutional under one of the other side sorgen so i'd appreciate an answer yeah so i mean if it's unconstitutional then you know then i think we would say you know you should take a look at lemon because then it would be necessarily things that are right but we think that you'd have to do so much work to get there just this cap and all that it would be a distortion of lemon and my friends say that there are you know disagreements in the lower courts or petition outlines the chief justice said there is telling you some clean test but in the end when you know when push comes to shove they have indirect coercion proselytisation you know in all these other things who knows what those mean the one thing we do know it means is that it's going to permit crosses like the lake county cross with cheese this nailed to the center of it in public parks and that to me is a radical change in the law thank you count so the case is submitted